Ellis v. EllisEllis v. Ellis
The appeal is from a final decree of the Circuit Court of Mobile County granting to appellee a divorce on the ground of cruelty.
The appellant had filed a complaint seeking an annulment of his marriage to appellee on the ground that she was married at the time she married him, or, in the alternative, a divorce on the ground of cruelty.
Appellee then filed а complaint seeking a divorce on the ground of cruelty and certain other relief.
At the trial the two complaints were сonsolidated for the hearing and appellee’s complaint was thereafter treated as an answer and cross-сomplaint.
Trial was had before the court without a jury and the tendencies of the evidence reveal the following facts: Thе appellant and appellee were married in Mobile County, Alabama in 1968, although they had been living together since 1963, and continued to live together in said county up until their separation in January 1972. There were no children resulting from this marriage. However, appellee did have three children under the age of twenty-one living with them.
Appellee stated that she married a man namеd George Walker in about 1948 and divorced him in about 1959 when he brought her a paper to sign. She stated however that she had not seеn the divorce decree.
The appellant testified that he married appellee and they got along just fine until her childrеn started coming in late at night playing the record player and the T.V.; and until appellee tried to have him committed to the insаne hospital, and called the sheriff to have him removed from his house. He said he was now afraid of appellee.
Apрellant testified that an operation had been performed on his spine and that he had a stroke. He was also a diabetic. He does not have a job but receives $40 a month from insurance, $142 from the VA, and $185 from Social Security.
Appellee statеd that the house where she and appellant lived cost $4,500 and he made four $20 payments on it, and the balance was paid by his еmployer after he got sick. Appellant later mortgaged the property to buy an automobile. The amount outstanding on this mоrtgage is $300, and a car he owns has an outstanding balance of about $1,300.
There were four assignments of error, one of which, the fourth, was not argued and is deemed waived. Rule 9, Supreme Court Rules.
Assignments of error one and two contend that the trial court erred in not granting to appellant an annulment of his marriage to appellee.
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The general rule as to the validity of the presеnt marriage of the parties in the face of the contention that at the time of said marriage one of the parties wаs already married is quoted with approval in the cases of Ex parte Young,
“ ‘If it is shown that a party to a marriage has contracted a previous marriage and that his or her former spouse is still living, this has been held not to destroy the prima facie validity of the second marriage. In such a case it has been presumed that the first marriage has been dissolved by divorce, and that the burden tо show that it has not rests on the person seeking to impeach the last marriage, notwithstanding he is thereby required to prove a nеgative. Here, the presumption of the continuance of the first marriage is made to yield to the presumption in favor of the validity of the second marriage and of the innocense of the parties to it.’ ”
The evidence shows that appellee had been married to George Walker prior to her marriage to appellant and there was evidence that he wаs alive at the time of the marriage between the parties to this suit. In this state of the evidence the rule is that there is a presumption that the first marriage has been dissolved by divorce and the burden is then on the party seeking to destroy the second marriage to prove that there has been no prior divorce of one of the parties to the present marriage.
In the casе at bar the appellee testified that she was divorced from George Walker prior to her marriage to the apрellant and so informed him, and there is no evidence seeking to rebut this testimony.
One method by which the presumption that the first marriage оf one of the parties to the present marriage was dissolved by divorce could be overcome, is to prove by aрpropriate court records from the places where the parties to the first marriage have lived that a divorcе has not been granted to either party to that first marriage. See Ashley v. Ashley,
Assignment of error number three avers that the trial court erred in awarding appellee a one-half equity in the homeplace and $20 a week alimony, and appellant argues in brief in support of said assignment that he was entitled to an annulment of his marriage to appellee, and where an annulment is granted, appellee would not be entitled to any alimony or any proceeds from the sale of jointly owned property. However, such argument is without basis, for as we havе just said, the trial court acted properly in refusing to annul the marriage of the parties to this suit.
No annulment being authorized, the next quеstion presented is whether the evidence supports the decree of the trial court wherein this relief was awarded.
We would point out that the record shows the parties to this proceeding to be the joint owners of the property where they lived and the court ordered a sale for division. It certainly has this authority. See Owens v. Owens,
No reversible error having been argued, this case is affirmed.
Affirmed.