Finkelstein v. Finkelstein

14 Mont. 1 | Mont. | 1894

De Witt, J.

This is an action for a divorce and alimony, and to set aside an alleged fraudulent conveyance of property by defendant, in order that plaintiff may realize alimony from such property. Defendant appeals from an order of the district court awarding plaintiff alimony pendente lite, and counsel fees. We refer to the case of In re Finkelstein v. Curtis, 13 Mont. 425, for a statement of some of the facts.

The appellant contends, on several grounds, that the order for alimony and counsel fees should be reversed. The first, which we will examine, is that it does not sufficiently appear, as counsel urges, that the respondent is the wife of said appellant. The plaintiff’s motion for alimony and counsel fees was made upon the complaint and affidavits. The plaintiff alleges in her complaint that she and the defendant were married at Pultusk, in Russian Poland, December 27, 1870, and thereby became, and ever since have been, and now are, husband and wife. She further alleges that, at divers times between the last-mentioned date and the commencement of this action, the defendant has been guilty of adultery with one Sarah Eisbert, alias Sarah Jones, alias Sarah Finkelstein, a person with whom defendant purports to have intermarried in the year 1883.

The plaintiff further alleges that there are living issue of her marriage with the defendant, five children, ranging from twenty-one years of age to twelve years. She further alleges that she is in indigent circumstances, dependent upon her labor for the support of herself and children, and that she is in ill health, and has no property whatever.

Her daughter, Esther, twenty-one years of age, makes an affidavit in which she says that ever since she can remember, with the exception of periodical desertions of her mother by her father, he, the defendant, has lived and cohabited with her mother as his wife, and has acknowledged and introduced her to.the world at large as such. This daughter further sets forth the indigent circumstances of her mother.

In opposition to the motion, the defendant filed his own affidavit. He alleges that the relation of husband and wife has never existed between him and the plaintiff. He alleges that about the time that plaintiff' says the marriage took place he and plaintiff appeared béfore a third person, who was not a magistrate, rabbi, priest, or minister, or any person authorized by the laws of Russia to perform a marriage ceremony, and that this third person presumed to pronounce plaintiff and defendant husband and wife. He further says that when this ceremony took place he was sixteen years of age, and that there was a law of Russia in force that no male person under the age of twenty-one years was allowed to marry, and that any such attempted marriage was absolutely void and invalid for all purposes.

Of course, one of the essential facts to plaintiff’s cause of action, is that she is the wife of defendant. If that fact is not present, plaintiff has no case. But on the hearing of a motion for alimony pendente lite, it is not for the district court to finally determine that faGt. The question is whether there is a sufficient prima fade showing of the alleged fact of marriage. In this case the plaintiff unequivocally alleges the fact of marriage with defendant in Russia in 1870, and that they ever since have been, and now are, husband and wife. She also alleges that there is issue of that marriage five children. The defendant admits that there are four children who are the issue of himself and plaintiff. So we have the undisputed fact of four children, and we also have the undisputed fact of a long cohabitation of plaintiff and this defendant as husband and wife, interrupted only by defendant’s periodical desertions of plaintiff. To oppose these allegations of plaintiff and these conceded facts, there is the affidavit of defendant, that the person who performed the alleged marriage ceremony in Russia was not authorized so to do by the laws of Russia, and that his alleged marriage when sixteen years of age was void and invalid under the laws of that country. The defendant contends that his affidavit in this respect. must be held to be both a pleading and evidence. Taking his view, and looking at the affidavit as evidence, we have before us a statement of one not a lawyer as to what is the law of Russia. The statement of such a person is not competent testimony of what the law is in a foreign country. But appellant contends that his statement as to the law of Russia is not denied by plaintiff. We do not regal’d it as a matter of any consequence whether plaintiff denies it or not. She is not shown to be learned in the law and competent to testify any more than he is. Her denial would be of no more value than his asseveration. Neither of them is a witness competent upon the subject.

Turning from defendant’s affidavit regarded as evidence, and looking at it as a pleading, as he requests, we observe this situation. The plaintiff alleges marriage and the present existence of the relation of husband and wife. The defendant sets up facts which he claims, if true, show that there was no marriage and no relation of husband and wife. In our opinion this leaves the matter of marriage simply in the condition of a contention between the parties. But there áre some further allegations in defendant’s affidavit, which instead of attacking plaintiff’s claim that there was a marriage, rather lend strength to her contention. They are as follows: He says that in 1883 plaintiff and himself agreed to separate, and get a divorce in accordance with the Jewish religion and practice; that accordingly, he, the defendant, went to a rabbi in Chicago and obtained from him a divorce from the plaintiff according to the law of Moses, and that he sent the same to the plaintiff, and that she accepted and agreed to abide by it, and has abided by it for a period of ten years. So it appears that the defendant himself at that time fully recognized the relation of husband and wife between himself and the plaintiff. Again the defendant, in his affidavit, in effect accuses the plaintiff of adultery, in ,that .he says, that for more than eighteen months prior to the birth of plaintiff’s last son, Emanuel, the defendant was continuously away from her in another city, and he says that he has never condoned this offense by the plaintiff. As a matter of course, she could not be guilty of adultery, as he charges in effect, unless the relation of husband and wife existed between the parties. So as above remarked, these matters set up by defendant, instead of lending aid to his contention against the marriage, have rather a tendency in the other direction.

It may be true that, if on a motion for alimony pendente lite, the defendant shows facts and. conditions which absolutely establish that there is no marriage, and that plaintiff is not the wife of defendant, it would not be proper to grant such alimony. But there is no such showing in this case. To recapitulate, the district court had before it this situation: A direct allegation of marriage by the plaintiff, which the defendant denied, by alleging what he claimed was a law of Russia, which would render the alleged marriage void. There is the further fact of long cohabitation by plaintiff and defendant, as husband and wife, and the birth of four children as the result thereof. Again there is the action of defendant in obtaining the Mosaic divorce. Again there is the implied admission of the marriage by defendant in his charge against the plaintiff of adultery.

It is our opinion, that there was an ample prima fade showing upon which the district court was justified in granting the alimony and counsel fee.

Another point presented by the appellant is, that it does not appear that the defendant has the faculty and ability to pay alimony; It does appear that he is conducting a large tailoring business, and plaintiff claims that the business is, in fact, his own, and is being fraudulently conducted in the name of Sarah Finkelstein, the person defendant claims to be his wife. Defendant, on the other hand, says, that this business belongs to Sarah. But, in any event, it does appear, without contradiction, that the defendant is engaged in conducting this business, and, if he were able to do so, it is a fair showing that he has the faculty and ability to earn money to pay the moderate sum allowed by the court in this case as alimony and counsel fees. The alimony was thirty dollars a month, apd the counsel fee was fifty dollars.

There are some questions upon the statute of limitation as to plaintiff’s cause of action, raised by defendant’s affidavit; but with the substantial prima facie showing of a marriage, and the charges of adultery made by the defendant against this plaintiff, we are of opinion, that these questions as to the statute of limitations, which are simply alleged in defendant’s affidavit, should properly be determined upon the trial of the case upon the merits, and should not be settled in advance upon the hearing of the application for alimony pendente lite.

The ruling of the district court is affirmed.

Affirmed.

Pemberton, C. J., and Harwood, J., concur.