80 Ark. 481 | Ark. | 1906
Lead Opinion
The majority of the court is of the opinion that the allowance of alimony and attorney’s fees under the evidence is proper, regardless of whether a common-law marriage was shown or not. In the leading case of Brinkley v. Brinkley, 50 N. Y. 184, Chief Justice Folger, speaking for the court, after a careful and exhaustive review of authorities, English and American, reaches the conclusion that, “in all applications for temporary alimony and the expenses of the action, although there may be in the answer a general denial of the existence at any time of the marital relation, the court has the power, from the affidavits and other papers presented to it, to pass upon the question for the purposes of the application, and it is not bound down to the allegation of the complaint and the denial of the answer if other papers or proof are submitted to it; and, though the denial of the answer, if standing alone, would bring the case within the rule that where no marital relation is admitted or proved there is no right of alimony, yet, if the matters contained in other papers or shown by legitimate proofs before the court make out in the judgment of the court a fair presumption of .a fact of marriage, it has the power to grant alimony pending the action and expenses of the action.” This is sound doctrine, and supported, we think, by the weight of authority.
In Vincent v. Vincent, 16 Daly (N. Y.), 535, it is said “that; to authorize an allowance of alimony pendente lite, the existence of the marital relation must be shown to the satisfaction of the court, is a settled rule in the jurisprudence of this State. But, as in other preliminary contestations, the fact is not to be established with the clearness and conclusiveness exacted of proof as the basis of a final adjudication upon the rights of the litigant parties.” See other cases cited in brief of appellee.
These principles, applied to the facts of this case as developed on behalf of the appellee, leave no question as to the correctness of the court’s ruling.
Appellee follows up the allegation of marriage by her own evidence that the ceremony was performed by one authorized to solemnize it, and then shows by affidavits of others, and even by appellant, the constant cohabitation of himself and appellee for years, as husband and wife. These facts warrant the reasonable presumption that appellant and appellee were married, as .appellee swears they were, and show a strong probability that appellee would succeed on the final hearing in establishing the truth of the ¡ allegation of her marriage to appellant. Appellee also establishes in the same way the reasonable probability that there is no truth in the charge of adultery against her.
Where marriage is alleged in the complaint and denied in the answer, it is the rule in some jurisdictions that -the fact of marriage must be established by the plaintiff by a preponderance before an order of alimony can be obtained. Hite v. Hite, 124 Cal. 389, 57 Pac. 227; McKenna v. McKenna, 70 Ill. App. 340.
Even if this were the rule in our State a finding that appellee had met its requirements in this case would not be clearly against the weight of the evidence.
Dissenting Opinion
dissent from the view that the testimony is sufficient to support the allowance as expressed in the opinion. Hilt, C. J., concurs in the judgment for the reason that in his opinion the proof shows a common-law marriage, which is good in this State. I am of that opinion for the following reasons:
The proof is ample to show a common-law marriage under the rule announced by this court in Jones v. Jones, 28 Ark. 19. The parties, who were eligible, according to the evidence for appellee consented to enter into the marital relation, and in addition the ceremony was solemnized by one duly authorized. After this the married state was publicly assumed by them, the parties appearing “before the world” as husband and wife. In Jones v. Jones, supra, this court said: “It is generally considered, in the absence of any positive statute declaring that all marriages, not celebrated in the prescribed manner, shall be absolutely void, or that none but certain magistrates or ministers shall solemnize a marriage, any marriage regularly made according to the common law, without observing the statute regulations, would still be a valid marriage.” While this doctrine was announced before - many of the statutory regulations safeguarding marriage, as found in chapter 106 of Kirby’s Digest, were enacted, it is still the rule-, for there is no provision in the law that the failure of the parties and others having certain duties to perform under the statute to comply with those duties will render the marriage void.
A marriage good at the common law is good under pur statutes, for there is nothing in them prohibiting such marriages or declaring them void, or prescribing that a failure to comply with the provisions of the statutes upon marriages shall render the marriage contra'ct void. Punishment is meted out to those who fail to observe the salutary statutory regulations concerning marriage in some other way than by annulling the contract of marriage, where it is entered upon by parties duly qualified, and in a manner authorized at the common law. In addition to authorities cited in Jones v. Jones, supra, upon this subject, see Rodgers on Dom. Rel. § 89; Bishop on Marriage, Divorce and Sep. § 423; Meister v. Moore, 96 U. S. 76.
The decree ordering temporary alimony and attorney’s fees is affirmed.
