124 Cal. 389 | Cal. | 1899
Lead Opinion
This is an appeal from an order allowing alimony and suit money in an action for a divorce.
Plaintiff contents herself in her complaint, so far as her cause of action is concerned, with the averment of her marriage to defendant and a charge of - adultery against him. Defendant denies the marriage, and avers that the person with whom he is charged to have committed adultery is his lawful wife. He also charges that plaintiff, since her alleged marriage to him, has had illicit relations with other men.
The order or judgment appealed from was made after notice and a hearing upon which many affidavits were read, as were also depositions of the parties.
These facts are specifically denied by the defendant. He admits the cohabitation, and that he has supported the plaintiff, but he avers that she is an Indian woman who had, prior to his relations with her, been kept by many other men, by one of whom, Gibbs, she had a son, Thomas H. Gibbs, who makes an affidavit on her behalf in this case. Defendant also states that since she commenced living with him she has several times left him, living with other men, and that she sometimes went with the Indians to their fandangoes, and returned when she chose. He denies that either ever supposed the relations to be matrimonial, or that he ever called her wife, or represented her to be such. He says that he never even spoke to her upon the subject, but he admits that he supported her and her son.
Thomas H. Gibbs, the illegitimate son of the plaintiff, corroborates the statements of his mother, and says he “was always told and led to believe by said John B. Hite that plaintiff was the wife of said John B. Hite.”
Plaintiff also read the affidavit of one James D. Westfall, who deposed that on one occasion defendant introduced plaintiff as his wife, and also that the parties were generally reputed to be husband and wife. This constitutes the evidence of plaintiff upon the issue of marriage.
The defendant, in addition to his specific denial, read the depositions of ten other persons, all of whom depose that they were intimate acquaintances of both parties and well acquainted in the neighborhood where they lived. They unite in saying that neither party ever claimed to be married to the other, and they were not, at any time, reputed to be husband and wife. Some of them corroborate other statements made by defendant
Appellant contends that the showing was insufficient to justify the action of the court in granting alimony. The testimony of plaintiff in regard to the contract of marriage was in itself quite unsatisfactory, especially when taken in connection with the charge in defendant’s affidavits, which she does not deny, that she had, before her cohabitation with defendant, and even since, had improper relations with other men. Under such circumstances it is difficult to believe that an Indian woman would object to further relations except upon condition of marriage. The positive denial of the defendant is certainly sufficient to overcome this testimony under such circumstances. The matter must then depend upon the evidence of common repute, and no one would contend that the plaintiff did show a common, uniform, and undivided repute of marriage.
But I think it evident that the court did not determine the question of marriage at the hearing. The judge doubtless adopted the views of plaintiff’s counsel upon the subject and concluded that it was only necessary to hold that plaintiff had by .her affidavits made out such a case as would throw the burden of proof upon the husband.
To justify alimony, marriage must be admitted or proven. Upon this subject there is no difference in the authorities. Plaintiff’s counsel contends that it is proven, within the meaning of this rule, when the wife upon her showing makes a prima facie case, regardless of the denials or proof produced by the husband. He says it is a novel proposition that on the hearing for temporary alimony plaintiff must produce a preponderance of evidence. He claims this would be equivalent to saying: “Prove your case by a preponderance of evidence, and then you shall have an allowance to enable you to make such proof.” He also says: “In this case the plaintiff made a prima facie case, and if the defendant had produced a hundred witnesses in an attempt to overcome her affidavits the result would be the same. Indeed, it would be only stronger reason for allowing her means sufficient to procure the evidence which she and her counsel,
And this, I think, is really the question in the case: Was it sufficient to entitle the plaintiff to alimony and suit money for her to make by her own showing a prima facie case ? I believe there is no authority for that position. If the marriage were admitted, then, upon a showing of the wife's necessities and the faculties of the husband the allowance is almost a matter of course. It is otherwise when the marriage is denied. Then, before alimony can be allowed, the marriage must be proved, and a prima facie showing made by the wife when there is a counter showing is not sufficient. The judge should be satisfied from the entire proof made of the fact of marriage. Unless upon that question the husband has had his day in court and a hearing, if alimony is allowed, his property is taken without due process of law.
This precise question has not been considered, or even suggested, . in any case to which my attention has been called, except in McKenna v. McKenna, 70 Ill. App. 340. It was there said that in such case—when the marriage is denied—the order cannot properly be made “until a hearing has been had and the court upon it finds that the relation of wife and husband exists.”
The hardships which might result from either doctrine is there very tersely stated. The learned judge quotes from Schonwald v. Schonwald, 1 Phill. Eq. 219, to the effect that it is better when a woman makes oath of the fact of marriage to make an allowance, although the oath may turn out to be false, than that a wife may be in danger of starvation “if a brutal husband makes oath denying the marriage, which may turn out to be false.” To which the Illinois judge replies that “the more accurate statement would be that it is better to compel any man to pay temporary alimony and expenses of suit to any unman who may see fit to make oath that he is her husband, however strongly he may deny the allegation, rather than to allow her to be in want of money which he has.”
Whatever hardships may result, the court cannot lawfully take by final decree money from A and give it to B, whatever may be the necessities of B, when A disputes the facts upon
But that opportunity need not be on the trial of the case itself. The application for alimony, though it cannot be considered a separate suit, is a proceeding for a separate judgment, which, when granted, has nothing to do with the final judgment in the case, and will not be affected by it. It is a final judgment from which an appeal may be taken. (Sharon v. Sharon, 75 Cal. 1.)
To satisfy the requirement of due process of law it is not always necessary that such a trial should be afforded as is had in ordinary suits in courts of justice. The hearing allowed must be such as is practicable and reasonable in the particular case. (Cooley's Constitutional Limitations, 434. See, also, Ex parte Ah Fook, 49 Cal. 406; Lent v. Tillson, 72 Cal. 404.) Cooley says the opportunity to be heard must he such as “the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as these maxims prescribe for the class of cases to which the one in question belongs.”
It has been the practice to determine as to the allowance of temporary alimony upon motion with notice and upon affidavits. The defendant is thereby afforded an opportunity to be heard.
Many cases are cited by respondent’s counsel which he contends hold that all that is required on the part of the wife to justify an allowance of alimony is that she, by her showing, shall make such a case as upon a trial of the issue would cast the burden upon the husband. It is not-necessary to review all the cases, hut the case of Brinkley v. Brinkley, 50 N. Y. 184, 10 Am. Rep. 460, is much relied upon, and concerning it a few remarks may be made. That case has some likeness to this. A contract marriage was alleged, with subsequent cohabi
Judge Folger evidently thought that when Brinkley admitted that they had cohabited as husband and wife in the face of the world, and had associated with intimate acquaintances who were reputable people, as though the relation was honorable, that it raised a presumption of marriage not overcome by the general denials of the defendant and his claim that the relation was meretricious. Innocence and morality are to be presumed
This view was taken of that case in Collins v. Collins, 71 N. Y. 269. There the wife made, beyond doubt, a prima facie case, but the husband averred that the de facto marriage, which he admitted, was void, and the court held that it was error to allow temporary alimony until that question was settled.
The principal difference between this case now in hand and the Brinkley case is, that this defendant denies that he ever represented the plaintiff to be his wife, or that they were reputed to be such. In the Brinkley case these facts were admitted.
We are not called upon here to say that it is necessary, in order to justify the allowance of temporary alimony, that a marriage de jure must be shown. The rule upon this subject is discussed by Mr. Bishop in his work on Marriage, Divorce, and Separation, section 922 et seq. All the evidence here tending to show marriage at all tends to prove a marriage de jurej and such was also the fact in the Brinkley case, although counsel seem to have understood that case differently.
I think the superior court did not intend to hold upon all the evidence before it—that of defendant as well as that submitted by plaintiff—that there was a preponderance in favor of the fact of marriage; and, if it must be held that it did so adjudge, there was a plain abuse of discretion.
Judgment and order reversed.
Van Dyke, J., and Henshaw, J., concurred.
Concurrence Opinion
I concur in the judgment of . reversal. It is only a wife who can claim alimony (Civ. Code, sec. 137), and, when the fact of marriage is in issue and unproved, there is no one in that position. To allow a woman
If a husband sues for a divorce, alleging a marriage, of course there can be no question” of the right to alimony, if he is able to pay and the wife is in need. If he sues to annul a marriage upon the ground that it was void, ab iniiio, by reason of fraud, pre-contract insanity, et cetera, the granting of alimony pendente lite would be proper, because a formal marriage is alleged and will remain a lawful and established marriage in the absence of affirmative proof by him of the existence of some fact, or facts, which will invalidate it. In such a case, I concede the propriety and justice of allowing the wife (for until the fraud or other invalidating circumstances are established she is the wife) money to make her defense.
But when a woman sues for a divorce, and is met at the very threshold of the proceeding by a denial that she ever was a wife, the case is entirely different. She must establish the marriage before she can claim alimony or suit money, and she must establish it at a trial and by satisfactory evidence. Even if this conclusion involved the inconveniences and hardships which counsel have depicted in their arguments, it would be none the less inevitable, but in my opinion such instances of hardship will rarely, if ever, arise. In a case of this aspect the plaintiff is not limited to a bare allegation of marriage in general terms. She may allege the specific facts from which the inference of marriage arises, with all the circumstances of time and place, and the defendant, in order to put the fact of marriage in issue, will be compelled not only to deny marriage in general terms, but also to make specific denials of the facts which prima facie constitute marriage. To make such denials he must expose himself to the danger of being convicted of perjury if the facts alleged are true. If it be said that- this is not sufficient security to plaintiff, I answer that it is at least equal to any security the defendant or the court can have that the plaintiffs claim is not wholly fictitious.
In this case, the defendant makes a complete denial of the
Undoubtedly, there are1 numerous cases in this country which can be cited in opposition to this view, but the sounder reason and the more trustworthy authorities sustain it. In my opinion it is sustained by the reasoning of Judge Folger in the case of Brinkley v. Brinkley, 50 N. Y. 184, 10 Am. Rep. 460, cited by Justice Temple, and still more fully sustained by the decisions to which Judge Folger refers.
Of course, it has been assumed in what has been here said that there is no serious contention on the part of the respondent that the superior court has tried and finally determined the issue of marriage in her favor. There is, in fact, no such claim. The whole argument in support of the order appealed from is that it required only a prima facie showing by ex parte affidavits to sustain it, and that the issue of marriage is still to be tried.
Concurrence Opinion
Further consideration upon the rehearing of the question involved herein has led me to the conclusion that the court erred in making the order appealed from. The question involved in the appeal is to be determined by the statutes of this state, irrespective of the decisions thereon by the ecclesiastical and chancery courts of other jurisdictions, however serviceable the opinions of those courts may be in arriving at a proper construction of these statutes. “The code establishes the law of this state respecting the subjects to which it relates” (Civ. Code, sec. 4); and section 137 of the same code provides: “While an action for divorce is pending the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action.” As such order can be made only in behalf of the wife, it is essential that the applicant for the order make it appear to the court that she is the wife of the respondent. In an action for divorce by the husband, it would appear from his complaint that the defendant is his wife, and no further showing of this fact would be required; but in an action by a woman who claims to be the wife of the defendant, if the defendant denies that the plaintiff is
Upon the hearing herein the defendant denied that there had ever been any intermarriage between him and the plaintiff, and there was no direct evidence of such marriage. I do not think that the deposition of the plaintiff was entitled to any consid
Repute of marriage is but hearsay, and the fact of marriage is not established by reputation, unless it appears that the reputation is uniform. Hearsay ceases to be entitled to any weight as evidence unless it is uniform, and it is only by reason of its uniformity that it will, in any instance, authorize the presumption of a fact. The court is not at liberty to determine the fact upon a preponderance of the hearsay, but if it is divided it must be rejected entirely. “Where reputation is relied on, that reputation, to raise the presumption of marriage, must be founded on general, not divided or singular, opinion; and where reputation in such case is divided, it amounts to no evidence at all.” (Barnum v. Barnum, 42 Md. 297.) Cohabitation of a man and woman gives rise to reputation of their marriage, because the presumption from one’s conduct is in favor of innocence, and their cohabitation is presumed to be consistent with good morals and therefore matrimonial; but, if their cohabitation is shown to have been illicit in its origin, the presumption of innocence is overcome and the continuous cohabitation will be presumed to be illicit. If during its continuance their cohabitation is changed from an illicit to a matrimonial character, the burden of showing this fact is upon the one who would avail himself of the effect of the change. It clearly appears herein that the intercourse of the plaintiff with the defendant was illicit at its commencement, and so continued for many years, and there wras no evidence except that of the plaintiff of any change in its character; but, as above stated, her evidence was not entitled to any consideration. Moreover, pre
The contention on the part of the respondent that when the fact of marriage is put in issue it is only necessary for the wife to make a prima facie showing in order to entitle her to alimony for the prosecution of the suit, as well as the contention by the appellant that if he is compelled to pay alimony to the plaintiff prior to the determination of the action, and while it may be finally determined that she is not his wife, he will be deprived of his property without due process of law, is fully considered in the opinion of Hr. Justice Temple, and I concur in his views thereon. If the fact of marriage is denied by him, he is as much entitled to a hearing and an opportunity to controvert the showing made by the plaintiff upon her application for alimony as at the final hearing of the action, and in either case the issue thus presented is to be determined by the court upon a preponderance of the evidence thereon. If, upon her application, he is given such a hearing as is appropriate to the character of the controversy, or, as is usual in such cases, with the opportunity to controvert her claim as fully as he may desire, he receives all the protection to which he is entitled by law.
In view of the principles which should have governed the court in considering the evidence offered at the hearing of the plaintiff’s application, I am of the opinion that there was no evidence before it tending to show a marriage between the parties, and that her application should have been denied.
Dissenting Opinion
I dissent, and think that for the reasons given in the opinion in Department the order appealed from was there properly affirmed, and should be adhered to. It seems to he admitted that in a divorce suit, although the marriage be denied, still an allowance for alimony .to the wife may be rightfully made before the determination of the issue of marriage at the final hearing of the case. But that
Appellant seems greatly impressed with, the danger of some well-to-do husband being compelled to contribute to the prosecution of a suit brought by some woman who falsely swears that she is his wife; but no fear seems to be entertained that a husband may prevent an injured wife from obtaining means to prosecute a just suit by simply averring that he is not her legal husband.
Appellant seeks to emphasize the fact that the plaintiff is an Indian, but it is entirely immaterial what race she belongs to. Appellant selected and enjoyed her as his chosen companion through the youth and prime of her womanhood. When he
Dissenting Opinion
It is held in the majority opinion in this case that when alimony and suit money, pendente lite, is prayed for in an action for divorce, the marriage being denied, then upon the'preliminary hearing the fact of marriage must be established by a preponderance of evidence, or the application should be denied. Upon the .final hearing it is onjy necessary to establish the marriage by a preponderance of evidence. Hence, if the conclusion of the court be sound, the result is that in every case where the marriage becomes an issue of fact there can be no such thing as alimony and suit money. For, if the woman is able to establish the marriage by a preponderance of evidence without the money to assist her, she has no need'of the money, and her application should be denied for that reason. If she can establish the fact of marriage upon the preliminary hearing by a preponderance of evidence, without; money, she can as readily establish that fact upon the final hearing without money/ If she be able to establish the fact of marriage by a preponderance of evidence without money, then she need not go to the trouble of establishing that fact until the final hearing. It is thus made plain that the entire reason of the rule, the principle upon which the rule rests, is all gone when it is held that the fact of marriage upon the preliminary hearing must be established by a preponderance of evidence. It may be admitted that the conclusion declared by Justice Temple is supported by persuasive reasons; yet we find no court in this country sustaining the proposition, unless the decision in McKenna v. McKenna, 70 Ill. App. 340, is that case.
In the leading case of Brinkley v. Brinkley, 50 N. Y. 184, 10 Am. Rep. 460, Chief Justice Folger labored hard, but with somewhat indifferent success, to lay down the rule which should guide nisi prius courts in their determination as to when temporary alimony and suit money should be allowed the wife in eases where the marriage is denied. The New York court, in that case, speaking by the mouth of the chief justice, says: “It may be said, too, that for the purpose of an application for temporary alimony there will not need that the fact of mar
I cite the foregoing authorities to show that the rule of law declared by the majority opinion as to the quantum of evidence necessary to be produced by the wife at the preliminary hearing, to support the fact of marriage, is opposed to the great weight of authority. Yet I am free to say the true solution of the question presents difficulties of no small proportions— difficulties that I am not willing to meet unless necessity demands it, and here I find no such necessity; for, even conceding the rule of law to be as stated by the learned writer of the majority opinion, namely, the marriage must be established by a preponderance of evidence, then under such rule this order should be affirmed.
The reasons for the affirmance of this order are these: Upon the trial of any issue of fact in a civil action it is not for this court to say, upon appeal, that the evidence preponderates in favor of the plaintiff, or that the evidence preponderates in favor of the defendant. This court has nothing to do with the preponderance of evidence. It has so decided times innumerable. It is even a rule universally invoked by this court against the defendant in criminal cases. Under all authority in this state it is for the trial court to say which way the evidence preponderates. And, when that court has so declared, the matter of preponderance of evidence is forever foreclosed from investigation by this court. Treating this proceeding for alimony and suit money with all the dignity of a civil action, conceding that it is to be tried and decided exactly by the same rules of law as any civil action, then the only question here is, Does this record present a substantial conflict in the evidence as to the fact of marriage? And this question is not to be determined by the great number of witnesses upon the one side and the limited number upon the other, for it is often the case that the weaker side in number and in money is the stronger in right. Hence, the fact that the plaintiff is an Indian woman, and her son an illegitimate son, furnishes no reason why this court may cast aside their evidence. Either as matter of law or matter of fact it cannot be said that an In
Let us pause a moment to look at the evidence. A great portion of it is without substantial conflict, as follows: Hite lived with this woman for twenty-five years. During that time he furnished her with all the necessaries of life. He gave her a house in which to live. He was the father of her child. His sister visited her at this house and slept with her. His nephews visited her at this house, eat at her table, and addressed her as “Aunt Lucy.” He sent her illegitimate son to school, and paid the expenses of his schooling. He treated this son as his own son, and he was always considered and reputed in the neighborhood to be the step-son of defendant Hite. In addition to this uncontradicted evidence we have the testimony of Thomas Gibbs, the illegitimate son, to the effect that the plaintiff is known far and near throughout the southern part of California as the wife of John E. Hite; that defendant has introduced plaintiff as his wife, and held her out to the world as his wife continuously; that defendant’s relatives and friends have associated freely with plaintiff and visited plaintiff as the wife of defendant. We also have the testimony of one Westfall, to the effect that plaintiff and defendant were known in that neighborhood and adjoining counties as husband and wife; that the plaintiff was everywhere called “Mrs. Hite,” and “Lucy Hite, wife of John E. Hite,” and that plaintiff and defendant held themselves out to the world and were always treated as husband and wife. From this condensed statement of the showing made by the plaintiff I feel entirely satisfied in saying that she is entitled to alimony and suit money, in order that she may be able to meet the defendant squarely at the trial of the case upon the issue of marriage or no marriage.
I utterly fail to comprehend how it may be said from the record that the trial judge decided this case upon a wrong theory. There is not a word in the record to indicate it. Hpon the contrary, the fact that the hearing was had after notice to the other side, and that upon such hearing defendant introduced a great mass of evidence to support his claim of no marriage, indicates convincingly to my mind that the trial judge heard and decided the case upon the right theory, and that his conclusion
I think the order should he affirmed.
■¡Rehearing denied.