193 P. 843 | Wyo. | 1920
From a judgment of the district court of Laramie county denying the petition of plaintiff in error in an action for divorce, on the ground of desertion, brought by him against the defendant in error, he brings the ease here by proceedings in error.
The defendant below filed her answer, and the trial was had to the court resulting as above stated. The evidence in the ease has not been brought up, and the only question here is, do the findings of facts as made by the court support the judgment? The court found that both parties were and for at least six years last past had been actual residents of the State of Wyoming. “That on the 17th day of March, A. D. 1915, at the town of Kimball, in the State of Nebraska, the said plaintiff and the defendant went through an alleged ceremony, which was in form the marriage ceremony provided by the laws of the State of Nebraska.” “That at the time the plaintiff and defendant pretended to be married at Kimball, Nebraska, the defendant had been divorced from her former husband for a period of only about six months; That said defendant had obtained her divorce from her former husband in the District Court of the Sixth Judicial District of Wyoming within the period of six months prior to the date of said alleged marriage in the State of Nebraska.
‘ ‘ That said plaintiff and defendant went to the State of Nebraska to be married in order to avoid the laws of the State of Wyoming which prohibit divorced personsi from remarrying to any one other than the former husband or wife within the period of one year after the date of divorce.
‘ ‘ That the petition in said case is not founded in or exhibited by collusion between plaintiff and defendant, nor has the plaintiff at any time been guilty of the misconduct charged by him against the said defendant. ’ ’
• The court thereupon rendered judgment as follows: “It is therefore ordered, adjudged and decreed that the said petition for divorce be denied.” Dated February 16, 1920.
The court having found all of the facts necessary to entitle plaintiff to a divorce from defendant if the marriage in Nebraska was a valid marriage and is to be so regarded in this state, the question of the validity of that marriage is the only one in the case. The provisions of the statutes of this state on the subject are contained in Sections 3907 and 3951, Comp. St. 1910, as follows:
Sec. 3907. “All marriage .contracts without this state, which would be valid by the laws of the country in which the same were contracted, shall be valid in all courts and places in this state. ’ ’
See. 3951. ■ “During the period of one year from the granting of a decree of divorce, neither party thereto shall be permitted to remarry to any other person. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and shall be fined in any sum not less than twenty-five dollars nor more-than one hundred dollars, or be imprisoned in the county jail not exceeding three months, in the discretion of the court. ’ ’
Section 3907, is simply declaratory of the rule of the common law; the general rule being that a marriage valid in- the state or country where contracted is valid-everywhere. To that rule there are certain recognized excep
There is, however, a conflict of authority, as stated in 5 R. C. L. 1004, “upon the question whether the courts of the state which has enacted such a statute merely in general terms prohibiting such marriage, will recognize as valid the marriage of such person occurring out of the state while he is still domiciled within the state. The weight of authority is that if the marriage is valid according to the lex loci, it will be upheld even by the courts of the state which enacted the statute, and in which the parties to the remarriage are domiciled, even though the parties went out of the state to solemnize the second marriage) for the express purpose of evading the law of the domicile and of the forum.” (See cases cited in note to above).
An examination of the decisions in those cases holding otherwise generally will show that they were based upon statutes expressly declaring such marriage void, or declaring incapacity to contract, or which by express terms or by necessary implication suspend the operation of the decree, or where the statute was held to be declaratory of the public policy of the state, such marriage being regarded as either immoral, or against natural laws, such as marriages between one divorced for adultery and the par-ticeps criminis, during the life of the innocent party, or between a white person and one of the colored races. (Griswold v. Griswold, and Conn v. Conn, supra).. The statute in this state does not in terms or by necessary implication declare such marriages void, but simply prescribes a penalty for its violation. The decree of divorce
Reversed and remanded with directions.