Appellant and appellee were divorced on the seventh day of April 1967. They had entered into a “Property Settlement Agreement,” which was incorporated into the divorce decree. It contained a provision for alimony until such time as the wife remarried. On November 9, 1971, appellant filed a petition for citation tо appellee to show cause why he should not be adjudged in contempt of court because of his failure to make the alimony payments for the months of September and October 1971. Appellee admitted that he had not made these payments, but alleged that his obligation to pay had terminated by reason of the marriagе of appellant to James C. Blakemore on or about September 1, 1971. Subsequently, appellee moved for summary judgment upon the ground that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law. This appeal was taken from a decree granting the motion for summary judgment, dismissing appellant’s petition for a contempt citation and relieving appellee from any further payments of alimony.
The matter was presented to the court upon an agreed statement of facts, which are recited in the decree as follows:
(a) That the plaintiff and defendant were married on the 12th day of January, 1946, and were divorсed by decree of this Court on the 7th day of April, 1967.
(b) That the plaintiff was remarried on the 12th day of August, 1971, to one James C. Blakemore in the state of Oklahoma.
(c) That paragraph 12 of the property settlement agreement entered into by the parties on the 6th day of April, 1967, provides as follows:
12. ALIMONY. Husband shall pay to Wife the sum of Three Hundred ($300.00) Dollаrs per month for alimony beginning the 7th day of April, 1967, and shall continue to pay such sum on the same day of each and every month until such time as Wife remarries.
(d) That plaintiff had her mаrriage with the said James C. Blakemore annulled on the 12th day of October, 1971, by decree of the District Court in and for Adair County, State of Oklahoma.
(e) That the copies of dеcree of divorce of the parties, the property settlement agreement, and the decree of annulment all filed herein are all true and correct copies of such instruments.
(f) That upon the remarriage of plaintiff, the defendant ceased making alimony payments pursuant to the terms of the property settlement agreement.
We have held that a divorced husband must make proper application to the court having jurisdiction to obtain relief from the payment of alimоny provided in the decree of divorce from a former wife on account of her remarriage. Beasley v. Beasley,
In Oklahoma, both void and voidable marriages seem to be subject tо annulment. Note, Void and Voidable Marriages, 14 Okla. L. Rev. 304 (1961). It seems, however, that the distinctions between void and voidable marriages observed by canonical and civil law have been abandoned there, and not every marriage void under those ancient principles is void ab initio under existing law. 14 Okla. L. Rev. 304, 305. Annulments of both void and voidable marriages may also be had in Arkansas, and the difference in the effects of such marriages is discussed in Huff, The Effect of Void and Voidable Marriages in Arkansas [10 Ark. L. Rev. 188 (1955)], where possible effеcts of such marriages on alimony from a previous marriage are mentioned. See also, Robb, The Cause of Action for Annulment of Marriage in Arkansas, 14 Ark. L. Rev. 85 (1959).
The reasоn for our rule requiring that application be made for relief from alimony payments was clearly stated in Wear v. Boydstone, supra, by the following quotation from 27 C.J.S., 994, Divorce § 239c:
Although there is contrary authority, in the absence of a mandatory statute to the contrary, a divorced wife’s remarriage to another does not necessarily of itself operate as a release of the former husband’s obligation to pay alimony. It does, however, afford a cogent reason for the court to mоdify or vacate the order, ***.
There is a clear implication we would not require the termination of alimony payments in every case when the wife remarried. Somе of the factors which may be considered are suggested in Beasley v. Beasley, supra, where the alimony award was limited to five years by the terms of the divorce decree. We mentioned the modest salary and means of the divorced husband, his poor physical condition and high medical expense and the absence of evidence that the second husband was financially unable to support the wife. But in the case before us the decree provided fpr payment only until the wife remarried.
In sоme jurisdictions the right to alimony or its termination is governed by statute, when the divorce decree provides, as this one does, for termination upon remarriage. See A.L.R. 79, 90 (1924) 112 A.- L. R. 246, 259 (1938). In оthers, the right to alimony is terminated upon remarriage, even though the subsequent marriage is later nullified. See Annot. 155 A. L.R. 609, 619 (1945); Evans v. Evans,
Whether we apply the law of Oklahoma or the law of Arkansas in determining the effect of the annulment, we сannot say whether the “remarriage” in this case was void ab initio or voidable, because the record is totally silent in this respect. There is nothing in the abbreviated reсord before us upon which we could determine that alimony should not be terminated in this case except the bare fact that the subsequent marriage was annulled. Apрellant only designated all pleadings, decree and orders made and entered in the case as the record herein. Consequently, the decree of the Oklahoma court annulling the marriage which constituted a part of the record in the trial court is not before us. Although appellee might have designated other parts of thе record, he chose not to do so, leaving the matter for determination here on the partial record designated by appellant. Where a record is abbreviated without objection, we cannot presume that any portions of the record not designated support the trial court’s action. Beevers v. Miller,
For the reason stated, the decree is affirmed.
Notes
In this opinion there is an excellent discussion of the effect of void and voidable "remarriages” upon alimony from a previous marriage.