51 Iowa 565 | Iowa | 1879
Without referring to the evidence, or entering upon a discussion thereof, it is sufficient to say that the decree of divorce is not void. The most that can be claimed against it is that it may be voidable. This question, however, we do not determine. It is sufficient, for the purposes of this investigation, to say that the decree is not void. The action of the plaintiff must, therefore, be held to be a proceeding to set aside a voidable decree of divorce.
In Wilson v. Wilson, 49 Iowa, 544, which was an action brought by a divorced wife to set aside the decree because the court did not have jurisdiction, and for fraud perpetrated by the husband in obtaining it, we held that temporary alimony to enable the plaintiff to prosecute the action, and for her support, could net be allowed, and the order of the court below granting such relief was reversed. It is there said that alimony “is a right which results from the marital relation, and the fact of marriage between the parties must be admitted or proved before there can be a decree granting it.” That ease is directly in point, and following it we are required to hold that the court .below erred in making the order for tern
The case of Whetstone v. Whetstone, 31 Iowa, 276, is clearly distinguishable from the case at bar. In that action the defendant pleaded a decree of divorce in bar of the divorce prayed for by the plaintiff. There was a replication setting up facts which showed the decree to be void. To this there was a demurrer. The legal effect of the demurrer was to admit of record that the divorce was void. The marriage relation still existed, and the plaintiff was seeking a divorce, and the defendant was ordered to pay to plaintiff a sum of money to enable her to prosecute the action. Here the plaintiff is not seeking a divorce, but asks that the obligations resulting from the marital relation shall be enforced. Besides this it is not admitted of record that the decree of divorce is void, nor can we so hold from the pleadings contained in the record. In Graves v. Graves, 36 Iowa, 310, no temporary^ alimony was allowed. That case, therefore, is not applicable to the question here presented.
The point determined in Wilson v. Wilson, supra, was that when an action is brought to set aside a decree of divorce which is voidable only, temporary alimony cannot be allowed the divorced wife to enable her to prosecute the action, nor for her support during its pendency.
The marriage relation is emphatically denied by the defendant, and we are called upon to determine whether the evidence upon that point was sufficient to justify the court below in making the order from which the.appeal was taken. In other words, was there a sufficient showing that the marriage relation existed to warrant an allowance of temporary alimony and suit money?
The proposition that it is essential the plaintiff should ■establish the fact of a marriage subsequent to the decree of divorce must be conceded. In examining this question we deem it necessary to refer to but a small part of the evidence. The plaintiff alleges such subsequent marriage, or rather she alleges certain facts which it is claimed amounted to a marriage. Such marriage, and the facts tending to show there was one, are positively denied by the answer." The burden, then, is on the plaintiff to establish the fact of the alleged marriage.
It appears that she commenced an action for a divorce in the year 1869, which was permitted to abate. The reasons that induced the abandonment of the action are not material. A short time before it was commenced the parties separated, but lived and cohabited together again as husband and wife after the action was dismissed or abated, and until May, 1870; when the decree of divorce was rendered. They again separated until May, 1871, when the plaintiff returned to the house of the defendant at his request, and they lived together until 1877, when they again separated, and have since lived separate and apart from each other.
The plaintiff, in her affidavit in support of .the motion for temporary alimony, says: “I have always supposed that he considered me his wife until very recently, and he told me himself, upon my return to him in May, 1871, that the proceedings in court did not amount to anything, and that it was not necessary to be married again, but he did not tell me,
The undisputed evidence is that she is not only destitute of the means of support, but destitute of the means of proving that she is entitled to support. We think the circumstances disclosed are such as to fully justify an allowance sufficient to secure a proper adjudication of the question at issue between the parties. The plaintiff is not an adventuress. She lived with the defendant many years. She is the mother of his child, already standing upon the verge of manhood. These facts, if no others, entitle her pretenses to respectful consideration.
In our opinion there was a sufficient showing of the resumption of the marital relation, when the plaintiff returned to the defendant’s house and bed, to justify the court in making the order for temporary alimony. It must be remembered that the court did not determine the issue by making the Order. It was but a preliminary question upon the motion, and unless the determination of the motion was clearly erroneous it would not be proper for this court to interfere. It is true that cohabitation does not of itself constitute marriage. On the other hand, no express form in this State is necessary more than at common law. Blanchard v. Lambert, 43 Iowa, 228. It is sufficient if the parties cohabiting intend present marriage, and it is immaterial how the intention is evidenced. The woman, indeed, may be entitled to marital rights if she intends present marriage, and the man does not, provided they cohabit and provided his conduct is such as to justify her in believing that he intends present marriage. Borton v. Borton, 48 Iowa, 697.
What, then, are the facts in this case as established by a preponderance of evidence ? Within a few months after the alleged divorce the plaintiff, at the defendant’s request, returned and continued to live with him until May, 1877, being
III. A large number of affidavits were introduced upon the hearing of the motion in the court below which tended to show that the plaintiff was of grossly bad character, and guilty of adultery. It is contended that because of her conduct in this regard the order for temporary alimony should not have been made. It seems to us that whatever the rights of the plaintiff may be upon the trial of the question as to her right to permanent alimony, or upon the trial' of the cross-action for divorce against her, still she was entitled to a temporary allowance, upon proof that the relation of husband and wife existed, to enable her to try the issues in the manner required by law.
Affirmed.