Owen v. Owen

178 Wis. 609 | Wis. | 1922

Crownhart, J.

The plaintiff and defendant entered into a ceremonial marriage at Menominee, Michigan, in September, 1908, in good faith believing that such marriage was lawful. The plaintiff was a lawyer and assured the defendant that such marriage was unquestionable, and the defendant relied upon such assurances of the plaintiff. The trial court so found.

We are required by the statutes of this state to take judicial notice of the public laws of any state or territory of. the United States. Sec. 4135m. Referring to the Statutes of Michigan in effect for the year. 1908, we find that there was no impediment in the laws of that state to the marriage of the plaintiff and defendant there solemnized. 3 Compiled Laws of Mich. 1897, sec. 8658; 4 How. Stats, sec. 11495. Nor was such marriage there contrary to the public policy of the state of Michigan. In People v. Steere, 184 Mich. 556, 562, 151 N. W. 617, the supreme court there say:

“Whatever public policy is evidenced by the Michigan law, it is directed rather to the controlling of the party guilty of marital wrongs than, generally, at parties to a divorce proceeding. There appears to be no .rule of state comity which requires the courts of this state to recognize and to enforce here the prohibition of the Illinois law, and no such rule is> suggested.”

In that case the court had under consideration a divorce wherein by the decree itself, rendered in the state of Illinois, the parties were prohibited from remarrying within one year. )

This court has held: ,

“A statute of a state, prohibiting a married person who has committed adultery and been divorced therefor from remarrying, has no extraterritorial force, and hence cannot prevent such person from lawfully remarrying in some other state, although it may subject him to punishment in the former state.” Frame v. Thormann, 102 Wis. 653, 672, 79 N. W. 39.

But this court has also held that where parties are prohibited from marrying in the state of their domicile, and they leave such state for the purpose of evading the laws of the state of their domicile, are married in a sister state, return to the state of their domicile, and live there, contrary to the laws of such state, in illicit cohabitation, it will give effect to the laws of such state where the parties thereafter remove to this state. Lanham v. Lanham, 136 Wis. 360, 117 N. W. 787; Hall v. Industrial Comm. 165 Wis. 364, 162 N. W. 312, and cases there cited. In Armstrong v. Industrial Comm. 161 Wis. 530, 154 N. W. 844, the question was not in issue. It was conceded that the attempted marriage of the parties was void, and the only question before the court was as to whether, the claimant was a member of the family of deceased.

^ The case before us, however, is not such a case. Here the decree of divorce in Illinois was absolute in fircesenti. The defendant was no longer a manned woman. She could not remarry within the state of Illinois within a year without violating a penal statute of that state, but such penal statute had no extraterritorial effect. The defendant left the state of Illinois to become a citizen of Wisconsin, and at the time of her. marriage to the plaintiff she was no longer a citizen of Illinois. Plaintiff and defendant, as we have seen, were validly married in the state of Michigan. Marriage in Michigan, as it is in Wisconsin, is a civil contract, and it is a general rule that a civil contract valid where made is valid everywhere. Hence such marriage in Michigan is held to be valid in yVisconsin. We find no case in Wisconsin where it has been held that the laws of a sister state shall have extraterritorial jurisdiction over parties who have abandoned their residence in such state prior to the marriage in another state, pursuant to the laws of such other state.

We hold, therefore, that the plaintiff and defendant were lawfully married, in Menominee, Michigan, on the 30th day of September, 1908; that they continued to live together as husband and wife thereafter until the commencement of this action; and that the defendant was entitled to a decree on her counterclaim, affirming such marriage.

The trial court found “that there is no evidence in the case which, in the judgment of the court, would warrant the court in making a finding that there was any cruel or inhuman treatment practiced by either of the parties towards the other.” That finding was made in the light of the court’s interpretation of the law that such marriage was void, which we hold was erroneous. The court therefore did not and could not take into consideration a material fact in the case. The plaintiff, by his complaint, defamed the defendant in her good name and reputation; he charged, in effect, that she had lived in illicit relations with him during all the years of their marriage and that she had never been in fact married to him. This, in view of all the circumstances of the case, was an act of extreme cruelty, for which he had no basis in law and less basis in morals. See Schoen v. Schoen, 175 Wis. 20, 183 N. W. 876.

By the Court. — The judgment is reversed, and the cause is remanded to the trial court with directions to affirm the marriage at Menominee, Michigan, between the plaintiff and defendant, and to grant the defendant an absolute decree of divorce on her counterclaim, the trial court to make a proper division of the property.