Opdyke v. Opdyke

• Decision Date: 04 February 1927
• Docket Number: No. 109.,109.
• Citation: 237 Mich. 417,212 N.W. 95
• Parties: OPDYKE v. OPDYKE.
• Court: Michigan Supreme Court

237 Mich. 417

212 N.W. 95

OPDYKE

v.OPDYKE.

No. 109.

Supreme Court of Michigan.

Feb. 4, 1927.

Appeal from Circuit Court, Oakland County, in Chancery; Frank L. Covert, Judge.

Divorce proceeding by Eleanor Opdyke against Robert Opdyke. From the decree, defendant appeals. Affirmed.

Argued before the Entire Bench.E. L. Phillips, of Pontiac (Henry G. Nicol, of Detroit, of counsel), for appellant.

Harold E. Howlett, of Pontiac, for appellee.

STEERE, J.

This is a divorce proceeding. A reading of the bill of complaint would give the impression that a marriage ceremony performed by a magistrate or minister had occurred between the parties to the litigation. The prayer for relief was for a decree of divorce, for a property decree, closing with a general prayer for relief. Defendant answered the averments of the bill of complaint and denied that the relationship of husband and wife ever existed between the parties, averring that he was incompetent to marry because prohibited by a decree of divorce granted to a former wife of his. The prayer of his answer was for dismissal of the plaintiff's bill. No affirmative relief was asked in the answer. Upon the hearing testimony on the part of plaintiff tended to show a common-law marriage. She testified on that subject as follows:

‘I stated in my bill of complaint that on or about the 30th day of June, 1923, I was married to the defendant in the city of Pontiac. A ceremony was not performed at that time. I fix this particular date because on that particular date he had purchased a ring and placed it on the third finger of my left hand and put his arms around me and kissed me, and said, ‘We will be husband and wife from now on.’ This took place at 50 Lafayette street. I remember this date particularly because my thinking it was my wedding day and the two of us dressed later on and went to Detroit and stayed at my cousins home in Detroit, and the next day and the following night, and came back to Pontiac the following Monday morning, and announced that we had just been married. * * *

‘Q. I ask you whether or not Mr. Opdyke told you he had consulted an attorney? A. Yes; he told me that he had.

‘Q. What did he tell you his attorney had told him? A. He said we could agree to live together as husband and wife and it would be no one's business and it would be perfectly all right; there was nothing illegitimate about it at all.

‘Q. Did he tell you some attorney told him that? A. Yes, sir. * * *

‘He came over to my place right from work and he had the ring in his pocket, in a box, and took the ring out of the box and placed it on my third finger of my left hand and laid the box on the table, and said, ‘We will be husband and wife from now on’; and he sat down there by the table, and I sat on his lap, and we talked and made plans for the future for an hour or so. * * *

‘Q. You made no reply to him when he made these statements to you? A. About the ring?

‘Q. Yes. A. I certainly did.

‘Q. Tell us about that. A. Why, I agreed with him; what else could I do?

‘Q. How did you agree? A. I said, ‘Yes; we will, and we will go on through life, and I will do all I can to make you happy,’ because he always told me his had been miserable; and I told him I would do all I could to make him happy and help him save money and be a good wife to him.

‘Q. What did he say to that? A. He acted very elated.

‘Q. Is that all he did? A. He hugged and kissed me.’

The testimony on the part of defendant tended to show a conditional future promise to marry, of which he testified as follows:

‘We were plainning on getting married, and I had two years put on to me, and I found out we could go to Toledo and get married and live out of the state for two years, it would be all right, but she says: ‘No; you are liable to come back here; you got a good job here, and we will live together until your two years is up, and, if we think as much of each other as we do now, we will get married. * * *

‘Cross-Examination: * * *

‘Q. During this time, Mr. Opdyke, you considered your address where? A. When I worked at the Rickenbacker?

‘Q. Yes. A. At the Jean Apartments.

‘Q. Did you make out an employment card there? A. I didn't; no. There was a man to make that out.

‘Q. He asks you questions and puts them down? A. They always do; yes. * * *

‘Q. If you were hurt, who did you tell them to notify? A. I couldn't say who I told them to notify.

‘Q. You told them to notify your wife? A. I couldn't say I did or not.

‘Q. You wouldn't say you didn't? A. No.

‘Q. Now, after looking this over, wouldn't you think you did tell them to notify your wife? A. I couldn't say I did or not.

‘Q. You wouldn't say you didn't? A. No. * * *

‘Q. Where did you give your wife's address. do you remember? A. I gave my address there at the Alartly, not the Alartly, but the Jean Apartments.

‘Q. You gave your wife's address there too? A. I wouldn't say I did.

‘Q. You wouldn't say you didn't? A. No.

‘Q. If it appears on this card it is possible you did? A. I suppose I did.

‘Q. You also said you were married? A. If it says so here. * * * I had in mind when I told them if I was hurt to notify my wife to the following effect. We was living there with an agreement we would live together there as man and wife, if we could get along until my time was up for two years, and we would marry; and we rented an apartment under that impression that we were man and wife. I entered there under the impression we were man and wife; we had to get our apartment that way.’

His testimony was in substance that they lived and cohabited together from time to time, but separated before the two years were up.

The trial judge found there was a common-law marriage, but was of opinion that plaintiff did not come into court with clean hands and denied her prayer for divorce and other relief, the decree concluding, however, as follows:

‘It is further ordered, adjudged, and decreed that the defendant, Robert Opdyke, shall forthwith pay to Harold E. H_____ (plaintiff's attorney) the sum of one hundred fifty dollars ($150) to apply on his attorney fee for services actually rendered in said cause, and, further, the taxed costs, the same to be taxed, and that execution may issue for the collection.’

From this decree the defendant appeals to this court.

The validity of common-law marriages has long been recognized in this state. Some of the cases are Hutchins v. Kimmell, 31 Mich. 127, 18 Am. Rep. 164, where many cases are cited; Peet v. Peet, 52 Mich. 464, 18 N. W. 220;People v. Girdler, 65 Mich. 68, 31 N. W. 624;Williams v. Kilburn, 88 Mich. 279, 50 N. W. 293;People v. Loomis, 106 Mich. 250, 64 N. W. 18;People v. Imes, 110 Mich. 250, 68 N. W. 157; Supreme Tent K. O. M. v. McAllister, 132 Mich. 69, 92 N. W. 770,102 Am. St. Rep. 382;People v. Pizzura, 211 Mich. 71, 178 N. W. 235, 10 A. L. R. 405;Brown v. Long...