Aldridge v. Aldridge

• Decision Date: 02 January 1918
• Docket Number: 19795
• Court: Mississippi Supreme Court
• Parties: ALDRIDGE v. ALDRIDGE

77 So. 150

116 Miss. 385

ALDRIDGE v. ALDRIDGE

No. 19795

Supreme Court of Mississippi

January 2, 1918

Division A

APPEAL from the chancery court of Washington county, HON. E. N THOMAS, Chancellor.

Suit by Jennie Aldridge against J. E. Aldridge. From a decree for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Decree reversed.

W. A Henry, for appellant.

Was the "marriage," between complainant and defendant in Greenville, in July, 1914, a valid marriage? On this proposition hangs all the law applicable to this case.

If the marriage was legal, and made them husband and wife then the decree made by the court below may be sustained; otherwise there must be a reversal and decree here for the defendant certainly on the question of counsel fees and support, for, without the marriage relation, alimony cannot be awarded, marriage being the very foundation of the wife's right to support. In this state of case, the unbroken authority in Mississippi is: A marriage duly proved will be presumed valid, although a former spouse be living and there be no evidence of a divorce, the burden of proof to show the negative fact that there was no divorce being on the party who denies the validity of the marriage, and two marriages being established by proof, the presumption would arise in favor of a divorce, in order to sustain the second marriage, and the law is so positive in requiring a party who asserts the illegality of a marriage to take the burden of proving it, that such requirement is enforced even though it involves the proving of a negative. Railway Co. v. Beardsley, 79 Miss. 423; Hull v. Rawls, 27 Miss. 471; Gibson v. State, 38 Miss. 313; Spears v. Burton, 31 Miss. 457, 554; Collins v. Wilkie, 48 Miss. 496; K. of P. v. Tucker, 92 Miss. 505. See also State v. Bennett, 100 Miss. 684, where the cases are reviewed and the distinction in the rule in civil and criminal cases defined. On page 695, the court says:

"It is the well-established rule in civil cases that, in attacking the validity of a marriage ceremony on the ground of a former marriage, the burden of proof is upon the attacking party to show that there was no divorce from the first wife. This is the well-established rule in civil cases but it is equally as well established that the rule does not apply in prosecutions for bigamy."

Now it is clear that complainant is attacking the validity of the marriage of Milton and herself by setting up that several years prior to their marriage, Milton Streetor had married Mollie Brown, and that Mollie was alive when complainant and Milton Streetor wedded, and therefore the later marriage was a nullity, and that the subsequent marriage to defendant Aldridge was legal. But the law says: "You will not be permitted to annul a solemn marriage contract, and bastardize the issue thereof, unless you go a step further and show that no divorce was had dissolving the former marriage."

Surely, the law as adjudicated for ages will not be relaxed in favor of complainant, who does not deny the proof that, at the time of the alleged marriage to Aldridge she knew she had a living husband and was advised that he had a living wife.

Presumptions may be wholly disregarded in this case, however, for the proof is clear and convincing that the defendant had a living wife at the time of the alleged marriage with complainant, that they lived together as husband and wife for several years, were generally recognized as husband and wife, and two children were born to them during their wedded life. 14th A. & E. Enc. of Law, page 525, states the law to be: "Any person present at the marriage may testify there to whether a third party of the celebrant, and, in general, even the parties themselves; See authorities there cited. See also Cyc. page 1198, and authorities cited. Henderson v. Cargill, 31 Miss. 409.

Now if a marriage can be proved by the declaration of the parties, surely no court would hold that the parties themselves living could not testify to the marriage. "Proof that a man and woman cohabited as husband and wife is evidence from which a court or jury might infer the existence of a marriage between them, and, if unrebutted, would necessarily be conclusive. Ib. 419. Lake v. Lake, et al. No. 18002, of Supreme Court of Miss.; Williams v. Drinkhouse estate (a Pennsylvania case), 24 A. 1083; Rust v. Oltmer (a New Jersey case), 67 A. 337; In Re Richards Estate (a California case) 65 P. 1034.

On the question as to whether it was competent to award counsel fees and support, against the defendant in this case under the proof in the case, I beg to say:

The McFarland case, 64 Miss. 449, was a suit by the wife against the husband for alimony (not seeking a divorce), alleging the marriage and that he had driven her from home and he had refused to receive her back or make provision for her support. The husband answered, denying he had driven her from home, but expressed the hope that she would not return. Thereupon, the wife moved for alimony pendente lite and an attorney's fee. The Chancellor heard oral proof to determine amount to be awarded. The attorney for the husband urged that oral proof was not admissible. The supreme court ruled otherwise.

The Reed case, 85 Miss. 126, was a suit for divorce and alimony. The answer denied the validity of marriage and alleged that complainant, at the time of her marriage to defendant, was married to another and had obtained no divorce, and also denied grounds for divorce. On application for alimony pendente lite, defendant requested that the hearing be continued until he could take testimony which was denied; whereupon defendant offered evidence to show complainant's marriage to one Brooks before her pretended marriage to defendant, which evidence was excluded, and from a decree allowing alimony pendente lite, defendant appealed to the supreme court. The opinion of that court was:

"The learned chancellor seems to have held that under no circumstances could evidence be heard against allowing alimony pendente lite. The general rule is, of course, that such alimony will be allowed, and the merits not inquired into. But it is equally well settled that where the answer denies there ever was a marriage, and that averment, clearly, from the showing made, appears to be true, no alimony pendente lite should be allowed; and this for the reason, as stated in McFarland v. McFarland, 64 Miss. 449, 1 So. 508, that marriage is the very foundation of the wife's right to support. It would be monstrous that the law should require the payment of alimony pendente lite to one who clearly never was a wife. Some prima-facie showing of marriage must be made when it is allowed. So are all the authorities. See 7 Am. & Eng. Ency. Law, 101, with notes." Correct reference, 2 Am. & Eng. Ency. Law (2 Ed.), p 101. The instant case is even stronger than the Reed case, in that complainant and defendant each knew that the other had a living spouse. Holbrook v. Holbrook, 32 La. 13; Collins v. Collins, 71 N.Y. 274. The action was for divorce and alimony.

The above decisions refer to alimony pendente lite. But if, as Judge WHITFIELD says in Reed v. Reed. "It would be monstrous that the law should require the payment of alimony pendente lite to one who clearly never was a wife," then it would be a monstrous monstrosity to require payment of permanent alimony to one who clearly never was a wife. That complainant never was a wife of defendant is shown conclusively by this record. A legal marriage is the very foundation of the obligation of the husband to support the wife. "So are all the authorities." Reed v. Reed, 85 Miss. 128; McFarlane v. McFarlane, 51 Iowa 565.

If "moral turpitude" is to weigh in this case, and it is absurd to think it will, but the case will be decided on the law and evidence, then complainant is tared with the same stick that the defendant is, and she being complainant, asking for affirmative relief, has no standing in court.

T. E. Mortimer and Geo. Butler, for appellee.

It may be admitted that at common law, under the facts shown by this record, that the wife would not be entitled to alimony as alimony. The contention of the appellee in this regard is that the statute of Mississippi changed the common law on this subject and now authorizes alimony in all cases. That even at common law, independent of any statutory provision, the equity court had the power and frequently exercised the power to award the wife compensation even though the marriage was declared void.

"The matter of alimony is regulated by statute in many of the states, and by them is allowed, as a general rule, in favor of the wife in all cases of divorce. It is said, however that where the divorce is unqualified and absolute. The nature and principals of the provisions to be made for her rights are essentially and radically different."

"As a general rule, at common law, no alimony could be assigned to the wife from whom the husband had obtained a divorce for her fault or misconduct, as for adultery on her part."

"And in several states alimony is allowed only upon a divorce obtained for the adultery or other fault of the husband, and expressly prohibited when for the adultery of the wife. But independent of considerations of exact justice in order that the offender may not become an outcast from society, and upon the further human and moral ground that the wife may not become tempted to continue in a course of vice, it is provided by statute in many of the states that the husband must make provision for his erring wife upon divorce from her. And under statutes providing generally that when a divorce is decreed the court may make such an order as to the maintenance of the wife as may seem proper, it is held that the...