Allen v. Allen
| Decision Date | 17 July 1931 |
| Docket Number | 27826 |
| Citation | 237 N.W. 662,121 Neb. 635 |
| Parties | MARTHA E. ALLEN, APPELLANT, v. ARTHUR N. ALLEN, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Scotts Bluff county: EDWARD F CARTER, JUDGE. Reversed, with directions.
REVERSED.
Syllabus by the Court.
The evidence in the record considered de novo, and held to establish a valid marriage between the plaintiff and the defendant; to sustain the charges of cruelty and nonsupport set forth in plaintiff's petition; and to entitle plaintiff to a divorce as prayed.
Appeal from District Court, Scotts Bluff County; Carter, Judge.
Action for divorce by Martha E. Allen against Arthur N. Allen. From the judgment, both parties appeal.
Reversed.
Raymond & Fitzgerald, for appellant.
Morrow & Morrow and Glebe & Elliott, contra.
This is an action for divorce and alimony. The petition, in usual form, alleges marriage of the parties "at Denver, Colorado, September 28, 1923;" charges the defendant with cruelty and nonsupport; alleges that he is the owner of property of approximately $ 10,000 in value; and prays for a divorce and alimony.
In his answer and cross-petition, defendant denies that "plaintiff and defendant were married at Denver, Colorado, September 28, 1923," or any other time; alleges that plaintiff and defendant are not married, but "that they agreed when they started living together not to become man and wife, and no marriage was ever contracted by said parties." He further denies the acts of cruelty alleged by plaintiff, and alleges on his part cruel treatment of defendant by plaintiff; also that plaintiff was on the 29th day of September, 1914, married to one Charles Henry Cameron; and on information and belief defendant alleges that no divorce has been obtained by either party, and that plaintiff is now the wife of said Cameron.
By an "Amended Reply and Answer" the plaintiff joined issue as to the allegations of new matter contained in defendant's answer and cross-petition.
There was a trial to the court and a finding and judgment in favor of defendant. The district court found specially that the defendant and plaintiff were never legally married, and that the purported common-law marriage was void under section 1492, Comp. St. 1922, section 2, ch. 40, Laws 1923; and thereupon entered a further order making disposition of certain property rights of the parties, but made no allowance as alimony.
Plaintiff appeals, and defendant on his part prosecutes a cross-appeal.
It appears from the record that plaintiff was married to one Charles Henry Cameron on September 29, 1914; that Cameron deserted plaintiff and plaintiff's minor children in the holiday season of 1916 and 1917. Thereafter, according to plaintiff, he was never heard from, and plaintiff believed him dead at the time of her present marriage. Plaintiff's evidence (disputed by the evidence of defendant) also tends to establish that on September 28, 1923, a marriage to the defendant was solemnized by one Reverend Wilson, an Adventist minister, at Denver, Colorado, where both plaintiff and defendant were then engaged in business, and were bona fide residents; that all preliminary arrangements for the marriage ceremony, including the selection of the minister, were made by defendant, and that plaintiff entered into this ceremony in good faith, received a certificate of marriage from the officiating clergyman, and thereafter lived in the bona fide belief that she was legally married to the defendant.
There is no dispute in the evidence that after the date of the alleged marriage ceremony, so far as the world was concerned, the parties held each other out as husband and wife. They lived and cohabited together as man and wife, and were so recognized and received for the six years next ensuing in the various communities where they afterwards resided. It also appears that plaintiff was called upon to, and did, execute real estate mortgages as the wife of the defendant. It may be said that in every way, so far as the public were concerned, these people lived and enacted the part of husband and wife duly married.
The first question presented is: Was the marriage ceremony actually performed? Defendant strenuously denies this under oath, and plaintiff in like manner affirms. There is no other oral evidence of eyewitnesses presented. The trial court evidently found against the plaintiff on this issue.
The defendant contends: "Where a trial is had to the court, and the evidence on a particular point is in irreconcilable conflict, the court will, in its determination of that question, consider the findings of the trial court, although it is required by statute to try the case on the record de novo." Greusel v. Payne, 107 Neb. 84, 185 N.W. 336. See Magill v. Magill, 114 Neb. 636, 209 N.W. 241; In re Estate of Waller, 116 Neb. 352, 217 N.W. 588; Jones v. Dooley, 107 Neb. 162, 185 N.W. 307; Corn Exchange Nat. Bank v. Jansen, 70 Neb. 579, 97 N.W. 814.
It will be noted that the controlling evidence in the cases upon which the defendant relies to sustain his contention was almost wholly the testimony of witnesses in open court in which there was irreconcilable conflict. Indeed, the above rule, by its very terms, appears to be limited to this particular class of cases.
In the present case it is true that, while the evidence of the defendant and the plaintiff on the point under consideration is at variance, six years of their joint lives, following this important date, furnishes circumstantial evidence on the same question disclosing controlling facts and circumstances which are in no manner denied or questioned. This situation brings the instant case fairly within the terms of the statute as interpreted by the following decisions: Nelson v. City of Florence, 94 Neb. 847, 144 N.W. 791.
Applying the rule thus announced to the evidence in the record, in the light of the presumption which ordinarily applies to questions of this kind, we are impressed with the view that the testimony before us, supported by the uncontradicted facts and circumstances, is such as to fully support the conclusion that the ceremony of marriage was had between the plaintiff and the defendant substantially as testified to by the plaintiff. In fact the admitted circumstances surrounding the lives of these two parties from the time of the performance of this ceremony to the date of the institution of these proceedings are such that, if the mouths of both were sealed in death, these facts would fully sustain any civil action based upon the proposition of a legal marriage having taken place between the parties to this lawsuit. Plaintiff is certainly entitled to the benefit of this circumstantial evidence in a determination of her rights in this action, and it, together with her evidence, plainly establish her contention by a preponderance of the evidence.
But this does not dispose of the case. It must be conceded that, if it be established that the former husband, Charles Henry Cameron, was alive and undivorced at the date of this marriage ceremony, the incapacity of plaintiff to make it would be established and its legal effect nullified.
In view of the fact that we have before us a Colorado contract, the discussion of a similar question by the supreme court of that state in the case of Pittinger v. Pittinger, 28 Colo. 308, 64 P. 195, is of peculiar interest. Gabbert, J., in delivering the opinion of the court in that case, says in part: See McKibbin v. McKibbin, 139 Cal. 448, 73 P. 143.
Indeed where the celebration of a marriage is proved, the capacity of the parties thereto is presumed. United States v. De Amador, 6 N.M. 173, 27 P. 488; ...
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