Allred v. Wood

• Court: Utah Supreme Court
• Writing for the Court: CHERRY, J.
• Citation: Allred v. Wood, 72 Utah 427, 270 P. 1089 (Utah 1928)
• Decision Date: 13 September 1928
• Docket Number: 4574
• Parties: ALLRED v. WOOD et ux

270 P. 1089

72 Utah 427

ALLRED v. WOOD et ux

No. 4574

Supreme Court of Utah

September 13, 1928

Appeal from District Court, Seventh District, Grand County; Dilworth Woolley, Judge.

Proceedings supplemental to execution by Julia Allred against Harry Wood. From a judgment for plaintiff, defendant and his wife appeal.

Reversed and remanded, with directions.

Knox Patterson, of Moab, and Harmel Pratt, of Price, for appellants.

L. A McGee, of Price, for respondent.

CHERRY J. THURMAN, C. J., and STRAUP, HANSEN, and GIDEON, JJ concur.

OPINION

CHERRY, J.

In proceedings supplemental to execution for the enforcement of a judgment in favor of the plaintiff an issue arose respecting the validity of the defendant's claim for a homestead exemption of certain real estate sought to be subjected to the satisfaction of the judgment. The point in question was whether the defendant was a married person and thus entitled as "the head of a family" to claim the exemption. The undisputed facts relating to the matter were that the defendant was married to Ella Fielding in this state on April 4, 1926. Ella Fielding had previously been married to another man, but by a decree made and entered by the district court of Grand county on August 19, 1925, was divorced, the decree providing, as required by law, that it should not become absolute until the expiration of six months from the date of its entry. No further or other proceedings in the divorce action where had. Upon a finding of these facts the trial court held the marriage of defendant and Ella Fielding void as having occurred at a time when the latter was prohibited by law from marrying any person other than the husband from whom she had been divorced; that the defendant was therefore not the "head of a family" and not entitled to the homestead exemption claimed; and the claim of exemption was denied. Defendant appeals.

The case is submitted upon the sole question of the validity of the defendant's marriage, and that is questioned only with respect to the time when it occurred with relation to the time of the divorce of Ella Fielding from her former husband.

The controversy arises under and must be determined according to the provisions of Comp. Laws Utah 1917, as follows:

"Sec. 3001. If, after the hearing of any divorce cause, the court shall be of the opinion that the divorce ought to be granted to either person, a decree shall be entered granting to such person a divorce; but the said decree shall specifically provide that it shall not become absolute until the expiration of six months from the date of its entry.

"Sec. 3002. The decree of divorce shall become absolute after the expiration of six months from the entry thereof, unless proceedings for a review are pending, or the court before the expiration of said period for sufficient cause, upon its own motion or upon the application of any party, whether interested or not, otherwise orders.

"Sec. 3003. It shall be unlawful for either party to a divorce proceeding, whose marriage is dissolved by the final decree provided for by section 3002, to marry any person other than the husband or wife from whom the divorce was granted, within the period allowed for an appeal from such final decree under the Code of Civil Procedure, and if an appeal from such final decree be taken, until after the affirmance of such decree; and any marriage contracted in violation of the provisions of this section shall be null and void."

The Code of Civil Procedure (Comp. Laws Utah 1917, §§ 6990, 6991), provides:

"Sec. 6990. From all final judgment of the district courts, there shall be a right of appeal to the Supreme Court. * * *

"Sec. 6991. An appeal may be taken within six months from the entry of the judgment or order appealed from."

It thus appears that a divorced person is prohibited from marrying any person other than the one from whom he or she has been divorced within the period allowed for an appeal from the final decree granting the divorce, and, if such an appeal be taken, until after the affirmance of the decree.

What then, are the limitations of time within...