Anderson v. Anderson, 7693

• Decision Date: 18 February 1952
• Docket Number: No. 7693,7693
• Parties: ANDERSON, v. ANDERSON.
• Court: Utah Supreme Court

Page 966

240 P.2d 966

121 Utah 237

ANDERSON, v. ANDERSON.

No. 7693.

Supreme Court of Utah.

Feb. 18, 1952.

Merrill C. Faux, Salt Lake City, for appellant.

Sidney G. Reid, James A. Stump, Salt Lake City, for respondent.

WOLFE, Chief Justice.

The outcome of this action for modification of an alimony award depends upon the weight and effect to be given the presumption of validity of a second marriage. In 1920, the defendant was married to Stanley C. Fossell and resided with him in Elko, Nevada. Pursuant to an understanding with her husband, she left him in Nevada and moved to Price, Utah. She heard from and communicated with her husband approximately one year after her arrival in Price. Thereafter she heard nothing more, and was informed by a mutual friend that he had died. On May 27, 1926, she was granted a divorce in the District Court of Carbon County. A copy of the summons and complaint had been mailed to Mr. Fossell at Elko, but the files in that prior divorce suit do not reveal whether these documents were unclaimed, delivered or returned.

The defendant married the plaintiff, Mr. Anderson, in Grand Junction, Colorado, 48 days (July 14, 1926) after her Fossell divorce decree was granted. Section 3002 of the Compiled Laws of Utah, 1917 (then in force) provided that: 'The decree of divorce shall become absolute after the expiration of six months from the entry thereof * * *.'

Two children were born as a result of this marriage. In 1936 the parties became estranged and the defendant refused to live with her husband. He continued to support her until 1948 when she was granted a divorce. The divorce decree provided for an equitable distribution of the property, support money for the care of the children and an alimony award of $50.00 per month. In 1950 the present suit was brought by Mr. Anderson to vacate only the alimony award on the basis that the parties had never been legally married.

The plaintiff's position is that there was no valid marriage between the parties, because the defendant, unbeknown to him, had married him during the interlocutory period of her prior divorce. But the defendant contends, this was only because she believed her former husband to be dead at that time; that she had not heard from him for four or five years and has not to this day determined where or when or if he died. The plaintiff contends that since the defendant in the present suit, Mrs. Anderson, filed her suit for divorce against Mr. Fossell, it must have been on the supposition that he was then alive and hence it does not lie in her mouth to now urge that he was then dead. After a short statement read into the record by opposing counsel as to what their client's testimony would be, the trial judge, sitting as the fact finder, ruled in plaintiff's favor and concluded: 'That the court does not find and cannot presume from the statements of fact, offers of proof, and pleadings that Stanley C. Fossell was deceased on July 14, 1926.'

The order, awarding defendant alimony, was therefore vacated and set aside.

The decision of the trial court cannot be sustained. When plaintiff in the present suit asserted that his marriage to the defendant was invalid, it became his duty to establish such invalidity, 'by evidence which negatives the effective operation of every possible means by which a dissolution of such prior marriage could have been effected.' In re Pilcher's Estate, 114 Utah 72, 197 P.2d 143, 148, quoting from Holman v. Holman, Tex.Com.App., 288 S.W. 413, 414. In this case there are two possible means by which the Fossell marriage could have been dissolved--by divorce and by death. The plaintiff proved that the defendant did not have capacity to contract the second marriage based on her divorce from her first husband, because she remarried within the interlocutory period. On that basis the second marriage is void. Sanders v. Industrial Commission, 64 Utah 372, 230 P. 1026. But another possibility was the death of Stanley C. Fossell sometime prior to July 14, 1926. It was not defendant's burden to prove that he was dead. It was for the plaintiff to prove that he was alive. The fact that defendant took inconsistent views by obtaining a divorce from her first husband presumably because he was alive, then remarrying 48 days later because as she now asserts, she though her first husband was dead, does not compel her to assume the burden of proving that he was dead. The divorce decree is some evidence of what she believed at that time, but it does not estop her from now asserting that she then believed Mr. Fossell to be dead. In fact, her proffer of proof is to the effect that she was advised by an attorney and by the district judge who granted the divorce, that she should obtain a divorce to clarify her marital status, even though she informed them that she did not know for sure whether or not Mr. Fossell was still living.

The fact that Stanley C. Fossel may have been alive after July 14, 1926 was a possible reason why the Anderson marriage was not valid. In order to prevail, the plaintiff had to prove this fact. This is so because the presumption of the validity of the second marriage 'is one of the strongest disputable presumptions known in law. * * * ' 'It is not to be broken in upon or shaken by a mere balance of probability.' In re Pilcher's Estate, 197 P.2d at page 148. In the Pilcher opinion, there is a quotation from Griggs v. Pullman Co., Mo.App., 40 S.W.2d 463, 464, which states: 'The evidence for the purpose of repelling it [the presumption of the validity of the second marriage] must be strong, distinct, satisfactory, and conclusive.' Conclusive means final, decisive, excluding all other conclusions. The other adverbs are weaker and are swallowed up by the word conclusive. This word imposes too great a burden of proof upon the assailant of the validity of the second marriage. It is therefore rejected. In its stead we employ the clear and convincing rule, in order to give effect to the statement quoted above, that the presumption of the validity of the second marriage is one of the strongest disputable presumptions known in law. The clear and convincing burden of proof is defined by this court in Greener v. Greener, Utah, 1949, 212 P.2d 194.

There are cases which hold that a presumption of death arises at the expiration of seven years unexplained absence, but during such period the presumption of life continues. Goodier v. Mutual Life Ins. Co., 158 Minn. 1, 196 N.W. 662, 34 A.L.R. 1383 and Annotation at 1389; Ferris v. American Ins. Union, 245 Mich. 548, 222 N.W. 744, 65 A.L.R. 1033; Tyrrell v. Prudential Ins. Co., 109 Vt. 6, 192 A. 184, 115 A.L.R. 392. Although on July 26, 1929 Mr. Fossell was absent unexplainedly for only four years, this presumption does not aid the plaintiff because the possibility that Mr. Fossell was still alive on July 14, 1926 is only important in this case insofar as it affects the validity of the second marriage. And whether that presumed validity be attacked by showing that there was no divorce, or that the second marriage was solemnized during the interlocutory period, or that the first husband was still alive, the heavy burden of proving such invalidity in each instance rests upon the assailant. Thus the presumption of the validity of the second marriage prevails over the presumption of the continuance of the first marriage where there is no clear and convincing evidence that death or divorce did not dissolve the first marriage. See Annotations 34 A.L.R. 464, 77 A.L.R. 729, 14 A.L.R.2d 7. 'And this is so even though the time elapsing between the last knowledge of the former spouse and the second marriage is less...