Becker v. Becker

• Citation: 140 N.W. 1082,153 Wis. 226
• Parties: BECKER v. BECKER.
• Decision Date: 08 April 1913
• Court: United States State Supreme Court of Wisconsin

153 Wis. 226

140 N.W. 1082

BECKER

v.BECKER.

Supreme Court of Wisconsin.

April 8, 1913.

Appeal from Circuit Court, Milwaukee County; Franz C. Eschweiler, Judge.

Action by Elizabeth Becker against Charles Becker. From a judgment for plaintiff, defendant appeals. Affirmed.Rubin & Zabel, of Milwaukee (Horace B. Walmsley, of Milwaukee, of counsel), for appellant.

Julius E. Roehr, of Milwaukee, for respondent.

TIMLIN, J.

The respondent had a judgment for divorce and alimony against the appellant in the circuit court, and upon this appeal appellant raises the point that there was no marriage. The circuit court upon sufficient evidence found: “That on or about August 15, 1898, at Milwaukee, Wis., the plaintiff and the defendant agreed to take one another as husband and wife, and lawfully became husband and wife, and subsequently and from the time of the making of such contract and up to about the 10th day of May, 1911, the plaintiff and the defendant lived and cohabited together and were known in the community in which they lived, in the city of Milwaukee, in the state of Wisconsin, as husband and wife, and during said time the defendant at all times represented and held out that the plaintiff was his wife, and the plaintiff represented and held out that the defendant was her husband.” This, we take it, fairly means that an oral contract of marriage per verba de præsenti was made between the parties and consummated by cohabitation and corroborated by holding themselves out to the public as husband and wife. No question of the competency of the parties is made.

[1] The appeal fairly raises the question of the validity of such marriage because if there was no marriage there could not be alimony. 2 Bishop, Marriage, Divorce and Separation, § 855, and cases cited. This is in harmony with our statute law wherein section 2361, Wis. Stats., provides for support of the wife or minor children and suit money during the pendency of an action for annulment of marriage, while alimony is authorized only in actions for divorce. Section 2364, Id.

[2] The causes for which an action to annul the marriage may be brought are specified in section 2351, Id., and cover void as well as voidable marriages, but no annulment suit is authorized by statute upon the ground of failure to obtain a marriage license or to solemnize or celebrate the marriage before a civil officer or a clergyman as required by sections 2331 to 2339g, Id. The question whether there may be in this state a marriage legally valid and binding when resting only upon an oral agreement entered into by competent parties without witness or ceremony of any kind to then take each other for husband and wife consummated by cohabitation and by holding themselves out to the public as married has never heretofore been directly presented to this court for decision.

In Martin v. Ryan, 2 Pin. 24, one sued for an antenuptial debt of his alleged wife attempted to escape liability on the ground that the person who officiated at the alleged marriage as a minister of the gospel had not filed his credentials of ordination as required by statute. Among other reasons for holding this plea insufficient, the court said arguendo that, after the ceremony, the parties thereunto lived together as man and wife, and Martin had recognized the woman as his wife before the world. There was in this case a ceremony. Williams v. Williams, 46 Wis. 464, 1 N. W. 98, 32 Am. Rep. 722, was an action brought to recover dower, the plaintiff resting her right upon the claim that she was the widow of one Williams. There was a formal or ceremonial marriage contract between the plaintiff and said Williams on May 9, 1870, but this was alleged to be void because plaintiff was at the time the lawful wife of one Jones, from she had been divorced by a judgment of the circuit court for Kenosha county in November, 1870. The plaintiff contended that this decree of divorce did not conclusively establish that she had ever been lawfully married to Jones, and that, in fact, she had not because Jones had a lawful wife living at the time plaintiff was married to him, and who was still living. These were apparently all formal or ceremonial marriages, but in answer to a contention of the plaintiff's counsel that a valid marriage should be presumed to have taken place between the plaintiff and Williams after she secured the divorce from Jones and in declining to so hold because the relations between the plaintiff and Jones were hypothetically unlawful and meretricious, the court said: “The law of this state declares that marriage is a civil contract (section 2328, R. S. 1878), and there is no statute law which points out in what manner the contract must be entered into to render it valid. It need not be in writing or in the presence of witnesses, but there must be an agreement between the parties that they will hold toward each other the relation of husband and wife, with all the responsibilities and duties which the law attaches to such relation, otherwise there can be no lawful marriage.” This case came up again in 63 Wis. 58, 23 N. W. 110, 53 Am. Rep. 253, where it was ruled that the divorce judgment did not estop the plaintiff from showing she was never legally married to Jones because at the time of her supposed marriage to him he had a wife living, hence that she was entitled to dower as the lawful wife of Williams. In Spencer v. Pollock, 83 Wis. 215, 53 N. W. 490, 17 L. R. A. 848, there was a proceeding to determine the descent of lands, and a claim that the deceased owner left surviving him a widow. The finding of the circuit court was to the effect that the relations between deceased and this claimant were meretricious in their inception, and this decision was affirmed. True, it is rather assumed that no ceremonial marriage was requisite; this court saying after referring to the testimony: “From this testimony it is claimed that a common-law marriage is proven.” A decision that there was no valid marriage at common law or otherwise does not expressly cover the question here presented. In Thompson v. Nims, 83 Wis. 261, 53 N. W. 502, 17 L. R. A. 847, there was an appeal from a judgment of the circuit court adjudging Julia L. Nims, since deceased, to be the widow and only heir at law of one Thompson, deceased intestate. It was shown that the claimant and Thompson left the house of her father and mother apparently with the full knowledge and consent of the latter with household goods, declaring that they were to be married. They stopped that day at a hotel, and after arriving there Thompson went out and returned with a person whom the claimant believed was a minister. The court did not allow the claimant to testify as to what further took place with reference to the marriage contract, and no other witness was produced. She further testified that this person remained in the room about half an hour, that after that time she had always borne the name of Mrs. Thompson, and that she and Thompson lived together and held themselves forth as husband and wife. This testimony tended to prove that some ceremony of marriage took place before a person thought to be a clergyman. It was sufficient to support the judgment below. This court in the opinion repeated what was said in Williams v. Williams, supra, and went further: “This agreement is a fact to be proven. It may be proven by circumstantial evidence as many other facts are proven. In this case there is no direct evidence that these parties promised to assume the relations of husband and wife, but the circumstances proven seem to us very persuasive and to justify the finding that there was a marriage in fact.”

In Lanham v. Lanham, 136 Wis. 360, 117 N. W. 787, 17 L. R. A. (N. S.) 804, 128 Am. St. Rep. 1085, there was an application by the woman for her support out of the estate of one Lanham, deceased, based on the claim that she was the widow of said deceased. She was married to the deceased by ceremony before a justice of the peace at Menominee, Mich., and returned with Lanham to Wisconsin to reside, the parties immediately assumed the relations of husband and wife, and lived and cohabited together...