Binger's Estate, In re

• Decision Date: 26 March 1954
• Docket Number: No. 33487,33487
• Citation: 158 Neb. 444,63 N.W.2d 784
• Parties: In re BINGER'S ESTATE BINGER et al. v. BINGER et al.
• Court: Nebraska Supreme Court

Page 784

63 N.W.2d 784

158 Neb. 444

In re BINGER'S ESTATE BINGER et al. v. BINGER et al.

No. 33487.

Supreme Court of Nebraska.

March 26, 1954.

Syllabus by the Court.

1. If parties enter into a marriage ceremony invalid for legal disability, and both before and after removal of the impediment they continuously cohabit and hold themselves out as husband and wife while domiciled or residing in this state, their relationship will be held to be meretricious from its inception, because common-law marriages in this state are invalid unless entered into prior to adoption in 1923 of section 42-104, R.R.S.1943.

2. Furthermore, it will not be held that such parties have entered into a common-law marriage if they made temporary sojourns or trips into Colorado or some other common-law state where they simply cohabited and held themselves out as husband and wife, without intending to or changing their domicile or residence to that jurisdiction, and without intending to or entering into a common-law marriage contract in that state in conformity with its laws.

Dwyer & Dwyer, Weeping Water, for appellants.

Smith & Lebens, Plattsmouth, Cline, Williams, Wright & Johnson, Sam C. Zimmerman, Lincoln, Harold Elliott, Weeping Water, Van Pelt, Marti & O'Gara, Lincoln, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

The question for decision in this case is whether or not Eva J. Binger, hereinafter called plaintiff, was the surviving widow of Gardner R. Binger, hereinafter called decedent, who died intestate April 9, 1952. The issue arose in the administration of decedent's estate. Separate petitions for determination of heirship were filed therein by the administrator and by plaintiff who claimed that she was decedent's common-law wife by virtue of the laws of Colorado. Answer to the petition of plaintiff denying generally was filed by Ralph D. Binger, Leila I. Fernbaugh, and LaVerna Binger Bolz, the children of decedent and Lavina N. Binger, his wife, who died January 9, 1943. Such children will be hereinafter called defendants. Plaintiff and decedent had no children the issue of their alleged marriage.

After hearing upon appeal to the district court whereat voluminous evidence was adduced, that court rendered its judgment which, insofar as important here, reversed and set aside the judgment of the county court and found and adjudged that plaintiff was the surviving widow of decedent, entitled to share in his estate in accord with the laws of this state, and that his next of kin and sole heirs at law were plaintiff and defendants. Defendants' motion for new trial was overruled and they appealed, assigning that the judgment was contrary to the evidence and law. We sustain that assignment.

The pertinent facts are not in dispute. Plaintiff, a trained businesswoman of intelligence and ability, lived in Omaha, Nebraska. Decedent was an unmarried businessman who lived in Weeping Water, Nebraska. Plaintiff met him there in April 1943, while she was visiting friends over the week-end. Subsequently, by prearrangement, he called upon plaintiff several times at her home in Omaha. She was then married to one Henry A. Grieb, who was still living at the time of this trial.

On August 2, 1943, plaintiff filed a petition for divorce from Henry A. Grieb in the district court of Douglas County. Service was had upon him and he entered a voluntary appearance. Thereafter, on September 17, 1943, plaintiff was granted a decree of absolute divorce. It awarded her the custody of their two sons, 17 and 15 years of age, together with an allowance of $50 a month, of which $25 was alimony and $25 was for the support of their youngest child. Such payments were required to be made until he reached the age of 21 years. In that connection, only the older son subsequently survived. Plaintiff was also awarded a home belonging to the parties in Omaha, and the proceeds from the sale of a 1937 Nash sedan with which to pay court costs and legal expenses. The decree concluded with this statement: 'This Decree shall not become final, except for purposes of appeal, until six (6) months from date hereof. Dated at Omaha, Nebraska, this 17th day of September, 1943.'

There is no direct evidence that decedent ever knew of such divorce decree, but it may be reasonably inferred that he did know about it. Nevertheless, plaintiff and decedent continued their associations and during the first part of October 1943, he proposed marriage and she accepted. He bought her a wedding ring and on October 29, 1943, they drove to Kansas City, Missouri. There they obtained a marriage license and had a marriage ceremony performed by a justice of the peace. In the application for such marriage license decedent, as Ralph G. Binger instead of Gardner R. Binger, subscribed and swore upon oath that he was 'Ralph G. Binger of Lincoln, County of Lancaster and State of Nebr,' and that plaintiff was 'Eva J. Grieb of Cushing, County of Howard and State of Nebr,' and that they were both over 21 years of age, single, unmarried, and might lawfully contract and be joined in marriage. Attached thereto also was the affidavit of plaintiff stating that she was the person named in such application and that she was over 21 years of age, single, unmarried, and might lawfully contract and be joined in marriage. In that connection, it will be observed that at that time plaintiff lived in Omaha, Douglas County, Nebraska, that decedent lived in Weeping Water, Cass County, Nebraska, and that plaintiff had only been divorced 42 days. Thus, she was yet the wife of Henry A. Grieb who was still living, and she could not lawfully have contracted a marriage with anyone. As a matter of fact, such marriage to decedent was void, and no contention is made here that it ever had any legality. It should be noted that there is no explanation or reason given for their purported marriage in Missouri except that they knowingly attempted thereby to circumvent the laws of Nebraska.

After the marriage ceremony aforesaid, they registered at a hotel in Kansas City as Mr. and Mrs. Binger, and there cohabited as husband and wife. They left the next day for Weeping Water, thence to Omaha where they stayed in plaintiff's home over the week-end. Plaintiff continued to work for a short time in Omaha, after which she moved to Weeping Water and continuously thereafter resided in decedent's home where they cohabited and held themselves out as husband and wife until his death occurred. While there she assisted decedent in his business venture, and at the time of this trial was still assisting the administrator of decedent's estate in the operation thereof. There never was any marriage ceremony performed as required by law after the removal of plaintiff's disability.

Since 1923 and the effective enactment of what is now section 42-104, R.R.S.1943, common-law marriages in this state have not been recognized as having any validity. Ragan v. Ragan, 158 Neb. 51, 62 N.W.2d 121. Therefore, the ceremony in Kansas City gave their purported marriage no validity, and the mere fact that both before and after plaintiff's legal impediment had been removed they continued to reside and cohabit in Nebraska as husband and wife and hold themselves out in this state as such could give their marriage no validity either by statute or at common law. Collins v. Hoag & Rollins, 122 Neb. 805, 241 N.W. 766. In such situation, their relationship would be meretricious from its inception.

In that connection, however, plaintiff argued that after her legal impediment had been removed, there was a common-law marriage which we should recognize by virtue of the law and decisions of Colorado, concededly a common-law state.

That contention is predicated upon section 42-117, R.R.S.1943, which provides: 'All marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, shall be valid in all courts and places in this state.' The question is then whether or not under the circumstances of this case there was any valid common-law marriage in Colorado, which this state should recognize. We conclude that there was not.

Plaintiff claims that there was a common-law marriage in Colorado because upon three pleasure trips respectively, one in October 1947, one in June 1950, and one in September 1951, she and decedent twice attended conventions and once visited relatives in Colorado for 3 or 4 days each trip. On such occasions they either registered at a named motel as husband and wife, or stayed with relatives, where they slept in the same bed, cohabited, and were introduced to or by friends and relatives as husband and wife, after which they returned to their home in Weeping Water. No claim is made that they ever actually resided or had a domicile in Colorado or in any other state except Nebraska. There is no evidence that any of such trips to Colorado were made for the purpose of changing their domicile or residence to that jurisdiction or contracting a common-law marriage while they were in that state, or that while there any agreement was ever made by them to become husband and wife, or that they ever thought that such was necessary to give their marriage any validity.

As a matter of fact, plaintiff's own evidence discloses that neither she nor decedent during his lifetime ever thought of relying upon a common-law marriage. Plaintiff assumed to do so only after death of decedent, and the invalidity of their ceremonial marriage was discovered. It was simply an afterthought when necessity appeared, in order to share in decedent's estate. She testified on cross-examination that: 'We considered we were married at all times. * * * from Kansas City on? A. Yes ma'am.' Shortly after decedent's death she talked to the attorney for the administrator. In that respect, she testified: 'Q. And at the time that you talked to him you told him...