Buckley v. Buckley

• Citation: 96 P. 1079,50 Wash. 213
• Parties: BUCKLEY v. BUCKLEY (two cases.
• Decision Date: 08 August 1908
• Court: United States State Supreme Court of Washington

96 P. 1079

50 Wash. 213

BUCKLEY v. BUCKLEY (two cases.

Supreme Court of Washington

August 8, 1908

Appeal from Superior Court, King County; A. W. Frater, Judge.

Consolidated actions by Mary Buckley and by Philomene Buckley against Andrew Buckley. From a judgment in favor of Mary Buckley Andrew Buckley appeals, and from a judgment granting insufficient relief in favor of Philomene Buckley against Andrew Buckley, both parties appeal. Affirmed.

Rudkin J., dissenting in part.

McClure & McClure, for appellant Philomene Buckley.

John E Humphries and Geo. B. Cole, for appellant Andrew Buckley.

Higgins, Hall & Halverstadt, for respondent.

ROOT J.

This is an appeal from a judgment and decree rendered in two cases that were consolidated for trial; one being by the respondent against appellant Andrew Buckley for divorce or annulment of marriage and division of property, and the other being by the appellant Philomene Buckley against appellant Andrew Buckley for a division of property claimed to have been acquired while he and she were husband and wife. The material facts, as found by the court, and which we believe to be sustained by the evidence, were about these: On or about the 15th day of October, 1898, in the city of St. Paul, Minn., Mary Buckley and Andrew Buckley entered into an oral agreement of marriage, and then and there entered into the marriage state. The law of that state permitted common-law marriages. At that time he had a former wife living from whom he had never been divorced, and she had a former husband living from whom she had not been divorced. She had reason to, and did, believe that her former husband had obtained a divorce from her prior to this time. She did not know that Andrew Buckley had a wife living, or that he had ever been married, but believed that he was unmarried and competent to enter into a contract of marriage with her. On the 11th day of September, 1877, at Detroit, Mich., appellant Philomene Buckley and appellant Andrew Buckley intermarried and lived together until about October 29, 1877, when he deserted her, and has never lived with nor supported her since. No justification is shown for this desertion. As a result of this marriage a child was born in 1878. Philomene Buckley, believing that her husband Andrew Buckley, had been drowned, intermarried a few years thereafter with one Young. In 1907 Philomene Buckley, having learned that her former husband, Andrew Buckley, was alive, brought an action for divorce in the superior court of Cook county, state of Illinois; the same being a court of general jurisdiction, and she at that time being, and having been for a year or more theretofore, a bona fide resident of said state. Her complaint was filed in said court, and summons was served by publication in the manner and form required by the statutes of the state of Illinois. Thereupon the cause was brought on for trial, Andrew Buckley not appearing, and the court entered a judgment and decree dissolving the bonds of matrimony existing between Philomene and Andrew Buckley, but declining to make any order, judgment, or decree affecting the property of these parties, or either of them, situate in the state of Washington. As a ground for her action, Mary Buckley assigned cruelty, personal indignities, and drunkenness. These allegations were supported by the evidence adduced at the trial, and the trial court rendered a judgment and decree annulling her marriage contract with the defendant, and awarding her an undivided one-fourth interest in all of the real estate of said Andrew Buckley. The court awarded to Philomene Buckley an undivided one-fourth interest in and to all the real property belonging to Andrew Buckley.

It is the contention of Andrew Buckley that Mary Buckley never became his wife, and that the court was without authority to award her any portion of the property standing in his name or which he had acquired. Whatever may be said of the right of Mary Buckley to recover in the form of action instituted here, it cannot be doubted that she is entitled to some redress or compensation in some form of action against Andrew Buckley. Under the law of this state, the courts are called upon to regard substance rather than form, and it is not the policy of our law to turn a suitor out of one door of the court to come in at another in order to secure justice. Where a woman in good faith enters into a marriage contract with a man, and they assume and enter into the marriage state pursuant to any ceremony or agreement recognized by the law of the place, which marriage would be legal except for the incompetency of the man which he conceals from the woman, a status is created which will justify a court in rendering a decree of an nulment of the attempted and assumed marriage contract upon complaint of the innocent party; and where in such a case the facts are as they have been found here, where the woman helped to acquire and very materially to save the property, the court has jurisdiction, as between the parties, to dispose of their property as it would do, under section 5723, Ballinger's Ann. Codes & St. (Pierce's Code, § 4637), in a case of granting a divorce, awarding to the innocent, injured woman such proportion of the property as, under all the circumstances, would be just and equitable. 'When either party to a marriage shall be incapable of consenting thereto, for want of legal age or a sufficient understanding, or when the consent of either party shall be obtained by force or fraud, such marriage is voidable, but only at the suit of the party laboring under the disability, or upon whom the force or fraud is imposed.' 1 Ballinger's Ann. Codes & St. § 4477 (Pierce's Code, § 6262). 'When there is any doubt as to the facts rendering a marriage void, either party may apply for and on proof obtain, a decree of nullity of marriage.' 2 Ballinger's Ann. Codes & St. § 5717 (Pierce's Code, § 4631). 'Any person who has been a resident of the state for one year may file his or her complaint for a divorce or decree of nullity of marriage, under oath, in the superior court of the county where he or she may reside, and like proceedings shall be had thereon as in civil cases.' 2 Ballinger's Ann. Codes & St. & 5718 (Pierce's Code, § 4632). In the case of Piper v. Piper, 91 P. 189, this court held that the rule covering the publication of summons in divorce cases applied likewise to actions for the annulment of marriage. Among other things, the court said: 'Appellant argues that an action for annulment of a marriage is in this state of the same nature as an action for divorce, and that it has always been treated by our Legislatures in the passage of statutes as in effect the same. We believe this is ture. * * * It thus appears that our Legislature has invariably treated actions for divorce and for the annulment of marriage as belonging to one general subject, and in conferring jurisdiction to grant divorces it has also been made to include the annulment of marriages. * * * In view of the not uncommon legislative policy above indicated, as well as in view of the express provisions of our statutes, we think it has been the evident intention of our Legislature to establish the same jurisdiction and practice for both divorce and annulment suits.' In his article on Marriage (26 Cyc. 918, 919), Mr. Justice Harlan of the United States Supreme Court says: 'Permanent alimony cannot be granted in cases of this kind, for, if a decree is made in accordance with the prayer of the petition, it must adjudge the pretended marriage void ab initio, and consequently that the parties never sustained the relation of husband and wife. But where the wooman is of good character and blameless in the affair, even though the marriage is declared void, she may be entitled to receive a substantial allowance, not technically as alimony, but by way of compensation for the pecuniary benefits derived by the man during the supposed marriage relation. * * * So in passing the sentence of annulment, the court has power by statute in some states, and apparently at common law, to make an order for restitution to the wife of the property which the husband received from her or of which he acquired possession by virtue of the marriage. And in other cases where a party has been tricked or duped into a marriage, and it is annulled, the court may order the restoration to him of his property fraudulently acquired and converted by the other party. Also, where the wife entered into the marriage in good faith and is free from blame, and it is annulled for the fault of the husband, she may be allowed substantial compensation for the benefits which he received or the loss which she suffered in consequence of the marriage.' In the case of Werner v. Werner, 59 Kan. 399, 53 P. 127, 41 L. R. A. 349, 68 Am. St. Rep. 372, the Supreme Court of Kansas said: 'It is true, as the plaintiff in error contends, that the marriage between the perties was absolutely void from the beginning. Although living together as husband and wife, they were not, in fact, married, and hence no allowance could be made as alimony. The rule is that permanent alimony can only be allowed where the relation of husband and wife has existed; but this rule does not preclude an equitable division of the property where there is a judicial separation of the parties on account of the invalidity of the marriage contract. Fuller v. Fuller, 33 Kan. 582, 7 P. 241. Strictly speaking, this action as it was tried was not a divorce proceeding. but it was rather one to annul a void marriage. Although instituted under the statutes to obtain a divorce, the pleadings were so drawn, and the issues so shaped, that it was within the power of the court to grant relief independently of the statutes relating to divorce,...