Cahoon v. Pelton

• Decision Date: 15 July 1959
• Docket Number: No. 8976,8976
• Citation: 9 Utah 2d 224,342 P.2d 94
• Parties: d 224 Howard B. CAHOON, Plaintiff and Respondent, v. Robert P. PELTON, Defendant and Appellant.
• Court: Utah Supreme Court

Page 94

342 P.2d 94

9 Utah 2d 224

Howard B. CAHOON, Plaintiff and Respondent, v. Robert P. PELTON, Defendant and Appellant.

No. 8976.

Supreme Court of Utah.

July 15, 1959.

VanCott, Bagley, Cornwall & McCarthy, Clifford L. Ashton, Leonard J. Lewis, Salt Lake City, for appellant.

McBroom & Hanni, Salt Lake City, for respondent.

WADE, Justice.

Defendant, Robert P. Pelton, appeals from a jury verdict judgment in favor of plaintiff, Howard B. Cahoon, respondent here, on two counts: the first for alienation of his former wife Dorothy's affections, and the second for criminal conversation with her. There were two trials: in the first the jury found no alienation of affections but that there was criminal conversation, assessing $20,000 compensatory and $5,000 punitive damages. After the first trial the court granted defendant's motion for a new trial after plaintiff refused its order to remit $19,000.

On the second trial the jury found in favor of plaintiff and awarded $25,000 general damages and $12,000 punitive damages on the criminal conversation count and $2,500 on the count for alienation of affections, and that plaintiff would have spent more than that amount to support his former wife had Pelton not led her away. The trial court cancelled and offset the verdict on the first cause of action against the jury's finding that it would have cost plaintiff more than that to have supported his wife had she remained with him, but refused to allow such offset against the verdict on the second count, holding that his actions were in accordance with the jury's intentions. The court also held the $12,000 punitive damages excessive, reducing them to only $1,000, and entered judgment for $26,000 and costs.

Plaintiff and Dorothy were married in Salt Lake City, June 28, 1947, where they lived for about two years, then made their home in Nevada until she obtained a non-contested divorce from him there on December 4, 1956, about a year before this action was commenced on October 7, 1957. Two children were born from this marriage. Dorothy married Gerald F. Shaw in December, 1957, in Las Vegas, Nevada. Prior to her marriage to plaintiff Dorothy was married to Mark H. Williams; they had two children. She obtained an interlocutory divorce decree from Williams in California March 18, 1946, ordering that a final decree be entered upon the expiration of one year. On June 7, 1948, after her marriage to plaintiff, she filed an affidavit for a final divorce judgment from Williams and such final decree was entered nunc pro tunc as of June 1, 1947, on June 23, 1948.

Defendant Pelton contends that since the final divorce decree in the Williams case was not entered until after plaintiff's marriage to Dorothy, such marriage is void because she had an undivorced living husband at that time. ¹ California, the same as Utah, and all other states, holds that a second marriage is void if at the time one of the parties had an undivorced husband or wife living. Generally, the laws of the state where a marriage is consummated determine its validity. ² The Utah laws provide for an interlocutory divorce decree which becomes final upon the expiration of the prescribed period, formerly six and now three months, without any further decree or order of the court unless an appeal or other proceedings for review are pending or the court within that time otherwise orders. ³ The California law, requiring the expiration of a longer period and also a separate final decree, even though it may be entered nunc pro tunc, is not contrary to our public policy.

The California statutes provide for the entry of an interlocutory judgment upon the court's determination that a divorce should be granted ⁴ and the entry of a final judgment upon the expiration of one year thereafter. ⁵ Section 133, ⁶ providing upon failure to enter the final decree at the expiration of one year for the entry of a judgment nunc pro tunc which, after slight amendments which are immaterial here, provides:

'Whenever either of the parties in a divorce action is, under the law, entitled to a final judgment, but by mistake, negligence or inadvertence the same has not been signed, filed and entered, if no appeal has been taken from the interlocutory judgment or motion made for a new trial to annul or set aside the judgment or for relief under Chapter 8, Title 6 of Part 2 of the Code of Civil Procedure, the court, on the motion of either party thereto or upon its own motion, may cause a final judgment to be signed, dated, filed and entered therein granting the divorce as of the date when the same could have been given or made by the court if applied for. The court may cause such final judgment to be signed, dated, filed and entered nunc pro tunc as aforesaid, even though a final judgment may have been previously entered whereby mistake, negligence or inadvertence the same has not been signed, filed or entered as soon as it could have been entered under the law if applied for. Upon the filing of such final judgment, the parties to such action shall be deemed to have been restored to the status of single persons as of the date affixed to such judgment, and any marriage of either of such parties subsequent to one year after the granting of the interlocutory judgment as shown by the minutes of the court, and after the final judgment could have been entered under the law if applied for, shall be valid for all purposes as of the date affixed to such final judgment, upon the filing thereof.' (Emphasis ours).

Without exception, since that enactment, California has recognized the validity of the remarriage of a party to a divorce decree although the final decree was actually entered after the remarriage where the remarriage occurred after the nunc pro tunc date of the final decree. ⁷ California expressly recognizes under such nunc pro tunc decision that the parties thereto were restored to their status of single persons on the nunc pro tunc date of the final decree and thereupon became eligible for marriage to a third person. ⁸

The validity of a second marriage in another state after a California nunc pro tunc final divorce decree under facts similar to these has been recognized a number of times. ⁹ We have found no contrary decisions. The New Hampshire and Maryland cases cited in note 9 involved nunc pro tunc California final decrees under this statute and the Oregon case involved a nunc pro tunc final decree entered in Washington state under a statute copied from the California statute. All these cases hold that the nunc pro tunc decree adjudicated that the parties were restored to their status as single persons upon the nunc pro tunc date of the final decree and were capable of contracting a valid marriage thereafter. Such is our holding in this case.

Defendant argues that Utah law does not permit an action for criminal conversation. We have no statute or judicial decision authorizing or approving such an action. Some states have by statute abolished such actions. Defendant contends that such actions are in disfavor and should not now be approved. He further contends that by Section 68-3-1, U.C.A.1953, ¹⁰ we adopted the common law of England, together with the statutes in effect in 1898, when that statute was originally enacted. He points out that the Matrimonial Causes Act of 1857 was in effect in England at that time, by which the common law of England action for criminal conversation was abolished and a claim for damages by a person who had sexual intercourse with claimant's wife could be claimed by the husband in a divorce action. ¹¹ Under this statute defendant claims the common law action for criminal conversation did not exist.

Section 68-3-1 only adopts the common law of England so far 'as it is consistent with and adapted to the natural and physical conditions of this State and the necessities of the people thereof' and not repugnant to or in conflict with the Constitution or laws of the United States or this State. Although the above quotation was added to our statute by the 1933 Revision, prior thereto in construing this statute in Hatch v. Hatch, ¹² we held 'that while Congress, by extending over the Territory of Utah the Constitution and laws of the United States put in force, in the language of the Supreme Court of the United States, ¹³ 'the system of common law and equity which generally prevails in this country,' yet did not so extend or transplant the common law of England, with all its rigor and harshness, but only so much of it as was and had been generally recognized and enforced in this country, and as is and was suitable to our conditions.' (Emphasis by author of opinion quoted.) A glance at our decisions clearly shows that we follow the common law of England as developed and expounded by the courts of last resort in this country, but that only on rare occasions do we refer to or rely on the English decisions but constantly rely on the decisions of our sister states. Thus it is clear that by this statute we adopted the common law of England only where it is suitable to our conditions, morals, history and background, that generally we look to the system of common law and equity which prevails in and has been and is now being developed by the decisions of this country and that we reject the common law of England which is not suitable or adapted to our needs, morals or ideals.

The Hatch case involved the right of the heirs of a married woman to inherit her property as against the heirs of her husband who outlived her. We held that the common law of England wherein the wife lost her separate identity with her right to sue and be sued and her property rights in general did not, with respect to such married women's rights become the law of this State.

The common law right of the husband to sue another person for criminal conversation with his wife, which was repealed or altered by the Matrimonial Causes Act of 1857, was based on the theory of a trespass against the...