Carr v. Carr
| Decision Date | 11 September 1950 |
| Docket Number | No. 1,No. 41607,41607,1 |
| Citation | 232 S.W.2d 488 |
| Parties | CARR v. CARR |
| Court | Missouri Supreme Court |
Sam J. Corbett and Fred L. Henley, Caruthersville, for appellant.
J. Grant Frye, Cape Girardeau, for respondent.
VAN OSDOL, Commissioner.
Appeal from a decree of divorce granted plaintiff wife, in which decree alimony in gross in the sum of $10,000 was awarded. In the trial court defendant-appellant husband alleged and, upon this appeal, contends the marriage of the parties was void. Defendant-appellant does not deny the marriage was consummated in form according to law, but he asserts the evidence shows plaintiff had a living husband when she and defendant were married. Defendant-appellant also contends the award of alimony was in grossly excessive amount.
Plaintiff-respondent and defendant-appellant were married at Greenwood, Mississippi, August 26, 1929. They came to Caruthersville, Missouri, in 1931. No child was born to the marriage. They were separated April 9, 1948; and this action was instituted June 9, 1948.
Plaintiff had married one Butler at Charleston, Mississippi, February 12, 1924. Plaintiff and Butler lived together in Charleston until along about November 24, 1924, when Butler 'went off to a log camp.' He went to work 'for a company' in South Carolina. Plaintiff testified Butler was killed about March 10, 1925--'a tree fell on him.' The First husband's brother notified plaintiff by letter, and later the brother sent plaintiff 'a little old trunk' with the first husband's 'clothes, shoes, hunting coat and several things.' Plaintiff did not hear anything more of her first husband, nor of his brother 'after he quit writing.' Plaintiff visited Gulfport, Mississippi, in 1947. Defendant testified that, upon her return to Caruthersville, plaintiff told defendant she had seen her 'used to be husband.' Defendant further testified plaintiff had not told him of her former marriage. Defendant 'didn't do anything' about it. Plaintiff denied she had seen Butler since he left for South Carolina, and denied she had stated to defendant that she had seen Butler in Gulfport. She said she had frequently talked with defendant concerning the death of her former husband, before and after her marriage to defendant. One Rhodes, witness for defendant, testified that he had known Butler, and had seen him in 1929 or 1930 and again in 1939.
Defendant, who asserted the invalidity of his marriage to plaintiff, had the burden of proof upon the issue, even though the issue required proof of a negative fact difficult to prove. Osmak v. American Car & Foundry Co., 328 Mo. 159, 40 S.W.2d 714, 77 A.L.R. 722. And where a valid first marriage has been shown, as in the instant case, it may be presumed that, at the time of the second marriage, the first marriage had been dissolved, either by a decree of divorce, or by the death of the former spouse.
'When it is shown that a marriage has been consummated in accordance with the forms of the law, it is to be presumed that no legal impediments existed to their entering into matrimonial relations, and the fact if shown, that either or both of the parties have been previously married, and, of course, at a former time having a wife or husband living, does not destroy the prima facie legality of the last marriage.
Harris v. Harris, 8 Ill.App. 57, at page 63. See now Osmak v. American Car & Foundry Co., supra; Nelson v. Jones, 245 Mo. 579, 151 S.W. 80; Jackson v. Phalen, 237 Mo. 142, 140 S.W. 879; Maier v. Brock, 222 Mo. 74, 120 S.W. 1167, 133 Am.St.Rep. 513, 17 Ann. Cas. 673; Klein v. Laudman, 29 Mo. 259; Ribas v. Stone & Webster Engineering Corp., Mo.App., 95 S.W.2d 1221; Woods v. American Coal & Ice Co., Mo.App., 25 S.W.2d 144.
The presumption of the validity of the last marriage may be repelled only by the most cogent and satisfactory evidence. Osmak v. American Car & Foundry Co., supra.
In the instant case the evidence introduced by defendant, tending to negative the death of the first husband prior to the time of plaintiff's second marriage to defendant, consisted of defendant's testimony, denied by plaintiff, that plaintiff had stated she had seen her former husband in 1947, and of the testimony of defendant's witness, Rhodes, that he had seen the former husband in 1929 or 1930 and in 1939. Concerning the testimony of the witness Rhodes--of course we do not have the opportunity to observe the demeanor of a witness as did the trial judge who apparently did not give credence to the testimony of the witness Rhodes, but we say that the cold record discloses the circumstances of the asserted meetings of the witness and Butler were vaguely detailed by the witness and that the verity of the testimony of the witness was made more doubtful upon cross-examination. Having examined the evidence relevant to the issue, we agree with the trial court's evident opinion that defendant did not clearly prove Butler was living at the time plaintiff and defendant were married in 1929. The instant case differs from the case of Pain v. Pain, 37 Mo.App. 110, cited by defendant-appellant. In the Pain case the fact that the former husband of the plaintiff was living at the time of plaintiff's marriage to defendant was not seriously contested, and there was very satisfactory proof the former husband was living on the date of the trial of the cause.
Was the award of $10,000 alimony in gross excessive?
Plaintiff is 43 years of age, and defendant is older. There was no direct evidence relating to the health of the parties; but, considering their shown activities, we infer both are in good health.
Prior to the separation, plaintiff worked in the fields, 'chopped cotton' in the cotton-chopping seasons; and 'all fall' she 'weighed cotton, kept it cleaned up around the wagon or truck or whatever we had in the field * * * I was leader in the field.' She also performed her regular household duties, prepared the meals, and did the laundry. She did laundry and janitor work for others 'all winter and lay by time.' She put the money she earned 'with his and we would buy lots and when he had to...
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