Chavez v. Chavez, 9126
| Decision Date | 28 May 1971 |
| Docket Number | No. 9126,9126 |
| Citation | 1971 NMSC 62,485 P.2d 735,82 N.M. 624 |
| Parties | Patricia L. CHAVEZ, Plaintiff-Appellee, v. Paul R. CHAVEZ, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Defendant-appellant (Husband) appeals from an order reinstating plaintiff-appellee's (Wife) alimony from the date of the purported annulment of a subsequent marriage. We reverse.
The parties were formerly husband and wife. During the pendency of divorce proceedings, they entered into a contract settling their differences. The contract dealt with the usual subjects--division of community property and debts, recognition of separate property, custody and support of the children and the like. Further, Husband agreed to pay Wife '* * * $70.00 per month as and for alimony for her lifetime except that in the event of her remarriage said payments shall cease.'
The contract was presented to the court for its approval and by its final decree entered in February, 1968, the court made the essential findings regarding it, the contract was attached as an exhibit, and in the decretal portion was approved and confirmed. The decree was not appealed and became in all respects final.
Following a brief courtship and a ceremony vaguely recalled, on October 26, 1968, Wife married one Roul King. Husband ceased paying alimony from the time of the nuptials, although no order authorizing cessation was entered. The marriage was consummated, but being beset with problems, Wife consulted counsel and inquired as to whether her alimony could be reinstated if the second marriage were to be annulled. On January 10, 1969, Wife filed suit against Mr. King, alleging that he had '* * * represented himself to be a conscientious and dependable person, that he had $11,000 in a bank, that he was employed and would provide for, maintain and support' Wife, but that these representations were untrue. She prayed that the marriage be declared null and void. A decree was entered by default so declaring on March 21, 1969.
On April 30, 1969, Wife filed a petition which simply alleged the provisions of the decree vis-a-vis alimony, the marriage to Mr. King and the annulment thereof, and that she was '* * * entitled to have her rights to alimony in the * * * final decree reinstated.'
The court below made findings of fact as to the decree, the subsequent marriage and the annulment. It further found that Husband had refused to pay alimony since the annulment (which was not alleged though undisputed) and that Husband was financially able to pay alimony (which was neither alleged nor supported by any evidence). It concluded that Wife was entitled to alimony '* * * as the marriage to Roul King was void ab initio.' An order was entered by which alimony was 'reinstated' commencing the day following the annulment decree. This appeal followed.
Husband has consistently asserted that the annulment was void. Validity of the annulment is implicit in the court's decision. The annulment proceedings appear doubtful, but we need not pass upon their validity. The annulment was supposedly predicated upon fraud, and therefore the court's conclusion that the second marriage was void ab initio is in error. Flaxman v. Flaxman, 57 N.J. 458, 273 A.2d 567 (1971); 52 Am.Jur.2d 'Marriage' § 30. Even granting an aura of validity to the annulment proceedings, the marriage was no worse than voidable.
Alimony is the support which a court decrees in favor of a wife as a substitute for, and in lieu of, the common law or statutory right to marital support during coverture. In New Mexico, men are not legally obliged to support the wives of others, and instances in which alimony should be continued after remarriage have been characterized as being '* * * extremely rare and exceptional.' Mindlin v. Mindlin, 41 N.M. 155, 66 P.2d 260 (1937). Wife has the burden of proving some extraordinary condition. Kuert v. Kuert, 60 N.M. 432, 292 P.2d 115 (1956); Mindlin v. Mindlin, supra.
Both Mindlin and Kuert indicate, probably in deference to form and policy, that a husband should make application to the court to be relieved of the payments, which was not done in this case. That issue is not presented to us, since Wife makes no complaint of the cessation of alimony, but rather seeks 'reinstatement,' the relief granted by the trial court. The case was presented...
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