Clark v. Clark, 16454

• Decision Date: 13 February 1951
• Docket Number: No. 16454,16454
• Parties: CLARK v. CLARK et al.
• Court: Colorado Supreme Court

Page 142

229 P.2d 142

123 Colo. 285

CLARK v. CLARK et al.

No. 16454.

Supreme Court of Colorado, en Banc.

Feb. 13, 1951.

Rehearing Denied March 19, 1951.

Joseph P. Constantine, Denver, for plaintiff in error.

Byron G. Rogers, James H. Rogers, Denver, for defendants in error.

HAYS, Justice.

This is an action brought by Ina Harris Clark against Joseph I. Clark and Eva Waddell for divorce from the former, and other relief. It was stipulated and agreed by all parties that the trial court should first determine the validity of the marriage of the parties before deciding other issues involved. The court held that the marriage was invalid, and plaintiff seeks reversal of the judgment. The sole question here presented is whether or not a valid common-law marriage existed between the parties.

It was fully established, as the trial court held, that plaintiff and defendant Joseph I. Clark began living together in 1942, and continued to do so until July 9, 1949, when this action was commenced; that during all of that period they appeared as, and were reputed to be, husband and wife; that at the inception of such relations, both parties had living spouses from whom they were not divorced; that in August, 1945, defendant was divorced from his former wife, and in August, 1947, plaintiff was divorced from her former husband, thereby removing all impediments to a valid marriage.

The trial court in ruling on the question submitted, said:

'The case that was cited [in argument] of the woman who presumed that her husband had obtained a divorce is to be distinguished from this in this respect; both parties in this case were absolutely innocent, thought that they were able to enter into a marriage contract, and from what I heard of the case, the defendant indicated that there was a period in which they did not live together as husband and wife, and then went back together as husband and wife. Had these people here separated and broken off the relationship, and then come back together, that would have been different.'

It clearly appears from the opinion of the trial court that he would have held the marriage in question valid if the parties had separated at the time the impediment was removed, the illicit relationship terminated, and had thereafter resumed cohabitation.

Many cases are cited and relied upon by counsel for the respective parties, which, as said, call for an affirmance or reversal of the judgment. It is unnecessary to analyze or discuss these cases, as most of them were fully considered by us in Rocky Mountain Fuel Co., v. Reed, 110 Colo. 88, 130 P.2d 1049, where the issue now before us was determined adversely to the contention of defendant in the present case. We there said:

'It is admitted that the relationship of husband and wife existed unless defeated by the undisputed fact that cohabitation began illicitly because Mrs. Reed then had a husband living. She was married to one Mason from whom she shortly separated. About four years later she took up her residence with Reed. Some four years thereafter Mason obtained a divorce in California and the Reeds continued their residence and relationship until Reed's death, approximately eight years after the date of the divorce.

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'While the record before us leaves much to be desired in the way of guidance, and discloses numerous defects which it would appear counsel on either side might well have supplied at the hearing before the Commission, we still think it justifies the assertion that if there ever was a case where a relationship, unlawful in its inception, could be matured into a valid common-law marriage by the conduct of the parties without proof of specific declaration, this is that case. Eight years of conjugal cohabitation without the existence of any impediment to the marriage relation, a course of life and conduct inconsistent with any other conclusion, an orderly household, mutual...