Davis' Estate, Matter of

• Decision Date: 08 February 1982
• Docket Number: No. 50-80-03938,50-80-03938
• Citation: 640 P.2d 692,55 Or.App. 982
• Parties: In the Matter of the ESTATE OF Dale Allen DAVIS, Deceased. Ruth M. DAVIS, Appellant, v. Michael L. DAVIS, Respondent. ; CA 18625.
• Court: Oregon Court of Appeals

Page 692

640 P.2d 692

55 Or.App. 982

In the Matter of the ESTATE OF Dale Allen DAVIS, Deceased.

Ruth M. DAVIS, Appellant, v. Michael L. DAVIS, Respondent.

No. 50-80-03938; CA 18625.

Court of Appeals of Oregon.

Argued and Submitted May 15, 1981.

Decided Feb. 8, 1982.

Ann Aiken, Eugene, argued the cause for appellant. On the brief were Tim J. Helfrich and Sahlstrom & Dugdale, Eugene.

Steven L. Philpott, Eugene, argued the cause for respondent. With him on the brief was Armstrong & Philpott, P. C., Eugene.

Before BUTTLER, P. J., and WARDEN and WARREN, JJ.

WARREN, Judge.

Petitioner sought appointment as personal representative to administer the intestate estate of her deceased husband, contending she is entitled to preference in appointment under ORS 113.085. The trial court held that her marriage to decedent was void, because decedent was still married to his first wife at the time he married petitioner, ORS 106.020, and, therefore, denied her petition. She appeals.

Petitioner and the decedent, Dale Davis, were first married in Reno, Nevada on January 27, 1974, and, except for one three-month period, they lived together as husband and wife until his death in March, 1980. At the time of the ceremony, however, Dale's marriage to his first wife, Darline, was not yet dissolved, although a divorce suit was pending. Ruth did not learn this until after they had been ceremonially married.

On April 22, 1975, Dale, petitioner and Darline appeared in circuit court for the divorce hearing. The divorce was granted, and Darline's attorney was instructed by the court to prepare a decree in accordance with the provisions of a stipulated property settlement agreement. Following the hearing, petitioner and Dale met with his lawyer, but there is disagreement over what was said. Petitioner recalls the lawyer telling her and Dale that they could legally marry in 60 days. The lawyer recalls telling them that they could marry 60 days after the decree was signed. In any case, they went through a second marriage ceremony in Reno on July 4, 1975. She did so under the impression that they would thereby be validly married; it is uncertain what Dale thought, for his lawyer had informed him on May 21 that the divorce decree had still not been signed. In fact, because of Darline's refusal to sign the settlement agreement until August 20, the actual decree was not entered until September 22, 1975. Dale's lawyer testified that he informed Dale on that day that the July 4 marriage was invalid. Petitioner, however, did not learn until after Dale's death that he was still married to Darline at the time of the second ceremony.

Petitioner first contends that the trial court should have treated her marriage to the decedent as valid, because its validity cannot be challenged after decedent's death. The general law is that a third party, such as an executor, ¹ may not object to, or have disallowed, a voidable marriage. Dibble v. Meyer, 203 Or. 541, 546, 280 P.2d 765 (1955). Rather, an annulment proceeding must be initiated by the husband or wife. A voidable marriage is valid unless annulled, State v. Anderson, 239 Or. 200, 207, 396 P.2d 558 (1964), and a suit for annulment does not survive the death of one of the parties. Hunter v. Craft, 37 Or.App. 545, 550-551, 588 P.2d 617 (1978), reversed on other grounds 287 Or. 465, 600 P.2d 415 (1979).

A void marriage, on the other hand, is invalid from the outset and may be challenged by third parties. Garrett v. Chapman, 252 Or. 361, 449 P.2d 856 (1969). A marriage solemnized in Oregon is clearly void if either party to the marriage had a then-living husband or wife. ORS 106.020. Although Oregon recognizes marriages that are valid in the state where performed, Boykin v. Industrial Accident Com., 224 Or. 76, 81, 355 P.2d 724 (1960), it is undisputed that such a marriage is void under Nevada law as well. Nev.Rev.Stat. § 125.290 (1977).

Petitioner argues, nevertheless, that such a marriage is not void in Oregon, but at most voidable, because an old case never formally overruled, Leefield v. Leefield, 85 Or. 287, 166 P. 953 (1917), states that a marriage between prohibited persons, if solemnized in another state, is valid in Oregon irrespective of whether it has any legal force in the state where performed. Apart from certain problems with the reasoning in Leefield, ² and whether it would control if it stood alone, we think it is enough to say that in more recent cases Oregon courts have passed on the validity of out-of-state marriages, Huard v. McTeigh, 113 Or. 279, 284-285, 232 P. 658 (1925); Kelley et al. v. Kelley, 210 Or. 226, 230-232, 310 P.2d 328 (1957); Steinberg v. Steinberg, 34 Or.App. 293, 295-296, 578 P.2d 487, rev. den. 284 Or. 1 (1978). In fact, it appears to us that Leefield was overruled sub silentio in Huard. It was proper for the trial court to rule on the validity of petitioner's marriage to Dale.

We hold, however, that the trial court was incorrect in ruling that that marriage was void. A party challenging the validity of a marriage, such as petitioner's, has a heavy burden of proof. In such cases the courts have invoked a strong presumption that marriages are valid. The Supreme Court stated the rule in In re Estate of De Force, 119 Or. 556, 249 P. 632 (1926), as follows:

"It is incumbent upon a party who asserts the invalidity of such a marriage, upon the grounds that one of the parties thereto has been formerly married, to allege and prove that the parties to the alleged former marriage were eligible to consummate the same, and that the spouse of such former marriage is still living; that the first marriage has not been dissolved by divorce or by the death of one of the parties." (Emphasis added.) 119 Or. at 561-562, 249 P. 632.

This same rule was applied in Routledge v. Githens et al., 118 Or. 70, 245 P. 1072 (1926); Alto v. State Indus. Acc. Com. et al., 118 Or. 231, 246 P. 359 (1926); Smith v. Smith, 169 Or. 650, 131 P.2d 447 (1942); Marcus v. Marcus, 173 Or. 693, 147 P.2d 191 (1944); Booker v. Booker, 27 Or.App. 779, 557 P.2d 248 (1976); and Steinberg v. Steinberg, supra, but with the additional requirement that the challenger must show that the prior marriage was regularly solemnized. A closer look at these cases is useful.

In De Force, the husband died, presumably intestate; the issue was appointment of the personal representative. Decedent's brother challenged the widow's right to select the personal representative, alleging that her first marriage had not been dissolved at the time of her marriage to decedent and, thus, she was not his wife. The court held for the widow because the brother's petition: (1) had failed to "directly allege that (the widow) was ever married to (the first husband)," 119 Or. at 561, 249 P. 632, (however, the petition alleged that her divorce from him was invalid and alleged the defects in the divorce with great particularity); (2) failed to show that the first husband was alive at the time of widow's marriage to decedent; (3) failed to show that either the widow or the alleged first husband "was eligible to contract that relation with each other," 119 Or. at 561, 249 P. 632; and (4) "It does not appear from the petition or from the record that (the first husband) never obtained a valid decree of divorce from (the widow)." 119 Or. at 563, 249 P. 632.

In Routledge, a case decided several months earlier, the husband sought to have his present marriage declared invalid, alleging that his wife had a prior marriage and that the divorce decree for that marriage was void because of jurisdictional defects. The wife admitted, for her first defense, that she went through "the form of marriage" with her first husband, but alleged that the divorce decree was proper. As a second defense, she alleged that at the time she went through "the form of marriage" with her first husband, he had a then-living wife in New Jersey. The opinion says nothing more than this, but the wife's purpose in raising this second defense could only have been to argue that because of her first "husband's" New Jersey marriage, her marriage to him was void and, therefore, she was single at the time she married her second husband, regardless of any defects in the thus superfluous divorce decree.

The court stated the rule in language very similar to De Force in order to sustain the marriage at issue, but it is unclear precisely how the plaintiff-husband's proof fell short. The court mentioned that he failed to show that his wife's alleged first husband was alive at the time of her marriage to him, but then seemed to rely heavily on the fact that the record did not show either that the parties to the New Jersey marriage were eligible to contract it or that this first husband did not divorce his New Jersey wife, ...