Demoss v. Demoss

• Court: Indiana Appellate Court
• Writing for the Court: PFAFF; CARSON; FAULCONER; HUNTER; MOTE
• Citation: Demoss v. Demoss, 195 N.E.2d 496, 135 Ind.App. 548 (Ind. App. 1964)
• Decision Date: 09 January 1964
• Docket Number: No. 19823,19823
• Parties: Patricia Ann DEMOSS, Appellant, v. Jacob Lee DEMOSS, by his next friend, Jacob L. Demoss, Appellee.

Page 496

195 N.E.2d 496

135 Ind.App. 548

Patricia Ann DEMOSS, Appellant, v. Jacob Lee DEMOSS, by his next friend, Jacob L. Demoss, Appellee.

No. 19823.

Appellate Court of Indiana, In Banc.

Jan. 9, 1964.

Dissenting Opinion Jan. 29, 1964.

Robert J. Fair, Princeton, for appellant.

Warren Barnett, Princeton, Kimmell, Kimmell & Funk, Vincennes, for appellee.

PFAFF, Judge.

This action was brought by appellee to annul his marriage to appellant pursuant to § 44-106, Burns' 1952 Replacement, which provides:

'When either of the parties to a marriage shall be incapable, from want of age or understanding, of contracting such marriage, * * * the same may be declared void, on application of the incapable party in the case of want of age or understanding * * * by any court having jurisdiction to decree divorces; * * *.'

Appellant's demurrer to the complaint, based upon the ground that it did not state facts sufficient to constitute a cause of action, was overruled. Appellant refused to plead further, and judgment was rendered, after the hearing of evidence, that the marriage be annulled.

The overruling of the demurrer is assigned as error.

The complaint alleges that the parties were both residents of Gibson County, Indiana, and were married in Vanderburgh County on April 7, 1961; that at the time of the marriage appellant was pregnant; that appellee was and still is seventeen years of age and did not have the consent of his parents to enter into the marriage contract; that on the date of the marriage the parties appeared before the judge of the Vanderburgh Superior Court and applied for an order directing the clerk of the Vanderburgh Circuit Court to issue a marriage license to them; that the court knew of the above facts and was so informed by the petition, and issued an order directing the clerk to issue the marriage license; that the license was illegal. Appellee prayed that the marriage be annulled.

Appellant bases her argument that the marriage was not voidable upon Chapter 130 of the Acts of 1957, § 2, [135 Ind.App. 550] p. 229, approved March 11, 1957, § 44-202, Burns' 1963 Cum.Supp., which amended an 1852 statute (1 R.S.1852, ch. 67), by adding a new section as follows:

'In the event the female applicant for a license to marry is under eighteen (18) years of age, or the male applicant is under twenty-one (21) years of age, the license cannot be issued unless the application for the license is accompanied by a verified written consent, consenting to the issuance of the license to any such under-age applicant, signed and verified in the presence of the issuing officer by one of the following:

'(1) Both parents, either natural or adoptive, of any such applicant; or

'(2) The legally appointed guardian of any such applicant; or

'* * *

'(b) Parties intending to marry who require parental or guardian's consent in order to obtain a license to marry, may petition, either orally or by a written petition, the judge of the circuit court, or the judge of a superior court, of the county in which either or both of the parties reside, or of a county immediately adjoining such county, for a judicial decree authorizing the dispensation of the required consent. In the consideration of any petition so filed, the judge of such court may conduct any investigation or hold any hearing that he may deem necessary to a proper determination of the petition. After due consideration of the pertinent facts relevant to the matter presented by the petition, the judge of such court may, for good and sufficient reason shown and in the best interests and welfare of all persons concerned, issue a written order, directed to the clerk of the circuit court, authorizing and directing such clerk to issue a marriage license to the petitioners without requiring the submission of any required written consent.'

Prior to 1957, the 1852 statute, both as originally adopted and as amended in 1951, contained a similar provision requiring the consent of parents or guardians in the event the female was within the age of eighteen or the male within the age of twenty-one.

Appellant's argument is that the above quoted section of the statute makes no reference to any minimum age limit under which the court may not go in exercising its jurisdiction, and therefore there is no minimum age limit; that inasmuch as the court authorized and directed the clerk to issue the marriage license, the marriage was not voidable. It might be similarly observed that this particular section of the statute does not fix a minimum age limit for marriage where the parents or guardians consent. Appellant further argues that this is the sole statutory provision applicable here and that § 44-101, Burns' 1963 Cum.Supp., is not applicable.

A single statutory provision cannot be construed standing alone and must be construed in the light of the entire act to which it applies. Tinder, Pros. Atty., et al. v. Music Op. Inc. (1957), 237 Ind. 33, 52, 142 N.E.2d 610; McKee v. Hasler (1951), 229 Ind. 437, 449, 98 N.E.2d 657; Pry v. Pry (1947), 225 Ind. 458, 468, 75 N.E.2d 909.

In 26 I.L.E., Statutes, § 130, p. 341, it is stated:

'All statutes relating to the same subject matter should be so construed with reference to each other that effect may be given to all the provisions of each, if this can be done by any fair and reasonable construction, so as to produce a harmonious system, if possible; the later of two statutes covering the same subject matter is controlling as to any conflicting provisions.'

Further, in 26 I.L.E., Statutes, § 131, p. 344, the following language may be found:

'The rules of construction and interpretation of acts in pari materia apply with singlar force to acts passed at the same session of the Legislature. * * *.'

See also Crawford, Statutory Construction, § 230, pp. 429-430; Sutherland, Statutory Construction, § 5201, pp. 529-548.

Chapter 255 of the Acts of 1957, p. 585, approved March 13, 1957, § 44-101, Burns' 1963 Cum.Supp., amended another section of the 1852 statute (1 R.S.1852, ch. 67, § 1, p. 361), as it had been previously amended in 1877, to read as follows:

'Marriage is declared to be a civil contract into which males of the age of eighteen (18), and females of the age of sixteen (16), not nearer of kin than second cousins, and not having a husband or wife living, are capable of entering; Provided, That if satisfactory proof is furnished to the judge of any circuit, superior or juvenile court that a female is pregnant; that the female is under the full age of sixteen (16) years or the putative father is under the full age of eighteen (18) years, or both; that said parties desire to be married to each other and that the parents or other person in loco parentis of the person or persons so under age consent thereto, then the judge of any such court in the county where either of such parties resides may waive the minimum age requirement and by written instrument authorize the clerk of the court to issue the marriage license to the parties if they are otherwise qualified by law. Authorization shall be a part of the confidential files of the clerk of the court, subject to inspection only by written permission of the judge.'

The principal change made by the 1957 amendment was the addition of the proviso and the second sentence, neither of which is applicable to the facts in this case. No change was made in the provisions as to age except changes in punctuation.

Minimum age limits for marriage have been prescribed by statute since the early days of this state. See R.S.1838, p. 410, quoted in Adkins v. Holmes (1850), 2 Ind. 197, 200.

Section 44-202, Burns' supra, must be construed in connection with § 44-101, Burns' supra, and particularly the words of the latter statute that, 'Marriage is declared to be a civil contract into which males of the age of eighteen (18), and females of the age of sixteen (16), * * * are capable of entering;' as well as the provisions of § 44-106, Burns' supra, to the effect that when either of the parties to a marriage is incapable from want of age of contracting a marriage, the same may be declared void by a proper court. If it were otherwise the proviso added to § 44-101 in 1957 would be meaningless.

A marriage between persons who are incapable, from want of age of contracting the same, is voidable and not void. Thus, such a marriage is subject to ratification when the parties become of proper age. Henneger v. Lomas (1896), 145 Ind. 287, 302, 44 N.E. 462, 32 L.R.A. 848.

The complaint here indicates that appellee was a male seventeen years of age at the time of marriage, and also at the time of the filing of this action, and could not have ratified the marriage. The marriage was therefore voidable and subject of being declared void upon his application.

The court did not err in overruling the demurrer.

Judgment affirmed.

CARSON, C. J., and COOPER, KELLEY and RYAN, JJ., concur.

HUNTER, P. J., dissents with opinion to follow.

FAULCONER, J., not participating.

HUNTER, Presiding Justice (dissenting).

On April 7, 1961 the parties were married in Vanderburgh County. Both the appellant and appellee were at said time residents of Gibson County. The appellant, seventeen years of age, was pregnant; the appellee was seventeen years of age and did not have the consent of his parents to said marriage. The appellant and appellee appeared before the judge of the Vanderburgh Superior Court and informed said judge of the above facts and orally petitioned the court for an order directing the clerk of the court to issue a marriage license to them. The judge of said court upon a hearing granted said petition and issued an order directing the clerk to issue a marriage license to them, the marriage license was accordingly issued by the clerk and the appellant and appellee then were married.

The complaint for annulment filed by the appellee alleged a lack of jurisdiction in the judge of the Vanderburgh Superior Court to order the...