Glass v. Glass

• Decision Date: 31 January 1977
• Docket Number: No. KCD,KCD
• Citation: 546 S.W.2d 738
• Parties: Max Edward GLASS, Plaintiff-Appellant, v. Sandra GLASS, Defendant-Respondent. 27855.
• Court: Missouri Court of Appeals

Page 738

546 S.W.2d 738

Max Edward GLASS, Plaintiff-Appellant, v. Sandra GLASS, Defendant-Respondent.

No. KCD 27855.

Missouri Court of Appeals, Kansas City District.

Jan. 31, 1977.

Richard E. Watson, Jay W. Jensen, North Kansas City, for plaintiff-appellant.

Don Witt, Witt & Shafter, Platte City, for defendant-respondent.

Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.

SHANGLER, Presiding Judge.

The plaintiff Max Glass appeals the trial court denial of his petition to annul and enjoin enforcement of the alimony judgment previously entered as an incident to the decree which dissolved his marriage to Sandra Glass.

The cause was submitted for adjudication to the trial court on these stipulated facts:

Max Glass and Sandra Glass were divorced by the circuit court of Platte County after a long marriage. The decree obligated Max to pay Sandra $183 monthly alimony. One day after the decree became final, Max announced his engagement to marry his present wife, and confirmed that intention on December 10, 1972, by announcement in the Kansas City Star. The marriage took place on April 8, 1973.

Then, on January 19, 1973, (after the Glass divorce but before Max remarried) Sandra married one Wedding, but did not inform Glass of the event but, in fact, continued to accept alimony. Glass learned of her remarriage and discontinued payment of alimony according to the terms of § 452.075, RSMo 1969, and Glass thereafter setoff $183 from child support payments. Sandra then petitioned the circuit court of Clay County to annul her marriage to Wedding on the contention that he had fraudulently concealed his alcoholism from her. Wedding defaulted to the petition and annulment was granted. Thereafter, Sandra made request that Max resume alimony payments. In the absence of compliance, she registered her Platte County divorce and alimony decree in the District Court of Johnson County, Kansas, as a foreign judgment, an action which led to the garnishment of Glass' wages. The Kansas court stayed enforcement of the garnishment, however, and ordered Glass to pay the monthly alimony into its registry pending adjudication of the Platte County action to annul and enjoin enforcement of the alimony portion of the divorce judgment.

Then, on November 9, 1973, Glass brought a separate action in Clay County (No. 44204) to set aside the Wedding annulment decree entered by that court.

In the petition before us on review Glass alleged that by the Wedding remarriage § 452.075 operated to terminate his obligation for alimony to Sandra and renders that portion of the divorce judgment void. The trial court dismissed the petition and denied relied and also dismissed his action pending in Clay County to set aside the annulment decree of that court.

The contentions on appeal reduce to two: (1) that the remarriage of Sandra to Wedding completely terminated the Glass alimony obligation to Sandra by operation of § 452.075 and (2) the trial court of Platte County was without jurisdiction to dismiss the Glass petition to set aside the annulment decree then pending in Clay County.

The determination of the basic issue rests on the meaning of § 452.075 When a divorce has been granted, and the court has made an order or decree providing for the payment of alimony and maintenance of the wife, the remarriage of the former wife shall relieve the former husband from further payment of alimony to the former wife from the date of the remarriage, without the necessity of further court action . . . (Emphasis supplied.)

The appeal must decide: Is the marriage between Sandra and Wedding, subsequently annulled on the ground of fraud, a remarriage within the terms of § 452.075 so as to relieve Glass from further payment of alimony under the Platte County divorce decree?

The parties argue the effect of the annulment on the alimony decree in terms of the dichotomy made by ancient equity between a void and voidable marriage. In contemporary terms, a void marriage results from lack of capacity to consent (Guthery v. Ball, 206 Mo.App. 570, 228 S.W. 887 (1921)) or because for other reasons the law allows the ceremony no validity (§§ 451.020 and 451.030). A voidable marriage, on the other hand, results from fraud, error, duress, or other imperfect consent. Henderson v. Ressor, 265 Mo. 718, 178 S.W. 175, 177(2) (banc 1915). The distinction made is that a void marriage is null from inception whereas a voidable marriage is valid until disaffirmed by decree. Jordan v. Missouri & Kansas Telephone Co., 136 Mo.App. 192, 116 S.W. 432, 434 (1909); Nelson on Divorce and Annulment (2d ed. 1945) §§ 31.01 et seq. A voidable marriage set aside by decree constitutes a judicial declaration that no marriage existed and so--by a fiction of equity--also becomes void from the beginning. Henderson v. Ressor, supra, l.c. 177(2). This doctrine of relation back, however, operates selectively to protect innocent third parties. 4 Am.Jur.2d, Annulment of Marriage, § 93; Sleicher v. Sleicher, 251 N.Y. 366, 167 N.E. 501, 502(5) (1929, Cardozo, C.J.). ¹ As between the spouses inter sese, the effect of the law is the same whether the marriage is void or voidable, the event is treated as though it had never been. ² Sleicher v. Sleicher, supra, l.c. 502(1--3); Flaxman v. Flaxman, 57 N.J. 458, 273 A.2d 567, 569 (1971); Nelson on Marriage and Annulment (2d ed. 1945) § 31.66; 4 Am.Jur.2d, Annulment of Marriage, § 93.

We are led to conclude that the traditional distinctions between a void and voidable marriage are largely irrelevant to the issue here: whether a subsequent marriage of a spouse later annulled revives the obligation of the other spouse to pay alimony under the divorce decree, or, on the other hand, constitutes a remarriage within the meaning of § 452.075 so as to relieve further obligation. The question must be determined from the terms of the enactment itself and the reasons of the lawmaker.

Although the issue comes for decision to a Missouri court for the first time, other courts have confronted the essential question. The issue has arisen in a congeries of forms, but typically under the provisions of separation agreements and statutes which have relieved--in one manner or another--the obligation of one spouse upon the remarriage of the other. The cases are collected at 45 A.L.R.3d 1033, Annotation: Alimony--Annulment of Later Marriage. Those of them which rest upon provisions of contract bear only by analogy; those which construe statutes are more nearly relevant. The two enactments which are most nearly equivalent to our own § 452.075 in terms and apparent purpose are § 139 of the California Civil Code and the New Jersey Statutes § 2A:34--25. Each statute provides that the alimony obligation of the former husband shall terminate on the remarriage of the divorced wife. In terms, the California law provides:

Except as otherwise agreed by the parties in writing, the obligation of any party in any decree, judgment or order for the support and maintenance of the other party shall terminate upon the death of the obligor or upon the remarriage of the other party.

It was contended in Sefton v. Sefton, 45 Cal.2d 872, 291 P.2d 439 (In banc 1955) that the annulment of her remarriage revived the obligation of her former husband for payment of alimony under the divorce decree. At issue was the meaning to be accorded remarriage adopted into the property settlement agreement from § 139 of the California Civil Code. The second marriage had been induced by fraud and thus, by traditional concepts, was voidable. She contended--as does Sandra Glass Wedding here--that by the doctrine of relation back the annulment effaced the second marriage altogether so that in the mind of the law she was not married and so was entitled to the benefits of alimony. Sefton responded that the courts use the relation back fiction to do justice, and not to injure innocent persons--such as the first husband who was not an actor in the second ceremony. The court held that the ceremony of remarriage terminated the alimony obligation under the property settlement agreement and the statute and rested this conclusion on three reasons of policy (l.c. 441):

1. A former husband is entitled to rely on the remarriage ceremony of the former wife to recommit assets previously used for alimony obligations to her.

2. Unless the remarriage ceremony is taken as conclusive, any latent grounds for annulment between the remarried spouse and her new husband may remain suspended until the offended spouse seeks annulment, so that the former husband's alimony obligations may never be certainly determined.

3. Even though both former spouses may be innocent, the more active of the two (the one whose remarriage is later annulled) should bear the loss from the misconduct of a stranger.

Berkely v. Berkely, 269 Cal.App.2d 872, 75 Cal.Rptr. 294 (1969) applied the Sefton rationale to a void remarriage to terminate the alimony right of the remarried spouse. The court expressly found void-voidable marriage distinction irrelevant to the purposes of the statute and held that the remarriage ceremony itself terminated the obligation for alimony.

New Jersey has given § 2A:34--25 the same effect as the California counterpart except that those provisions become operative only upon proof that the former wife has remarried:

If after the judgment of divorce the wife shall remarry, the court shall not make any order as to the alimony of such wife except that upon application of the former husband, on notice and on proof of the marriage of the former wife after the judgment of divorce, the court shall modify any order or judgment as to the alimony of the former wife by vacating and annulling any and all provisions in any such order or judgment, or both, directing the payment of money for the support of the former wife.

At first, the New Jersey court construed this statute in terms of the void-voidable distinction (Minder v. Minder, 83 N.J.Super. 159, 199...