Gordon v. Gordon

• Decision Date: 11 June 1929
• Docket Number: Civil 2753
• Citation: 35 Ariz. 357,278 P. 375
• Parties: EARL E. GORDON, Appellant, v. MAUDE LEE MUDD GORDON, by THOMAS DERRY, Her Guardian ad Litem, Appellee
• Court: Arizona Supreme Court

278 P. 375

35 Ariz. 357

EARL E. GORDON, Appellant, v. MAUDE LEE MUDD GORDON, by THOMAS DERRY, Her Guardian ad Litem, Appellee

Civil No. 2753

Supreme Court of Arizona

June 11, 1929

On motion for rehearing on appeal from an order of the Superior Court of the County of Pinal. E. L. Green, Judge. Order reversed and case remanded.

For former opinion, see ante, p. 101, 274 P. 772.

Mr. W L. Barnum, Kathryn Van Leuven and Mr. B. B. Blakeney, for Appellant.

Messrs Swenson & Swenson and Mr. Vern E. Thompson, for Appellee.

OPINION

McALISTER, J.

This case is before us on appellee's motion for a rehearing. A decree annulling the marriage entered into by Maude Lee Mudd Gordon and Earl Gordon on June 8th, 1925, at Council Bluffs Iowa, was obtained by the former in the superior court of Pinal county, this state, on May 5th, 1926, and within a year thereafter, to wit, on May 2d, 1927, the latter filed in that court his complaint praying that this decree be vacated and set aside and that he be permitted to answer and defend the action. The trial court denied this relief and dismissed his complaint, and in reversing this order we held that because the record discloses that the plaintiff had resided in Arizona less than one year when she filed her complaint for annulment, the superior court was without jurisdiction to hear the case and should have dismissed it, the view of the court being that the residence requirement of one year in the state and six months in the county is just as applicable to a suit to annul a voidable marriage as it is to a proceeding to dissolve a valid one. See ante, p. 101, 274 P. 772. In the opinion this language was used:

"Due to the fact that chapter 4, title 32, Revised Statutes 1913, entitled 'Absolute Divorce,' contains the only reference in the statutes to annulment proceedings and that the first paragraph thereof, 3858, conferring upon superior courts the power to hear and determine such actions, and the second, 3859, enumerating the grounds upon which divorces a vinculo matrimonii may be granted, are followed by 3860 containing the residence requirements for persons seeking a dissolution of the marriage relation, we are of the view that the term 'divorce' in this paragraph refers to all actions of this character, whether it be one under 3858 for an annulment upon some ground existing prior to the marriage, or whether it be one under 3859 for a dissolution because some event occurring subsequent thereto."

Appellee contends that this holding is erroneous, and urges upon us with much force the contention that there is in chapter 4 no provision indicating that it was the intention of the legislature to include in the word "divorce," as used in paragraph 3860, a proceeding to annul a marriage upon grounds existing prior thereto. The mere fact that paragraph 3858, which confers upon the superior courts the power to decree marriages null and void, appears in the chapter entitled "Absolute Divorce," does not, it is argued, have this effect, because the purpose and the result of the two proceedings -- annulment and divorce -- are different, and upon a further consideration of the proposition we are satisfied that this position is correct. Our principal reason for so concluding is that it is the policy of the state, an unnamed but interested party in every divorce suit, that the marriage relation, the foundation of society and of civilization itself, be maintained, and the provision that a plaintiff must reside a year in the state and six months in the county, before he is permitted to file a suit for divorce, was made a part of the statute because in the mind of the legislature such a requirement would have a tendency to lessen the number of separations and at the same time render it possible to procure them without undue restriction in those instances in which real reasons therefor exist. This policy rests upon the theory that only those who may lawfully marry should or will do so, and naturally has no application to those cases in which the parties, or one of them, enters into this relation in violation of the plain language of the statute which says either that they shall not marry or that their marriage shall be null and void if they do. It being true that the best interests of the state demand that marriage ties lawfully formed be maintained so far as possible, and that those entered into under such circumstances that the law declares them null and void should not, the reason for the residence requirement in divorce suits is not present in annulment actions. If, for instance, members of two races between whom the law prohibits intermarriage, or those within the prohibited degrees of consanguinity, or those not legally separated from a living spouse, or those not possessing the age the statute prescribes, disregard the statute and enter into the marriage relation notwithstanding, there is no reason why this status should be maintained until the party desiring it annulled shall have lived a year in the state and six months in the county, or any portion of it. The relation cannot legally exist in the first three instances, and if it be considered best for those interested and the public, whether absolutely necessary under the law or not, that a decree of court nullifying it be entered, such action should be taken at the earliest moment possible, and while in the fourth it is perhaps voidable and therefore valid for all purposes until nullified by a court of competent jurisdiction, the practical situation as well as public policy suggests that if it is to be nullified at all it should be done immediately also, and this of course could not be accomplished in cases in which the complaining party does not have the residence required of those seeking to dissolve a marriage the validity of which is unquestioned unless he is relieved of the necessity of gaining it.

We hold, therefore, that one seeking an annulment of a marriage upon some ground existing prior to entering that status is not required to comply with the residence provisions of paragraph 3860, but is governed by the first of the eighteen exceptions to the general rule relating to venue that "no person shall be sued out of the county in which he resides," which provides that where the defendant resides out of the state or his residence is unknown suit may be brought in the county in which plaintiff resides. Paragraph 394, Rev. Stats. 1913. Such is the construction placed by the Supreme Court of Texas on a statutory provision of that state practically the same in meaning as paragraph 3860, supra, Schneider v. Rabb, 100 Tex. 211, 97 S.W. 463, and we think it correct.

This view necessitates a re-examination of the record, but we will restate the facts appearing in the original opinion only in part, and add those not yet given which a proper understanding of the assignments discussed require.

The annulment was sought and decreed upon the ground that the marriage was entered into through duress, and therefore was not real but pretended only. The defendant had one year in which to apply for a new trial, the decree having been rendered on process by publication, and on May 2d, 1927, just three days before the expiration of this period, he filed a complaint asking that the decree be set aside and the right to answer given him, and to this attached as an exhibit his affidavit stating more in detail the facts upon which he relied for this relief. First and second amended complaints were filed, and the plaintiff moved to strike certain portions of both, demurred to the latter specially and generally, and followed with a general denial. Some of the motions were granted and the demurrers were sustained, whereupon the application to set aside the decree of annulment and grant a new trial was denied and the proceeding instituted for this purpose dismissed.

In appealing from this order the defendant, appellant here, assigns two errors: The first, the refusal to vacate the judgment annulling the marriage because the court was without jurisdiction to hear the matter, and, the second, the orders sustaining the motions to strike and the demurrers. The two principal grounds urged in support of the assignment that the court was without jurisdiction are: First, that the plaintiff, appellee here, was not at the time of filing her complaint for annulment, or at any time thereafter, an actual bona fide resident of the state of Arizona; and, second, that she intentionally deceived the court and induced it to take jurisdiction of the case by stating in her affidavit for service of summons by publication that she did not know the residence of appellant, when in fact she did know that he was a resident of Miami, Oklahoma, and that a notice sent to him at that place would have been received by him in due course of the mail. Inasmuch as residence so frequently turns upon the question of intention, we will not consider the first ground, but will examine the record with a view to ascertaining whether it sufficiently discloses knowledge on the part of appellee of the residence of appellant at the time of filing her complaint.

In the second amended complaint upon which the matter was heard appellant alleges that at all times mentioned in the pleadings in the case he was a resident of Miami, state of Oklahoma, and that appellee knew this and that mail addressed to him there would be received by him when she filed her complaint, made the affidavit for service of summons by publication, and in fact when every action had in the case was taken, but notwithstanding this he had no knowledge whatever of the filing of her complaint until about twenty days prior to the date on which he filed his petition asking that the decree of annulment be set aside.

It is alleged further that...