Griswold v. Griswold

• Decision Date: 13 January 1913
• Citation: 129 P. 560,23 Colo.App. 365
• Parties: GRISWOLD v. GRISWOLD.
• Court: Colorado Court of Appeals

129 P. 560

23 Colo.App. 365

GRISWOLD v. GRISWOLD.

Court of Appeals of Colorado

January 13, 1913

Appeal from District Court, Prowers County; Henry Hunter, Judge.

Action by Hattie E. Griswold against Adam H. Griswold for divorce and alimony. Judgment for plaintiff, and defendant appeals. Affirmed.

J.W. Todd, of Jefferson, N.C., and O.G. Hess of La Junta, for appellant.

Merrill & McCarty, of Lamar, and A. Watson McHendrie, of Trinidad for appellee.

KING J.

At all times hereinafter mentioned the plaintiff and the defendant were residents of Prowers county, Colo. On the 20th of August, 1908, at Raton, N.M., a contract of marriage was made and entered into by and between plaintiff and defendant, and duly solemnized by a civil magistrate of that territory. Thereafter they lived and cohabited together as husband and wife for a period of some months, until as a result of said marriage plaintiff became pregnant, following which the defendant, after a brief period of cruel treatment of plaintiff, permanently deserted her. She brought this suit in the district court in and for said Prowers county for divorce and alimony, which on November 24, 1909, resulted in a verdict and judgment in her favor. For a special and affirmative defense, defendant alleged that on the 20th day of August, 1908, in said Prowers county, plaintiff herein was granted a decree of divorce by the county court of said county from one Warren W. Young, theretofore her lawful husband, and that "the said plaintiff and the said Warren W. Young were thereby freed and absolutely released from said bonds of matrimony and from all rights and claims accruing to either of said parties by reason of their marriage to each other"; that subsequently and on the same day plaintiff and defendant, for the purpose of evading the provisions of the laws of Colorado prohibiting the marriage of a party to a divorce within one year from the date of said decree, went to the town of Raton, in the territory of New Mexico, and had the ceremony of marriage performed, and immediately returned to said Prowers county, where they have since resided. These allegations were not denied. The decree offered in evidence is absolute in form, and contains no prohibition against remarriage of the parties thereto. It does not appear that the decree was appealed from, or in any manner assailed.

The sole question presented, and necessary for determination on this appeal, is the validity of the marriage contract entered into in New Mexico within one year from the date of the decree of divorce dissolving the bonds of matrimony theretofore existing between plaintiff and her first husband, when such marriage contract is called in question, in the courts of this state, by a party thereto. Its determination depends upon the construction of section 2122, Revised Statutes of 1908, and its effect upon marriages contracted in another state, when considered in connection with section 4165 of said statutes. Section 4165 is a part of a chapter concerning "marriages," and is as follows: "All marriages contracted without this state which shall be valid by the laws of the country in which the same were contracted, shall be valid in all courts within this state; Provided, nothing in this section shall be construed so as to allow bigamy or polygamy in this state." Section 2122 is a part of "an act to provide for a system of practice and procedure in relation to divorce and alimony, and to repeal certain acts in conflict therewith," approved April 3, 1893, (Laws 1893, p. 240, § 10), and is as follows: "In case no appeal or writ of error shall be taken from a decree of the court granting a divorce, the court shall have power to set aside such decree and reopen such case at any time within one year from the date of entering such decree, upon application of the defeated party under oath showing good reason therefor; but if no such application be made within such time, or the same be denied, then such decree shall never be reopened for any cause; and during said period of one year from the granting of a decree of divorce, neither party thereto shall be permitted to re-marry to any other person." In Mock v. Chaney, 36 Colo. 60, 87 P. 538, the Supreme Court, speaking by Mr. Justice Steele, said that: "Very many intricate questions of law and public policy are involved in a consideration of the question presented concerning the validity of a marriage in New Mexico within one year from the granting of a divorce in this state." The public policy of the state, as to the matter under consideration, is declared in the two sections of the statutes hereinbefore quoted. The first has been a part of the statute on that subject since territorial days, and declares and expressly adopts as the law and public policy of this state the jus gentium, or law of nations, by which the validity of the marriage contract is referred to the lex loci contractus, and which is made binding by the common consent of all nations--the public policy of the civilized world. The second, so far as the clause prohibiting remarriage of parties divorced is concerned, was not in the statutes prior to 1893.

And if said last-named provision is given extraterritorial effect, or is held to apply to and invalidate or affect a marriage of citizens of this state contracted in another state, it is clearly in conflict with the provisions of said section 4165, as well as with the jus gentium, and, being the later declaration, would operate as an amendment to, or repeal in part of, said former section as to marriages made within one year from the date of divorce. Purmort v. Tucker Lumber Co., 2 Colo. 470; Branagan v. Dulaney, 8 Colo. 408, 412, 8 P. 569; Calhoun G.M. Co. v. Ajax G.M. Co., 27 Colo. 1, 14, 59 P. 607, 50 L.R.A. 209, 83 Am.St.Rep. 17.

But repeals by implication are not favored. In view of the apparent conflict, it is the province and duty of the court to ascertain whether both sections of the statute may not be so construed as to be given full force and effect in conformity with recognized and approved rules of statutory construction and interpretation. The provision of section 2122, prohibiting remarriage within one year, is general in its terms, contains no exceptions as to the place where such contract may be entered into, and therefore prima facie applies to and includes such marriages everywhere--out of this state as well as within its borders. But this section contains no words expressly making it extraterritorial in effect, or declaring such marriage void, or which evidence an intention to repeal section 4165 or to in any manner affect it.

The following rules of construction are in point: "Generally words are not to be so construed as to alter the previous policy of the law, unless no sense or meaning can be put upon them consistent with the intention of preserving the existing policy untouched." "After a statutory policy has long been established and is well defined, it will not be presumed to be departed from or abandoned." 2 Lewis' Sutherland on Statutory Construction (2d Ed.) § 581.

Statutes in derogation of common law are to be strictly construed. "In the absence of words express and conclusive, admitting of no other interpretation, a court will not presume that the Legislature intended to command the judicial tribunals to violate the established principles of law and even the law of nations; so that a statute in general terms yet susceptible of a reasonable application without being carried so far will be restricted by construction to a narrower sense consistent with the law of nations." 1 Bishop on Marriage, Divorce and Separation, § 835. "Where fundamental principles are overthrown, where the general system of laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects." Chief Justice Marshall in U.S. v. Fisher, 2 Cranch, 389, 2 L.Ed. 304; Van Voorhis v. Brintnall, 86 N.Y. 18, 37, 40 Am.Rep. 505.

Upon the question involved herein, the authorities are not entirely harmonious, but in the construction of this statute, and in its application to the facts of this case we follow and adopt the reasoning of, and the rules laid down by, the following authorities text-writers, and court decisions: 2 Kent's Commentaries (14th Ed.) p. *93; 1 Bishop on Marriage and Divorce, §§ 283, 286, 306a; State v. Shattuck, 69 Vt. 403, 38 A. 81, 40 L.R.A. 428, 60 Am.St.Rep. 936; Conn v. Conn, 2 Kan.App. 419, 42 P. 1006; Mason v. Mason, 101 Ind. 25; Park v. Barron, 20 Ga. 702, 65 Am.Dec. 641; Medway v. Needham, 16 Mass. 157, 8 Am.Dec. 131; Commonwealth v. Lane, 113 Mass. 458, 18 Am.Rep. 509; Ross v. Ross, 129 Mass. 243, 37 Am.Rep. 321; Van Voorhis v. Brintnall, supra; Stevenson v. Gray, 17 B.Mon. (Ky.) 193. Kent, in his Commentaries (2 vol. [ 14th Ed.] pp. *92, *93), says: "As the law of marriage is a part of the jus gentium, the general rule undoubtedly is that a marriage, valid or void by the law of the place where it is celebrated, is valid or void everywhere. An exception to this rule is stated by Huberus, who maintains that if two persons, in order to evade the law of Holland, which requires the consent of the guardian or curator, should go to Friesland, or elsewhere, where no such consent is necessary, and there marry, and return to Holland, the courts of Holland would not be bound by the law of nations to hold the marriage valid, because it would be an act ad eversionem juris nostri. In opposition to this opinion, we have the decision of the court of delegates in England in 1768, in Compton v. Bearcroft, 2 Hagg.Cons. 443, 444, where the parties, being English subjects, and one of them a minor, ran away, without the consent of the guardian, to avoid...