Halker v. Halker, 77-059

• Decision Date: 04 December 1979
• Docket Number: No. 77-059,77-059
• Parties: Edna HALKER, Plaintiff-Respondent, v. Eugene A. HALKER, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 745

285 N.W.2d 745

92 Wis.2d 645

Edna HALKER, Plaintiff-Respondent, v. Eugene A. HALKER, Defendant-Appellant.

No. 77-059.

Supreme Court of Wisconsin.

Submitted on Briefs Nov. 7, 1979.

Decided Dec. 4, 1979.

Richard F. Wartman, Keith W. Dallenbach and Wartman, Wartman & Swanson, S. C., Ashland, submitted briefs, for defendant-appellant; Richard P. Tinkham and Tinkham, Smith, Bliss, Patterson & Richards, Wausau, of counsel.

DeBardeleben & Snyder, Park Falls, submitted brief, for plaintiff-respondent.

COFFEY, Justice.

This is an appeal from an order of the County Court for Ashland County dismissing Eugene A. Halker's (hereinafter the defendant) counterclaim for an annulment of his marriage to Edna Halker on the grounds that he failed to state a claim upon which relief could be granted.

The trial court record establishes that the defendant filed for a divorce on February 17, 1971 from his first wife, Laura, in the Second Judicial District Court of Washoe County, Nevada. The defendant resided in the state of Nevada from December 27, 1970 until June 4, 1971 when a decree of divorce from his first wife was entered. After the entry of the Nevada divorce decree the defendant returned to his home in Ashland County, Wisconsin. During the period of time the defendant lived in Nevada, fulfilling the residence requirement for his divorce, he also maintained a home and business in Ashland County, Wisconsin. Mrs. Edna Halker, the defendant's second wife and the plaintiff-respondent in this action (hereinafter the plaintiff), also obtained a divorce from her then present husband in the state of Michigan at approximately the same time. The plaintiff resided with the defendant for a period of time in Nevada while he was obtaining his divorce from his first wife.

Following their respective divorces from their spouses the parties applied for a marriage license in Duluth, Minnesota without success early in the month of July, 1971. The record is silent as to why the marriage license was refused. Shortly thereafter they reapplied for and received a marriage license in Ironwood, Michigan, listing their residence as Ashland, Wisconsin. They were married on July 17, 1971 in Ironwood, Michigan, and lived together as man and wife for approximately four and one-half years.

On June 24, 1976 the plaintiff filed the present action for legal separation from the defendant. In the complaint the plaintiff alleged that the defendant had treated her in a cruel and inhuman manner so as to have a detrimental effect on her mental and physical health. The defendant denied the allegation of cruel and inhuman treatment and, as an affirmative defense, alleged that their marriage was void from its inception as they failed to comply with the 6 month waiting period requirement after obtaining divorces from their spouses, in violation of sec. 245.03, (2), Stats. ¹ Furthermore, the defendant claimed the marriage was "never validated" because both parties entered the marriage in bad faith.

The plaintiff on April 4, 1977 moved for an order dismissing the defendant's counterclaim because it failed to state a claim upon which relief can be granted. The trial court in a written opinion held:

"It is concluded that the plaintiffs (sic) marriage to the defendant was voidable and not void and that the impediment to the marriage was removed when the statutory six month period lapsed after the date of respective decrees of divorce of the parties hereto. The voidable marriage then became a valid marriage.

"The counterclaim of the defendant must be dismissed."

The trial court dismissed the defendant's counterclaim for the following reasons:

". . . that the defendant was well aware of the existence of the impediment at the time of the marriage considering the fact that he left the State of Wisconsin to obtain a divorce and then went into a second and third state in an attempt to consummate the marriage. The plaintiff, on the other hand, obtained her divorce in the State of Michigan and remarried in the same state. Her divorce was final on the date of the decree with no waiting period for remarriage required. It is true that the plaintiff was aware and was evidently with the defendant when he obtained his divorce in Nevada and when he attempted to obtain a marriage license in the State of Minnesota. The Court must assume and does, that the defendant was the prime movant in seeking a license to marry and that the plaintiff accepted arrangements as made by the defendant. At the time a license was granted in Michigan, after a denial in the State of Minnesota, there was reason to believe that the plaintiff in good faith accepted the marriage contract as valid, in that she had been divorced in Michigan and married in the same State, under a license issued by Michigan authorities, notwithstanding that the fine print on the reverse of the application alluded in some respect to former divorce actions which may not have fully ripened into a final judgment.

"The Court has and does find in this case that there is evidence to support a finding of good faith on the part of the plaintiff in believing that the Michigan marriage was valid. The knowledge of the defendant in relating to the impediment is not necessarily imputed to the plaintiff."

In essence, the court determined that Mrs. Halker had entered the marriage in good faith but that Mr. Halker entered into the marriage contract with ". . . total, knowledgeable and willful disregard of the law relating to his remarriage." Alternatively, the trial court ruled the parties' marriage should be sustained on equitable considerations ". . . without a finding of good faith on the part of either of the parties. . . .", pursuant to the court's rationale in Smith v. Smith, 52 Wis.2d 262, 190 N.W.2d 174 (1971).

On May 12, 1977 an order was entered dismissing the defendant's counterclaim on the grounds that it failed to state a claim upon which relief can be granted. From this order the defendant has appealed.

Issue:

Did the trial court err in dismissing the defendant's counterclaim for annulment for failure to state a claim upon which relief can be granted?

A motion to dismiss for failure to state a claim upon which relief can be granted under sec. 802.06(2), Stats., ² serves the same function as a demurrer under the former rules of civil procedure and our court has ruled that a complaint or counterclaim is entitled to all reasonable inferences in its favor. Thus, the trial court, when ruling on a demurrer or a motion to dismiss a complaint or counterclaim should liberally construe the complaint or counterclaim with a view to achieving substantial justice. Riedy v. Sperry, 83 Wis.2d 158, 166, 265 N.W.2d 475 (1978). In Wilson v. Continental Insurance Cos., 87 Wis.2d 310, 274 N.W.2d 679 (1979) this court held that: ". . . a motion to dismiss under sec. 802.06(2)(f), Stats., usually will be granted only when it is quite clear that under no conditions can the plaintiff recover." Id. at 317, 274 N.W.2d at 683. Therefore, if the defendant's counterclaim had any merit it should not have been dismissed.

The defendant in his counterclaim requests an annulment based on the fact that his marriage to the plaintiff was invalid from the beginning because they didn't wait the necessary 6 months after obtaining their divorces from their prior spouses before marrying, in violation of sec. 245.03, Stats. The defendant also contends that their marriage was never subsequently validated and therefore remained unlawful. Sec. 247.02(9) ( 1975), Stats.,provides that one of the grounds for annulment is that the "marriage is prohibited or declared void under ch. 245 . . . ." If the parties' marriage was void and not validated then the defendant's counterclaim was proper and the trial court erred in dismissing the counterclaim for failure to state a claim upon which relief can be granted. However, if the marriage was subsequently validated then the defendant's counterclaim for annulment has no basis in law and therefore was properly dismissed.

In Wisconsin there are two ways an otherwise invalid marriage may be subsequently validated:

(1) pursuant to sec. 245.24, Stats.; or

(2) pursuant to the equitable principles set forth in Smith v. Smith, supra.

The trial court ruled in the present case that the marriage had been validated pursuant to either sec. 245.24, Stats., or Smith v. Smith.

Sec. 245.24, Stats., allows a subsequent invalid marriage to become valid provided that:

1. the second marriage was entered into by one of the parties in Good faith believing either:

(a) that the former husband or wife was dead; or

(b) that the former marriage had been annulled or dissolved by divorce; or

(c) if either spouse is without knowledge of the other party's former marriage; and

2. after the impediment to the second marriage is removed, the parties to the contract continue to live together as husband and wife and one of the parties complies with the good faith requirement.

There is no question that Mr. and Mrs. Halker continued to live together as husband and wife for approximately 4 years after the 6 month waiting period problem was resolved and thus the impediment to their marriage had been removed.

Next we reach the question as to whether the plaintiff entered into the marriage in Good faith, as the defendant in his counterclaim has alleged that both parties entered into the marriage contract in bad faith and thus their marriage could not have been validated pursuant to sec. 245.24, Stats.

Prior to Smith v. Smith, supra, this court had relaxed the stringent common law rule, that unlawful marriages are null and void, when holding that previously void marriages would now be considered voidable in situations where the impediment to the second marriage was removed. This liberalization of the strict common law rule thus allowed Wisconsin courts an opportunity to exercise discretion in granting annulment decrees. Id. at 267, 190 N.W.2d...