Harvey v. Harvey

• Decision Date: 03 December 1982
• Docket Number: No. 15489,15489
• Citation: 298 S.E.2d 467,171 W.Va. 237
• Court: West Virginia Supreme Court
• Parties: Myrtle M. HARVEY v. Cesco HARVEY, Jr.

Page 467

298 S.E.2d 467

171 W.Va. 237

Myrtle M. HARVEY v. Cesco HARVEY, Jr.

No. 15489.

Supreme Court of Appeals of West Virginia.

Dec. 3, 1982.

Syllabus by the Court

Pursuant to W.Va.Code, 48-2-1 [1935], bigamous marriages are "void from the time they are so declared by a decree of nullity." To obtain an annulment of a bigamous marriage, an order or decree must be entered in a court of competent jurisdiction declaring the nullity. Orders merely setting forth the conviction and sentence of a defendant for the felony offense of bigamy under W.Va.Code, 61-8-1 [1931], are not sufficient standing alone to constitute an annulment of a bigamous marriage.

Masters & Taylor, Barbara J. Keefer and Robert A. Taylor, Charleston, for appellant.

John E. Dorsey, Charleston, for appellee.

McHUGH, Justice:

This action is before this Court upon an appeal by the appellant, Myrtle M. Harvey, from the final order of the Circuit Court of Kanawha County, West Virginia. Pursuant to that order, entered on October 23, 1981, the circuit court granted the appellee, Cesco Harvey, Jr., an annulment of his marriage to the appellant. Furthermore, pursuant to that order, the circuit court denied the appellant's claim for separate maintenance.

This Court by order entered on February 10, 1982, granted the appeal in this action. By order entered on April 29, 1982, this Court granted the appellant's motion for leave to move to reverse. This Court has before it all matters of record and the briefs and argument of counsel.

Appellant's First Marriage

The record indicates that on April 14, 1950, in Kanawha County, West Virginia, the appellant married Vance Bernard Pauley (hereinafter "Pauley"). At that time, however, Pauley was married to another woman by the name of Patricia Fletcher. Pursuant to W.Va.Code, 61-8-1 [1931], ¹ Pauley was indicted in the Intermediate Court of Kanawha County for the felony offense of bigamy. ² Pauley entered a plea of guilty to that charge and on May 15, 1952, was sentenced to the West Virginia Penitentiary for an indeterminate term of one to five years.

The appellant asserts that at the time Pauley was sentenced in Intermediate Court, the trial judge informed Pauley, in the presence of the appellant, that Pauley's marriage to the appellant was annulled. In September, 1980, the appellant instituted an action to annul her marriage to Pauley. Prior to that time, however, neither the appellant nor Pauley took any action to terminate the marriage, although in the action before this Court the appellant asked that her marriage to Pauley be declared void. The appellant asserts that, because of the prosecution of Pauley for bigamy, she believed that her marriage to Pauley had been terminated.

Appellant's Second Marriage

In 1955 the appellant began living with the appellee, Cesco Harvey, Jr. The parties had one child by the name of Patricia Carol Harvey. That child was born in 1955 and was emancipated during the period in question. The appellant and the appellee were married on October 5, 1961, in Boyd County, Kentucky.

The appellee and the appellant lived together as man and wife in West Virginia until March, 1979. The appellant asserts, inter alia, that at that time she was abandoned by the appellee.

Procedural History

In 1979 the appellant in the Circuit Court of Kanawha County, West Virginia, instituted an action against the appellee for separate maintenance. That action was brought by the appellant pursuant to W.Va.Code, 48-2-28 [1969]. ³ In her amended complaint, the appellant further asked the circuit court to declare the marriage between the appellant and Vance Bernard Pauley void.

The appellee's answer and counterclaim asserted that the marriage of the appellant to Pauley had not been dissolved by divorce, annulment or other proceeding and that, therefore, the marriage between the appellant and the appellee was bigamous. In that answer and counterclaim, the appellee asked the circuit court to declare his marriage to the appellee null and void, pursuant to W.Va.Code, 48-2-1 [1935]. In the alternative, the appellee sought a divorce from the appellant.

The circuit court ordered the appellee to pay the appellant the sum of $200.00 per month pendente lite. The circuit court further ordered the action referred to a commissioner.

Subsequent to the taking of evidence, the commissioner recommended to the circuit court that the marriage between the appellant and the appellee be deemed null and void and that an annulment decree be entered. Specifically, the commissioner concluded: (1) that the marriage between the appellant and the appellee was void pursuant to Kentucky law, (2) that a current annulment of the appellant's marriage to Pauley would not retroactively validate her marriage to the appellee, (3) that Pauley's conviction for bigamy did not constitute an annulment of Pauley's marriage to the appellant and (4) that the appellant was not entitled to separate maintenance or alimony from the appellee.

By final order entered on October 23, 1981, the circuit court confirmed and adopted the report of the commissioner and annulled the marriage between the appellant and the appellee. Referring to the appellant's marriage to Vance Bernard Pauley, the circuit court in that order stated as follows: "It is equally clear under West Virginia Code § 48-2-1, as amended, that a conviction for bigamy under West Virginia Code § 61-8-1, as amended, is not sufficient to act as a judgment order of nullity...."

In this appeal, the appellant contends that her 1961 marriage to the appellee was valid, and thus, the appellant is entitled to pursue her claim against the appellee for separate maintenance. In support of that contention the appellant asserts that the 1952 conviction of Vance Bernard Pauley for the offense of bigamy operated as a judicial determination at that time annulling the appellant's marriage to Pauley, and, thus, appellant was free to marry the appellee in 1961. In the alternative, the appellant asserts that she is entitled to an order to be entered nunc pro tunc annulling her 1950 marriage to Vance Bernard Pauley, thereby retroactively validating her 1961 marriage to the appellee.

In response, the appellee contends that the appellant's marriage to Vance Bernard Pauley was not annulled in 1952 and that the appellant's marriage to Vance Bernard Pauley may not be annulled retroactively. The appellee asserts primarily that in 1952 the Intermediate Court of Kanawha County made no attempt to annul the marriage of the appellant to Vance Bernard Pauley. The appellee contends that in any event, inasmuch as the jurisdiction of the Intermediate Court of Kanawha County in 1952 was limited to criminal matters, that court had no authority to annul the marriage of the appellant to Vance Bernard Pauley. Furthermore, the appellee contends that the Circuit Court of Kanawha County lacked jurisdiction to award the appellant temporary support from the appellee pending the appeal to this Court.

Pursuant to W.Va.Code, 48-2-1 [1935], and W.Va.Code, 48-2-2 [1931], a marriage may be annulled upon the ground of bigamy. ⁴ In contrast to common law and the statutory law of Virginia, ⁵ bigamous marriages in West Virginia are, pursuant to W.Va.Code, 48-2-1 [1935], voidable, rather than void ab initio. W.Va.Code, 48-2-1 [1935], provides as follows: ⁶

[A]ll marriages which are prohibited by law on account of either of the parties having a former wife or husband then living; all marriages which are prohibited by law on account of consanguinity or affinity between the parties; all marriages solemnized when either of the parties was an insane person, feeble-minded person, idiot, imbecile, ... or was afflicted with a venereal disease, or was incapable, because of natural or incurable impotency of body, of entering into the marriage state, or was under the age of consent; all marriages solemnized when either of the parties, prior to the marriage, without the knowledge of the other, had been convicted an infamous offense, or when, at the time of marriage, the wife, without the knowledge of the husband, was with child by some person other than the husband, or prior to such marriage had been, without the knowledge of the husband, notoriously a prostitute, or when, prior to such marriage the husband, without the knowledge of the wife, had been notoriously a licentious person, shall be void from the time they are so declared by a decree of nullity.

The appellant's 1950 marriage to Vance Bernard Pauley was, thus, voidable pursuant to W.Va.Code, 48-2-1 [1935], upon the ground that Pauley had a former wife then living. Accordingly, the appellant's 1961 marriage to the appellee was void pursuant to Kentucky law, unless the appellant's marriage to Pauley had, pursuant to W.Va.Code, 48-2-1 [1935], been declared void by a decree of nullity. ⁷

Neither the appellant nor Pauley having attempted to terminate their 1950 marriage prior to the appellant's 1961 marriage to the appellee, this Court must consider whether the appellant's marriage to Pauley was annulled or declared a nullity by the Intermediate Court of Kanawha County in 1952 when Pauley was convicted in that court of the offense of bigamy.

Upon a careful examination of the record, this Court is of the opinion that the Intermediate Court of Kanawha County in 1952 did not annul or nullify the appellant's marriage to Pauley. Even though the appellant asserts that during Pauley's sentencing the trial judge stated that the appellant's marriage to Pauley was annulled, no order annulling or nullifying that marriage was ever entered by the Intermediate Court or by any other court prior to the appellant's marriage to the appellee.

In syllabus point 3 of Meyers v. Washington Heights Land Company, 107 W.Va. 632, 149 S.E. 819 (1929), this Court held as follows: "Courts of record must speak by their records. What is not thereby made to appear does not exist in law." That a court of record speaks only...