Hess v. Hess

• Decision Date: 21 January 1947
• Docket Number: 32524.
• Citation: 176 P.2d 804,198 Okla. 130,1947 OK 16
• Parties: HESS v. HESS.
• Court: Oklahoma Supreme Court

176 P.2d 804

198 Okla. 130, 1947 OK 16

HESS v. HESS.

No. 32524.

Supreme Court of Oklahoma

Jan. 21, 1947

Appeal from District Court, Oklahoma County; Lewis R. Morris, Judge.

Action by Minnie Ida Hess against George W. Hess for divorce on ground of cruelty. From a judgment for plaintiff, defendant appeals.

Affirmed.

Syllabus by the Court.

The removal of a legal impediment to marriage while parties continue to live together as husband and wife gives rise to a 'common-law marriage,' even though one or both of the parties knew of the impediment.

Hall & Cotten and A. R. Thompson, both of Oklahoma City, for plaintiff in error.

Mike Foster, of Oklahoma City, for defendant in error.

PER CURIAM.

On the 7th day of September, 1945, plaintiff, Minnie Ida Hess, filed an action against the defendant, George W. Hess, seeking a divorce on the ground of extreme cruelty. On issues joined judgment was rendered for plaintiff granting the divorce and alimony of $1500, payable $50 per month and attorney's fees.

To reverse this judgment defendant has appealed and raises the single issue that the marriage being voidable the trial court had only jurisdiction to annul the marriage and was therefore without authority to grant alimony. The record discloses that both parties had been previously married. Plaintiff obtained a divorce from her former husband in October 1944, and defendant obtained a divorce from his former wife on January 30, 1945. Plaintiff and defendant were married in Dallas, Texas, February 5, 1945, and established a home in Capitol Hill, Oklahoma, where they lived together until on or about the 1st day of September, 1945, when plaintiff left the defendant and on the 7th day of September thereafter filed this action.

Defendant cites in support of his contention, Whitebird v. Luckey, 180 Okl. 1, 67 P.2d 775, 110 A.L.R. 1279, and Whitney v. Whitney, 192 Okl. 174, 134 P.2d 357. This court held in Whitebird v. Luckey, supra, that alimony could not be granted where there has been an annulment because the marriage was prior to the six month period following the granting of a divorce and cited with approval Plummer v Davis, 169 Okl. 374, 36 P.2d 938, 942. In Plummer v Davis, supra, it is said:

' In Mantz v. Gill, 147 Okl. 199, 296 P. 441, this court said: 'Where a second marriage is entered into in good faith, and the parties continue to cohabit without change during and beyond the statutory six months' period of impediment, this relationship ripens into a common-law marriage. Such marriage is recognized as valid in this state by our court. Andrews v. Hooper, 138 Okl. [103] 104, 280 P. 424; Mudd v. Perry, 108 Okl. 168, 235 P. 479; Fisher v. Fisher, 116 Okl. 129, 243 P. 730, and a surviving husband of a common-law marriage has the right to appear and contest the will of his deceased wife.' See, also, Andrews v. Hooper, 138 Okl. [103,] 104, 280 P. 424; State of Minn. v. Yoder, 113 Minn. 503, 130 N.W. 10, L.R.A.1916C, 686.'

Mantz v. Gill, supra, has been cited with approval in Dicke v. Cully, 189 Okl. 419, 117 P.2d 126, and Branson v. Branson, 190 Okl. 347, 123 P.2d 643. Since the plaintiff and defendant lived together as man and wife after the six months' period following the granting of divorce January 30, 1945, and continued to live together until September 1945, when plaintiff finally left the defendant, we hold that the finding of the trial court that plaintiff and defendant were husband and wife is sustained by the evidence.

The defendant points to language used in Whitebird v. Luckey supra, and insists that the use of the term 'good faith' implies that the parties must be innocent of any knowledge of a violation of the law forbidding marriage within the six months' period following the divorce. In Branson v. Branson, supra, the parties had full knowledge of the statutory prohibition. See, also,...