Hood v. Hood

• Decision Date: 13 March 1944
• Docket Number: 4-7304
• Citation: 178 S.W.2d 670,206 Ark. 1057
• Parties: Hood v. Hood
• Court: Arkansas Supreme Court

178 S.W.2d 670

206 Ark. 1057

Hood v. Hood

No. 4-7304

Supreme Court of Arkansas

March 13, 1944

Appeal from Poinsett Chancery Court; Francis Cherry, Chancellor.

Reversed.

M P. Watkins, for appellant.

J J. Mardis and Edward S. Maddox, for appellee.

OPINION

Robins J.

On December 12, 1942, appellant, Robert Hood, and appellee, Mary Hood, were married. Robert Hood was born on May 10, 1925, and Mary Hood was born on January 17, 1930, so that when the marriage occurred Robert Hood had not arrived at his eighteenth birthday and Mary Hood was under thirteen years of age. They lived together as husband and wife until April 9, 1943, at which time they separated. On June 1, 1943, Susie Holt, as mother and next friend of Robert Hood, instituted this suit in the chancery court alleging that at the time of the said marriage neither of the parties was capable in law of contracting a valid marriage for the reason that neither had arrived at the required age. A guardian ad litem was appointed to represent appellee, and answer was filed on her behalf denying all the allegations of the complaint.

The chancery court made a finding that the respective ages of the parties were as above stated, and further that "the defendant, Mary Hood, is pregnant with child as a result of sexual intercourse with the plaintiff and is expected to give birth to a child on or about the 19th day of November, 1943, and that the petition of plaintiff should be denied and that said marriage should not be annulled as it would be against public policy to do so, in view of the pregnant condition of the defendant, . . ." A decree dismissing the complaint was entered; from which decree this appeal is prosecuted.

The case was tried on the depositions of Mrs. Agnes Allred, mother of appellee Mrs. Susie Holt, mother of appellant, and T. L. Smith, county superintendent of education.

Mrs. Allred testified in substance that appellee was born on January 17, 1930; that she married appellant on December 12, 1942, and lived with him as his wife until April 9, 1943.

Mrs. Holt testified that appellant was born on May 10, 1925; that he enlisted in the Army on July 23, 1943, and was, at the time she gave her testimony, in the United States Army.

Mr. Smith testified that his record showed that appellee was born on January 17, 1930.

A copy of the original birth certificate of appellant showing his age to be as stated by his mother was introduced as was a copy of the affidavit for marriage license signed by both appellant and appellee and stating that on that date (December 12, 1942) appellant was nineteen years of age and appellee was eighteen years of age.

There was also filed and considered by the court as part of the evidence a letter, which, though not introduced or identified by any witness, appeared to have been written by appellant to appellee. This letter, dated at Camp Abbot, Oregon, on August 14, 1943, is as follows: "Hello, Mary.

"I got your letter today and was surprised to hear from you.

"No, I am not mad at you, and never was. We just had a quarrel. I am now in Oregon, and it sure is cold up here. Mary, by the time this letter gets there you may be Miss Allred again and not Mrs. Mary Hood, but I hope not. If you are still my wife write back and tell me.

"Robert Hood,

38510800,

Co. C 54th ET BN,

Camp Abbot, Oregon.

"P. S. Mary, be sure and write back and tell me if that annullment came off August 6, and did you go to town that day.

"Answer soon,

"Robert Hood."

By act No. 32 of the General Assembly of Arkansas, approved February 6, 1941, (page 66), § 9017 of Pope's Digest was amended so as to read as follows:

"Section 9017. Every male who shall have arrived at the full age of 18 years, and every female who shall have arrived at the full age of 16 years, shall be capable in law of contracting marriage; if under those ages, their marriages shall be absolutely void.

"Provided that males under the age of 21 years and females under the age of 18 years shall furnish the clerk, before the marriage license can be issued, satisfactory evidence of the consent of the parent or parents or guardian to such marriage, and, in all cases where the consent of the parent or parents or guardian is not provided or there shall have been a misrepresentation of age by a contracting party, such marriage contract may be set aside and annulled upon the application of the parent or parents or guardian to the chancery court having jurisdiction of the cause.

"The consent of both parents of each contracting party shall be necessary before such marriage license can be issued by the clerk unless they have been divorced and custody of the child awarded to one of the parents exclusive of the other or unless the custody of the child has been surrendered by one of the parents through abandonment or desertion, in which cases the consent of the parent who has custody of the child shall be sufficient."

Section 2 of act No. 404 of the General Assembly of the State of Arkansas, approved March 27, 1941, (page 1172), is as follows:

"Section 2. No license shall be issued to persons to marry unless and until the female shall attain the age of 16 years and the male the age of 18 years and then only by written consent by a parent or guardian until the male shall have attained the age of 21 years and female the age of 18 years."

In support of the decree of the lower court it is argued: First, that appellant is estopped, by his fraudulent conduct in making a false affidavit as to his age, from seeking to annul the marriage; second, that appellant should be denied relief in equity because he comes into court with unclean hands; and, third, that the annulment of this marriage would be contrary to public policy.

The first two of these contentions were considered by this court in the case of Kibler v. Kibler, 180 Ark. 1152, 24 S.W.2d 867, which was an action brought by Burl Kibler, a minor, through his mother and natural guardian and next friend to annul his marriage on the ground of duress and also on the ground of nonage. In holding that Burl Kibler was not estopped by his misrepresentation as to his age, the court quoted from 9 R. C. L., p. 275, as follows: "It is usually recognized that an infant is not concluded by false representations of his age so as to bind him by a contract with him entered into on the faith of such representations. And, according to the better view, an infant incapable for want of age of entering into a valid marriage is incapable also of estopping himself by a fraudulent declaration of his age from asserting its invalidity in an action to annul it brought under a statute with the sole proviso that there must have been no voluntary cohabitation after the attainment of the age of consent. On the question as to when a suit may be brought to annul a marriage for want of legal age on the part of the complainant, there is some support, especially in the early cases, for the position that the complainant cannot be heard to assert this right until he or she has reached the age of legal consent. According to the prevailing and better view, however, a party marrying before the legal age of consent may disaffirm the marriage before reaching that age, and avoid it in toto, and a suit for its annulment may be brought through a guardian before the legal age is attained. On principle, this view seems both logical, and in accord with public policy."

In the same case this court said: "It is insisted that the relief prayed should be denied, because the minor has come into court with unclean hands, and that it is inequitable to grant him this relief. A similar contention was made in the case of Swenson v. Swenson, 179 Wis. 536 192 N.W. 70. A child was born in that case of a marriage contracted while the father was under age prescribed by the laws of the state of Wisconsin, and there was an appeal from a decree annulling the...