Horton v. Horton

• Decision Date: 05 July 1921
• Docket Number: Civil 1893
• Citation: 22 Ariz. 490,198 P. 1105
• Parties: ANNIE HORTON, Appellant, v. L. J. HORTON, Appellee
• Court: Arizona Supreme Court

198 P. 1105

22 Ariz. 490

ANNIE HORTON, Appellant, v. L. J. HORTON, Appellee

Civil No. 1893

Supreme Court of Arizona

July 5, 1921

APPEAL from a judgment of the Superior Court of the County of Maricopa. F. H. Lyman, Judge. Judgment reversed with directions to dismiss action.

Messrs Phillips, Cox & Phillips and Mr. C. F. Ainsworth, for Appellant.

Mr Earl Anderson, of Phoenix, for Appellee.

OPINION

BAKER, J.

This action was brought by the plaintiff (the parties will be designated in this court as they were in the court below) to obtain a judgment annulling the marriage between the plaintiff and the defendant, celebrated in Deming, New Mexico, on the twelfth day of September, 1918, on the ground that such marriage was void. It appears from the findings of the lower court that the parties both resided in the state of Arizona at the time they contracted the marriage in New Mexico, and that they have ever since retained such residence. It further appears that the defendant was formerly married to one William Crawford, but that on the first day of August, 1918, she was granted an absolute divorce from her husband by the superior court of Maricopa county, Arizona. For the purpose of avoiding the restrictions of the laws of Arizona, prohibiting the marriage of a divorced person until after the expiration of one year from the time the divorce is granted, the parties went to Deming, New Mexico, and were there married. They immediately returned to this state and lived together as husband and wife until about the twenty-sixth day of February, 1920, when the defendant drove plaintiff from the house, since which time the parties have lived separate and apart.

The lower court determined that the marriage in Deming, New Mexico, was void, and entered a judgment annulling it for the reason and on the ground that such marriage was consummated prior to the expiration of one year from the date of the divorce granted to the defendant.

The provisions of the statutes of this state on the subject are contained in section 3839, Revised Statutes of 1913, and section 3864, as amended by chapter 54, Session Laws of 1917 page 75:

"3839. All marriages valid by the laws of the place where contracted, shall be valid in this state; provided, that all marriages solemnized in any other state or country by parties intending at the time to reside in this state shall have the same legal consequences and effect as if solemnized in this state; parties residing in this state cannot evade any of the provisions of its laws as to marriage by going into another state or country for the solemnization of the marriage ceremony."

"3864. A divorce from the bonds of matrimony shall not in any wise affect the legitimacy of the children thereof; and either party may, after the dissolution of the marriage, marry again only after one year shall have elapsed from the date of judgment of such divorce; provided however, that if proceedings are begun prior to the expiration of the said one year to set aside said judgment of divorce, then and in that event said parties to the divorce, or either of them, may not marry again until the said proceedings shall have been determined."

It is conceded that by the laws of New Mexico the marriage between the parties when consummated there was lawful in that state. Does the fact that the parties, being domiciled in this state, left here and went to New Mexico for the purpose of evading the restrictions provided in section 3864 and were there married, render such marriage invalid in this state? We do not think so. It will be observed that the statutes above cited do not in terms, or by necessary implication, declare such a marriage void. The statutes merely in general terms prohibit such a marriage. No penalty is affixed for disobedience.

There is some conflict of authority as stated in 5 R.C.L. 1004 --

"Upon the question whether the courts of the state which has enacted such a statute merely in general terms prohibiting such marriage will recognize as valid the marriage of such person occurring out of the state while he is still domiciled within the state. The weight of authority is that if the marriage is valid according to the lex loci, it will be upheld even by the courts of the state which enacted the statute, and in which the parties to the remarriage are domiciled, even though the parties went out of the state to solemnize the second marriage for the express purpose of evading the law of the domicile and of the forum."

In Commonwealth v. Lane, 113 Mass. 458, 18 Am. Rep. 509, the Supreme Court of Massachusetts, in an opinion by Mr. Chief Justice GRAY, says:

"A marriage which is prohibited here by statute because contrary to the policy of our laws, is yet valid if celebrated elsewhere according to the law of the place, even if the parties are citizens and residents of this commonwealth, and have gone abroad for the purpose of evading our laws, unless the legislature has clearly enacted that such marriages out of the state shall have no validity here. This has been repeatedly affirmed by well-considered decisions."

And this seems to be the overwhelming weight of the better reasoned cases on the subject. Medway v. Needham, 16 Mass. 157, 8 Am. Dec. 131; Van Voorhis v. Brintnall, 86 N.Y. 18, 37, 40 Am. Rep. 505; Thorp v. Thorp, 90 N.Y. 602, 43 Am. Rep. 189; Griswold v. Griswold, 23 Colo.App. 365, 129 P. 560; Phillips v. Madrid, 83 Me. 205, 23 Am. St. Rep. 770, 12 L.R.A. 862, 22 A. 114; State v. Shattuck, 69 Vt. 403, 60 Am. St. Rep. 936, and notes, 40 L.R.A. 428, 38 A. 81; State v. Hand, 87 Neb. 189, 28 L.R.A. (N.S.) 753, 126 N.W. 1002; Conn v. Conn, 2 Kan. App. 419, 42 P. 1006; Dudley v. Dudley, 151 Iowa 142, 32 L.R.A. (N.S.) 1170, 130 N.W. 785; Hoagland v. Hoagland (Wyo.), 193 P. 843; Hilton v. Stewart, 15 Idaho 150, 128 Am. St. Rep. 48, 96 P. 579.

A number of cases take a contrary view, but an examination of these cases will show that they were based upon statutes expressly declaring the marriages (1) void, or (2) declaring incapacity to contract, or (3) which by express terms suspended the operation of decrees of divorce or were held to suspend it by necessary implication, or (4) such statutes were held to be declarations of public policy, superseding the jus gentium that a marriage valid where performed is valid everywhere. This distinction is pointed out in Griswold v. Griswold, supra. The cases we refer to are collated...