Huard v. McTeigh

• Decision Date: 27 January 1925
• Citation: 113 Or. 279,232 P. 658
• Parties: HUARD v. MCTEIGH.
• Court: Oregon Supreme Court

232 P. 658

113 Or. 279

HUARD v. MCTEIGH.

Supreme Court of Oregon

January 27, 1925

In Bank.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Action by Frank M. Huard against Jennie McTeigh (changed by the court to Jennie Huard) to annul marriage. From decree for defendant, on her cross-complaint for divorce, plaintiff appeals. Reversed, cross-complaint dismissed, and decree for plaintiff.

The plaintiff, for his cause of suit herein to have his marriage with the defendant declared null and void, alleges:

"That plaintiff and defendant now are and for over a year prior to the commencement of this suit have been resident(s) of the state of Oregon, and plaintiff and defendant are both residents of Multnomah county, Or.

"That at Seattle, Wash., on January 8, 1902, defendant, whose name was Jennie Corcoran, married Joseph McTeigh. On August 1, 1905, defendant in this action secured a decree of divorce from said Joseph McTeigh.

"That said Jennie McTeigh and said Joseph McTeigh were residents and inhabitants of the state of Washington, and for over one year prior to the commencement of an action by said Jennie McTeigh against Joseph McTeigh for divorce in the superior court of the state of Washington for King county and in said action, on August 1, 1905, the following decree was entered, to wit:

" 'Comes now on this--day of July, A. D. 1905, the above plaintiff by her attorney, P. D. Hughes, Esq., and moved this honorable court for judgment and decree in her favor and the court having heretofore made its finding of fact and conclusions of law, and having duly considered the same, now therefore, it is by the court ordered, adjudged and decreed that the marriage heretofore, and now existing between the plaintiff, Jennie McTeigh, and the defendant Joseph McTeigh, be dissolved and the same hereby is dissolved accordingly, and the said parties are, and each of them hereby is, freed from the bonds of matrimony, and all the obligations thereof.

" 'It is further ordered that neither the plaintiff or the defendant shall contract any marriage with any third party for the period of six months from the date of the entry of this decree, as by law provided, and they hereby are, and each of them hereby is, expressly restrained and prohibited from so doing. * * *'

"That on October 12, 1905, at Victoria, British Columbia, this plaintiff and said defendant, Jennie McTeigh, went through a form of marriage without this plaintiff being aware of the inhibitory clause of said decree, or being aware of the facts of the aforesaid marriage, and that at the time of said pretended marriage of this plaintiff and this defendant, this plaintiff and this defendant were residents and inhabitants of the state of Washington.

"That the following sections of Remington & Ballinger's Annotated Codes and Statutes of Washington were, and ever since have been, in force and effect, and at all times mentioned in this complaint, to wit:

" '991 (5725) Remarriage Pending Appeal Unlawful.--Whenever a judgment or decree of divorce from the bonds of matrimony is granted by the courts in this state, neither party thereto shall be capable of contracting marriage with a third person until the period in which an appeal may be taken has expired; and in case an appeal is taken then neither party shall intermarry with a third person until the cause has been fully determined; and it shall be unlawful for any divorced person to intermarry with any third person within six months from the date of the entry of the judgment or decree granting the divorce, or in case an appeal is taken it shall be unlawful to contract such marriage until judgment be rendered on said appeal in the Supreme Court. All marriages contracted in violation of the provisions of this section, whether contracted within or without this state, shall be void. Laws 1893, p. 225, § 1.

" '992 (5726) Decree to Prohibit Remarriage Within Six Months.--Whenever judgment or decree of divorce from the bonds of matrimony is granted by any court in this state, such judgment or decree shall expressly prohibit the plaintiff and defendant named therein from contracting any marriage with third parties within the period of six months from the date of the entry of such judgment or decree, and in case either party to said decree shall remarry within said period, he or she shall be deemed guilty of contempt of the court granting such judgment or decree, and shall be proceeded against and punished in like manner as in other cases of contempt of court. Laws 1893, p. 226, § 2.

"That said form of marriage between plaintiff and defendant was and ever since has been and now is null and void."

The defendant in her answer, so far as is material to a consideration of this case, alleges that she obtained a decree of divorce from her former husband, Joseph McTeigh, at Seattle, Wash., on the 1st day of August, 1905, and that there was a valid marriage consummated with the plaintiff at Victoria, British Columbia, on the 12th day of October, 1905. She alleges that the plaintiff herein was well aware of and acquainted with the terms of the decree of divorce obtained by her in Washington, and that she went to British Columbia for the purpose of being married at his special instance and request. She further states that prior to her marriage with the plaintiff she was advised and believed that a marriage performed in British Columbia would be valid, regardless of the prohibitory clause in the divorce decree. She claims that on the same day the marriage ceremony at Victoria was performed they returned to Seattle, Wash., and continued to reside there as husband and wife until 1916, when they moved to Portland, Or., and that they have continuously resided in this state, living and cohabiting together as man and wife to the time of the commencement of this suit. As a further and separate answer, and by way of cross-complaint, she charges plaintiff with cruel and inhuman treatment. These affirmative matters are denied by the reply.

In this controversy the question of property rights or of legitimacy of children is not involved. The circuit court, after trial of the issues above stated, rendered a decree of divorce in favor of the defendant, and awarded her certain alimony and attorney's fees. The plaintiff appeals.

George S. Shepherd, of Portland, for appellant.

John P. Hannon and James P. Stapleton, both of Portland, for respondent.

BELT, J. (after stating the facts as above).

The principal question for decision in this case is the validity of the alleged marriage between the parties hereto, as we concede, in keeping with the findings of the trial court, that the defendant has by a preponderance of testimony established her allegations of cruel and inhuman treatment. The decree as rendered in the court below is necessarily predicated upon the premise of a valid marriage. If there was not a valid marriage between these parties, it follows that there could not be a dissolution of the same. We cannot dissolve that which in fact does not exist. It is necessary in this case to consider the marital status of these parties as determined by the law of Washington, British Columbia, and Oregon.

Let us consider first the legal status of the parties hereto under the law of Washington. The record discloses beyond doubt that both parties left the place of their domicile and went to British Columbia for the purpose of evading the force and effect of the prohibitory clause in the decree of divorce in reference to the right of remarriage. The decree of divorce, among other things, provided: "It is further ordered that neither the plaintiff or the defendant shall contract any marriage with any third party for the period of six months from the date of the entry of this decree as by law provided, and they hereby are, and each of them is, expressly restrained and prohibited from so doing."

In defiance of this decree, and against the advice of her mother and sister, the defendant went to Victoria for the purpose as above stated. When asked by her own counsel why she and the plaintiff went to British Columbia to be married, she replied, "Well, we knew we couldn't be married in Seattle." Under such state of facts it is well established that, so far as the state of Washington is concerned, the marriage of these parties is null and void. Knoll v. Knoll, 104 Wash. 110, 176 P. 22, 11 A. L R. 1391; Hahn v. Hahn, 104 Wash. 227, 176 P. 3; Peerless Pacific Co. v. Burckhard, 90 Wash. 221, 155 P. 1037, L. R. A. 1917C, 353, Ann. Cas. 1918B, 247; Pierce v. Pierce, 58 Wash. 622, 109 P. 45; State v. Fenn, 47 Wash. 561, 92 P. 417, 17 L. R. A. (N. S.) 800. Until the statutory period against remarriage had elapsed, the defendant did not have capacity to enter into a contract of marriage. In contemplation of law her social status was the same as if no decree had been made. At the time of her alleged marriage at Victoria she had a husband living. This marriage at the time of its inception was therefore polygamous in character. When persons enter into a contract of marriage, either pursuant to statute or common law, it is essential to the validity of the same that they have capacity and are competent so to contract. We need not be concerned with the question as to whether the relationship existing between the plaintiff and defendant while they resided in Washington constituted a common-law marriage in that jurisdiction, for it is well settled that such doctrine is not recognized in that state. Meton v. Industrial Accident Commission, 104 Wash. 652, 177 P. 696; In re Brenchley's Estate, 96 Wash. 223, 164 P. 913, L. R. A. 1917E, 968; Buckley v. Buckley, 50 Wash. 213, 96 P. 1079, 126 Am. St. Rep. 900; In re McLaughlin's Estate, 4 Wash. 570, 30 P....