Hurley v. Hurley
| Decision Date | 26 September 1944 |
| Citation | 182 S.W.2d 652,298 Ky. 178 |
| Parties | HURLEY v. HURLEY. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Pike County; R. Monroe Fields, Judge.
Declaratory judgment proceeding by Tim Hurley against Ruby Maynard Hurley for determination whether plaintiff's marriage to defendant was void. From a judgment dismissing the petition plaintiff appeals.
Reversed with directions in accordance with opinion.
Francis M. Burke, of Pikeville, for appellant.
Appellee not represented by counsel.
Tim Hurley and Ruby Hurley were married in Ohio, in November 1939. They made their home in Pike County. Shortly after the marriage, Zella Hurley filed an action in the Pike circuit court in which she alleged she and Tim were husband and wife and wherein she sought a divorce. Tim defended on the ground he was not legally married to Zella. On the 28th day of November, 1940, the judge of the Pike circuit court held that Tim and Zella had been lawfully married, and he granted her a divorce. Tim and Ruby ceased to live together after that day. In this declaratory judgment proceeding Tim alleged by amended petition that an actual controversy existed between him and Ruby with respect to their marital status; that they were unable to agree as to whether they were legally married and had a right to live together as husband and wife; and that Ruby insisted they were legally married, while, because of threatened criminal prosecution, he insisted they were not so married. Tim sought a determination of the marital status of the parties, as well as a specific ruling as to whether their marriage in Ohio, in 1939, was void. Ruby accepted the summons and entered her appearance to the action, though she filed no answer. When Tim's deposition was taken Ruby was present, though not represented by counsel. The record contains an unsworn statement made by Ruby wherein she said she wanted the court to determine whether her marriage to Tim was void. The trial judge dismissed the petition because he was of the opinion the record failed to show a good faith controversy between the parties, or any facts sufficient to authorize the relief sought by Tim. Tim insists on this appeal that he was entitled to a declaration of his rights. We believe his position to be sound.
The allegation that there existed an actual controversy between the parties was unchallenged. Though not represented by counsel, Ruby entered her...
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