Johnson v. Johnson

• Court: Utah Supreme Court
• Writing for the Court: PRATT, Chief Justice.
• Citation: Johnson v. Johnson, 116 Utah 27, 207 P.2d 1036 (Utah 1949)
• Decision Date: 27 June 1949
• Docket Number: 7271,7272
• Parties: JOHNSON v. JOHNSON. WOOD v. WOOD

207 P.2d 1036

116 Utah 27

JOHNSON v. JOHNSON.

WOOD v. WOOD

Nos. 7271, 7272

Supreme Court of Utah

June 27, 1949

Appeal From District Court, Fifth District, Iron County; Will L Hoyt, Judge

Suits by Norine M. Johnson against Orlyn Johnson and by Alice L Wood against Wayne Webster Wood. Interlocutory decrees of divorce were granted and petitions were filed after expiration of the interlocutory period to set aside and vacate the interlocutory decrees. From judgment dismissing petitions, plaintiffs appeal.

Affirmed.

Cline Wilson & Cline, Milford, for appellants.

Orville Isom, Cedar City, for respondent.

WADE WOLFE, LATIMER, and McDONOUGH, JJ., concur.

OPINION

PRATT, Chief Justice.

These two cases have been consolidated for the purpose of appeal since they involve a single question and differ very little factually.

The appeal in each instance involves the denial of a petition to set aside and vacate an interlocutory decree of divorce where such petition was filed after the expiration of the interlocutory period. In each instance the basis of the petition is a resumption of marital relations by the parties during the interlocutory period and a continuation of such relationship thereafter. In the one case (Wood v. Wood) the husband and wife joined in the petition. In the other case (Johnson v. Johnson) the wife only filed the petition, but accompanied it with a stipulation in which both parties joined to the effect that the trial court should set aside the interlocutory decree. The petition in the latter case recites that this stipulation was entered into at a time before the six months interlocutory period had expired, but that the plaintiff through inadvertance and neglect failed to place it in the hands of her attorney and instruct him to file it in order that the interlocutory decree be set aside, at a time before it became final. There appear to be no rights of third persons involved.

The single question presented by these appeals is whether the court should have set aside the decree of divorce in each case on the basis of the petitions before it indicating that during the interlocutory period in each instance the parties had become reconciled and resumed marital relations, and have so continued to the present.

The Utah Statutes providing for an interlocutory decree are as follows:

Section 40-3-6, U.C.A.1943:

'If after the hearing of any divorce cause the court is of the opinion that the divorce ought to be granted to either person, a decree shall be entered granting to such person a divorce; but the decree shall specifically provide that it shall not become absolute until the expiration of six months from the date of its entry.'

Section 40-3-7, U.C.A.1943:

'The decree of divorce shall become absolute at the expiration of six months from the entry thereof, unless an appeal or other proceedings for review are pending, or the court before the expiration of said period for sufficient cause upon its own motion or upon the application of any person, whether interested or not, otherwise orders.'

The interlocutory decree is the only decree which is contemplated or necessary under the statutes set out above, and the expiration of six months without appeal or other proceedings for review renders it final automatically, and the marital relationship, which continues in existence until that time, terminates. See: Allred v. Wood, 72 Utah 427, 270 P. 1089. Neither party need take any affirmative action after the interlocutory decree is entered, in order that the marriage be dissolved at the end of that period. In this respect Utah statutes differ from those in some states having interlocutory decree provisions which require an entry of final decree, either at the instance of a party to the divorce, or by the court on its own motion.

Our attention is called to the case of Githens v. Githens, 78 Colo. 102, 239, 1023, 1024, 43 A.L.R. 547, as supporting the view that appellants take in this case. That case was one in which both parties had joined in a petition to vacate a final decree of divorce, indicating to the court that they had become reconciled during the interlocutory period, and had continued to live together as husband and wife for several years before petitioning the court. The contention was advanced that the court was powerless to vacate the original divorce decree by virtue of Section 81 of the Colorado Code of Civil Procedure, since more than six months had elapsed from the entry of the decree. Section 81 provided that application to reopen or vacate a judgment must be made within six months after adjournment of the term of court. In this case many years had elapsed. The court stated that even assuming that Section 81 was applicable, still the contention advanced was not tenable. The court sustained the decree of annulment of the original divorce in the following language:

'The states of the Union generally encourage the permanency and continuity of the marital relation. They look with disfavor upon divorces. No decree of divorce is maintainable except upon one or more of the statutory grounds. In the case before us the parties personally appeared in court and joined in the application to have the absolute decree of divorce theretofore entered set aside and held for naught. It was not against, but in consonance with, public policy to grant such relief. The parties in their written application expressly say that they had never recognized the decree of divorce but had been and were living together as husband and wife from the time of its rendition. No rights of third persons are involved. While we have no statute upon the subject -- at least our attention is not called to any -- the court had inherent jurisdiction at any time after the decree was rendered, and where only the rights of the parties themselves are concerned, to set aside and annul this decree of divorce, when the parties, as here, joined in the written request therefor. Indeed, the acts and conduct of the parties, according to their own statement in legal effect, was a common-law marriage entered into after the decree of divorce was granted.

'There is nothing in our laws to prevent divorced parties from being remarried. The annulment of this divorce decree is in legal effect merely legalizing and ratifying the acts of the parties themselves. Since they themselves asked for the annulment of the decree which restored the marital relation, which is favored by public policy, we are unable to discover any reason or rule of law which inhibits them from invoking the jurisdiction of the court that granted the divorce or that disables that court from granting them the relief prayed for.'

The Colorado law relating to interlocutory decrees is similar to the Utah Statute, in that no final decree is rendered, and the interlocutory decree becomes final upon expiration of time alone. Morris v. Probst, 98 Colo. 213, 55 P.2d 944, 104 A.L.R. 650.

A more recent case in the same jurisdiction, extending the rule of the Githens case, is that of Jordan v. Jordan, 105 Colo. 171, 96 P.2d 13, 14, the facts of which were as follows:

The husband and wife were divorced in 1935, on the cross-complaint of the wife, the husband not appearing after having filed the original complaint for divorce. The decree became final November 2, 1935. On October 31, 1938, the wife filed a petition relating that subsequent to entry of the interlocutory decree and before entry of the final decree the parties had become reconciled and have since cohabited and lived together as husband and wife. The husband denied these allegations. The State Supreme Court affirmed the lower court in vacating the decree in the following language:

'The question is, Must decrees of the nature here, wholly disregarded by the parties, remain sacrosanct nevertheless? The only office of such decree is to make judicially evident the fact that the marriage relation between the parties, although once obtaining, no longer exists. Where the parties, as here, continue their marriage notwithstanding the divorce, upon what rule or reasonable hypothesis should decrees erroneously determining otherwise remain of record? We think of none. On the contrary, as we conceive, public policy demands that the parties to such a situation be relegated to the status resulting from their formal marriage, and which, as now appears, their alleged shortcomings did not rupture not decrees of court interrupt. That which seems desirable procedure is best effectuated by vacating the decrees, as was done by the trial court. See Githens v. Githens, 78 Colo. 102, 239 P. 1023, 43 A.L.R. 547.

'We do not regard section 20, Chapter 56, 35 C.S.A., as applicable here. The limitation there prescribed has to do with the efforts of one of the parties to reopen a divorce case after expiration of the fixed time. No such question is here presented. By their unmistakable conduct, clearly established, both parties treated the decrees as if nonexistent. Consistently, the circumstances considered, the courts can do no less.'

In the Jordan case only one of the parties petitioned for a vacation of the divorce decree, yet on a showing that the parties had actually become reconciled and resumed cohabitation, the court set aside the decree. Githens v. Githens, achieved the same result where both parties petitioned the court. Apparently then, the controlling principle in view of the Jordan case is that the parties actually resumed their marital status during the interlocutory period. The difficulties encountered in vacating a divorce decree upon a showing by one of the parties alone are exemplified in the case of People ex rel. Jordan v. District Court, 105 Colo. 174, 96 P.2d 12, which involved the same parties, and indicates that the showing...