Johnson v. Johnson

• Decision Date: 21 April 1960
• Docket Number: No. 7842,7842
• Citation: 104 N.W.2d 8,82 A.L.R.2d 1029
• Parties: Bennie O. JOHNSON by Duane Davis, his Guardian, Plaintiff and Respondent, v. Winnifred Margaret JOHNSON, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 8

104 N.W.2d 8

82 A.L.R.2d 1029

Bennie O. JOHNSON by Duane Davis, his Guardian, Plaintiff and Respondent, v. Winnifred Margaret JOHNSON, Defendant and Appellant.

No. 7842.

Supreme Court of North Dakota.

April 21, 1960.

Rehearing Denied July 16, 1960.

Syllabus by the Court

1. Where marriage in fact is proved the presumptions arise that the marriage is valid and that the parties are mentally capable of legally contracting marriage, and the burden of overcoming such presumptions is no the party attacking the validity of the marriage.

2. While not evidence, presumptions serve in the place of facts and when evidence sufficient in quality appears to rebut it, the presumption disappears and thereafter determination of the issues depends on the evidence with the requirement as in other civil actions that the party having the affirmative of the issue involved in order to succeed shall sustain his position by a preponderance of the evidence.

3. The effect of a presumption is to place upon the person against whom it is employed the burden of first going forward with the evidence.

4. Where it is alleged that a marriage is prohibited by North Dakota laws, though contracted outside of North Dakota by residents of this state, the validity of such marriage will be determined according to North Dakota laws. Section 14-0308 NDRC 1943.

5. Only in the case of incestuous marriage, or marriage by a person having a former husband or wife and such former marriage was then in force, is the marriage void.

6. A voidable marriage can only be questioned as to its validity by a direct attack such as is provided by annulment statute. Section 14-0401 NDRC 1943.

7. The term 'unsound mind,' as a ground for marriage annulment, imports a lack of mental capacity sufficient to deprive a party of an understanding of the objects of marriage, and such term caries greater import than eccentricity, mere weakness of mind, or dullness of intellect.

8. To determine whether there is a sufficient capacity to contract a valid marriage, the best test is whether there is a capacity to understand the nature of the contract and the duties and responsibilities it creates.

9. The burden of proof is on the party attacking the validity of the marriage to prove such ground by clear, convincing and satisfactory evidence.

10. In ascertaining the mental condition of a person, evidence of prior and subsequent mental condition is admissible to determine mental condition at the precise time in question.

11. County court order dismissing guardianship proceeding and finding sound mind, though subsequent to the precise time in question, is admissible as probative evidence of such prior mental condition.

12. Where marriage license was obtained in Minnesota by fraud or perjury the validity of the marriage is not affected.

13. While the findings of the trial court are entitled to appreciable weight, yet such findings are not conclusive and this court is not bound thereby, but may modify or reverse judgment of the lower court if not well sustained by the evidence.

Daniel S. Letnes and Philip Bangs, Grand Forks, Jansonius, Fleck, Smith, Lynch, Mather & Strutz, Bismarck, for defendant-appellant.

Day, Stokes, Vaaler & Gillig, Grand Forks, for plaintiff-respondent.

DOUGLAS B. HEEN, District Judge.

The plaintiff, Bennie O. Johnson, by Duane Davis, his guardian, brought this action for annulment of marriage on the grounds that plaintiff, at the time of marriage to defendant, was feeble-minded, a common drunkard and afflicted with a contagious disease, all or any of which, it is alleged, would prevent his marriage under the laws of this state.

The district court, after hearing the evidence, found that plaintiff at the time of marriage was of unsound mind and was incompetent to the extent that he did not understand the duties and obligations of the marriage relationship. The defendant has appealed from such judgment and demands a trial de novo in this court.

The evidence establishes that plaintiff, Bennie O. Johnson, was previously married and that his wife died in January 1952. Prior to her death, plaintiff and his then wife visited in Canada, and while on such trip made the acquaintanceship of a Mrs. Speirs. Following the death of his first wife, plaintiff in the summer of 1953 again made a trip to Canada and renewed such acquaintanceship, which ripened to the extent that Mrs. Speirs made visits to North Dakota to visit plaintiff. It appears that plaintiff was addicted to the use of intoxicating liquor, and in May 1955 entered a hospital for treatment of delirium tremens and a liver condition, remaining in the hospital until June 22, 1955, when he entered the State Hospital and there remained under treatment and observation until July 11, 1955, when he was released or paroled to his attorney, Cyrus Lyche. Mr. Lyche arranged for plaintiff to enter a private mental hospital in Minnesota, and on or about July 12, 1955, plaintiff entered the latter hospital as a patient, and was released therefrom about September 9, 1955.

During plaintiff's stay at the Minnesota hospital, he received medical and psychiatric care, and for much of this time Mrs. Speirs stayed near the hospital. Certain other of plaintiff's relatives also visited him during this confinement.

While such a patient, on August 31, 1955, plaintiff secured a Minnesota marriage license, naming himself and Winnifred Speirs, the defendant herein, as principal parties.

After leaving the Minnesota hospital about September 9, 1955, the plaintiff, Mrs. Speirs and Mr. Lyche began the return trip to North Dakota, stopping en route for plaintiff to give a specimen for a blood test for social disease.

Prior to release from the Minnesota hospital, certain interested relatives filed a petition for the appointment of a guardian of the person and property of plaintiff, and a hearing on such petition was set by the county court for September 30, 1955. On September 16, 1955, plaintiff and defendant were married at Detroit Lakes, Minnesota. Following such marriage, and on the same day, the parties went to Fargo, North Dakota, where the services of an attorney, Mr. J. Gerald Nilles, was secured and an interview had for preparation and purpose of opposing the petition for guardianship. Apparently several interviews between plaintiff and Mr. Nilles took place prior to the guardianship hearing on September 30, 1955, at which date evidence was received by the county court, and the hearing continued until October 7, 1955, when further proof was adduced. On October 19, 1955, the county court issued its order dismissing petition for appointment of guardian for Bennie O. Johnson, and finding 'that he is of sound mind; that he is competent to manage his own property and affairs; that it is not necessary or convenient that a guardian be appointed either for the person or of the estate of the said Bennie O. Johnson.'

It appears that plaintiff and defendant lived together for a short time, although the evidence is not clear in this respect, and the parties then separated. The record contains charges and countercharges with respect to such separation, and it appears that plaintiff at one time commenced an action for divorce which was discontinued. Upon petition, a guardian, Duane Davis, was appointed for plaintiff on March 28, 1957, and the present action was instituted on April 1, 1957, which resulted in judgment for plaintiff, decreeing annulment of the marriage.

In this State, the formalities of the marriage relationship are wholly regulated and controlled by statute. Section 14-0301 NDRC 1943 provides that,

'Marriage is a personal relation arising out of a civil contract to which the consent of the parties is essential. The marriage relation shall be entered into, maintained, annulled, or dissolved only as provided by law.'

See Schumacher v. Great Northern Ry. Co., 23 N.D. 231, 136 N.W. 85.

The consent contemplated by the terms of the above statute is a then present assent, freely, voluntarily and understandingly given, representing a mutual intention of marital relationship by competent contracting parties. For a general discussion, see 35 Am.Jur., Marriage, Section 20, page 192 et seq.; 55 C.J.S. Marriage Sec. 18b, p. 840 et seq.

It is a general rule that marriage is regarded with favor by the law and such proposition is subscribed to in North Dakota. Woodward v. Blake, 38 N.D. 38, 164 N.W. 156, L.R.A.1918A, 88.

In North Dakota the presumption, by statute, is

'That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage.' Section 31-1103, subd. 30 NDRC 1943.

Where a marriage in fact has been proved, a presumption arises that such marriage is in all things valid. 34 A.L.R. 464 and 77 A.L.R. 730. And further, it is held, almost universal in application, that a person who has contracted a marriage is presumed to be mentally capable of legally contracting the marriage relationship. The burden of overcoming such presumption is upon the party attacking the validity of the marriage. 28 A.L.R. 652 and authorities there cited. 35 Am.Jur., Marriage, Section 113, page 251; 55 C.J.S. Marriage, Sec. 58a, p. 937. While a presumption is not evidence of a fact and is not conclusive, yet presumptions are indulged in to supply the place of facts. Starkenberg v. North Dakota Workmen's Compensation Bureau, 73 N.D. 234, 13 N.W.2d 395.

A presumption is a rule of law, the office of which is to place the burden of going forward with the proof upon the party contesting the validity of the marriage, and as stated in In re Drake's Estate, 150 Neb. 568, 35 N.W.2d 417, 423, a presumption takes the place of evidence,

'* * * unless and until evidence appears to overcome or rebut it, and when evidence sufficient in quality appears to rebut it the presumption disappears and thereafter the determination of the issues depends upon the evidence with the requirement as in other civil actions that the...