Kiessenbeck v. Kiessenbeck

• Decision Date: 24 October 1933
• Parties: KIESSENBECK v. KIESSENBECK. [*]
• Court: Oregon Supreme Court

26 P.2d 58

145 Or. 82

KIESSENBECK v. KIESSENBECK. ^[*]

Supreme Court of Oregon

October 24, 1933

Department 1.

Appeal from Circuit Court, Multnomah County; Clarence H. Gilbert Judge.

Suit for separate support and maintenance by Elizabeth E Kiessenbeck against Henry G. Kiessenbeck, in which defendant filed a cross-complaint. From a decree for plaintiff defendant appeals.

Reversed and remanded, with directions.

P.J. Gallagher, of Portland (Cecelia P. Gallagher, of Portland, on the brief), for appellant.

Earnest M. Jachetta, of Portland (Neal Crounse, of Portland, on the brief), for respondent.

BELT Justice.

This is a suit for separate support and maintenance. Plaintiff alleges that she and the defendant were married at Portland Or., on the 26th day of December, 1917, and that there was born, as an issue of such marriage, a daughter who is now about ten years of age. After alleging facts relative to the mistreatment of plaintiff by defendant, she avers that the defendant "repeatedly packed his belongings and threatened to leave plaintiff and plaintiff believes that the intention of defendant is to leave her without proper provision for her support." Plaintiff also alleges that defendant is an able-bodied man and earns, or is capable of earning, $500 per month as an auditor.

After the court overruled a general demurrer to the complaint, defendant answered denying the allegations in reference to failure to support plaintiff and alleged affirmatively that he has long been out of work and is without funds or property other than that which plaintiff seeks to have set aside to her own use and benefit. As a further answer and cross-complaint, the defendant seeks to have his marriage with the plaintiff annulled on the ground that at the time the same was solemnized she was incapable of contracting marriage, in that she had a husband living in the state of New York from whom she had not legally obtained a decree of divorce. Plaintiff, after denying generally the allegations of the cross-complaint, alleged in reply that she duly obtained the divorce decree in the state of Texas in December, 1917, and that defendant, at the time of their marriage, had full knowledge of her former marriage and of the facts pertaining to the divorce proceedings. As a further and separate reply, plaintiff alleges in substance that no fraud or deception was practiced on the defendant and that after the marriage was solemnized in Portland, Or., in December, 1917, plaintiff and defendant lived and cohabited together as man and wife for a period of approximately fifteen years and that, by reason thereof, the defendant is estopped from denying the validity of the marriage and of the divorce decree rendered in the state of Texas.

The trial court, upon hearing, rendered a decree of separate maintenance and awarded plaintiff the custody of the minor child, reserving to the defendant the right to visit the same at reasonable times. It was further ordered and decreed that defendant pay to plaintiff for her support and that of the child the sum of $50 per month. Plaintiff was also granted the use or occupancy of the dwelling house owned by plaintiff and defendant and allowed the sum of $500 as attorney fees. Defendant appeals.

Plaintiff married Edmund I. Sheppard in the state of New York in 1913. In June, 1917, she instituted a suit for divorce against Sheppard charging him with cruel and inhuman treatment, and a decree was rendered in her favor on December 10, 1917. Service was had by publication of summons. In the affidavit for publication of summons the plaintiff averred that the last place of residence of Sheppard "known to the affiant, was at No. _____ Street, in the city of Jamaica, Long Island, State of New York, where he resided on the _____ day of _____, 191___; that the present residence of the said defendant is unknown to the affiant." In the light of the record in this case, it is clear that plaintiff knew where Sheppard resided in New York. After obtaining the decree in Texas, the plaintiff, without delay, went to Portland, Or., where the marriage was solemnized with the defendant herein on December 26, 1917, notwithstanding article 4640 of the Revised Civil Statutes of the State of Texas provides that: "Neither party to a divorce suit, where a divorce is granted upon the ground of cruel treatment, shall marry any other person for a period of twelve months next after such divorce is granted, but the parties so divorced may marry each other at any time."

The defendant Kiessenbeck, however, was not deceived, for at the time of the proposal of marriage at Los Angeles in May, 1917, he knew that plaintiff was not divorced and that she was going to Texas for the express purpose of obtaining a decree. She says that he wished her to go to Reno, Nev., where practically overnight she could be made a free woman. Plaintiff, however, had a brother living in Texas, and it is only natural that she went to the "Lone Star" state even though it did involve somewhat the "law's delay."

In her suit for divorce plaintiff alleged, in keeping with the statute, that she had been an actual bona fide inhabitant of the state of Texas for more than twelve months and had resided in Jefferson county of said state for more than six months next preceding the filing of the suit. This averment was absolutely false. It appears from her own testimony that plaintiff did not go to Texas until June, 1917.

In the light of the record, what extraterritorial effect can be given to the decree of divorce rendered in Texas and obtained by the...