Lanham v. Lanham

• Decision Date: 29 September 1908
• Citation: 117 N.W. 787,136 Wis. 360
• Parties: LANHAM v. LANHAM ET AL.
• Court: Wisconsin Supreme Court

136 Wis. 360

117 N.W. 787

LANHAM

v.LANHAM ET AL.

Supreme Court of Wisconsin.

Sept. 29, 1908.

Appeal from Circuit Court, Monroe County; J. J. Fruit, Judge.

Sarah A. Lanham appealed to the county court for support out of the estate of James W. Lanham, deceased, as his widow. The application being denied, she appealed to the circuit court, where the application was granted, and Art Lanham and others, decedent's heirs, appeal. Reversed and remanded.

The plaintiff applied to the county court of Monroe county for an allowance for her support out of the estate of James W. Lanham, deceased, claiming that she was the widow of said deceased. The application was contested, and denied in the county court; but on appeal that judgment was reversed, and an allowance granted, and from this judgment the heirs of Lanham appeal. The facts are few and simple. On and prior to the 15th day of September, 1905, the plaintiff was a resident of this state and was the wife of one J. R. Sherman. On the day named she obtained a judgment of divorce from Mr. Sherman for the purpose of marrying the deceased, who was then a resident of Wisconsin and a man 84 years of age. After the divorce both parties learned that the law of Wisconsin prohibited the plaintiff from marrying again until the expiration of one year from the divorce. For the purpose of avoiding the effect of the law, they went to Menomonee, Mich., October 10, 1905, and were there married by a justice of the peace, and returned to Wisconsin on the following day. They immediately assumed the relations of husband and wife, and lived and cohabited together in Monroe county until Lanham's death, March 13, 1907. On March 8, 1907, the plaintiff made application to the county judge of Monroe county for a permit to marry Lanham; but he was then very ill, and no ceremony was ever performed. The circuit court concluded that there was a valid common-law marriage between the parties, resulting from their living and cohabiting together as man and wife after the expiration of one year from the date of the decree of divorce, and held that the plaintiff was the lawful widow of the deceased and entitled to an allowance as such.

Siebecker, J., dissenting.

Higbee & Higbee, for appellants.

Masters, Graves & Masters, for respondent.

WINSLOW, C. J. (after stating the facts as above).

Section 2330, St. 1898, as amended by chapter 456, p. 785, Laws of 1905, provides, among other things, that “it shall not be lawful for any person divorced from the bonds of matrimony by any court of this state to marry again within one year from the date of the entry of such judgment or decree and the marriage of any divorced person solemnized within one year from the date of the entry of any such judgment or decree of divorce shall be null and void.” A proviso to the section authorizes the circuit judge to grant permission to the divorced parties to remarry within the year, but this is of no moment here. The first question is whether the Michigan marriage was valid, notwithstanding the provisions of this law.

The general rule of law unquestionably is that a marriage valid where it is celebrated is valid everywhere. To this rule, however, there are two general exceptions, which are equally well recognized, namely: (1) Marriages which are deemed contrary to the law of nature as generally recognized by Christian civilized states; and (2) marriages which the lawmaking power of the forum has declared shall not be allowed validity on grounds of public policy. An exhaustive review of the many and somewhat conflicting authorities upon this general subject will be found in a note to Hills v. State in 57 L. R. A., at page 155; s. c. 61 Neb. 589, 85 N. W. 836. The first of these exceptions covers polygamous and incestuous marriages, and has no application here; and the question presented is whether the case comes within the second exception.

A state undoubtedly has the power to declare what marriages between its own citizens shall not be recognized as valid in its courts, and it also has the power to declare that marriages between its own citizens contrary to its established public policy shall have no validity in its courts, even though they be celebrated in other states, under whose laws they would ordinarily be valid. In this sense, at least, it has power to give extraterritorial effect to its laws. The intention to give such effect must, however, be quite clear. So the question must be, in the present case, whether our Legislature by the act quoted declared a public policy, and clearly indicated the intention that the law was to apply to its citizens wherever they may be at the time of their marriage. To our minds there can be no doubt that the law was intended to express a public policy. There have been many laws in other states providing that the guilty party in a divorce action shall not remarry for a term of years, or for life, and these laws have generally been regarded merely as intended to regulate the conduct of the divorced party within the state, and not as intended to follow him to another jurisdiction and prevent a marriage which would be lawful there; in other words, they impose a penalty local only in its effect. Under this construction the remarriage of such guilty party in another state has generally been held valid, notwithstanding the prohibition of the local statute. Of this class are the cases of Frame v. Thormann, 102 Wis. 654, 79 N. W. 39...