Linneman v. Linneman
Decision Date | 15 December 1953 |
Docket Number | Gen. No. 46022 |
Citation | 1 Ill.App.2d 48,116 N.E.2d 182 |
Parties | LINNEMAN v. LINNEMAN. |
Court | United States Appellate Court of Illinois |
Robert Friedlander, Chicago, for appellant.
Albert E. Jenner, Jr., Philip W. Tone, William B. Davenport, Chicago (Johnston, Thompson, Raymond & Mayer, Chicago, of counsel), for appellee.
This is an appeal by plaintiff, Josephine M. Linneman, from an order dismissing her petition for a rule requiring defendant to show cause why he should not be held in contempt for failure to pay alimony. The plaintiff, who had divorced the defendant and remarried in Illinois, subsequently had her second marriage annulled in California. She predicated her petition for renewal of her alimony payments on the ground that the annulment of her second marriage revived defendant's responsibility to support her.
The first and vital issue to be decided is whether the California decree based on a provision of the California code annulling the second Illinois marriage of plaintiff is a good and valid decree binding on defendant in Illinois.
It has been said that marriage is a civil contract to which there are three parties: the husband, the wife and the State, and it is regarded as a status based upon public necessity controlled by law for the benefit of society at large. VanKoten v. VanKoten, 323 Ill. 323, 326, 154 N.E. 146, 50 A.L.R. 347; In re Estate of Young, 319 Ill.App. 513, 49 N.E.2d 742. The law governing the validity of this contract is the law of the State where it was made. Reifschneider v. Reifschneider, 241 Ill. 92, 96, 89 N.E. 255; Lehmann v. Lehmann, 225 Ill.App. 513, 523. Illustrative of this point is the case of Ertel v. Ertel, 313 Ill.App. 326, 40 N.E.2d 85, in which it was held that the statutes and construction thereof by the courts of review of Missouri, the place of the marriage, governed the question of the competency of the husband to enter into a marriage.
Further, the Supreme Court of Colorado, in a well-considered opinion in the case of Payne v. Payne, 121 Colo. 212, 214 P.2d 495, enunciates this same principle. The court said, 121 Colo. on pages 217, 218, 214 P.2d on page 497:
The Civil Code of California (§ 63) provides:
'All marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted are valid in this state.'
This provision of the Civil Code declares the general rule of conflicts of law governing the validity of the marriage, namely, that a marriage valid where celebrated is valid elsewhere. Restatement of Conflict of Laws, §§ 121, 131, 132. This is also the law in Illinois. Construing this provision the courts of California have refused to annul marriages performed elsewhere which would have been voidable under the California code. McDonald v. McDonald, 6 Cal.2d 457, 58 P.2d 163, 104 A.L.R. 1290; Vaughn v. Vaughn, 62 Cal.App.2d 260, 144 P.2d 658.
In our case the record reveals that the plaintiff and the defendant, Francis P. Linneman, were divorced by a decree of the Superior Court of Cook County on July 2, 1947. By the terms of the decree the plaintiff was given custody of the minor son of the parties and provision was made for his support by defendant. The decree also provided for alimony payments to be made montly to the plaintiff 'until her death or remarriage, whichever event shall first occur.'
On June 10, 1950, plaintiff was married to John Foster Corlett in Glencoe, Illinois. She had been and was then a resident of this State. Plaintiff and Corlett went on a honeymoon for a week and then returned to her home in Glencoe where they stayed for a week. On June 24, 1950, they left for San Francisco, California, where they made their residence.
Upon plaintiff's marriage to Corlett, defendant ceased making alimony payments to her. There was no protest from plaintiff. Plaintiff and her son and Corlett lived together in San Francisco from June until about the end of October or the first part of November in 1950. After the separation, plaintiff and her son continued to live in San Francisco. In July of 1951 plaintiff filed a complaint for annulment of her marriage with Corlett in the Superior Court in San Francisco on the ground of impotency pursuant to the following provision of the California Code, § 82:
'A marriage may be annulled for any of the following causes existing at the time of the marriage * * *.
Corlett's answer to the complaint was a general denial. The decree of annulment, which was entered July 27, 1951, was based on the perfunctory testimony of just the plaintiff. She was not cross-examined by Corlett's attorney who was present. Her statements as to the impotency of Corlett were not substantiated by competent medical testimony, which in our opinion would be required under the Illinois practice to prove impotency. The decree provided among other things:
'* * * that at the time of the performance of said marriage ceremony, the defendant was physically incapable of entering into the marriage state or of consummating the said marriage by reason of incurable physical defects in that his parts of generation are frigid and impotent and such frigidity and impotence are wholly incurable by art or skill and that by reason of the law and findings aforesaid, the plaintiff is entitled to a judgment and decree declaring said marriage wholly null and void from the beginning.
'Now, therefore, it is hereby ordered, adjudged and decreed that the said marriage between the plaintiff and the defendant be, and the same is, hereby declared to be wholly null and void from the beginning and that said parties are, and each of them is, hereby freed from the obligations thereof.'
After the entry of the decree of annulment, while plaintiff was still in California, she made a demand on defendant to resume his alimony payments. Demand was again made by plaintiff on defendant in August of 1951 when she returned to live in Glencoe, Illinois. Defendant refused to pay.
On these facts alone, based on the decisions heretofire discussed, we are of the opinion that unless the California decree of annulment was granted on grounds that were recognized in Illinois, where plaintiff had been a resident and where the marriage was performed, it would not be binding on the defendant.
The are in this case additional factors that weigh the scales of justice to a much greater decree in support of this conclusion. The pleadings show that the decree for annulment was based on the provision of the California Code (§ 82) which provides that impotency is a ground for annulment. No question was raised as to whether the law of Illinois or California should govern pursuant to section 63 of the California Code. Further, the California Civil Code (§ 86) under which the annulment was granted provides:
'A judgment of nullity of marriage rendered is conclusive only as against the parties to the action and those claiming under them.'
Under this provision in the case of Price v. Price, 24 Cal.App.2d 462, 75 P.2d 655, it was held in a similar situation as is here involved that a first husband could attack a decree purporting to annul his former wife's remarriage. To the same effect is In re Gosnell's Estate, 63 Cal.App.2d 38, 146 P.2d 42.
Defendant in the instant case was not a party to the complaint for annulment. He could attack the decree in California, contending that the law of Illinois where the marriage was performed should have governed in the annulment proceeding and not the law of California. McDonald v. McDonald, 6 Cal.2d 457, 58 P.2d 163, 104 A.L.R. 1290; In re Gosnell's Estate, 63 Cal.App.2d 38, 146 P.2d 42. It then logically follows that any proceeding instituted upon this decree in Illinois against defendant would be subject to the same defenses as it would be in California.
Is impotency a ground for annulment of a marriage in Illinois? In this State there are no statutory provisions for annulment of marriage. An examination of the various authorities (Rhodes, Annulment of Marriage 130-4 (1945); Vernier, 1...
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