Marcus v. Marcus
| Decision Date | 21 March 1944 |
| Parties | MARCUS <I>v.</I> MARCUS |
| Court | Oregon Supreme Court |
Presumptions flowing from marriage, note, 77 A.L.R. 729
See, also, 35 Am. Jur. 303
27 C.J.S., Divorce, § 146
Before BAILEY, Chief Justice, and BELT, ROSSMAN, LUSK, and HAY, Associate Justices.
Appeal from Circuit Court, Multnomah County.
Suit by Marian Lorraine Marcus against Elmer M. Marcus for separation from bed and board and for alimony. Decree for plaintiff, and defendant appeals.
AFFIRMED.
W.L. Cooper, of Portland (Andrew J. McCann, of Portland, on the brief), for appellant.
James L. Means, of Portland (John F. Gantenbein, of Portland, on the brief), for respondent.
Plaintiff instituted this suit against defendant under the provisions of chapter 408, Laws of 1941, praying for a decree of separation from bed and board for a period of one year, with alimony, costs and attorney's fees. The complaint set forth the marital status of the parties and the necessary jurisdictional facts, and, under definite specifications, charged the defendant with cruel and inhuman conduct and personal indignities toward plaintiff, which rendered her life burdensome. The defendant answered by general denial, and affirmatively alleged, in effect, that no marriage relationship existed between the parties, in that, on May 1, 1943, the date of their "attempted" marriage, he did not have the legal capacity to enter into a marriage contract, for the reason that, on April 2, 1942, he entered into a lawful marriage with one Grace Myers, which marriage continued until March 29, 1943, on which day, at the suit of the said Grace, it was dissolved by decree of the circuit court for Multnomah County, and less than six months (to wit, thirty-three days) had elapsed between the date of such divorce decree and the date of his "attempted" marriage to plaintiff. For reply, the plaintiff denied defendant's alleged prior marriage and divorce, and alleged affirmatively that, on October 25, 1941, defendant lawfully married one Bernice M. Maurer, which marriage continued until April 25, 1942, on which day, at the suit of the said Bernice, it was dissolved by decree of the circuit court for Multnomah County. The reply further averred that the defendant ought to be estopped from alleging his incapacity to contract marriage with the plaintiff, for the reason that, prior to their marriage, the plaintiff inquired of him concerning his marital status, and was informed by him that he had been married once previously to Bernice M. Maurer, had divorced her in the spring of 1942, and had been married to no other person, which statements the plaintiff believed, and, in reliance thereon, married the defendant.
At the hearing, the defendant was present in person and by counsel. The evidence on the part of plaintiff established the following facts: She is a young woman who was born and reared in the State of Wisconsin. She came to Portland, Oregon, in January, 1943. She had never been married. Shortly after coming to Portland, she became acquainted with defendant, and in March, 1943, they became affianced. Plaintiff then returned to her home in Wisconsin, without having fixed a definite date for the wedding. From Portland, the defendant continued his wooing with telegraphic messages and floral offerings, and finally it was agreed that the parties would be married in Wisconsin on May 1, 1943. As the time for the wedding drew near, defendant went to Wisconsin, where he was made welcome by plaintiff's family and received into their home as a guest. The plaintiff being of the Roman Catholic faith and desiring to be wedded in church, the parties were married in the Cathedral of Christ the King, at Superior, Wisconsin, on May 1, 1943. They returned immediately to Portland, where the defendant had employment.
They lived together less than six weeks, and from the beginning their relationship was an unhappy one. Although defendant owned a residence in Portland, he required his wife to live with him in a single-room apartment. He showed his lack of affection for plaintiff by a boorish and inconsiderate demeanor toward her. He told her that she irritated him, and, on her putting her arm around him, told her to "get her so-and-so hands off him because they were damp." He informed her that he was about to enter the United States Army, and insisted that she should return to Wisconsin. Plaintiff was unwilling to do this, and tried to persuade defendant that it would be better if she should remain with him until he actually entered the Army. He thereupon intimated that, unless she returned to Wisconsin, he would abandon her, upon which threat plaintiff capitulated, and returned to her former home. For the journey from Portland to Superior, Wisconsin, involving three days' travel, he provided his wife with mere day-coach transportation and only ten dollars for incidental expenses.
Defendant did not enter the Army, but remained in Portland in civilian employment. He neglected, however, to communicate these facts to his wife, who learned of them through a friend. She thereupon wrote to him, offering to return and "try to make a go" of their marriage. After waiting two weeks without any answer to her letter, on her own initiative, she returned to Portland. When she arrived there, she received a letter from the defendant, which had reached Superior after her departure and had been...
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Davis' Estate, Matter of
...v. State Indus. Acc. Com. et al., 118 Or. 231, 246 P. 359 (1926); Smith v. Smith, 169 Or. 650, 131 P.2d 447 (1942); Marcus v. Marcus, 173 Or. 693, 147 P.2d 191 (1944); Booker v. Booker, 27 Or.App. 779, 557 P.2d 248 (1976); and Steinberg v. Steinberg, supra, but with the additional requireme......