McGrath v. McGrath, 24032

• Decision Date: 01 February 1965
• Docket Number: No. 24032,24032
• Citation: 387 S.W.2d 239
• Parties: Marguerite McGRATH, Plaintiff-Respondent, v. Irving Thomas McGRATH, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 239

387 S.W.2d 239

Marguerite McGRATH, Plaintiff-Respondent, v. Irving Thomas McGRATH, Defendant-Appellant.

No. 24032.

Kansas City Court of Appeals, Missouri.

Feb. 1, 1965.

William V. North, Brenner, Ewing, Lockwood & O'Neal, Kansas City, for appellant.

Robert L. Shirkey, Kansas City, for respondent.

MAUGHMER, Commissioner.

Plaintiff, Marguerite McGrath, on September 13, 1963, in the Circuit Court of Jackson County, Missouri, filed her petition, praying that she be granted a divorce from defendant Irving Thomas McGrath. Therein she alleged that 'she and the defendant were married in 1955, and continued to live together as husband and wife throughout various states of the United States, including the State of Missouri, until on or about August, 1963'. On November 8, 1963, after hearing testimony, the court sustained plaintiff's motion for temporary allowances and allowed her $35 per week as temporary alimony and $150 as temporary attorney's fee. Defendant has appealed from this judgment and as a basis therefor asserts the parties were never married, and that plaintiff failed to prove even a prima facie case of marriage in Missouri or anywhere else.

Defendant in his answer denied that he and plaintiff were ever married. At the hearing on the motion for temporary allowances the plaintiff and defendant each testified. No other person was offered as a witness. There is very little dispute as to the facts. Plaintiff and defendant never had a marriage license issued to them. There has never been a marriage ceremony of any kind. These people lived together as husband and wife from 1955 until August, 1963. Their domicile during this period was in the State of Missouri, although they temporarily sojourned in Arizona, California, Illinois, Massachusetts, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, Texas and West Virginia. Those trips to these eleven other states were for business or pleasure, or both, without any intention to become there domiciled. During this whole period plaintiff and defendant held themselves out as a married couple. Defendant introduced plaintiff to friends and acquaintances as his wife. He registered in hotels and motels as 'Mr. and Mrs. I. T. McGrath'. They lived together and cohabited together in Missouri and in the various other states. There are no children involved.

In describing his occupation Mr. McGrath said: 'I do business as Franklin Oil & Grease Company, selling specialty lubricants throughout the United States'. He estimated his yearly net income from 1955 to 1963, as ranging from $5,000 to $19,000. The plaintiff also was employed for at least a part of the time. She worked at Research Hospital and for Studio Girl Cosmetics. She at various times used four different names. Sometimes Marguerite Bunton, her maiden name; sometimes Daggett or Kraft, the name of a divorced husband, and part of the time McGrath. Kraft was her Social Security record name.

Since adoption of the Married Woman's Act, alimony pendente lite is no longer granted as a matter of course in Missouri, but depends upon the necessities of the case. Summers v. Summers, Mo.App., 222 S.W.2d 514. A wife, whether guilty or innocent, has a right to prosecute or defend an action for divorce and the husband must furnish her the means of attack or defense if she is without adequate means of her own. Burtrum v. Burtrum, Mo.App., 200 S.W.2d 80.

Manifestly there can be no divorce unless there was first a marriage. We quote from the Supreme Court en banc opinion in Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483, 485:

'The right of divorce is predicated upon and presupposes a valid marriage, 27 C.J.S., Divorce, Sec. 1, p. 521, and a motion for temporary alimony, in cases where the marriage is not admitted, must be supported by prima facie proof of the marriage. Hill v. Hill, Mo.App., 236 S.W.2d 394, 400; 27 C.J.S., Divorce, Sec. 208b(1), c(1, 2), pp. 895-897. * * * And, ordinarily, upon prima facie showing of marriage the wife's motion for temporary allowances will be sustained if otherwise meritorious, even though the husband tenders an issue of the validity of the marriage; this, for the reason that to deny the motion might foreclose the wife of the means with which to establish her contention that the marriage was valid. Carroll v. Carroll, 68 Mo.App. 190, 193-194; Ascher v. Ascher, 202 Mo.App. 622, 216 S.W. 576, 578'.

Our own court quite recently (Preston v. Preston, Mo.App., 342 S.W.2d 956, 957) said:

'The plaintiff to be entitled to temporary alimony and attorney's fees had the burden of proving a valid marriage (Hill v. Hill, Mo.App., 236 S.W.2d 394, loc. cit. 400 and Kruse v. Kruse, 231 Mo.App. 1171, 85 S.W.2d 214, loc. cit. 216) and where the plaintiff, as here, relies upon the presumption of a common-law marriage, from acts on the part of the parties, the court requires 'stringent proof' of the marriage.

"Appellant does not rely on an express contract of common-law marriage, but on a presumption of such marriage from the facts in evidence. This court has put itself on record as in favor of stringent proof of common-law marriages'. (Citations.) (Italics supplied.) Heger v. Bunch, 321 Mo. 758, 12 S.W.2d 459, loc. cit. 460.'

There is no suggestion or contention that a marriage was consummated by any ceremony-civil, religious, or otherwise. If plaintiff and defendant were married it resulted from what is generally known and described as a common-law marriage. During the whole period of their association these persons resided in and were domiciled in the State of Missouri. Common-law marriage has been since 1921, unrecognized in Missouri. Section 451.040 first added in 1921, declares: 'Common law marriages hereafter contracted shall be null and void'.

Under the testimony and admitted facts it is quite clear that if these persons had at all times remained in Missouri, there would be no marriage, and...