Melcher v. Melcher

• Court: Nebraska Supreme Court
• Writing for the Court: SEDGWICK, J.
• Citation: Melcher v. Melcher, 102 Neb. 790, 169 N.W. 720 (Neb. 1918)
• Decision Date: 30 November 1918
• Docket Number: 20209
• Parties: BEATRICE MELCHER, APPELLEE, v. ABRAHAM MELCHER ET AL., APPELLANTS

169 N.W. 720

102 Neb. 790

BEATRICE MELCHER, APPELLEE, v. ABRAHAM MELCHER ET AL., APPELLANTS

No. 20209

Supreme Court of Nebraska

November 30, 1918

APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Affirmed.

AFFIRMED.

Fawcett Mockett & Walford and Brown, Baxter & Van Dusen, for appellants.

John O Yeiser and J. B. Randolph, contra.

SEDGWICK, J. LETTON and ROSE, JJ., not sitting.

OPINION

SEDGWICK, J.

The plaintiff and Reuben Melcher were married on the 21st day of November, 1914, and in July afterwards she began this action in the district court for Douglas county against Abraham Melcher and Pauline Melcher and several other parties to recover damages for an alleged conspiracy to alienate her husband's affections. The trial resulted in a judgment against Abraham Melcher and Pauline Melcher, from which they have appealed. The court instructed the jury to find in favor of one of the other defendants, and the remaining defendants were relieved from liability. At the time of the marriage the plaintiff was between 17 and 18 years of age, and her husband was a little more than 19 years of age.

The defendants complain that upon the trial the court allowed incompetent evidence, and that the court refused to submit proper instructions requested by the defendants, and that the evidence is not sufficient to support any verdict against the defendants, and that the verdict rendered is excessive.

The law presumes that the father and mother, in advising their minor child, acted in good faith and for what they supposed his best interest. Trumbull v. Trumbull, 71 Neb. 186, 98 N.W. 683.

If the evidence is that the parents' sole motive was to promote the welfare of their son, and the circumstances and conditions were such that they might reasonably believe that the advice given was justifiable and for the best interest of all parties concerned, they cannot be held liable in damages.

In considering the important question of the advice under such circumstances as justified, we must remember that the age of consent to marry is, by our statute, made 18 years or upwards for the male, and 16 years or upwards for the female (Rev. St. 1913, sec. 1541) and, although by section 1543, Rev. St. 1913, a license must be obtained before the marriage takes place, and by section 1544, Rev. St. 1913, no license can be issued to a minor without the consent of his parents, yet the want of a license does not affect the validity of the marriage. Haggin v. Haggin, 35 Neb. 375, 53 N.W. 209. These parties were both above the age of consent, and therefore, under these provisions of the statute, they were legally married. The fact that the license was wrongfully procured may destroy its effect and protection, and subject the parties at fault to penalties, but it does not affect the validity of the marriage itself. A marriage may be annulled when one of the parties is under the age of legal consent at the suit of the parent entitled to the custody of such minor. Rev. St. 1913, sec. 1596. But, that no license was obtained, or that the license was obtained fraudulently, is no ground for the annulment of a marriage.

A parent may "advise his daughter in good faith and for her good to leave her husband, if on reasonable grounds he believes that the further continuance of the marriage relation tends to injure her health, or to destroy her peace of mind, so that she would be justified in leaving her husband," but "may not, with hostile, wicked or malicious intent, break up the marital relations between his daughter and her husband, simply because he is displeased with the marriage, or because it is against his will, or because he wishes the marriage relation to continue no longer." 13 R. C. L. sec. 522, p. 1472. If the "further continuance of the marriage relation tends to injure her health, or to destroy her peace of mind, so that she would be justified in leaving her husband," she has ground for divorce under our statute and if her parent has reasonable ground to believe, and does believe, that these conditions exist, he may advise accordingly. The law in regard to advice given to a married daughter "is equally applicable in the case of advice given to a son." 13 R. C. L. sec. 522, p. 1472. It follows from the foregoing that it is unlawful to attempt to separate husband and wife, or to annul or dissolve the marriage relation between them, unless some statutory ground for annulment or divorce exists. If such ground exists, or the circumstances are such as would lead a reasonable mind to believe that it does exist, the parent who, in good faith, believe that the ground exists, may advise as he honestly believes is in the interest of his son. The evidence is sufficient to justify the finding...