Ormachea v. Ormachea

Decision Date17 April 1950
Docket NumberNo. 3575,3575
Citation217 P.2d 355,67 Nev. 273
PartiesORMACHEA v. ORMACHEA.
CourtNevada Supreme Court

Kearney & Adams, of Reno, and A. L. Haight, of Fallon, for appellant.

Griswold & Vargas, of Reno, and James W. Johnson, Jr., of Fallon, for respondent.

WINES, District Judge.

This is an appeal from a judgment rendered by the District Court of the First Judicial District, and from an order denying a new trial.

The action in the district court was one for divorce. The appellant's first assignment of error is that the evidence fails to establish the marriage.

These parties first met in the summer of 1930. Soon after this meeting the parties had illicit relations. The respondent become pregnant, and some time during the month of October, 1930, began living openly with the appellant. The parties continued to live together and to maintain a common home from then until July, 1947, when the respondent left their home and began living separate and apart from the appellant. During this time seven children were born to the parties, the last being born in 1943.

The children, as they reached school age, were registered at school as the children of Thomas Ormachea and Marguerite Lucille Ormachea, and with the exception of the last born of these children, the respondent at all times recognized and treated the children as his own and provided them with necessaires.

During this period the parties here signed legal documents as man and wife, and they were accustomed to making income tax returns as man and wife. The appellant maintained accounts at several stores in Fallon, Nevada, where they resided, and the respondent purchased food and clothing for herself and the children from the various establishments at which the appellant maintained accounts.

Several persons of some prominence who resided in Fallon, Nevada, testified that the parties were reputed to be man and wife in that community. In addition to proving open and continuous cohabitation as man and wife in this community for all these years, the respondent testified that she and the appellant lived together as man and wife, and that this was with the consent of respondent and of the appellant.

Except as to the last statement of the foregoing paragraph, the appellant does not dispute the evidence, but insists nevertheless that the evidence falls short of showing a marriage, because on many occasions the respondent requested the appellant to formalize their relations by a marriage ceremony, and on at least one occasion told the appellant that he had no voice in a mater involving one of the children since she was not married to him. This, it is argued, plainly shows that the respondent at no time considered her relations with the appellant as other than illicit; that while respondent held this view of their relations she could not have contracted a common law marriage with the appellant, as that would have required her consent to and acknowledgment of their marital status.

We have no quarrel with the appellant's view of the law that if for all of the years appellant and respondent lived together the respondent held the belief that her relations with the appellant were illicit she could not have given the necessary consent to live together as man and wife which is required in all cases of common law marriage. On the other hand, the appellant's proposition is not aided by the presumption that relations shown to have begun illicitly will be presumed to remain so in the absence of clear and compelling proof. That such a presumption has been indulged in other jurisdictions is not disputed, but it has long been the rule in this State that when the relations of the parties in the beginning are illicit, there is no presumption that the same continues to be so, but the burden of proof is upon the party asserting a valid marriage to prove the same. If there is any presumption, it is in favor of a valid marriage, and this presumption may be based on continuous cohabitation. Parker v. De Bernardi, 40 Nev. 361, 164 P. 645.

Then too, the appellant's argument would carry more weight if his testimony indicating the respondent considered their relations as illicit had not been contradicted by the respondent's testimony. It is not our province to determine the credibility of witnesses. It is the exclusive province of the trial court, sitting without a jury, to determine the facts on conflicting evidence and its finding will not be disturbed unless it is clear that a wrong conclusion was reached. Murray v. Osborne, 33 Nev. 267, 111 P. 31; Botsford v. Van Riper et al., 33 Nev. 156, 110 P. 705; McNee v. McNee, 49 Nev. 90, 237 P. 534; Orr Ditch & Water Co. v. Silver State Lodge, 58 Nev. 292, 78 P.2d 95.

We do not find anywhere in the record any contradiction of appellant's testimony that respondent on several occasions expressed a desire that the parties enter into a ceremonial marriage. That does not prove, however, that respondent considered their relations as immoral. Nor does it follow that because she expressed such a desire that she did not enter into a common law marriage. 55 C.J.S., Marriage, § 45, page 914.

The presumption is in favor of a valid marriage, and arises when continuous cohabitation is shown. Parker v. De Bernardi, supra. In the instant case not only do we have evidence of many years of cohabitation, but in addition proof that appellant and respondent were reputed to be man and wife in the community where they resided, and had been so considered for many years prior to their separation. It would require the most convincing and cogent proof to overcome such evidence and the presumption it raises. We are satisfied that the trial court reached the proper conclusion.

The appellant next argues that if a common law marriage did in fact exist between the parties, the trial court erred in awarding a decree of divorce to the respondent upon her showing of extreme cruelty.

'In considering extreme cruelty as a ground of divorce courts have cautiously given it negative, rather than affirmative definitions. The difficulty in giving it an affirmative definition arises from the fact that cruelty is a relative term; its existence frequently depends upon the character and refinement of the parties, and the conclusion to be reached in each case must depend upon its own particular facts. 'We do not divorce savages and barbarians because they are such to each other,' said the Supreme Court of Pennsylvania in Richards v. Richards. 'We can exercise no sound judgment in such cases (divorce cases) without studying the acts complained of in connection with the character of the parties, and for this we want the common sense of the jury rather than fixed legal rules'. 37 Pa. , 228.' Kelly v. Kelly, 18 Nev. 49, 55, 1 P. 194, 195, 51 Am.Rep. 732.

That case is also authority for two rules relative to that ground for divorce; namely, there may be cruelty without personal violence and such cruelty working on the mind may affect the health, but that in any event the conduct complained of must result in danger to life, limb or health or in the reasonable apprehension of such danger. This court has not since that case departed from or enlarged upon those rules. Kapp v. District Court, 31 Nev. 444, 103 P. 235; Nielsen v Nielsen, 55 Nev. 425, 38 P.2d 663; Miller v. Miller, 54 Nev. 44, 3 P.2d 1069, rehearing granted, 54 Nev. 44, 6 P.2d 1117, affirmed 54 Nev. 44, 465, 11 P.2d 1088. In some jurisdictions the latter rule has been enlarged to include conduct which destroys the legitimate objects and ends of the marriage. Hassell v. Hassell, 185 Okl. 154, 90 P.2d 885; Smith v. Smith, 61 Ariz. 373, 149 P.2d 683; Stegmeir v. Stegmeir, 158 Kan. 511, 148 P.2d 755; Holloman v. Holloman, 49 N.M. 288, 162 P.2d 782. This court has already stated, however, that the broadening of the present rule must await legislative action. Nielsen v. Nielsen, supra.

We do not wish to be understood as saying that the respondent's case fails because of this. The evidence shows that for many years prior to the separation of the parties the appellant manifested an indifferent attitude toward respondent. This despite the respondent's unstinted efforts in forwarding their business affairs; and in fact the respondent performed tasks on the ranch usually assigned to men hired to do ranch work. This the respondent did for many years, and during that time bore seven children. During the one or two occasions she was ill, and during respondent's pregnancies, her condition served only to arouse appellant's impatience.

The respondent testified that the appellant was domineering and critical toward her. When in the later years the parties prospered, the respondent was not rewarded by light work and increased comforts, but, by appellant's indifference and hardness toward her. This aspect of the case was aptly summed up by the trial court in the remark that in many years' experience as a trial judge he had not become acquainted with a case where a person had given so much and received so little.

For some years prior to the separation the respondent had resented what she felt were improper attentions by appellant to another woman. We think the events related by her justified such feeling, but efforts to obtain from the appellant some explanation met not only with failure, but resulted in arousing his anger and the remark on one occasion, 'that if she didn't like it, she could get off the ranch'.

The events related by the respondent, and which led eventually to the separation, discussed as isolated occurrences do not impress forcibly. When considered, however, as manifestations of an indifferent, harsh and sometimes hostile attitude toward the respondent and her well being, these events make considerable imprint. We think the appellant's attitude toward respondent is displayed by his behavior on the occasion of the birth of their seventh child. After raising the question of the...

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