Otte v. Pierce, 15888.

• Docket Nº: 15888.
• Citation: 118 Colo. 123, 194 P.2d 331
• Case Date: April 19, 1948
• Court: Supreme Court of Colorado

194 P.2d 331

118 Colo. 123

OTTE
v.
PIERCE.

No. 15888.

Supreme Court of Colorado, en Banc.

April 19, 1948

Rehearing Denied June 7, 1948.

Error to District Court, City and County of Denver; Osmer E. Smith, Judge.

Action to annul marriage by Alvia Leroy Pierce against Florence Mildred Otte, otherwise known as Florence Mildred Pierce. The defendant filed a cross-complaint for separate maintenance. To review the judgment, the defendant brings error.

Reversed and remanded with instructions.

STONE, J., dissenting.

[118 Colo. 124] John T. Dugan, of Denver, for plaintiff in error.

Edward H. Sherman, of Denver, for defendant in error.

HAYS, Justice.

Defendant in error, Alvia Leroy Pierce, plaintiff below, brought this action against plaintiff in error, Florence Mildred Otte, to annul a purported marriage between the parties performed August 2, 1939, upon the alleged ground that defendant had a husband living at the time of said marriage from whom she was not divorced. Defendant in her answer admitted her marriage to plaintiff, but denied that she had a husband at the time of said marriage, and filed a cross complaint for separate maintenance.

In support of his allegations, plaintiff testified that defendant, prior to their marriage, had told him that she was previously married to Paul Otte and that she had secured a divorce from him. Defendant testified that she was never married to Otte; that she never told plaintiff she had been; and that she was free, August 2, 1939, to marry plaintiff. The issues were submitted to a jury, acting in an advisory capacity, which found in favor of plaintiff and against defendant. The court adopted the findings of the jury and entered judgment thereon for annulment in favor of plaintiff. Since the verdict of annulment was returned it was unnecessary for the jury to pass upon the question of separate maintenance under court's instructions. The judgment is now here for review on writ of error.

This case is here for the fourth time, the previous opinions being in Pierce v. Otte, 111 Colo. 374, 142 P.2d [118 Colo. 125] 283; Otte v. Pierce, 111 Colo. 386, 142 P.2d 280; Otte v. Pierce, 116 Colo. 77, 178 P.2d 676. This opinion should be considered in connection with the above decisions.

There are nine separate specifications upon which plaintiff in error relies for a reversal of the judgment. We elect to dispose of the case upon the point that the trial court erred in entering judgment for plaintiff and against defendant.

The facts necessary for a proper understanding of this opinion are: That plaintiff and defendant were ceremoniously married [194 P.2d 332] August 2, 1939, and at all times thereafter and until July 8, 1941, lived together as husband and wife; that on September 4, 1940, defendant, under the name of Florence Ottie, brought suit for divorce against Paul Ottie, No. A-28588, in the Denver district court, and an interlocutory decree was entered January 9, 1941, the decree becoming final July 10, 1941. The evidence was conflicting as to defendant's motive in instituting the divorce action against Otte, but in view of our disposition of the case, the reason therefor is immaterial. It is sufficient, for the purposes of this review, to state that plaintiff testified he learned January 9, 1941, for the first time, that defendant was not divorced from Otte, when he saw the notice of the granting of the interlocutory decree in Ottie v. Ottie, in a newspaper. Plaintiff contends that he entered into the alleged marriage unaware of the willful concealment by defendant of the fact that she was not divorced, and that by reason of such deception, is entitled to an annulment of the marriage. While the record herein furnishes ample grounds for questioning whether plaintiff was an innocent participant in the alleged illegal marriage, from its inception to January 9, 1941, he freely admits that he continued to cohabit with defendant after that date and until July 8, 1941, a period of six months after he had acquired full knowledge concerning defendant's true marital status, the last date [118 Colo. 126] being two days prior to the judicial removal of the alleged impediment of the previous marriage.

Upon the alleged discovery by plaintiff that defendant was still married to Otte, it was his duty to separate from defendant and maintain such separation until the impediment was removed. The continued cohabitation for a period of six months after full knowledge of all the facts, was illegal, meretricious, inconsistent with plaintiff's claim of innocence, and contrary to his testimony that he was 'grieved and broken up' when he learned that defendant had not secured a divorce from her former husband. The fact that plaintiff herein elected to sue for annulment, and not for divorce, two days Before the decree in Ottie v. Ottie, became final, in the light of all the attending circumstances, lends some credence to the suggestion that he did so in bad faith, to escape payment of alimony and to avoid a property settlement.

Under the above circumstances plaintiff is not entitled to a rescission of the marriage contract and is 'precluded from obtaining such an annulment, on the theory that he * * * does not come into court with clean hands.' 35 Am.Jur., p. 276, § 155; Annotations, 54 A.L.R. 83, 84.

A case arose in New Jersey involving almost identical facts to those in the instant proceeding. The court of chancery of New...