Otte v. Pierce

• Decision Date: 19 April 1948
• Docket Number: 15888.
• Citation: 118 Colo. 123,194 P.2d 331
• Parties: OTTE v. PIERCE.
• Court: Colorado Supreme Court

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.

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 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 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 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 Jersey, in denying plaintiff's right to an annulment upon the ground that he did not come into court with clean hands, after discussing many cases, said in Ancrum v. Ancrum, 156 A. 22, 23, 9 N.J.Misc. 795:

'In the case now under consideration the petitioner and the defendant were married on July 24, 1925, and lived together as man and wife until the year 1927, at which time the petitioner learned that the defendant had another husband living. He had made an investigation and found that to be the fact, and yet he continued to live with the defendant as man and wife up to the time the defendant brought maintenance proceedings against him in 1930.

'In the case sub judice it appears that for nearly three years after knowledge of the facts had come to him, the petitioner and the defendant continued to sustain toward each other the relationship of husband and wife. It would seem that when the petitioner became apprised of the fact that the defendant's husband was alive, and having reasonable opportunity to investigate the facts and circumstances, of all of which he availed himself, he was called upon to act, and to act with reasonable promptitude and expedition. He should then without unnecessary delay have decided upon the course to be pursued. The petitioner was not at liberty to play fast and loose with the defendant and by his conduct sanction and approve a marriage which he knew to be illegal. It was not only unconscionable but criminal for him to continue to cohabit with her with knowledge of the prior marriage, and then at a later day repudiate the relationship and bring this action to annul the marriage. His conduct was such as appears to me as worthy of condemnation, and I am therefore constrained to deny him the relief prayed for.'

The case of Popham v. Duncan, 87 Colo. 149, 285 P. 757, 70 A.L.R. 824, involved an antenuptial contract between C. M. Duncan and Hattie Duncan, his wife, by which it was agreed that their marriage, if consummated, should continue only so long as the same should be mutually satisfactory, and that in the event of disagreement, Mrs. Duncan promised to vacate the home and take therefrom her personal property within twenty-four hours, thereby releasing her husband and his heirs from all claims, including alimony, and she also agreed not to contest any action for divorce which might be brought by Duncan, and in the event he instituted such an action he agreed to pay her the sum of one hundred dollars for each year that they lived together as man and wife. The district court held the contract void, and in affirming its ruling, we said:

'The antenuptial contract was a wicked device to evade the laws applicable to marriage relations, property rights, and divorces, and is clearly against public policy and decency. It was nothing more, in effect, than an attempt, on the part of the deceased, in whose favor the contract was drawn, to legalize prostitution, under the name of marriage, at the price of $100 per year. It was the establishing of a companionate marriage, to exist only so long as neither party objected to a continuance. The wife, under its terms, was made a base hireling. The man could enjoy her companionship, under its covenant, for a single night, and then discard her, or he might continue his companionship with her for a week, or fortnight, or longer if it pleased his fancy, and then he could, under its terms, capriciously and arbitrarily reject her, and put her adrift by paying the price, at the rate of $100 per year; and thereupon, at his bidding, she must gather up her personal belongings and leave the house within 24 hours, without any rights, either as

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