Plaintiff v. Denied

• Decision Date: 04 March 1930
• Docket Number: (No. 6569.)
• Parties: Hall et al. v. Baylous.(Rehearing Denied)
• Court: West Virginia Supreme Court

109 W.Va. 1

Hall et al.

v.Baylous.

(Rehearing Denied)

(No. 6569.)

Supreme Court of Appeals of West Virginia.

Submitted February 18, 1930.

Decided March 4, 1930.

May 31, 1930.

1.Where the construction of a statute is involved in order to interpret the legislative intent, regard must be had to the subjectmatter of the statute, its scope, purpose, and effect.

2.The Legislature must be presumed to know the language employed in former acts, and, if in a subsequent statute on the same subject it uses different language in the same connection, the court must presume that a change in the law was intended.

3.The word "void," as used in section 14, c. 64, Code, prohibiting the marriage of a divorced person (except remarriage to the divorced spouse) within six months following a decree of divorce a vinculo, means absolutely void, and a marriage in contravention of said section will be treated as if it had never been.

4. While the word "void" used in statutes involving marriage may be interpreted in some cases as meaning "voidable," yet the word should always receive its natural force and effect, where, by the use of the well-known rules of construction, it reflects the legislative intent.

Maxwell and Litz, Judges, dissenting on rehearing.

Error to Circuit Court, Cabell County.

Action by Robert P. Hall and others against Gertrude Baylous (Hall). To review an adverse judgment, defendant brings error.

Affirmed.

James H. Strickling and Poffenbarger & Poffenbarger, for plaintiff in error.

Vinson, Thompson, Meek & Scherr, for defendants in error.

Woods, Judge:

This action of unlawful entry and detainer was instituted in' Cabell county by the heirs of William T. Hall, deceased, to ' recover possession of the mansion house, which the defendant sought to hold, pending an award of dower, on the theory that she was the legal widow of decedent. The defendant brings error to a judgment adverse to her.

It appears that an absolute divorce was granted Gertrude Baylous (defendant herein) from her husband, Walter S. Baylous, by the domestic relations court of Cabell county, December 19, 1927. Said decree, in accordance with section 14, c. 64, Code, forbade plaintiff from marrying any other party, except Walter S. Baylous, for a period of six months. On April 21, 1928, however, she was married in the city of Charleston to William T. Hall, who later departed this life on August 19, 1928, possessed with certain property, including the mansion house, heretofore mentioned.

The question presented for determination on this writ is, was Gertrude Baylous the wife of the decedent, Hall? This fact depends upon whether the alleged marriage to him was void, or merely voidable. What is void can always be assailed in any proceeding; what is voidable can be assailed only in a direct proceeding instituted for that purpose. A determination of this question involves the interpretation of section 14, c. 64, Code, which is as follows: "Neither party to a divorce suit shall again marry within six months from the date of a decree of divorce; but this provision shall not apply to, or prohibit the divorced parties from being remarried to each other at any time. The court may further prohibit the guilty party from marrying within a certain time, to be fixed in the decree, not to exceed five years from the date of the decree; and any marriage contracted by the parties, or either of them, except a remarriage by the divorced parties to each other, within the prohibited period, shall be void, and the party shall be criminally liable the same as if no divorce had been granted. The court may at any time after the expiration of one year, modify the restraint imposed upon the guilty party, upon it being shown that such person, by reason of his or her life and conduct, since the date of the decree, is entitled to such relief." This section was added by the Legislature in 1915.

Counsel for appellant contends that the tendency of modern civilization is to condemn the doctrine of ab initio nullity of marriages; and to make forbidden marriages voidable only, and then only by a sentence or judgment of a court; and that the legislation in this state is in line with this tendency. Many of the cases cited from foreign jurisdictions involve statutes containing no words of nullity. Such cases obviously lend no aid in determining the question at issue here. Inasmuch as the Legislature has full control of the subject of marriage, and fixes the conditions under which the marital status may be created or ended, such legislation may be altered by statute. Whether a marriage of the kind under consideration should be treated as entirely void, or should be open to attack only in specific proceedings brought by certain persons, is purely a question of policy for the Legislature. The particular section, in so far as the question here presented is concerned, has not been interpreted by this court. However, its constitutionality was upheld in State v. Snyder, 89 W. Va. 96, 108 S. E. 588. So the question raised is one of first impression.

The general rule is stated in 19 Corpus Juris, p. 183, as follows: "A remarriage contracted within the state by a divorced party within the period, in which by statute remarriage is prohibited, is, as a rule, void, although it has been held, that where the statute merely prohibits remarriage by a divorced person within a specified time, but does not in terms declare such marriage shall be void, the marriage is not void but voidable only." Bishop (I Bish. Div. & Sep. § 435) lays down the rule: "Unless statutes creating impediment in the way of marriage contain express words of nullity, marriages contracted in violation thereof are not void, and at most voidable.'' This same doctrine is announced in Stewart on Marriage & Divorce, §§ 703-708.

The statute here under construction does contain a word importing a nullity. A restriction similar to ours was placed upon the marriage of divorced parties by the Legislature of Oklahoma. There it was declared to be unlawful in any event for either party to a divorce suit to marry another person within six months from the date of such decree of divorcement, and that any person marrying contrary to the provisions of such statute should be deemed guilty of bigamy, and such marriage deemed absolutely void. The appellate court of that state has held that a marriage contrary to such statute is void ah initio. Harvey v. State, 31 Old. Cr. 299, 238 P. 862, 51 A. L. R. 321; Niece v. Territory, 9 Okl. 535, 60 P. 300; Atkeson v. W. O. W., 90 Okl. 154, 216 P. 467, 32 A. L. R. 1108.

A similar statute received a like interpretation in Kansas. Oregon, and Washington. Durland v. Durland, 67 Kan. 734, 74 P. 274, 63 L. R. A. 959; McLennan v. McLennan, 31 Or. 480, 50 P. 802, 38 L. R, A. 863, 65. Am. St. Rep. 835; Smith v. Fife, 4 Wash. 702, 30 P. 1059, 17 L. R. A. 573. Counsel for appellant stresses the effect of the words "absolutely void" in the Oklahoma statute. This, to our mind, is unimportant. Where an act is declared void, nothing can be added thereto by way of qualification. Of course, where the whole statute would leave the matter in doubt as to what was intended, words of qualification might be useful in ascertaining the intent of the Legislature. The main case relied on by the appellant is that of Harrison v. State (decided in 1864) 22 Md. 468, 85 Am. Dec. 658. There the validity of a marriage of persons within the prohibited degree of consanguinity was involved. The statute (Act Md. 1777, c. 12, § 1) provided: "That if any person within this state shall hereafter marry with any person related within any of the degrees of kindred or affinity expressed in the following table such marriages shall be void'' the relation of uncle and niece being included in such table, that being the relationship to each other of the parties to the marriage in question. By the same act all marriages of persons related in the prohibited degree of consanguinity celebrated in the state theretofore were confirmed and made valid for all intents and purposes from the time of the celebration thereof. In view of this contemporaneous legislation, the court held there that the marriage under the statute was not necessarily meant to be void ab initio, but only from the time that its nullity was pronounced by a court of competent jurisdiction. The court in its opinion called attention to the fact that a different construction of the statute would have the effect of bastardizing the children of such marriage, and was therefore so pregnant with serious consequences as not to be adopted without the most cogent and conclusive authority. In this state, however, we have a statute legitimatizing such issue. The court discussed canonical disabilities such as render the marriage voidable and not void the class to which the marriage under review there belonged and contrasted such disabilities with those civil in nature arising from want of capacity to contract, whereby the marriage is avoided ipso facto, without the aid of a court. Learned counsel for appellant, while admitting that such distinction was so made in the opinion, contends that the decision was not based on that. It is patent, however, that in the case at bar we are dealing with civil disabilities alone.

Keeping in view the foregoing principles announced by the text-writers and decisions, let us turn to a consideration of the legislation relative to the subject at hand. The public policy of this state, as well as that of all others, so far as we know, is to foster, protect, and encourage marriage, as it is the foundation of the family relation, without which, as an observation of the history of the human family shows, there can be no civilization. The state is likewise vitally interested, once the marriage state is formed, in the permanency of that relation, and its interest finds expression in the various statutes which prescribe the grounds for which divorce may be granted. So great is this interest that ...