De Potty v. De Potty, 5-1037

• Court: Arkansas Supreme Court
• Writing for the Court: HOLT; WARD; WARD; McFADDIN
• Citation: De Potty v. De Potty, 295 S.W.2d 330, 226 Ark. 881 (Ark. 1956)
• Decision Date: 05 November 1956
• Docket Number: No. 5-1037,5-1037
• Parties: , 61 A.L.R.2d 841 Dave DE POTTY, Appellant, v. Susie Waggoner DE POTTY, Appellee.

Page 330

295 S.W.2d 330

226 Ark. 881, 61 A.L.R.2d 841

Dave DE POTTY, Appellant, v. Susie Waggoner DE POTTY, Appellee.

No. 5-1037.

Supreme Court of Arkansas.

Nov. 5, 1956.

Concurring Opinion Nov. 12, 1956.

Dissenting Opinion Nov. 26, 1956.

Rehearing Denied Dec. 3, 1956.

Van Johnson, Texarkana, for appellant.

LeRoy Autrey and Dennis K. Williams, Texarkana, for appellee.

HOLT, Justice.

This is an action by appellant seeking to annul his marriage to appellee. From a decree denying and dismissing his prayer for annulment comes this appeal.

There appears to be little if any dispute as to essential facts. The parties were united in marriage in the border city of Texarkana on the Arkansas side by a duly ordained minister, whose credentials are not questioned, and the marriage was solemnized in the presence of witnesses according to the forms and customs of the church to which the minister belonged. The parties were fully competent to marry. Prior to the marriage requisite blood tests were had. They lived together for some 16 months prior to the present suit, holding themselves out as husband and wife. Prior to the marriage it appears undisputed that appellant borrowed from his wife approximately $3,000, which he had not repaid at the time of the marriage. It appears that all requirements for a valid marriage under our marriage statutes, §§ 55-201-55-236, Ark.Stats.1947, were fully complied with, except the marriage license used was obtained on the Texas side of Texarkana in Bowie County, Texas. The parties at all times, until discord arose shortly before divorce proceedings were filed, lived together in good faith, cohabited as husband and wife, and believed that their marriage was legal.

The question presented for our determination, says appellant, is 'whether residents of this state may legally contract marriage in this state with a license issued by a foreign state.' Arkansas Statutes, § 55-201 provides for the procurement of an Arkansas license by those contracting marriage. But we have no statute providing that a marriage is void where no license is obtained. Here, a marriage license was issued by the State of Texas, but no Arkansas license was acquired. If § 55-201 is mandatory, the marriage is void. On the other hand, if the statute is merely directory, the marriage is valid. The appellant, in his contention that the statute is mandatory, relied largely on Furth v. Furth, 97 Ark. 272, 133 S.W. 1037, 1038. The issue in that case was whether a common law marriage is valid in this State. In dealing specifically with that issue, the court said: '* * * we hold our statutes regulating and prescribing the manner and form in which marriages may be solemnized are mandatory and not directory merely. In short, we hold that the doctrine of so-called 'common-law marriages' has never obtained or become a part of the laws of this state.' In the Furth case, there was no marriage ceremony of any kind, whereas, in the case at bar, there was a ceremonial marriage performed by a duly qualified minister.

Although there are some cases to the contrary, the great weight of authority holds that marriage license statutes are merely directory. In Feehley v. Feehley, 129 Md. 565, 99 A. 663, 665, L.R.A.1917C, 1017, the court said: 'There are differences of judicial opinion in various jurisdictions as to what are the essential features of a marriage under the rules of the common law, but the courts are generally in accord upon the proposition that a statutory provision for a license to marry shall not be regarded as mandatory, and vital to the validity of a marriage, in the absence of a clear indication of a legislative purpose that it should be so construed.' The Supreme Court of Nebraska said in Melcher v. Melcher, 102 Neb. 790, 169 N.W. 720, 721, 4 A.L.R. 492: '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. * * * But that no license was obtained, on that the license was obtained fraudulently, is no ground for the annulment of a marriage.' 'Compliance with license statutes is not generally essential to the validity of a marriage, at least in the absence of statutory provision expressly making it so essential.' 35 Am.Jur. 195. 'Statutes in the various jurisdictions usually require a license to be obtained. While, according to some authorities, such a statute is mandatory and a marriage performed without the required license is void, the general rule with regard to the construction of such statutes is that they are directory merely, and do not destroy the validity of a marriage contracted contrary to their provisions, unless it is provided, expressly or by necessary implication, that the marriage shall be invalid.' 55 C.J.S., Marriage, § 24, p. 857. A long list of cases from many different states are cited in support of the text. We believe the better view is that of the majority.

Affirmed.

McFADDIN and MILLWEE, JJ., dissent.

WARD, J., concurs.

WARD, Justice (concurring).

My concurrence in this opinion springs from the hope that it will not in the future be misconstrued. It should be obvious to everyone that it deals with an important and sacred item of our social structure.

In the first place, it is unthinkable that this court should hold it has absolutely no power to decree valid a marriage in some extreme situation that might hereafter arise. For instance, let's suppose that these people had lived together for 40 years and had been blessed with several children who in turn had married and reared children. For this court to hold that they were never married would portend consequences of serious magnitude.

On the other hand I feel sure that this court does not desire to announce categorically that a marriage license is not necessary, or to put its stamp of approval upon mere cohabitation and dignify that relationship with the status of a legal marriage. Such is not the intent of the opinion in this case.

I feel sure that the opinion in this case intends only to approve a marriage relationship [without license] only where; (a) the parties engaged in a ceremony substantially in compliance with that prescribed by the statutes; (b) the parties to the ceremony acted in good faith and believed that they were complying with all the provisions of our statutes; (c) they consummated the ceremony by cohabitation, and; (d) the proof of (a), (b), and (c) mentioned above is clear and convincing.

It is my thought that, in this opinion, our court has gone further than it has ever gone before in approving what might be termed a ceremonial marriage. It is easy to envision how this new power assumed and sanctioned by the court could be misconstrued and misapplied.

Therefore, it seems to me that the majority opinion should have laid more stress on the items above mentioned, and, I think, it should have pointed out that this court will look with disfavor on a 'marriage' without a license and will sanction it only if unusual circumstances and the social welfare clearly dictate such action.

McFADDIN, Justice (dissenting).

The majority opinion in this case will have a far-reaching effect on our marriage laws. It not only nullifies a portion of our Statutes, but also over-rules our cases and creates confusion and uncertainty regarding marriages. So I am compelled to dissent.

The validity of a marriage--in the absence of any questions of public policy in the domiciliary state--is determined by the law of the state wherein the marriage is contracted. So Arkansas has the right--in fact, the duty--to determine what is a valid marriage in this State. Our laws--as found in § 55-201 et seq., Ark.Stats.--provide for the issuance of a license, form of the license, applicants being required to take blood tests, sobriety, waiting period, performance of the marriage ceremony, and returning of the certificate of marriage to the issuing county. In short, up to the date of this case, if anyone had wanted to see about a marriage, the information could have been found in the office of the county clerk wherein the marriage license was issued. Hereafter where will we look for the recording of a marriage performed in Arkansas? According to this opinion, we will have to look in one of the county clerk's offices in Texas. We might just as well have to look in Oregon, Maine, California or Mexico, and then consult every preacher in Arkansas to see if he had performed such a marriage in this State on a license issued in some other state. No record of such a ceremonial marriage in Arkansas on a license from another state could be found in any county courthouse in Arkansas.

There have existed for many years throughout the State of the American union two types of marriages: (a) a common-law marriage; and (b) a licensed (or statutory) marriage. A common-law marriage exists when a man and woman agree to live together and publicly do so. A licensed marriage--or statutory marriage--exists when a man and woman obtain a license from the proper authority to become husband and wife and then have a ceremony of marriage and return the certificate of marriage to the proper recording office. By Act No. 127 of 1875 (now found in § 55-201, Ark.Stats.), the Arkansas Legislature provided:

'All persons hereafter contracting marriage in this State are required to first...