Reese v. Reese

• Decision Date: 05 October 1965
• Docket Number: No. 65-47,65-47
• Citation: 178 So.2d 913
• Parties: Margaret L. REESE, Appellant, v. Homer A. REESE, Appellee.
• Court: Florida District Court of Appeals

Page 913

178 So.2d 913

Margaret L. REESE, Appellant, v. Homer A. REESE, Appellee.

No. 65-47.

District Court of Appeal of Florida, Third District.

Oct. 5, 1965.

Rehearing Denied Oct. 25, 1965.

Wick & Chickering, Miami, Lawrence G. Ropes, Jr., Coral Gables, for appellant.

Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell, Miami, for appellee.

Before TILLMAN PEARSON, BARKDULL and SWANN, JJ.

TILLMAN PEARSON, Judge.

The appellant, Margaret, is the former wife of appellee, Homer Reese. The final decree of divorce provided for the payment to Margaret of $520.00 per month as alimony. Subsequent to her divorce from Homer, Margaret entered into a bigamous marriage without knowing of her partner's incapacity. A day and one-half later, her new 'husband' committed suicide. Shortly thereafter she learned of her partner's widow. The appellee, divorced husband, learned of his former wife's presumed remarriage and filed a motion in the circuit court praying that the chancellor strike from the final decree of divorce the provision for alimony. After taking evidence, the chancellor entered an order terminating the alimony payments, and this appeal followed.

The controlling question on this appeal is whether a bigamous second marriage, innocently entered into, by a divorced woman is a bar to her receiving alimony from a prior husband. On this question, the chancellor held as follows:

'The Court holds that since the decision of the Supreme Court in Young v. Young, 97 So.2d 470, a bigamous marriage to which the wife was an innocent party will support an award of alimony, both temporary and permanent, against the guilty husband to such a marriage. As was said by the Court of Appeals of New York in Gaines v. Jacobsen, 308 N.Y. 218, 124 N.E.2d 290, 48 A.L.R.2d 312:

'The interests of justice require, too, that, as between successive husband, the wife look to the last one for support, and certainly, that she be given neither two sources of support nor the ability to choose between her first and second husbands for the more profitable."

The appellant urges that the chancellor reached the wrong conclusion of the law because, under the law of this State, a marriage is void if one of the parties has a living and undivorced spouse by a prior marriage, and that, since the second marriage is absolutely void, it can have no legal effect. In this connection she relies upon the following statement from 2A Nelson, Divorce and Annulment, § 17.11, at p. 58 (2d ed. 1961):

Remarriage of one's ex-wife does not, in most states, automatically terminate the obligation to pay alimony or support money. It does, however, furnish ground for an application to the court to modify the decree or terminate payments thereunder unless the subsequent remarriage is void.' [Emphasis added]

This statement is supported by a well reasoned opinion is Sutton v. Lieb. 199 F.2d 163, 33 A.L.R.2d 1451 (7 Cir. 1952). The court, in Sutton, reached the conclusion that a bigamous second marriage was not a bar to an earlier decree of alimony because, under Illinois law, a bigamous marriage is void and therefore ineffectual to alter the marital status of either party.

As easy as this solution to the problem may seem, we are not justified in accepting it without an examination of the Florida cases. The appellant cites two Florida decisions--Kuehmsted v. Turnwall, 103 Fla. 1180, 138 So. 775 (1932), and Jones v. Jones, 119 Fla. 824, 161 So. 836, 104 A.L.R. 1 (1935).

The Kuehmsted opinion dealt with a marriage void for want of mental capacity on the part of the wife. The Court held that the marriage was void ab initio, and that it was as if no marriage had taken place.

The Jones opinion dealt with a bigamous marriage. The holding was that where a void bigamous marriage is innocently contracted by one of the parties and such void marriage has subsequently ripened into a presumptively valid common-law marriage, the innocent party could apply for a decree annulling the common-law marriage. We believe that it is only fair to recognize in the Jones opinion an implicit holding that a bigamous marriage is absolutely void while the impediment of a prior existing legal spouse of one of the parties continues in existence. Nevertheless, we find in the opinion a prophetic comment. As page 838, the Court stated:

'In divorce matters modern civilization strongly condemns the harsh doctrine of ab initio sentences of nullity. As a consequence, marriages are considered as being either void or voidable, depending upon the circumstances involved * * *.'

The search for guiding precedent in Florida for the instant case is complicated by the fact that section 65.04(9), Florida Statutes, F.S.A. includes as a ground for divorce in this State the following provision:

'(9) That either party had a husband or wife living at the time of the marriage sought to be annulled.'

This situation has recently been reviewed and clarified by the Supreme Court of Florida in Burger v. Burger, Fla.1964, 166 So.2d 433, where it was held that even though the word 'divorce' is ordinarily understood to mean an adjudication of the dissolution of a valid marriage, it is employed in section 65.04(9), Florida Statutes, F.S.A., to designate an adjudication of the nullity of a supposed marriage. The Court reviewed the rights of a putative wife under Florida laws and at page 436 stated:

'We have held that even in situations where the putative wife was responsible for the invalidity of the union, she would still be entitled to temporary alimony and suit money to enable her to defend hereself or otherwise participate in the litigation. Section 65.07, Florida Statutes, F.S.A. Therry v. Therry, 117 Fla. 453, 158 So. 120; Courtney v. Courtney, 108 Fla. 276, 146 So. 229. However, permanent alimony and fees in addition to those allowed pendente lite have been denied to a wife...