Reger v. Reger

• Decision Date: 14 November 1961
• Docket Number: No. 30052,30052
• Parties: Venton J. REGER, Appellant, v. Louvenia REGER, Appellee.
• Court: Indiana Supreme Court

Page 901

177 N.E.2d 901

242 Ind. 302

Venton J. REGER, Appellant, v. Louvenia REGER, Appellee.

No. 30052.

Supreme Court of Indiana.

Nov. 14, 1961.

Rehearing Denied Dec. 21, 1961.

Salyer & Mattingly, DeArmond, Booram & DeArmond, Charles B. Salyer and Lawrence Booram, Anderson, for appellant.

William L. Peck, Anderson, Peck, Scott & Shine, Anderson, of counsel, for appellee.

ARTERBURN, Judge.

This is an appeal from an interlocutory order in a divorce case in which the appellant was ordered to pay the sum of $400 as suit money, the additional sum of $1,800 as attorney fees and the sum of $40 per week for the support of the appellee and the minor child of the parties.

The appellant filed a verified complaint in which he alleges that the parties were married on February 29, 1956 and separated on July 23, 1960, after he learned that appellee had a husband living at the time of their marriage. He asked relief in the allternative that the marriage be declared void ab initio, or that the marriage be declared voidable because of fraud and misrepresentation or that he be granted a divorce on the grounds of cruel and inhuman treatment, and custody of the child.

Appellee filed a cross-complaint in two paragraphs, asking for a divorce (1) from the statutory marriage on the grounds of cruel and inhuman treatment and (2) from the common-law marriage on the grounds of cruel and inhuman treatment, and for the custody of the child.

The appellant takes the position that in an action to annul a marriage void ab initio, a court has no authority or jurisdiction to make any allowance to a destitute wife for her defense. We have decided this question contrary to the appellant's contention in the companion case of State ex rel. Reger v. Superior Court of Madison County, Ind., 177 N.E.2d 908 (No. 30,131, decided November 14, 1961). We there held that there is no reason for a distinction in the respect urged between an action to declare a marriage voidable or void in equity. Cases there cited support such conclusion. If a party feels there is enough of a semblance of a marriage existing that he desires an official adjudication to avoid it, then the wife should be given the opportunity to defend in equity. Wiley v. Wiley (1919), 75 Ind.App. 456, 123 N.E. 252.

The appellee under oath alleges that she and appellant in good faith believed she was divorced from her first husband at the time of the marriage to the appellant; that the trial court failed to make a record of the granting of such divorce, although the judge at the time stated to her in open court that the divorce was granted. The appellee further, by way of 'confession and avoidance', alleges that after she and her husband had discovered that no record of the first divorce had been made by the court, she permitted her first husband to be granted a divorce by default, and she sat mute in court at the time of the hearing thereof on October 17, 1957. She further alleges that appellant and she agreed that a second marriage ceremony would not be necessary and that they accepted each other as husband and wife and would not disclose to their child or their friends the divorce record difficulties.

We thus have a number of issues presented which might result in the validity of a marriage when a hearing upon the merits takes place. Then, in such event, the issue of whether there are or are not existing meritorious grounds for the divorce will also have to be determined.

'The evidence of both the plaintiff and defendant disclosed that they were duly married. Whether either is entitled to have the marriage annulled is a matter that may be adjudicated in the main action. It is not before the trial court in this merely ancillary proceeding and hence is not before us in this appeal.' Pry v. Pry. (1947), 225 Ind. 458, 75 N.E.2d 909, 914.

On this appeal from an interlocutory order for allowance of expense money, we are left only with the consideration of what evidence is necessary to support the trial court's order. The intent of the legislature and the courts of equity in making allowances pendente lite in such cases is to give the purported wife the financial ability to procure counsel and evidence for a fair trial, with reasonable support for her needs during that period. Not only the parties, but the State have a concern in the marriage status and the children involved. It follows, therefore, that proof must be made that the wife has no funds and that the husband's financial condition is such that he is able to make such payments. No issues are raised in this appeal with reference to those aspects of this case. No claim is made that the allowances are excessive.

What, then, is the additonal quantum of evidence necessary to make out a case to support the order for allowances? We have little authority in this State other than rather vague and general statements that in hearings for support and allowances pendente lite, the court will not consider evidence on the merits of the main action. 10 I.L.E., Divorce, Sec. 72, p. 601; Gruhl v. Gruhl (1890), 123 Ind. 86, 23 N.E. 1101; Pry v. Pry (1947), 225 Ind. 458, 75 N.E.2d 909; Argiroff v. Argiroff (1939), 215 Ind. 297, 19 N.E.2d 560.

The statute pertaining to divorce proceedings does not fix the quantum of proof necessary. It authorizes a judge to make orders 'relative to the expenses of such suit and attorney fees as will insure to the wife an efficient preparation of her case and a fair and impartial trial thereof.' Burns' § 3-1216.

An examination and careful reading of the cases and authorities seem to show that in divorce actions where proof of the marriage has been established or both parties admit the validity of the marriage, the court will not go into the merits of the cause for a divorce. In such a case, if the court believes the wife is in good faith in making a defense or in asserting her cause of action, it may make the allowance accordingly. 27A C.J.S. Divorce §§ 208(1)-208(4), pp. 898-904; Gruhl v. Gruhl (1890), 123 Ind. 86, 23 N.E. 1101; Argiroff v. Argiroff (1939), 215 Ind. 297, 19 N.E.2d 560.

The law has been summarized as follows:

'Necessity of existence of marital relation.--The right to temporary alimony depends on the establishment of the marital relation, the burden of proof of which is upon the wife. A prima facie showing of such relation will usually suffice. A less degree of proof is required than on the final hearing of the cause, and when there is a fair probability at such hearing that the marriage will be proven, temporary alimony will be allowed. There is a presumption of validity of a formal marriage, which has been consummated. A marriage de jure need not be shown, as temporary alimony may be allowed where the marriage is simply de facto, so also in the case of common-law marriage. But temporary alimony will be denied where it is clear that the marriage was void ab initio, and the wife knew it to be so. So, it will be denied where the wife admits in her answer that the marriage is a nullity.' Keezer, Marriage and Idvorce, pp. 650-652, § 585, (3rd ed. 1946).

When the action is to void or annul a marriage, it is incumbent upon the wife to make a prima facie showing that the marriage is not void or voidable and that she maintains a defense or cause of action in good faith. However, if her pleadings and statements show clearly without contradiction that the marriage is void ab initio and there is no existing marriage it has been held that the court has no authority to make any allowance on her behalf, since she has no defense. Brown v. Brown (1945), 223 Ind. 463, 61 N.E.2d 645; Ulrey v. Ulrey (1952), 231 Ind. 63, 106 N.E.2d 793; 35 Am.Jur. Marriage § 70, pp. 225, 226.

In the case before us the appellee admits that the original marriage ceremony between her and the appellant was void because at the time (unknown to each) her first marriage had not been dissolved by a divorce, yet by way of such confession she avoids the consequences by alleging that thereafter, when the legal impendiment was removed by a later divorce, she and the appellant became married under the common law.

A summary of the law is to be found in an annotation in 11 A.L.R.2d 1040, § 2, at page 1041:

'In the absence of statute, it is a general rule recognized by practically all of the courts that a de facto marriage is a necessary prerequisite to the granting of alimony, counsel fees, and suit money in actions for divorce or alimony and suits for separate maintenance.

'A marriage must be alleged in the putative wife's petition, and if such marriage is denied in the answer, must be proved to the satisfaction of the court. The courts do not agree as to the quantum of proof which the petitioner must produce, but most courts require a prima facie case or sufficient evidence to raise a presumption of marriage. The defendant must repel such presumption; otherwise, the petition will be granted. The court is not, however, required to go into the merits of the cause: * * *

'If the defendant admits a marriage ceremony but denies its validity, the burden rests upon him. If the defendant establishes a prior divorce between the parties, the petition of the putative wife will be denied.

'Of course, where the action is instituted by the husband against the wife, the general rule is that if the existence of the marital relation is in actual dispute and clear proof is not made against its validity, the wife may be allowed alimony pendente lite. Ex parte McLendon (1940), 239 Ala 564, 195 So 733.' (Our italics.)

We are thus brought to a consideration of the record and evidence viewed most favorably in support of the trial court's order.

In addition to the verified pleadings and petitions of the parties related previously, the evidence and record at the preliminary hearing for allowances shows that the appellant brought the action against the appellee in her 'married name' as 'Louvenia Reger'; that they lived together as husband and wife...