Reifschneider v. Reifschneider

• Decision Date: 07 October 1909
• Citation: 241 Ill. 92,89 N.E. 255
• Parties: REIFSCHNEIDER v. REIFSCHNEIDER.
• Court: Illinois Supreme Court

241 Ill. 92

89 N.E. 255

REIFSCHNEIDER

v.REIFSCHNEIDER.

Supreme Court of Illinois.

June 16, 1909.

Petition for Rehearing Stricken Oct. 7, 1909.

Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; Lockwood Honore, Judge.

Action by Kathryn E. Reifschneider against Walter E. Reifschneider for separate maintenance. From a judgment of the Appellate Court affirming a decree for plaintiff, and also an order committing defendant for contempt in failing to pay allmony, defendant appeals. Affirmed.

John Gibson Hale, for appellant.

Robert P. Bates and William H. Emrich, for appellee.

April 3, 1907, appellee filed in the circuit court of Cook county a bill for separate maintenance against appellant, alleging their marriage on August 13, 1904, and that appellee had lived with appellant as his wife until about February 26, 1905, when she was compelled to separate from him. After the filing of the bill and before the filing of appellant's answer, an order was entered by the court that appellant pay appellee $5 each week for her support. Failing to comply with the order, a rule was entered against appellant to show cause why he should not be attached for contempt of court. In his answer to the latter order appellant stated that he had been out of employment and was without any means or property out of which to pay said sum of $5 per week, also setting up that the alleged marriage was illegal and void, as both parties thereto were minors and the parents of neither had given their consent to the marriage, and for the further reason that within a few months after the alleged marriage the parties thereto had agreed to disregard any marriage contracted between them, and that appellee shortly thereafter took up her residence in Pittsburg and had never requested appellant to live with her or support her. April 25, 1907, the appellant filed his answer denying the marriage and all other allegations set out in the bill. May 8, 1907, the court ordered appellant to pay appellee, on account of solicitor's fees, the sum of $50, and also entered an order committing him to jail for failure to pay the alimony as previously ordered by the court, there being $10 due at that time. From such order of commitment appellant appealed to the Appellate Court.

On a hearing of the suit for separate maintenance the court found for appellee; that appellant was able to provide for her, and that he pay her the sum of $7.50 per week from the date of the entry of the decree, $14.60 which appellee had paid out to enable her to prosecute her suit, and the sum of $100 for her solicitor's fees, and also costs of suit. From this decree an appeal was taken to the Appellate Court, where it was consolidated with the appeal from the contempt order. The Appellate Court affirmed the decree of the trial court in both appeals. Further appeals were prosecuted to this court from the judgments of the Appellate Court in both cases. The two cases were consolidated and heard together here on one record.

CARTER, J. (after stating the facts as above).

August 13, 1904, the parties to this litigation, one being a little more and the other a little less than 19 years of age, went to Hammond, Ind., from their homes in Chicago for the purpose of being married, and the ceremony was there performed by the city judge of Hammond. They had become acquainted in a high school in Chicago which they had recently been attending, and had been keeping company and were engaged for some time previous. Appellant expressed a desire that they be married but that it be kept secret until he became of age, on the ground that he was not able to support a wife. He told no one about the ceremony being performed, but appellee told her sister and a housekeeper in her father's house the evening she came back from Hammond. Her mother was dead. From that time she lived at her father's house in Chicago until his death, and appellant lived at the home of his mother. In September, 1904, appellee obtained a position where she earned $30 a month. At the time of their alleged marriage appellant was earning $9 a week. It appears from the testimony that he never gave appellee any money for her support, and he testified he could not support her. In February, 1905, appellant's mother found the marriage certificate, and called up appellee on the telephone and asked her to come to her (appellant's mother's) home. Appellant, his mother, appellee, and her brother-in-law were present, and the marriage was discussed. It appears that at this conference appellant's mother wished them to start housekeeping, and that appellee expressed a willingness to do so, while appellant, although not doing much talking, stated that he would not live with appellee-that he could not support her. Appellee's brother-in-law offered them a home with himself and his wife until they could get settled in a flat of their own. While the testimony is not in entire harmony as to what took place there, it is plain that no agreement was reached because appellant refused to live with appellee. The evidence shows that after the marriage appellant called on appellee at her father's home nearly every evening until the conference just referred to. The appellant testified that they had sexual intercourse within two or three days after the marriage ceremony, in the belief that they were married, and it is quite evident from the testimony that such sexual relations were continued until the conference of February, 1905.

An exemplified copy of the marriage license issued by the clerk of the circuit court of Lake county, Ind., and a marriage certificate signed by the city judge of Hammond, Ind., were both introduced in evidence. Counsel for appellant urges many objections to both of these documents being introduced. We deem it sufficient to say that they were properly authenticated and received in evidence. 1 Bishop on Marriage and Divorce (5th Ed.) §§ 463, 473; Tucker v. People, 122 Ill. 583, 13 N. E. 809; Hurd's Rev. St. 1908, p. 1400, c. 89, § 12.

Appellant contends that the marriage was not in conformity with the statutes of Indiana, and therefore not valid. The legality of this marriage must be adjudged by the laws of Indiana. Lyon v. Lyon, 230 Ill. 366, 82 N. E. 850,13 L. R. A. (N. S.) 996;McDeed v. McDeed, 67 Ill. 545;Butler v. Butler, 161 Ill. 451, 44 N. E. 203;Canale v. People, 177 Ill. 219, 52 N. E. 310; 26 Cyc. 829.

The Revised Statutes of Indiana (Burn's Ann. St. 1894) were introduced on the trial of the cause below. Section 7292 of said statutes provides that ‘before any persons, except members of the Society of Friends, shall be joined in marriage they shall produce a license from the clerk of the circuit court of the county in which the female resides, directed to any person empowered by law to solemnize marriages, and authorizing him to join together the persons therein named as husband and wife.’ Proper proof was made that the city judge of Hammond had authority to perform the marriage ceremony. Counsel for appellant contends that the testimony of both appellant and appellee shows that no license was obtained. Appellee's testimony shows that she understood from appellant that he obtained a license. His testimony on this subject is very vague and uncertain. The mere fact that Hammond, Ind., is shown not to have been the county seat, does not prove that a proper license was not obtained before the marriage ceremony from the clerk of the circuit court. Furthermore, section 7295 of the Indiana statutes provides that ‘no marriage shall be void or voidable for want of license or other formality required by law if either of the parties thereto believed it to be a legal marriageat the time.’ Manifestly, from the evidence already referred to, both parties to this marriage contract believed it was legal at the time, and there is no contradiction of the fact that the ceremony was performed. This court, in Cartwright v. McGown, 121 Ill. 388, 396, 12 N. E. 737, 738,2 Am. St. Rep. 105, said: ‘When the celebration of a marriage is once shown, the contract of marriage, the capacity of the parties, and, in fact, everything necessary to the validity of the marriage, in the absence of proof to the contrary, will be presumed.’ The parties to this marriage were capable of assenting to and did assent to the marriage ceremony. Their relations thereafter showed that they understood they were married. When a marriage is shown, the law raises a strong presumption in favor of its validity, and the burden is cast upon the party objecting to the validity to prove such facts and circumstances as necessarily establish its invalidity. Jones v. Gilbert, 135 Ill. 27, 25 N. E. 566.

Counsel for appellant argues that the parties intended to conceal their marriage and not live together openly for two years, and that this proves they were never legally married. The contention cannot be sustained. The authorities he cites on this point were cases where no marriage ceremony was performed, and where it was contended that a common-law marriage had taken place. These authorities are not in point.

It is contended that the license was illegal because the Indiana statute already quoted required the license from the circuit clerk to be obtained in the county where the female resided, and the appellee did not reside in Lake county, Ind.; that the marriage was invalid for the further reason that the Indiana statute required that when minors were married they should obtain the consent of their parents. The Indiana statute in force at the time of this marriage ceremony provided that males of the age of 18 and females of the age of 16 years were capable of entering into the marriage contract. Appellant gave his age to the public official in Indiana as 22. The argument is also made that the marriage is invalid because the contracting parties went to Indiana to avoid the Illinois law, which required them to have the consent of their parents or...