Roberts v. Roberts
| Decision Date | 23 March 1936 |
| Citation | 124 Fla. 116,167 So. 808 |
| Parties | ROBERTS et al. v. ROBERTS. |
| Court | Florida Supreme Court |
Rehearing Denied April 10, 1936.
Suit by Laura Cheval Roberts and another against Lucille Roberts. From a decree of dismissal, plaintiffs appeal.
Affirmed. Appeal from Circuit Court, Duval County; Miles W. Lewis, judge.
Walter F. Rogers and William T. Rogers, both of Jacksonville, for appellants.
S. D McGill, of Jacksonville, for appellee.
This case arises from the following facts: William Roberts was married to Laura Cheval Roberts in New Orleans in 1883, and Henry Roberts was the sole surviving product of this union. William Roberts deserted Laura Cheval Roberts in 1888 and moved to Mississippi, where he lived until he moved to Jacksonville, Fla., in 1913. He continued his residence in Jacksonville to the date of his death. In 1919 he married Lucille Roberts and died in 1933. At the time of his death he and his wife Lucille Roberts were tenants by the entireties of certain lands with improvements in Duval county, the division of which precipitated this litigation.
Suit was instituted by Laura Cheval Roberts and Henry Roberts in the circuit court of Duval county. The bill of complaint names Lucille Roberts as defendant and prays that partition of the lands held by William and Lucille Roberts at the death of the former be made between the parties hereto according to the rules of the court and the law of the state governing such distribution, or if partition be impracticable that the lands be sold and the proceeds divided among the parties according to their several interests or right. There was an answer to the bill, testimony was taken and the special master found for complainants. Exceptions to the master's report were sustained, and on final hearing the bill was dismissed. The instant appeal is from that decree.
It is admitted that the property over which the controversy arose was held by William and Lucille Roberts by the entireties at the death of the former. This being true, it follows that if Lucille was the lawful spouse of William Roberts at his death, she succeeded to all his right in the property; on the other hand, if Laura Cheval Roberts was the lawful wife at the time of the death of William Roberts, then she and her son, Henry Roberts, succeed to the right of William Roberts.
Lucille Roberts holds possession of the property. Her right to continue in possession and assert her title in and to the interest owned by William Roberts turns on the validity of her marriage to him. The controversy then is resolved by determining which litigant was the lawful spouse of William Roberts at his death.
The facts with reference to the marriage of William Roberts to Laura Cheval and Lucille Roberts have heretofore been detailed. Appellant Laura Cheval Roberts contends that she was never divorced from William Roberts and that her marriage to him being first in time, his subsequent marriage to Lucille Roberts was a nullity.
The evidence shows conclusively that William Roberts was married to Laura Cheval and Lucille Roberts at the times indicated in the forepart of this opinion. It also shows that William Roberts deserted Laura Cheval Roberts in 1888; that he moved to Mississippi, where he continued to live until 1913, when he moved to Jacksonville, Fla.; and that he continued to reside to the date of his death in the lastnamed city, though he did some work in Alabama while living in Mississippi. It is shown that no divorce was secured by William Roberts from Laura Cheval Roberts in Duval county, Fla.; but as to whether he secured a divorce in Mississippi, Alabama, or Louisiana the evidence is silent, except that Laura Cheval Roberts testified that no process had ever been served on her nor divorce secured from her. This was in no sense conclusive, as constructive service might have been made on her and divorce secured in that way.
The rule is settled in this jurisdiction that he who challenges the validity of a second or subsequent marriage assumes the burden of proving its invalidity. Le Blanc v. Yawn, 99 Fla. 328, 126 So. 789; In re Rash's Estate, 21 Mont. 170, 53 P. 312, 69 Am.St.Rep. 649. Some of the courts enforce this rule to the extent of proving a negative. Carroll v. Carroll, 20 Tex. 731, text 740; Boulden v. McIntire, 119 Ind 574, 21 N.E....
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Smith v. Heckler
...so as to cast the burden of adducing evidence to the contrary on the party attacking the second marriage.(Quoting Roberts v. Roberts, 124 Fla. 116, 167 So. 808, 809 (1936)).5 See, e.g., Transcript of Administrative Hearing at 48, where Lucille stated that she never consented to a marital re......
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Carpenter v. Carpenter
...and one who challenges the validity of a second or subsequent marriage assumes the burden of proving its invalidity. Roberts et al. v. Roberts, 124 Fla. 116, 167 So. 808. The plaintiff, having proven the Nevada divorce and her subsequent marriage to the decedent, the burden of proof to esta......
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Day v. Secretary of Health and Human Services
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