Roe v. Roe

• Decision Date: 09 February 1894
• Citation: 35 P. 808,52 Kan. 724
• Parties: O. F. ROE v. ADELIA ROE
• Court: Kansas Supreme Court

35 P. 808

52 Kan. 724

O. F. ROE v. ADELIA ROE

Supreme Court of Kansas

February 9, 1894

Error from Montgomery District Court.

ACTION by Adelia Roe against O. F. Roe for divorce. From the decree rendered May 3, 1890, defendant brings error. The opinion states the facts.

Judgment reversed.

C. A Cox, for plaintiff in error.

S. M Porter, for defendant in error.

ALLEN J. All the Justices concurring.

OPINION

ALLEN, J.:

This action was commenced by Adelia Roe, as plaintiff, in the district court of Montgomery county, on the 18th day of October, 1884, to obtain a divorce from the defendant, and the custody of a minor child. The only service then attempted on the defendant was by publication soon thereafter. Nothing further appears to have been done in the case until the 31st day of July, 1889, when an amended petition was filed, praying for suit money, custody of said child, and for a divorce and alimony. On the 8th day of August, 1889, a summons was issued and personally served on the defendant, in Neosho county, Kansas, where he had resided since the fall of 1881. The defendant's answer was filed on the 10th of September, 1889, and denies generally the allegations of the petition. The case was tried in March, 1890. The plaintiff testified that she was married to the defendant on the 21st day of April, 1877, which was Saturday; that the defendant stayed with her, at her father's house, on the following night and Sunday, and that he left on Monday morning, and had never lived with her since. On the 27th of July following, the child referred to in the pleadings was born. The defendant went to Colorado soon after leaving the plaintiff, and on the 22d day of September, 1881, obtained a judgment of divorce from the plaintiff in the county court of Conejos county, Colorado, on a service by publication. He then returned to Kansas. In the fall of 1882, the defendant was married to Miss Perry, by whom he has four children.

One of the principal questions litigated at the trial was as to whether the plaintiff had been married before she was married to the defendant. It appears from the testimony of the plaintiff herself that she lived and cohabited with one John McAllister for more than a year, when she was 15 or 16 years old; but she testifies that they were not married, and that the defendant was informed with regard to it before their marriage. At the conclusion of the trial, the court made special findings of fact, among which are findings that the parties were married, as alleged in the plaintiff's petition; that at the time of the marriage the plaintiff was pregnant with a child, of which the defendant was the father; that the defendant instituted an action in Colorado to obtain a divorce on the ground of previous marriage and adultery on her part; that the plaintiff in this action had no actual notice of the pendency of said case; that a decree of divorce was granted in said case; that said decree was obtained by false testimony offered by the defendant; that at the time the defendant returned to Kansas he had property of the value of about $ 250. The court thereupon, as a conclusion, sustained the Colorado decree of divorce, and granted the plaintiff $ 200 as alimony, and also adjudged that he pay the costs. Of this judgment he complains. While the court found that the Colorado divorce was obtained by false testimony, it did not find that the plaintiff in that action knew that such testimony was false, and inasmuch as the trial court sustained the validity of the Colorado decree, all presumptions are in its favor. More than that, however, the validity of that decree and of the subsequent marriage of the defendant are not challenged in this court. We then are left only to determine the question whether a decree for alimony can be sustained under the circumstances, where it is conceded that the defendant had obtained a valid decree of divorce before his second marriage. The question litigated on the trial as to whether the plaintiff had a husband living at the time of her marriage with the defendant was resolved by the trial court in favor of the plaintiff, on conflicting testimony. We therefore need not consider that matter.

The Colorado statutes with reference to the granting of divorce and alimony were not introduced in evidence at the trial. We must then assume that the law of that state is the same as the law of Kansas. (Furrow v. Chapin, 13 Kan. 107; Railway Co. v. Cutter, 16 id. 568; French v Pease, 10 id. 51.) The Colorado decree merely grants a divorce, and contains no provision whatever with reference to property. It then only remains to determine whether, under the laws of Kansas, long after a decree of divorce has been...