Smith v. Smith, 5412.

• Decision Date: 02 May 1932
• Docket Number: No. 5412.,5412.
• Citation: 58 F.2d 883,61 App. DC 157
• Parties: SMITH v. SMITH.
• Court: U.S. Court of Appeals — District of Columbia Circuit

61 App. DC 157, 58 F.2d 883 (1932)

SMITH v. SMITH.

No. 5412.

Court of Appeals of the District of Columbia.

Argued April 5, 1932.

Decided May 2, 1932.

Webster Ballinger and David F. Smith, both of Washington, D. C., for appellant.

H. W. Wheatley, Jr., of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, and GRONER, Associate Justices.

ROBB, Associate Justice.

Appeal from a decree in the Supreme Court of the District dismissing appellant's bill to have declared a nullity the marriage between appellant and appellee contracted in the District of Columbia on July 31, 1926.

The material facts as found by the trial court are as follows: On February 15, 1921, appellee contracted a ceremonial marriage with Ralph Charnock in the state of Rhode Island, both parties then being residents of the state of Massachusetts, to which state they returned immediately after the marriage. Thereafter they continuously and openly resided and cohabited as husband and wife in various places within the state of Massachusetts for a period of approximately two years. "Defendant herein (appellee) entered into such marriage rites and ceremony with Ralph Charnock in good faith on her part and without any knowledge on her part of any impediment to the marriage of Charnock to her."

Charnock had been previously married, and on August 4, 1920, filed a libel in the superior court of Massachusetts against his then wife, Carlotta K. Charnock. On December 9, 1920, he obtained a decree nisi, which decree was "to become absolute after the expiration of six months from the entry hereof, unless the court shall have for sufficient cause, upon the application of any party interested, otherwise ordered." This decree became absolute on June 10, 1921.

During the time appellee and Charnock lived together as husband and wife within the commonwealth of Massachusetts, they held themselves out to their relatives, friends, and acquaintances as husband and wife, and were known as such. Thereafter they lived together as husband and wife in Connecticut, New York, New Jersey, Pennsylvania, and the District of Columbia until 1925, when they separated.

After Charnock's decree of divorce from his former wife became absolute on June 10, 1921, appellee continued to live with him as his wife, but the court below was unable to find that appellee "continued in this relation in good faith." The court was led to this conclusion by the "confused and contradictory" character of appellee's testimony. The court then found that, while applying for the marriage license in Rhode Island, Charnock described himself as "divorced." This was a surprise to appellee, "but she did believe that Charnock was divorced." About a month thereafter, while Charnock was drunk, he informed appellee that "he had not secured an absolute divorce from his prior marriage." On becoming sober, he repudiated his drunken statements, and said that as a matter of fact he was divorced; this occurred several times.

During the time appellee and Charnock lived together as husband and wife in the commonwealth of Massachusetts, section 6 of chapter 207, Massachusetts General Laws of 1921, was in full force and effect. That statute reads as follows: "If a person, during the lifetime of a husband or wife with whom the marriage is in force, enters into a subsequent marriage contract with due legal ceremony and the parties thereto live together thereafter as husband and wife, and such subsequent marriage contract was entered into by one of the parties in good faith, in the full belief that the former husband or wife was dead, that the former marriage had been annulled by a divorce, or without knowledge of such former marriage, they shall, after the impediment to their marriage has been removed by the death or divorce of the other party to the former marriage, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married from and after the removal of such impediment, and the issue of such subsequent marriage shall be considered as the legitimate issue of both parents."

In Turner v. Turner, 189 Mass. 373, 75 N. E. 612, 613, 109 Am. St. Rep. 643, the question was whether a marriage, although illegal at the time it was solemnized, became legal by virtue of the above statute of Massachusetts. The court ruled that, while one of the...