State v. Frenger, 22378.

• Decision Date: 02 October 1930
• Docket Number: 22378.
• Citation: 158 Wash. 683,291 P. 1089
• Court: Washington Supreme Court
• Parties: STATE ex rel. BENTLEY v. FRENGER.

291 P. 1089

158 Wash. 683

STATE ex rel. BENTLEY v. FRENGER.

No. 22378.

Supreme Court of Washington

October 2, 1930

Department 1.

Appeal from Superior Court, Spokane County; Fred H. Witt, Judge.

Habeas corpus proceeding by the State, on the relation of George W Bentley, against Henry R. Frenger. Judgment for respondent and the relator appeals.

Affirmed.

C. T. McDonald, of Spokane, for appellant.

J. F Aiken, of Spokane, for respondent.

PARKER J.

The relator, Bentley, commenced this habeas corpus proceeding in the superior court for Spokane county seeking to be awarded the custody of a male minor child in the custody of the defendant, Frenger. This controversy is over the paternal parentage of the child, Bentley and Frenger each claiming to be the father of the child. A trial of the cause upon the merits in the superior court resulted in findings and judgment awarding the custody of the child to Frenger, and denying the relief prayed for by Bentley, from which judgment Bentley has appealed to this court.

On October 13, 1917, Frenger and Margarite Schumacker, née Kendall, were lawfully joined in marriage in Seattle, in this state, by due ceremony performed by a judge of the superior court for King county. They thereafter cohabited as husband and wife up until the time she died on July 12, 1929, except during intervals, some of which will be presently noticed. During that period there were born to Mrs. Frenger as the fruit of that marriage three children, one of whom survives now, about ten years old. There was also born to Mrs. Frenger during that period a fourth child, the one here in question. Frenger was absent from his wife serving as a soldier in the United States Army about one year during the World War, being honorably discharged therefrom in May, 1919. Soon thereafter they moved to Spokane and established their home there, where he has maintained the home ever since. Mrs. Frenger was a trained beauty parlor operator, and worked at that vocation a considerable portion of the time after they moved to Spokane. She worked in Spokane and Wallace, Idaho and two or three other towns in Idaho, in territory readily accessible to Spokane by stage and railway, she returning often to the home maintained there by Frenger. On September 10, 1924, Mrs. Frenger, then working at her vocation in Wallace, Idaho, went with Bentley to Missoula, Mont., where they went through a marriage ceremony in pursuance of a license therefor procured by Bentley from the proper Montana licensing officer. They returned to Wallace. She thereafter continued to return occasionally to the Frenger home in Spokane. Frenger did not learn of this illegal Montana marriage until some six months thereafter when she herself told him of its occurrence. Among her frequent returns to the Frenger home in Spokane was one continuing at least from July 2 to July 9, 1926, and probably longer. During this period, as upon other visits, they lived and cohibited as husband and wife. On April 10, 1927, the child in question was born to Mrs.

Frenger. An experienced physician testified as follows:

'Q. Doctor, what is the period of gestating? A. 280 days. * * *

'Q. Assuming that a child was born on the 10th day of April, 1927, approximately when would be the conception period? A. Somewhere between the 1st and 7th of July.'

Mrs. Frenger continued to occasionally return to the Frenger home in Spokane as she had theretofore done. Frenger, realizing the seriousness of her unfortunate alliance with Bentley, advised her to take legal steps looking to freeing herself entirely from that alliance; she being also desirous of doing so. To that end, Frenger gave her money, suggesting a divorce from Bentley, but evidently not using the word 'divorce' in a technical sense as distinguished from annulment of the illegal marriage. Frenger did nothing more than this in that behalf, and did not become a party to, or actively interest himself in any other manner in, any court proceedings looking to that end. On December 3, 1928, Mrs. Frenger, using the name of Margarite Bentley as plaintiff, filed her complaint in the district court for Shoshone county, Idaho, praying for a divorce from Bentley upon the grounds of nonsupport, and to be awarded the custody of the child in question. She was then working in Vallace in that county. Bentley, being personally served with summons in that county, defaulted for want of answer or other pleading in response to her complaint. On January 3, 1929, that court awarded to Mrs. Frenger, naming her as Margarite Bentley, a decree of divorce from Bentley, and also awarded to her the custody of the child here in question. It is apparent from the record of that case introduced in evidence in this case that that court was not advised as to the illegality of the Missoula marriage between Mrs. Frenger and Bentley. On July 12, 1929, Mrs. Frenger died in a hospital in Spokane. The child in question was then and since the has been in the custody of Frenger. These, we think, are all of the facts of this controversy necessary to be here noticed, and are either undisputed or clearly established by the evidence. There is much more to this distressing story which may well be left untold.

The argument here made in behalf of Bentley, looking to a reversal of the judgment of the superior court, is, as we understand his counsel, rested upon three grounds: (1) The presumption that his marriage to Mrs. Frenger, as Margarite Kendall, at Missoula, Mont., on September 10, 1924, was a legal marriage; (2) the further presumption following therefrom that he is the father of the child in question, it being conceived and born during the existence of that marriage relation; and (3) that the decree of divorce rendered by the Idaho court constitutes an adjudication that he is the father of the child, binding upon Frenger. We notice these propositions in this order.

We readily concede that the marriage ceremony performed by a minister or officer authorized by law to perform such ceremony, purporting to unite in marriage a man and a woman with their consent, gives rise to a presumption that they are each qualified to enter into such marriage relation, as well as that such marriage is in all other respects legal. But while this is a strong presumption and grows stronger with the passing of years, it is not conclusive or incapable of being overcome by other evidence aided by other counter presumptions. In the text of 18 R. C. L. 116, 117, we read: 'The usual presumption of law is that a fact continuous in its nature, such as marriage, continues after its existence is once shown, but the presumption in favor of the validity of a marriage attaches with full force to the latest marriage, and the presumption of the continuance of the first marriage, based upon the naked fact that it was solemnized, is not equal in probative force to the presumption in favor of the legality of the subequent marriage. This is based on the doctrine that the presumption of innocence, morality and...