Thomey v. Thomey, 7353
| Citation | 181 P.2d 777,67 Idaho 393 |
| Decision Date | 28 May 1947 |
| Docket Number | 7353 |
| Parties | THOMEY v. THOMEY |
| Court | United States State Supreme Court of Idaho |
Rehearing Denied June 30, 1947.
Rehearing Denied June 30, 1947.
Appeal from District Court, Eleventh Judicial District, Twin Falls County; James W. Porter, Judge.
Affirmed.
W. L Dunn, of Twin Falls, for appellant.
Persons entering into a meritricious relation who continue to live under the same conditions and relations after the removal of an impediment, without further affirmative act or declaration or a ceremonial marriage does not result in a common law marriage. Hill v. Vrooman, 215 A.D. 847, 213 N.Y.S 256; Monroe v. Kantor, 161 A. 833, 10 N.J.Misc. 942.
When the facts show that the relation of husband and wife never existed the statutory power of the courts to adjust property rights has no application. Whitney v. Whitney, 192 Okl. 174, 134 P.2d 357.
Rayborn & Rayborn and Harry Povey, all of Twin Falls, for respondent.
The rule in Idaho is that the law presumes morality, and not immorality; marriage, and not concubinage; legitimacy and not bastardy. Every intendment of the law leans to matrimony. Huff v. Huff, 20 Idaho 450, 118 P. 1080; Smith v. Smith, 32 Idaho 478, 185 P. 67; Mauldin v Sunshine Mining Co., 61 Idaho 9, 97 P.2d 608; Nicholas v. Idaho Power Co., 63 Idaho 675, 125 P.2d 321.
September 30, 1946 trial of an action for divorce, wherein Emma Thomey was plaintiff (respondent here) and Henry Thomey was defendant (appellant here) came on for hearing in the District Court of Twin Falls County, Idaho, before the Honorable James W. Porter, District Judge. At the conclusion of respondent's case, appellant moved for a nonsuit, which motion was denied and appellant then rested without the submission of any proof in opposition to respondent's case. Accordingly, there is no question as to the ultimate facts.
August 10, 1933, appellant was residing in a rented house in Twin Falls, Idaho. He was then a widower with three small children, the mother thereof being dead. Some weeks theretofore he had invited Emma Stepper, likewise a resident of Twin Falls, to come and live with him. Respondent told appellant that she was not divorced from Mr. Stepper, whereupon appellant stated to her that it did not matter, that she could get a divorce later, and that whatever property was accumulated would belong jointly to respondent and appellant in the event they subsequently separated.
At that time respondent was living at the Erikton Cabins with her two children. She had not lived with Mr. Stepper for some time. Soon after her talk with Thomey she went to visit her folks and upon her return to Twin Falls, she and her children went to live at the home of appellant. After entering the home of appellant, she performed all the duties that usually are performed by the ordinary housewife, such as cooking meals and serving the same, washing and ironing and mending clothes for appellant and his and her children, caring for them at such times as they were sick, and such other duties as are performed in the average home. During all the time, being some thirteen years that respondent and appellant lived together, they occupied the same bed. Respondent and appellant maintained their home for approximately four years after they began living together at Twin Falls and during the latter part of that time appellant was working in a cafe at Buhl, Idaho, and on one occasion came to Twin Falls and told respondent, "You better get your divorce and then we can get married."
In November 1937, respondent obtained a divorce from Theodore Stepper, her former husband, and shortly thereafter the Thomey family moved to Buhl, where they resided for some nine years before the commencement of this action. No ceremonial marriage took place thereafter between respondent and appellant, but they continued to live together with their children as previously, in the same house, occupying the same bed, and with respondent continuing to take care of appellant and the other members of the family and to do the washing, mending, ironing, cooking, and housekeeping duties for all until she left appellant in July 1946.
Findings of fact, conclusions of law, and judgment, all in favor of respondent, were made and entered October 8, 1946. The complaint charges that the defendant has been guilty of cruel and inhuman treatment towards the plaintiff, and has inflicted both grievous mental and physical suffering upon said plaintiff thru his acts and conduct. The court found, among other things, that the defendant has been guilty of cruel and inhuman treatment towards the plaintiff and has inflicted both grievous mental and physical suffering upon plaintiff thru his acts and conduct, and as a conclusion of law, the court concluded that the plaintiff and defendant herein are now and at all times since November 26, 1937, have been wife and husband by virtue of a common-law marriage, and that said defendant, by reason of his acts and conduct, is estopped to deny the existence and validity of said marriage. The judgment, among other things, recites: "Now, therefore, it is ordered, adjudged and decreed That the bonds of matrimony heretofore existing between the plaintiff, Emma Thomey, and the defendant, Henry Thomey, be and the same are hereby dissolved and the parties hereto restored to the status of single persons."
Said judgment, continuing further, recites that the community property of the parties hereto, thereinafter set forth and described be divided between the plaintiff and defendant. Said judgment then proceeds to describe said property and to award it as nearly equal as possible between the parties to the action.
November 7, 1946 appellant filed and served his notice of appeal. The appeal is from the judgment and from the whole thereof.
The trial judge in a memorandum decision, filed and entered herein, succinctly outlined the issue involved,...
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Duncan, In re
...the burden of proof of such invalidity by clear and convincing evidence. Lea v. Galbraith, 64 Idaho 724, 137 P.2d 320; Thomey v. Thomey, 67 Idaho 393, 181 P.2d 777. In Idaho a marriage is dissolved only by death of one of the parties or by the judgment of a court of competent jurisdiction d......
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Albina Engine and Machine Works v. O'LEARY
...other cases." 13 See also Boykin v. State Industrial Acc. Comm'n, 224 Or. 76, 85, 355 P.2d 724, 728 (1960). 14 Thomey v. Thomey, 67 Idaho 393, 397-398, 181 P.2d 777, 779 (1947); Nicholas v. Idaho Power Co., 63 Idaho 675, 680-681, 125 P.2d 321, 323-324 (1942); Huff v. Huff, 20 Idaho 450, 460......
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...Idaho Power Co., 63 Idaho 675, at page 684, 125 P.2d 321, at page 325; See, also, 55 C.J.S., Marriage, § 43. The case of Thomey v. Thomey, 67 Idaho 393, 181 P.2d 777, is in some respects parallel to this. There the parties entered into a common law marriage relationship, knowing that the pl......
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