Tryling v. Tryling
| Decision Date | 21 October 1932 |
| Citation | 245 Ky. 399 |
| Parties | Tryling v. Tryling. |
| Court | United States State Supreme Court — District of Kentucky |
Appeal from Boone Circuit Court.
ROGERS & ROGERS for appellant.
JOHN L. VEST for appellee.
Affirming.
For the purpose of this opinion we will refer to the parties by the positions they occupied below, i.e., to the appellee as plaintiff and to the appellant as defendant. On September 20, 1911, they were ceremonially married in Hamilton County, Ohio, and thereafter lived together as husband and wife, occupying premises in different suburbs in Cincinnati, Ohio, or perhaps, sometimes within that city. The record reveals no disturbance of the smooth sailing of their matrimonial barque until somewhere near the beginning of 1922 when plaintiff discovered that defendant was dividing his attentions between her and another woman, and, quite naturally, she protested when the defendant grew grum and absented himself from the home for a short while, during which time he rented an apartment in Cincinnati from a Mrs. Wise, whom he does not produce as a witness in this case. During his temporary aloofness he divided his lodging quarters between their home and the apartment so procured by him.
In the meantime there was born to them a son, who was nine or ten years old when the above-mentioned disturbance arose. Directly after its beginning plaintiff was served with a summons issued from a court of competent jurisdiction in Hamilton county, to answer a petition filed in that court by defendant against her to obtain a divorce. She spoke to an attorney, but immediately thereafter her husband, as was his custom, appeared at their home, since he spent a part of his time there (including lodging), and she made inquiry of him concerning the action he had taken in filing the divorce suit against her and he informed her, in substance, that it would not be prosecuted by him since, as he then intimated, he had relented from his original determination in filing it, and plaintiff then paid no further attention to it, and so informed her attorney. After that time, it is to be gathered from the proof, the parties were more closely united than they were immediately following the breach, but at no time does it appear that defendant informed plaintiff that he would no longer live with her, or that he contemplated final and permanent separation, much less the inauguration of divorce proceedings.
After the elapse of some months plaintiff was informed of the fact that a divorce decree had been rendered, and which, of course, was proof of defendant's insincerity in stating to her that he would abandon and dismiss his divorce action. When plaintiff was made aware of the situation, she commenced to make preparations to leave their home and to take up her abode with her parents, or one of them, in Florence, Boone county, Ky., where she had formerly resided. Defendant, however, interfered to the extent, as testified to by plaintiff, of forcing her to remain and to continue their marital relationship as it theretofore had existed, accompanied by the promise that he would take such steps as were necessary to nullify the divorce decree. Of course, there is some contrariety in the testimony as to exactly what happened on that occasion, but the court found, and we think properly so, that what we have related was the substance of what occurred, and we find from the record no subsequent material disturbance until the time of defendant's unfaithful conduct in Florence, Ky., in 1928, to which place the parties removed from Hamilton county, Ohio, in 1925.
They, therefore, lived together in Hamilton county, Ohio, as husband and wife after the granting of the divorce in that state for three years or more, and thereafter until about the first of the year 1929, in Florance, Ky., or a period of about four years. About the latter date defendant ceremonially married another woman in Indiana and brought her to Florence and commenced cohabiting with her. That manifestation on his part caused plaintiff to file in the Boone circuit court this divorce action against him upon the ground of his living in adultery with another woman. Before judgment, and after the expiration of one year, she amended her petition by including the additional ground of one year's abandonment of her by defendant without her fault. In the original petition she alleged and relied on the ceremonial marriage between the two which, we have seen, happened on September 20, 1911. Defendant's original answer thereto was a denial of the material averments of the petition, and, in a second paragraph, he relied on the Ohio divorce decree; whereupon plaintiff filed an amended petition setting up the facts as hereinbefore recited, and, apparently taking the position that the divorce decree was a nullity because of the fraud practiced upon her by defendant in procuring it. But her counsel properly concluded that no such ground would support his collateral attack thereon, and he, therefore, averred and relied on a common-law marriage between the parties entered into by them after the Ohio divorce was granted and which was followed by sufficient cohabitation between them to satisfy the requirement for such a marriage, and that it was valid in the state of Ohio, and for which reason it would be recognized as such in this commonwealth.
The responsive pleading of defendant thereto put in issue the fact of such common-law marriage; but his learned counsel admit that a common-law marriage, when properly entered into, is valid in the state of Ohio, and that, under the rule of comity existing between the states, it would, for that reason, be recognized in this jurisdiction. The admission that common-law marriages are valid in the state of Ohio is fully supported by the opinions of the highest court of that state, one of which is Umbenhower v. Labus, 85 Ohio St. 238, 97 N.E. 832, and, that the courts of this commonwealth will recognize such...
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