Warner v. Warner

• Decision Date: 11 May 1955
• Docket Number: No. 8249,8249
• Citation: 76 Idaho 399,283 P.2d 931
• Parties: Carmen C. WARNER, Plaintiff-Appellant, v. Buell WARNER, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 931

283 P.2d 931

76 Idaho 399

Carmen C. WARNER, Plaintiff-Appellant, v. Buell WARNER, Defendant-Respondent.

No. 8249.

Supreme Court of Idaho.

May 11, 1955.

A. A. Merrill, Idaho Falls, for appellant.

Jack G. Voshell, Edward W. Pike, Idaho Falls, for respondent.

TAYLOR, Chief Justice.

The parties were married in November, 1947, and divorced in February, 1948; married again in November, 1948, and again divorced June 5, 1950. During the course of this second marriage they adopted a boy, who at the time of the trial herein was five years of age. By the decree of June 5, 1950, custody was awarded to the mother (appellant) and the father (respondent) was ordered to pay $20 per month for child support.

Shortly after this divorce, plaintiff moved to California and later married one Crim, who obtained a divorce from her in June, 1951. In the early spring of 1951, while plaintiff was married to Crim, defendant went to California and 'I primarily looked her up to see Spence [the child], but, as all things happen, we became affiliated.' He spent two or three weeks with the plaintiff on that occasion. She told him she would divorce Crim and return to Idaho. In August, 1951, she came back to Idaho and entered the employ of the defendant in a club which he had opened in American Falls. This club was closed in October. Whereupon, plaintiff took up residence with the defendant at the South Fork Lodge in Swan Valley. During the winter of '51-'52 they lived as man and wife in North Hollywood, California, defendant during that time being employed by Lockheed. In April, 1952, they separated and defendant returned to Idaho. In December, 1952, plaintiff married one McCarley in Ely, Nevada.

In March, 1953, defendant again went to Los Angeles to see the plaintiff. Concerning this visit he testified:

'I spent several weeks with her again as a family. When she wasn't at my place, I was at her place. * * * I asked her to come back to Idaho and try it again, that I thought we still had enough between us to warrant one more attempt.'

She agreed and in April, 1953, they returned to the South Fork Lodge in Swan Valley, where they thereafter continuously lived together as husband and wife until this action was commenced in August, 1954. During this time they held themselves out to the public as husband and wife and introuduced each other, and publicly referred to each other, as such. Plaintiff testified that before they returned from California she asked defendant to help her to get a divorce from McCarley; that defendant promised her if she would come back to him he would marry her; he would be kind to her and the boy and not beat her anymore; that he would share with her the property he then owned and any property thereafter acquired; that relying upon these promises she returned and lived with him as his wife; that he was good to her about a month after their return, but thereafter pursued his previous course of cruelty, slapping her and striking her with his fist; that on several occasions she asked him to enter into a ceremonial marriage and that 'if I ever mentioned it he got mad, and usually slapped me around.' As to the occasion which caused the final separation, she testified:

'Well, he--the last time he hit me he hit me in the head, and I couldn't hardly eat, or open my mouth, and he laughed and thought it was real funny, but it wasn't, and I decided that I am getting too old to take those beatings any longer, I can't take them.'

'It knocked me down the last time he hit me. He hit me right here on the side of the head (Indicating). I had pains for about two months. I was even afraid he had injured me some way.'

She did not leave immediately on this occasion, testifying:

'I thought I would wait and when he wasn't there and leave, I didn't want to get--He threatened to have--to beat me to where I wouldn't look presentable if I ever left, and I didn't--want to take that chance.'

About a month later, while he was on a hunting trip, she left the home and commenced these proceedings. The court required the defendant to pay an attorney's fee of $150 and $75 for support of plaintiff pending the action.

About three weeks before the trial, having 'phoned plaintiff's father that he had come to see the child, the defendant went to the home of her parents in Twin Falls, Idaho, where plaintiff was then living. The plaintiff took the child out to meet him in the street rather than risk a disturbance in the house. Concerning this occasion she testified that he jerked her into his car, leaving the boy in the street, and drove down to his hotel and demanded that she go to his room to sign a paper. Upon her refusal, he said:

"All right, then, you take your choice, either I'll take you out in the country and beat the hell out of you, or you go in and do it."

Fearing him, she went to the room. As to what there occurred, she said:

'He wanted me to sign--write a letter and sign it calling this all off, and telling a bunch of--telling that it was a bunch of lies and everything, and I told him he could kill me first, so he just about did. He beat me up, and then left me in the hotel room with no money. I started down the street with my clothes half off, and some friend took me home. I was hysterical.'

'* * * and beat me, and ripped my clothes off of me, and when I finally got home they had to take me to the doctor, and I lost my voice for three days.'

Although this last beating occurred after the action was commenced and no supplemental complaint was filed, no objection to the testimony was made.

We also note as a part of this statement of facts that the defendant does not deny the beatings testified to by plaintiff.

The defendant testified that he did not know of the marriage to McCarley until after the parties had returned from California; that he had offered to help her to get a divorce in Idaho, but would not pay her expenses to California for that purpose. He denied any promise to share property with the plaintiff, and denied that he promised to marry her, and testified he did not consider her his wife. In conflict with this, he also testified:

'Q. Yes. And you--while you were there [California], and ever since, you have lived with her as husband and wife, haven't you? A. Yes, I believe it's been assumed by the public that we were man and wife.

'Q. Yes. And as a matter of fact, you held yourself out as man and wife since then, haven't you? A. I was proud to, yes.

'Q. Well, I am asking you if you haven't held yourself out as man and wife? A. Yes, I was proud to, yes.

'Q. * * * So that when you testified a moment ago that her folks upon several times--'my wife has been taken from me several times by her folks,' you considered Carmen as your wife, didn't you? A. Over a period of the last eight years, yes.

'Q. Yes, over a period of the last eight years you have considered her as your wife, that is correct, isn't it? A. When she wasn't, I have waited for her, I suppose.'

One of defendant's witnesses, Levoy Peterson, a neighbor, testified that the parties held themselves out to the public as man and wife; that they introduced each other to various people as such, and that they acted as if they were man and wife 'until last August'; that in July or August on an occasion when they were having an argument, he heard her say they were not married. This was apparently near the time of the trouble which brought on the final separation, which occurred in August. The other witnesses either did not testify on the subject or assumed the parties were husband and wife.

'Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by a solemnization, or by a mutual assumption of marital rights, duties or obligations.' § 32-201, I.C.

'Consent to and subsequent consummation of marriage may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases.' § 32-203, I.C.

The evidence is quite conclusive that these parties entered in to the relationship of marriage by mutual consent and by mutual assumption of marital rights, duties, and obligations, insofar as they were capable. The trial court made no contrary finding on this issue, but found that 'plaintiff remains married' to McCarley and 'that the parties are in pari delicto in this case.' In its conclusions of law the court held:

'III. That plaintiff and defendant did not marry or become husband and wife under the common law on or about March 27, 1953, or at any time since because of plaintiff's incapacity to consent to such a marriage by reason of the plaintiff being, then and now, already married to one Olvis B. McCarley and that such a marriage would be illegal and void from the beginning.'

It is apparent that the trial court based its judgment in this case entirely upon want of capacity in the plaintiff, not upon a lack of consent or mutual assumption of marital rights. The evidence as to the McCarley marriage consists of certified copy of the marriage certificate, and plaintiff's admission on the witness stand. Plaintiff testified that she believed that marriage had been dissolved 'according to what I hear'; that she did not know where McCarley was; and that she did not think he knew where she was; and that she had not been served with process in any divorce proceedings by him. For aught that appears in this record that marriage could have been dissolved by action of McCarley either before these parties resumed marital relations in March, 1953, or during the time they lived together as husband and wife. If McCarley obtained a divorce before March, 1953, then there was no impediment to the marriage then agreed upon between these parties. If the impediment was removed during the period of their subsequent marital relationship, and they thereafter continued that relationship, then a common law marriage...