Werner v. Werner
| Decision Date | 07 May 1898 |
| Docket Number | 10669 |
| Citation | 59 Kan. 395,53 P. 127 |
| Parties | EMIL WERNER v. ROSA WERNER |
| Court | Kansas Supreme Court |
Decided January, 1898.
Error from Sedgwick District Court. D. M. Dale, Judge.
Judgment affirmed.
Amidon & Conly, for plaintiff in error.
Stanley Vermilion & Evans, for defendant in error.
This was an action brought by Rosa Werner to obtain a divorce from Emil Werner, upon the grounds of habitual drunkenness extreme cruelty, and gross neglect of duty. She also set forth at length a description of property, and alleged that in some of it she owned an interest, and that the remainder stood in the name of the defendant but was in fact the joint accumulation of the parties while they lived together as husband and wife. In his answer, Emil Werner alleged that he was induced to enter into the marriage relation with Rosa through her misrepresentation and fraud; that she was at the time the wife of John G. Cole, who was then living, and from whom she had not obtained a divorce; and that he had no knowledge of this fact until the present proceeding was begun. He also charged her with extreme cruelty, and asked that the marriage contract be declared null and void. In her reply, Rosa Werner asked that, if the marriage should be held to be null and void and no divorce should be granted to the plaintiff from the defendant, there be an equitable and just division of the property which she alleges was the result of the joint earnings and labors of the plaintiff and the defendant during the time they lived together as husband and wife.
At the trial, considerable testimony was offered as to the misconduct of Emil Werner, but the court found it unnecessary to determine whether the grounds alleged by the plaintiff below had been sustained. It appeared from the testimony that Rosa Werner had a husband living at the time she was married to Emil Werner, and, for that reason, the marriage was declared to be null and void, and a division of the property was made. Emil Werner complains of the ruling of the court awarding Rosa a share of the property, contending that she was never in fact his wife, and that alimony is never awarded to a woman who is not a wife.
It is true, as the plaintiff in error contends that the marriage between the parties was absolutely void from the beginning. Although living together as husband and wife, they were not in fact married, and hence no allowance could be made as alimony. The rule is that permanent alimony can only be allowed where the relation of husband and wife has existed; but this rule does not preclude an equitable division of the property where there is a judicial separation of the parties on account of the invalidity of the marriage contract. Fuller v. Fuller, 33 Kan. 582, 7 P. 241.
Strictly speaking, this action as it was tried was not a divorce proceeding, but it was rather one to annul a void marriage. Although instituted under the statutes to obtain a divorce the pleadings were so drawn and the issues so shaped that it was within the power of the court to grant relief independently of the statutes relating to divorce, and it rendered a decree of nullity rather than a decree of divorce. The plaintiff below set forth at length the description and nature of the property which had been acquired by the parties, the manner in which it had been acquired, and her interest in the same, and in the prayer of her reply she asks to be allowed a just and equitable division of the same in case the marriage was held to be null and void. The court in its decree did not treat the award as alimony, but rather adjudged her a share of the property jointly accumulated by the parties during the time they lived together as husband and wife. Fuller v. Fuller, supra, greatly relied on by the plaintiff in...
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