Whitney v. Whitney
| Decision Date | 30 June 1942 |
| Docket Number | 30618. |
| Citation | 134 P.2d 357,192 Okla. 174,1942 OK 268 |
| Parties | WHITNEY et al. v. WHITNEY. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Feb. 23, 1943.
Second Petition for Rehearing Denied March 16, 1943.
Syllabus by the Court.
1. Plural marriages are by Art. 1, § 2, Constitution of Oklahoma, forever prohibited, and are void ab initio, and such a marriage, whether ceremonial or common law, does not confer on either of the parties any of the rights or privileges of a valid marriage.
2. A marriage that is void ab initio does not require the decree or judgment of a court to make the marriage void and to restore the parties to their original rights; yet it is expedient for the good order of society that the nullity of such a marriage be ascertained, and declared by a court of competent jurisdiction.
3. The Legislature of Oklahoma has the power to provide for the ascertaining and declaring the nullity of a plural marriage and in so doing may apply the divorce procedure thereto; but in so doing the Legislature has not attempted to invest the parties with any of the rights and privileges incident to the dissolution of a valid marriage.
4. Parties to a void marriage who, during the period thereof have acquired property are to be treated as quasi partners with respect thereto, and are free to adjust between themselves these property rights, and the courts are without power to adjust these property rights on the basis of powers incident to the dissolution of a valid marital relation.
5. Where the parties to a void marriage have, after the filing of an action to determine its nullity, entered into a contract settling their property rights and have included therein provisions relating to an attorney's fee, the court is without authority to set the contract aside and attempt to adjust property rights and award an attorney's fee under the power granted a court in divorce relating to a valid marriage, and can only set aside the contract on recognized grounds relating to contracts in general.
Appeal from District Court, Oklahoma County; Clarence Mills, Judge.
Suit by Mary P. Whitney against Wayne Whitney and another for a divorce and other relief. From an adverse judgment defendants appeal.
Affirmed in part and reversed in part and cause remanded.
Geo. C. Crump and H. W. Carver, both of Wewoka, for plaintiffs in error.
O. A. Cargill and Clay M. Roper, both of Oklahoma City, for defendant in error.
Mary P. Whitney sued Wayne Whitney in the district court for a divorce, and other appropriate relief with respect to their minor children and property. She alleged that, "on October 1, A.D., 1928, plaintiff and defendant were married in Oklahoma City and ever since that date have been husband and wife."
The ground for divorce was extreme cruelty. Whitney filed an answer wherein (1) he denied the marriage in Oklahoma City; (2) he set out in detail his marriage to another woman in 1913, and asserted that that marriage had never been dissolved; (3) and by reason of the marriage existing between him and another woman, he was incapable in 1928, of contracting a marriage with plaintiff.
During the trial the fact that Whitney had a living wife in 1928 and was still bound in matrimony to her at the time of the trial became so obvious that plaintiff asked and was given permission to amend her petition to allege as ground for divorce 12 O.S.1941 § 1271(1), that is: Whitney had a former wife living at the time of the subsequent marriage.
At the close of the hearing plaintiff was granted a divorce from Whitney on the ground he had a living wife at the time he married plaintiff in 1928. The matter of settlement of property rights and the custody of the children was deferred, and settled at a later hearing.
The appeal involves all of the issues disposed of by the trial court. However it is proper to say at this point that no contest is presented to us concerning the children. Their custody was given to their mother, Whitney contracted to pay a sum monthly for the support of each of them, the trial court ordered him to pay a monthly sum for their support and we are not asked to review or interfere with this aspect of the case. The trial judge was solicitous for the legitimacy of these children, and properly so. It is to be observed that Whitney has never denied their paternity, and in all of the records and proceedings before us has recognized them as his children.
Whitney contends first that the alleged marriage with plaintiff is bigamous and void. This is correct. The constitution of Oklahoma, Art. 1, § 2, says: "Polygamous or plural marriages are forever prohibited". At the time plaintiff and Whitney undertook to establish a marital status he was a married man, having then a wife from whom he was not divorced and to whom he was bound in legal marriage, and therefore he was incapable of entering into a contract of marriage with plaintiff.
Considerable discussion is indulged by the parties as to whether, since it is admitted there was no ceremonial marriage, there was a common law marriage, and cases are cited from this and other jurisdictions setting out the elements essential to a common law marriage.
We think this is beside the point. Common law marriages are valid in Oklahoma. Mantz v. Gill, 147 Okl. 199, 296 P. 441; Fisher v. Fisher, 116 Okl. 129, 243 P. 730, and other Oklahoma cases. Where the prescribed essentials are shown, a common law marriage is as valid as one based on a license and ceremony.
But, if one of the parties to a so-called common law marriage has a living spouse of an undissolved marriage, the common law marriage attempted is as polygamous and plural and, therefore, as void as a ceremonial marriage attempted under the same circumstances.
Plaintiff argues that because the first ground for divorce in our statutes, 12 O.S.1941 § 1271(1), the one relied on by her, is the existence of a valid prior marriage as to one or both of the parties, the Legislature has thereby invested the attempted subsequent marriage with some validity and sanctity, the effect of which is to give our courts power to adjust the so-called marital rights and other incidents thereto.
Plaintiff has furnished us with a memorandum calling attention to the statutes of several states (Arkansas, Colorado, Florida, Illinois, Mississippi, Ohio and Kansas) providing for divorce on the ground of an existing marital relation at the time of the subsequent marriage, and decisions from several states discussing the legislative power, and the tendency of the courts to further such a policy, to deal less harshly with plural marriages than was customary at common law. Leckney v. Leckney, 26 R.I. 441, 59 A. 311; Lea v. Lea, 104 N.C. 603, 10 S.E. 488, 17 Am.St.Rep. 692; Selby v. Selby, 27 R.I. 172, 61 A. 142 and Reese v. Reese, 128 Kan. 762, 280 P. 751.
The statute just cited was first put into effect in Oklahoma prior to statehood, Stat.1893, § 4543, and was adopted from Kansas. After statehood the statute was carried forward and now reads as it did prior to statehood. But whatever were its connotations prior to statehood, and granting it may have been construed to lend support to plaintiff's argument, it ceased to have any meaning contrary to the fundamental policy of our State as expressed in Art. 1, § 2, Constitution of Oklahoma. With the adoption of our constitution any validity, or any sanctity theretofore accorded the subsequent marriage in cases of bigamous or plural marriages ceased, and such bigamous or plural marriages when attempted are void and wholly ineffectual to create a marital status or any of the legal incidents that usually flow therefrom as between the parties. See Oklahoma Land Co. v. Thomas, 34 Okl. 681, 127 P. 8, for a discussion of this problem prior to statehood.
A search has not shown that any of the states, whose statutes are cited in the memorandum, have a constitutional prohibition against plural marriages as we have. The Legislatures of those states are free to establish the public policy thereon, and may accord any status or privileges to the parties to a plural marriage that seems desirable. We think this makes the problem in those states sufficiently different from the problem in this state as to deprive the statutes and decisions cited of any analogous value to the issue in Oklahoma.
We are impressed by what is said in 18 R.C.L. 441, § 69: "A marriage void in its inception does not require the sentence, decree or judgment of any court to restore the parties to their original rights or to make the marriage void, but though no sentence of avoidance be absolutely necessary, yet as well for the sake of the good order of society as for the peace of mind of all persons concerned, it is expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction."
The Legislature has power and ought to provide for a judicial determination of the void nature of the subsequent marriage.
We do not think it beyond the power of the Legislature to adopt the mechanics of the divorce action as a method for the courts to determine the issue of fact and law, that a marriage is plural and void, and it probably does not matter that the decree or judgment is called divorce rather than annulment. In some of our cases the proceedings is apparently referred to as annulment. Whitebird v. Luckey, 180 Okl. 167 P.2d 775. But the power in the Legislature to provide for such a judicial determination and the use of the term "divorce" as applied thereto cannot have the effect of adopting the philosophy underlying divorce as applied to the dissolution of a valid marriage so as to carry...
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