Witherington v. Witherington

• Decision Date: 10 June 1940
• Docket Number: 4-6040
• Citation: 141 S.W.2d 30,200 Ark. 802
• Parties: WITHERINGTON v. WITHERINGTON
• Court: Arkansas Supreme Court

141 S.W.2d 30

200 Ark. 802

WITHERINGTON v. WITHERINGTON

4-6040

Supreme Court of Arkansas

June 10, 1940

Appeal from Crittenden Chancery Court; J. F. Gautney, Chancellor affirmed.

Decree affirmed.

Cecil B. Nance, for appellant.

HUMPHREYS J. Smith, J., dissents.

OPINION

HUMPHREYS, J.

This suit was brought in the chancery court of Crittenden county, Arkansas, on December 5, 1939, by John C. Witherington, Sr., as next friend for John C. (J.) Witherington, Jr., against Marie Carter (Witherington) to annul a marriage contract entered into between John C. (J.) Witherington, Jr., and Marie Carter Witherington on the 25th day of November, 1938, on the alleged ground and for the alleged reason that John C. (J.) Witherington, Jr., was only eighteen years of age at the time he procured a license to marry from the county clerk of Crittenden county and on the date he married without the knowledge of John C. Witherington, Sr., the father of John C. (J.) Witherington, Jr., and without first obtaining the consent of his father to marry Marie Carter (Witherington).

Marie Carter (Witherington) entered her appearance and the cause proceeded to a trial on the 28th day of February, 1940, upon the complaint, and the depositions of John C. Witherington, Sr. , and Mrs. John C. Witherington, Sr., resulting in a dismissal of the complaint over the objection and exception of appellant, from which decree all appeal has been duly prosecuted to this court.

There is no dispute in the testimony reflected by the record. The undisputed facts are as follows: John C. Witherington, Sr., is the father of John C. (J.) Witherington, Jr. John C. (J.) Witherington, Jr., in company with Marie Carter, both of whom resided in Tennessee, were married before a justice of the peace on the 25th day of November, 1938, in Crittenden county, Arkansas. A license for them to marry was issued by the deputy county clerk of said county in which it was recited that John C. (J.) Witherington, Jr., was twenty-two years old and Miss Marie Carter was nineteen years old. John C. (J.) Witherington, Jr., was over eighteen years of age at the time they procured the license, but he misstated his age to the deputy clerk as twenty-two years. John C. Witherington, Sr., and Mrs. John C. Witherington, Sr., both testified that they did not know of the marriage of their son to Marie Carter until about a year after the marriage, and that this suit was brought within a few days after they obtained that information. They both testified that they did not give their consent for their son to marry Marie Carter and John C. Witherington, Sr., testified that had he been requested for permission for his son to marry he would not have given it and that he desired for the marriage contract to be annulled because his son was too young to be married, and that it would be impossible for him to get an education and support his wife.

Section 9017 of Pope's Digest is as follows: "Every male who shall have arrived at the full age of seventeen years, and every female who shall have arrived at the age of fourteen years, shall be capable in law of contracting marriage; if under those ages, their marriages are void."

It was ruled by this court in the case of Kibler v. Kibler, 180 Ark. 1152, 24 S.W.2d 867, that the word "void" as used in this statute means "voidable". The reason the word "void" was construed to mean "voidable" was because the court read the above section in connection with § 9021 of Pope's Digest which is as follows: "When either of the parties to a marriage shall be incapable, from want of age or understanding, of consenting to any marriage, or shall be incapable from physical causes of entering into the marriage state, or where the consent of either party shall have been obtained by force or fraud, the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction."

In construing the section just quoted this court said in the case of Phillips v. Phillips, 182 Ark. 206, 31 S.W.2d 134, that: "The subjects of marriage, divorce and annulment are regulated by statute, and no divorce can be granted for any cause other than those specified in the statute, and no decree of annulment can be had except for the causes mentioned in the statute.

"'Marriage was instituted for the good of society, and the marital relation is the foundation of all forms of government. For that reason the State has an interest in every divorce suit, and the marital relation once established continues until the marriage contract is dissolved upon some ground prescribed by the statute.' Marshak v. Marshak, 115 Ark. 51, 170 S.W. 567, L. R. A. 1915E, 161 Ann. Cas. 1916E, 206; 14 Cyc. 577; Ib. 593; 7 Enc. P. & P., p. 70.

"Again it is said: 'It is generally conceded in all jurisdictions that public policy, good morals and the interests of society require that the marriage relation should be surrounded with every safeguard and its severance allowed only in the manner and for the causes prescribed by law.' Vanness v. Vanness, 128 Ark. 543, 194 S.W. 498; 14 Cyc. 578."

Appellant contends that he is entitled to an annulment of the marriage contract in question under § 9044 of Pope's Digest, which is as follows: "Any person applying for the license to marry another may introduce the parent or guardian of himself or the other party, or the certificate of such parent or guardian duly attested to prove to the satisfaction of the clerk that the parties to such marriage are of lawful age, and in case the parties to such marriage (either or both) are not of lawful age it shall be the duty of the clerk before issuing the license to require the party applying therefor to produce satisfactory evidence of the consent and willingness of the parent or guardian of such party or parties to such marriage, which shall consist in either verbal or written consent thereto, and if there be any doubts in the mind of the clerk as to the evidence of the consent and willingness of the parent or guardian of the party or parties applying for the license, or if he is in doubt as to the true age or ages of the party or parties so making application, he may require the parties to make affidavit to the genuineness of the consent granted or to the correctness of the age or ages given, and the affidavit so made shall be filed in his office for public inspection."

It will be observed that the Act referred to does not provide that a marriage contract between girls over fourteen years of age and boys over seventeen years of age may be annulled because the contracting parties did not first obtain permission from their parents or guardians to marry. Section 9044 of Pope's Digest was passed for the protection of county clerks and has nothing whatever to do with the annulment of marriages for failure to first obtain consent from their parents or guardians to marry. Of course, marriages between girls under fourteen and boys under seventeen could be annulled, but it is because such marriages are absolutely void.

No error appearing, the decree is affirmed.

Smith J., dissents.

DISSENT BY: SMITH

SMITH, J. (dissenting). Under the majority opinion a boy of 17 or a girl of 14 may marry without the knowledge or consent of the parents or guardians, and the parents or guardians are powerless to do anything about it. This, in my opinion, was not the intention of the lawmakers as evidenced by the statutes of this state, and I, therefore, dissent.

With reference to age, Who may marry in this state? Any male 21 years of age, or over, or any female 18 years of age, or over. These persons do not require the consent of any one except themselves. Who may not contract marriage? Boys under 17 and girls under 14. These may not marry even with the consent of parent or...