Summary
interpreting similar predecessor law under the General Code
Summary of this case from Carnes v. CarnesOpinion
No. 32600
Decided January 16, 1952.
Divorce — Cause for — Party having spouse living at time of marriage — Section 11979, General Code — Exclusive remedy — Jurisdiction to grant alimony and other relief.
1. Section 11979, General Code, authorizing the granting of a divorce where "either party had a husband or wife living at the time of the marriage from which the divorce is sought," provides an exclusive remedy in cases involving that situation.
2. Where a decree of divorce is granted on the petition of a woman on the ground that the defendant had a wife living at the time of his marriage with the plaintiff, the court has jurisdiction to grant to the plaintiff alimony and other relief authorized by the statutes on divorce and alimony. ( Van Valley v. Van Valley, 19 Ohio St. 588, approved and followed.)
APPEAL from the Court of Appeals for Summit county.
This cause originated in the Court of Common Pleas of Summit County.
In her petition the plaintiff, Charlotte Hulbert Eggleston, alleged that she and the defendant, George Washington Eggleston, were married at Akron, Ohio, on or about July 3, 1941, of which marriage two children were born, who, respectively, are seven and four years of age.
She averred that the defendant has been guilty of gross neglect of duty and of extreme cruelty toward her, and prayed for divorce and alimony. The defendant was personally served with summons, but he thereafter filed a motion for dismissal of the action because the parties were never married and the court therefore lacked jurisdiction.
Thereafter on leave of court the plaintiff filed a supplemental petition wherein, in addition to the allegations of her original petition, was the following:
"Plaintiff says that the defendant alleges the fact to be that at the time of the marriage aforesaid he had a wife living and that by reason thereof his marriage to this plaintiff was of no force and effect. Plaintiff says that she has no knowledge that the representations of the defendant with reference to said prior marriage are true; however, if the same be true, then this plaintiff asks that she be awarded a divorce from the defendant on the ground that said defendant had a wife living at the time of his marriage to this plaintiff."
Thereafter with the consent of both parties a duly appointed referee heard the matter upon the motion of the defendant challenging the jurisdiction of the court on the ground that there had been no marriage of the parties for the reason that at the time of the alleged marriage the defendant had a wife then living.
The referee found from the evidence that the defendant had obtained a purported divorce and dissolution of a former marriage but that the service was fatally defective, which "fact was not known to either of the parties herein until recently."
The plaintiff thereupon filed an amended petition consisting of two causes of action. In the first cause of action gross neglect of duty and extreme cruelty are charged, and divorce, alimony and "such other and further relief as is just and proper" are prayed for.
In the second cause of action it is alleged that on and before July 3, 1941, the defendant represented to the plaintiff that he was then an unmarried man, he having been previously divorced from one Mary Trula DeMarcus Eggleston; that relying on his representations the plaintiff and defendant duly secured a marriage license and were married in a church service in Akron, Ohio, on July 3, 1941; that they lived together as husband and wife and plaintiff bore the defendant two children, four and seven years of age respectively, who reside with the plaintiff; that since the date of the marriage she has kept house, ministering to and otherwise caring for the defendant and their minor children; and that since July 3, 1941, she has been gainfully employed in order to maintain herself, their minor children and the defendant.
The plaintiff avers that she and the defendant are record owners of certain real estate, about 10.65 acres and upon which there are buildings, including a dwelling house, bearing a mortgage indebtedness of more than $5,500.
Plaintiff alleges further that the defendant now claims that the marriage of the plaintiff and defendant is a nullity by reason of the fact that he had not been legally divorced from his former wife.
Plaintiff prays for the annulment of the purported marriage of plaintiff and defendant, if in fact the defendant was and now is legally the husband of said Mary Trula DeMarcus Eggleston, that she be awarded the described premises free of any claim of the defendant and for such further relief as is just and equitable.
The defendant by answer admits that a ceremony was performed purporting to unite the parties hereto in marriage and the birth of the two children of such union, but again denies the validity of the marriage by reason of the fact that he then had and still has a wife living.
Defendant prays for the dismissal of the supplemental petition except for the granting of a divorce only.
Upon the hearing of the case, the first cause of action, that seeking a divorce, was abandoned and dismissed.
It was agreed that on July 3, 1941, the defendant did in fact have a wife, Mary Trula DeMarcus Eggleston, then living and "still living at this time."
Upon the pleadings and statements of counsel the court found "that the marriage contract between the parties is null and void by reason of the want of capacity of the defendant to contract the same and that said contract of marriage should be annulled; that this court is without power to award alimony, support for said minor children or any relief whatsoever in this action other than to annul said contract of marriage."
It was accordingly so ordered, adjudged and decreed, and in all other respects the petition, supplemental petition, and amended petition were dismissed.
In the case involving partition jointly heard with the instant case, partition of the jointly owned real estate was ordered.
Upon appeal to the Court of Appeals that court affirmed the judgment of the Common Pleas Court.
The cause is in this court following the allowance of a motion to certify the record.
Mr. Charles F. Schnee and Mr. Scott A. Belden, for appellant.
Mr. Merryl F. Sicherman, for appellee.
The decision of the question presented in this case requires a discussion of the construction and application of Section 11979, General Code, and related statutory provisions.
Section 11979, General Code, provides as follows:
"Courts of Common Pleas may grant divorces for the following causes:
"1. That either party had a husband or wife living at the time of the marriage from which the divorce is sought;
"* * *
"6. Fraudulent contract * * *."
Subsequent sections of the same chapter of the Code on divorce and alimony contain the necessary procedural provisions relating to allowance of alimony and the support and custody of the children of the parties.
Sections 11990 and 11991, General Code, providing for alimony are as follows:
Section 11990. "When a divorce is granted because of the husband's aggression, the court shall, if the wife so desires, restore to her any name she had before such marriage, and allow such alimony out of her husband's property as it deems reasonable, having due regard to property which came to him by marriage and the value of his real and personal estate at the time of the divorce."
Section 11991. "Such alimony may be allowed in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or instalments, as the court deems equitable."
Section 11979, General Code, is not of recent origin. It was first enacted March 11, 1853, and the first cause for divorce as now appearing in Section 11979, General Code, was a part of the original enactment. That provision was discussed in the case of Smith v. Smith, 5 Ohio St. 32, and the court there observed that the statute permits the parties to have the question of whether there was a prior marriage judicially investigated and determined. It was there stated by Swan, J., that "another object of this provision was, probably, to give alimony to the second wife of a man who had a former wife living."
The case of VanValley v. VanValley, 19 Ohio St. 588, was before the court on motion for leave to file a petition in error to reverse a judgment of a district court affirming the judgment of the Court of Common Pleas. In overruling such motion the court held that "where a decree of divorce is granted on the petition of a woman, on the ground that the defendant had another wife living at the time of the marriage annulled by the decree, it is competent under the provisions of our statute for the court in such proceeding to also decree reasonable alimony to the petitioner."
The effect of that holding is that, under the provisions of the statute authorizing a divorce on the ground that either party had at the time of the marriage a husband or wife living, there is granted the right to the relief provided in the supplemental statutory provisions. In the annulment of the marriage contract the court instead of considering the plaintiff's case for divorce under the statutory provisions authorizing the same deprives the plaintiff of any consideration of her claim for alimony to which she may be found to be entitled under the statute. The General Assembly specified certain grounds upon which a decree of divorce may be predicated, among them the particular ground involved in this case. It is to be observed that "fraudulent contract" is another ground specified as a ground for divorce, and that also goes to the validity of the marriage.
It is our view, therefore, that Section 11979, General Code, authorizing the granting of a divorce where "either party had a husband or wife living at the time of the marriage from which the divorce is sought," provides an exclusive remedy in cases involving that situation, and that in such proceeding the court is authorized to adjudicate the issue of relief incident to the granting of a divorce.
It is argued that, the defendant not being in fact and law the husband of the plaintiff, no award of alimony is authorized by the statute. Such view would apply a very narrow and technical definition of the word, "husband."
The rule adopted by the Court of General Sessions of Delaware in the case of State v. Collins, 99 A. 87, seems more appropriate. In that case the court construed a criminal statute which provided that "whoever, being the husband of any woman, shall assault and strike or beat his wife, shall be guilty of a misdemeanor."
It was argued in that case that because the husband, at the time of his marriage to the complainant, had a wife living there was no legal marriage of the accused and the complainant and that, therefore, he was entitled to an acquittal. The court held that "assuming the existence of the alleged former marriage, yet the subsequent marriage between the accused and the prosecuting witness though unlawful established the relation of husband and wife within the purview of the statute. The marriage solemnized in this case entitled the woman, and women like situated, to the protection afforded by the statute."
The case of Waymire, Gdn., v. Jetmore, 22 Ohio St. 271, is cited as an authority for the institution of an action for annulment and as a basis for equitable relief. However that was an action brought to annul a marriage contract of one affected with congenital imbecility rendering him incapable of consent, and it was upon that ground that the marriage was held to be void ab initio and accordingly annulled.
It is to be particularly noted that that case did not involve any ground for divorce enumerated in the statute. Causes dealing with situations not covered by the statute clearly come within the jurisdiction of a court of equity.
The abandonment and dismissal of the cause of action seeking a divorce decree under and by virtue of the provisions of Section 11979, General Code, was before "its final submission * * * to the court." See Nelson on Divorce and Annulment, 109, Section 27.08; 2 Ohio Jurisprudence, 201, Section 105; and 14 Ohio Jurisprudence, 327, Section 12.
For the reasons above stated the judgment of the Court of Appeals is reversed and the cause remanded to the Court of Common Pleas for further proceedings.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, MIDDLETON, TAFT and HART, JJ., concur.