Summary
In Fowler v. Fowler, 96 N.H. 494, 79 A.2d 24 (1951), the record showed that the other party to the first marriage was served at the time of the final dissolution.
Summary of this case from Steinberg v. SteinbergOpinion
No. 4005.
March 6, 1951.
Lack of proof in the trial court of the law of a foreign jurisdiction governing a case will not preclude a determination of the issue according to the common law of this State where it is the same as that of the foreign jurisdiction. Where a wife entered into a second marriage believing her first husband to be dead such marriage under the common law of the foreign jurisdiction, where both ceremonies were performed, is invalid where the husband was in fact alive at the time the second ceremony was performed. In such case, the removal of the impediment to the second marriage by a decree of divorce in a foreign state in proceedings brought after the parties to the second marriage became domiciled here did not validate such marriage under the laws of this State which governed the status of the parties at that time. The statute (R. L., c. 338, s. 40) providing that evidence of "acknowledgment, cohabitation and reputation" is competent proof of marriage may not be invoked to validate a second marriage where the existence of the first marriage at the time of the second affirmatively appears. Common-law marriages, except to the limited extent provided by R. L., c. 338, s. 39, are not recognized as valid in this State.
PETITION, for annulment of marriage. The defendant was first married in New York State in 1926 to George Miller and thereafter resided with him in Springfield, Massachusetts. Children were born of the marriage in 1926 and 1928. On September 27, 1932, Miller was sentenced to state prison in Massachusetts for a maximum term of five years. He and the defendant had previously separated and at some time the defendant received information indicating that he had died.
On April 12, 1935, she and the plaintiff went through a marriage ceremony in the State of New York. Thereafter they resided together at Springfield, Massachusetts, for about four months and have since resided in Exeter, New Hampshire. No children have been born to them. In 1937, at the suggestion of relatives, the defendant instituted divorce proceedings against Miller in Massachusetts, although she did not know whether he was living or dead. In fact he was alive on April 12, 1935, and the record of the proceedings shows service in hand on Miller by an official of the State Prison Colony on April 8, 1937. On March 30, 1938, the defendant was granted a divorce nisi which became absolute six months thereafter.
The plaintiff was informed by the defendant at the time of the marriage ceremony that her former husband was dead. He learned of the divorce proceedings within a year of the decree and at the defendant's suggestion went with her to Maine for the purpose of remarrying. In the face of procedural difficulties, the plan was abandoned. The plaintiff testified that he considered such proceedings unnecessary, as he considered that they were lawfully married. The Court found that the parties had always considered themselves lawfully married up to the time of the present proceedings. After the filing of the plaintiff's petition, the defendant brought a petition for separate maintenance, alleging conduct such as seriously to injure her health. The following questions were transferred without ruling by the Presiding Justice (Wheeler, J): "1. Was the marriage ceremony entered into by the parties at New Lebanon, New York, on April 12, 1935, a valid marriage according to the laws of New York? 2. If not, did the marriage ceremony entered into on April 12, 1935, become valid and binding after the removal of the impediment of the petitionee's first marriage by reason of the divorce obtained by the petitionee from her first husband in 1938"?
John W. Perkins and Everett P. Holland (Mr. Holland orally), for the plaintiff.
William H. Sleeper and Wayne J. Mullavey (Mr. Mullavey orally), for the defendant.
While the parties conceded before the Trial Court that "the law of the state of New York governs these proceedings," the defendant now asserts that the plaintiff's case fails for lack of proof of the New York law, since no evidence was introduced with respect to it in the court below. The procedure by which foreign law is to be judicially determined in this jurisdiction was considered in Saloshin v. Houle, 85 N.H. 126, and the principle laid down that in construing foreign law proved in the Trial Court, the appellate court may take judicial notice of that law as contained in "works of acknowledged authority" not received in evidence at the trial. The following opinion was then expressed: "Carrying the point to its conclusion, if no evidence at all of the foreign law is furnished, it may be that there are no facts to be deduced. Without a finding of the facts, they cannot be construed, and without a case of construction there is no occasion to employ judicial notice as an aid. Such a situation is too infrequent to be of practical concern. If no evidence of the law of foreign or sister state is presented to the trial court, a presumption in favor of the common law will govern if that law is there in force. Beyond that a case may well fail for lack of proof." Id., 134. In Adams v. Thayer, 85 N.H. 177, 179, the statement was thus "extended": "If it appears that a rule of common law is not the same in all common-law jurisdictions, the rule as established in the jurisdiction whose law governs the case is to be applied." See also, Garapedian v. Anderson, 92 N.H. 390, 393.
It is correctly conceded that the validity of the marriage of the parties is to be determined according to the law of New York. Shippee v. Shippee, 95 N.H. 450; Foster v. Foster, 89 N.H. 376. If lack of proof of that law in the court below reduces us to determination of the validity of the marriage according to the common law no serious problem is presented. By the common law of this jurisdiction and of New York, the marriage was invalid because the defendant's husband prior marriage was then alive. Hilliard v. Baldwin, 76 N.H. 142, 144; Bickford v. Bickford, 74 N.H. 448; Fenton v. Reed, 4 Johns. 51; Williamson v. Parisien, 1 Johns. Ch. 389. If ascertainment of the statutory law by this court were permissible, there is no reason to believe that any different conclusion would be reached. See, Domestic Relations Law (New York), section 6. Any presumption of dissolution of the first marriage arising from proof of the second (Anno. 14 A.L.R. 2d. 7) is overcome by the evidence that it was not in fact dissolved until after the second marriage. It follows that the first question transferred is answered in the negative.
The question of whether the void marriage of the parties became valid and binding after the removal of the impediment of the defendant's first marriage by virtue of the divorce obtained in 1938 cannot be determined according to the law of New York for the parties have not resided there at any time since their marriage. While they lived together in Massachusetts for a few months in 1935, the impediment was not removed until 1938. Were the statutory law of Massachusetts properly before us on the present state of the record, the defendant could take no advantage of the provisions which operate to validate a marriage after removal of an impediment by divorce, (G. L. Mass. (Ter. ed.) c. 207, s. 6; Turner v. Turner, 189 Mass. 373), because the parties have not cohabited in that jurisdiction since the divorce, and the statute can have no extraterritorial effect. 1 Beale, Conflict of Laws 311, 312. Cf. Smith v. Smith, 58 F.2d 883.
The effect of the removal of the impediment to the marriage must be determined according to the law of this jurisdiction, where the parties have had their domicile both while the defendant's divorce action was pending, and since. 2 Beale, op. cit. 668. Our statutes contain no provision comparable to the statutory law of Massachusetts upon which the defendant relies. By section 40, chapter 338, Revised Laws, evidence of "acknowledgment, cohabitation and reputation" is made competent proof of marriage. By section 39, establishment that these requirements continued for three years and until the death of one of the parties, confers thereafter the incidents which follow upon the termination of a valid marriage by death. Delisle v. Smalley, 95 N.H. 314; ante, 58, 59. Neither of these sections can operate to validate the marriage of the parties to this action. The latter section is inapplicable, and the former of no effect where the existence of a prior marriage affirmatively appears. Hilliard v. Baldwin, 76 N.H. 142; Emerson v. Shaw, 56 N.H. 418. New Hampshire is a "jurisdiction which does not recognize the validity of common-law marriages," (Delisle v. Smalley, supra, 95 N.H. 314, 315) except to the limited extent provided by R. L., c. 338, s. 39, supra.
The defendant contends that the plaintiff is estopped by his own conduct to question the validity of their marriage, citing Ancrum v. Ancrum, 9 N. J. Misc. 795. This issue is not presented by either question transferred, and its determination is therefore unnecessary. A view contrary to that of the cited case has been adopted by other jurisdictions. See 4 A.L.R. (2d) 542, 554. Based upon public policy, it is sufficiently akin to the view expressed by Smith, J., in Emerson v. Shaw, supra, 420, as to suggest that the defendant's contention is not likely of adoption here. The second question transferred is answered in the negative.
A supplemental reserved case presents the plaintiff's exception to the denial of a motion to reopen for the purpose of receiving the testimony of the defendant's husband by her first marriage. The motion was supported by an affidavit setting forth what the testimony of the witness would be. It was stated in substance that the witness served three months in a Springfield jail in 1929 as a result of a complaint filed by the defendant, that he conversed with her in 1930, took her from New York to Springfield in 1931 or early 1932, and was sentenced to state prison in 1932. In denying the motion the Court ruled that the testimony would not be material.
The plaintiff's argument in support of his exception stresses the relation of the witness' testimony to the presumption of dissolution of the defendant's first marriage. Since any such presumption is held to have been overcome by the evidence that it was not dissolved until after the second marriage, no error is apparent in the rulings of the Trial Court, and the exception is overruled.
Case discharged.
JOHNSTON, C. J., was absent: the others concurred.