A-8940918
Decided by Board May 24, 1957
Presumption of validity of second marriage, California — Good moral character — Bigamous marriage precludes establishing eligibility for discretionary relief.
(1) Under California law, the presumption of the validity of a second marriage is rebutted by evidence that a former spouse is living and that neither a divorce nor an annulment of the first marriage has been obtained, unless the person seeking the benefit of the presumption establishes that when he entered into the second marriage he believed in honesty and in good faith that his first spouse was dead.
(2) Where respondent's first wife was alive at the time he contracted marriage in California to his second wife and where both he and his second wife were aware that his first marriage had not been legally dissolved, there is an absence of good faith and honest belief and the presumption of validity of the second marriage does not arise. As the second marriage is bigamous, respondent is unable to establish good moral character to qualify for discretionary relief.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (9) ( 8 U.S.C. 1251 (a) (9)) — Failed to comply with conditions of status-seaman.
BEFORE THE BOARD
Discussion: Respondent is a native and citizen of Indonesia, age 33, who last entered the United States as a seaman during January 1948. His deportability on the charge stated in the warrant of arrest is conceded. The special inquiry officer denied his application for suspension of deportation, finding that he is unable to establish good moral character to qualify for either suspension or for voluntary departure. Respondent appeals to this Board from that decision.
The special inquiry officer has set forth with care the facts established by the record of the hearing and we will not repeat them all at this time. This case first came before the Board in visa petition proceedings. On September 7, 1956, we dismissed the petition of respondent's alleged United States-citizen wife for nonquota status for her husband, on the ground that the marriage ceremony entered into between M---- S---- and P---- S----, respondent, was not valid, inasmuch as P---- S---- was not eligible to marry on March 21, 1956, and is not yet eligible to marry. Deportation proceedings followed.
Respondent and M---- S---- usually sign their names "S----," and will be referred to hereafter by that spelling, although both spellings are used throughout the files and record.
Respondent admits that he was married in Indonesia in 1939 or 1940, and that he had 1 son born of that marriage about 1944. In a statement made to the Immigration and Naturalization Service on August 11, 1955, at San Francisco, respondent was asked, "Are you or were you ever married?" and he answered, "Yes," and stated further, "wife, R----, citizen of Indonesia, living in Grisse, Indonesia. One child, C----, living with my wife. He is about 11 years old." He testified before a special inquiry officer on September 13, 1955, that he had a son 11 years old who lives with his sister in Grisse, that he had sent letters and received no answers, that he had last heard from R----, his wife, in 1946. He stated that he considered himself separated from R----, that under the laws of Indonesia when married persons are separated for 90 days they are legally divorced and that he was "just planning to get a divorce." Respondent's application for suspension of deportation was denied by the special inquiry officer on November 29, 1955, on the ground that he had not shown any outstanding or meritorious factor or exceptional hardship which would result from his deportation. He was given voluntary departure, and on February 9, 1956, an appeal to this Board was dismissed. Although he was then living with M---- S---- out of wedlock and she was even then pregnant by him, those facts apparently were not then known to the Service and were not brought out in the hearing.
This child is referred to variously in the record as "he" and "she."
Respondent went through a marriage ceremony on March 21, 1956, with M---- G----, a United States citizen born in Achille, Oklahoma, on May 26, 1937. She testified before the special inquiry officer that she started to live with the respondent approximately a year before they were married, that she was very hesitant about marrying him because she was aware that he had a wife abroad. She said respondent told her that he had never divorced his wife at home, and stated, "I was afraid of his wife." She stated that she has known him since she was about 12 years old, and that she married him because she was in her sixth month of pregnancy. A child was born to them in June or July 1956. On July 5, 1956, he secured an interlocutory order authorizing a decree of divorce from his first wife, R---- S----, at the expiration of 1 year. The order clearly indicates that it is not a final decree of divorce, that the final judgment will not be granted for 1 year (in this case, July 5, 1957), and that any marriage entered into prior to the final judgment is illegal.
Respondent has asserted that he attempted to contact his first wife in Indonesia on several occasions and received no answer from her. M---- stated, in answer to questions from the special inquiry officer, that he had not tried to write to his wife, but had just written to "his family." Counsel recites that respondent sent money to his child. Respondent testified that he gave money to his sister for the child. He also stated, when asked if he gave money to his wife and child, "Sometime if I have-if I get good job." His testimony is ambiguous on these points. M---- S----'s testimony also is at variance with the exact version recited by counsel.
Respondent also states that he attempted to get in touch with his wife through his family. We note that the first effort to establish contact with her of which there is evidence, that of his attorney to serve her with divorce papers, brought forth a letter from her. This letter from respondent's wife in Indonesia was not put in evidence. Counsel offered a portion of the translation only, to establish the date on which it was written. There is no reference to the contents of this communication, which may be the only available document to shed additional light on the issue of his relations with R----. Counsel declares that the fact that respondent's first wife and child were living with her parents when he returned from service at sea meant that she had abandoned him. It must be remembered that he had been absent for some time. There is no evidence that his wife refused to live with him in Grisse, except his own statement. If R---- has obtained any kind of dissolution of their marriage in Indonesia, acting in her own behalf, no doubt it would have been asserted before this.
Counsel argues that respondent is entitled to the benefit of the presumption of the validity of the subsequent marriage provided in section 61 of the Civil Code of California. He cites a group of California cases in support of this contention and 2 decisions of this Board.
Section 61 of the Civil Code of California reads as follows:
"§ 61. [Subsequent marriages void: Exceptions: Interval following divorce: Marriage valid until annulled where former spouse absent.] A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning, unless:
"1. The former marriage has been annulled or dissolved. In no case can a marriage of either of the parties during the life of the other, be valid in this state, if contracted within one year after the entry of an interlocutory decree in a proceeding for divorce.
"2. Unless such former husband or wife is absent, and not known to such person to be living for the space of five successive years immediately preceding such subsequent marriage, or is generally reputed or believed by such person to be dead at the time such subsequent marriage was contracted. In either of which cases the subsequent marriage is valid until its nullity is adjudged by a competent tribunal."
We have studied these cases and other California authority and conclude that the rule at the present time is as follows: A presumption arises from proof of the solemnization of a second marriage that it is legal and that a former marriage has been dissolved, but this is not a conclusive pesumption and may be controverted by evidence that a former spouse is living and that neither a divorce nor an annulment of the former marriage was ever procured. The California courts have read into the statute the requirement that if the former husband or wife proves to be alive, and the former marriage has not been dissolved or annulled, the person seeking the benefit of the presumption must establish that when he entered into the new marriage he believed honestly and in good faith that his first spouse was dead ( Wilcox v. Wilcox, 171 Cal. 770, 776, 155 P. 95; Goff v. Goff, 125 P. (2d) 848 (Calif., 1942)). Goff v. Goff states ( 125 P. (2d) at p. 851):
* * * So far as the provisions of subdivision 2 of section 61 of the Civil Code, of which appellant seeks to avail herself, are concerned, in connection with her claim that her second marriage is valid notwithstanding her former husband was alive and the former marriage had not been dissolved or annulled, it must be remembered that the element of good faith and honest belief on her part that her husband was dead is essential. Indeed, the statute so makes it. Wilcox v. Wilcox, 171 Cal. 770, 776, 155 P. 95. In the light of the evidence before it, the trial court was justified in concluding that the first marriage of appellant with Williams was never dissolved or annulled, and further, that appellant did not at the time of her marriage to respondent in good faith believe that her former husband was deceased. * * *
Counsel cites Hunter v. Hunter, 111 Cal. 261, 43 P. 756 (Sup.Ct., Calif., 1896). In Hunter there is no evidence that the first spouse of the defendant was still alive, either at the time of the second marriage or at the time of the litigation. All the cases cited in Hunter which we have checked, are also distinguishable from the present case on that ground. Wilcox distinguished between cases where there is evidence that the first spouse was still alive at the time of the second marriage and cases where there is no such evidence, saying that in the latter situation the presumption does not enter at all.
Counsel cites In re Perry's Estate, 208 P. 987, but the facts in that case are very different from those in the instant case. Mrs. Perry attempted to secure a divorce from her first husband in September 1904, and according to her testimony, in November 1907, the attorney exhibited to her a document which she understood was a final judgment of divorce and informed her that she could now marry Perry. The record showed that a final judgment of divorce was not entered until November 1909, a fact which she did not know until after Perry's death. The court found that her first husband, Wathen, had deserted her, stating:
* * * Wathen did not see respondent for approximately 32 years from the day he left her, although he knew, at all times, where she was and where he might find her. This evidence is amply sufficient, we think, to support the conclusion reached by the trial court that the desertion was committed by Wathen.
The case wherein the facts are most nearly like those in S----, is In re Richards' Estate, 65 P. 1034. Richards married Lydia in Missouri in 1880, and they lived together in matrimony for 4 years. Richards then left her, went to California, and went through a marriage ceremony with Elizabeth, 12 years later. Counsel for Elizabeth urged that under subdivision 2, section 61, Civil Code, Lydia was absent and not known by Richards to have been living for the space of 5 years preceding his marriage to Elizabeth, and therefore the presumption should apply. The court said:
* * * There is no evidence in the record to support this contention. It cannot be said that the former wife of deceased was absent, when the record shows that deceased left her in the State of Missouri, and came to California. Deceased was the absent one, and was absent of his own volition. We cannot indulge in the presumption that deceased believed his former wife to be dead. On the other hand, the presumption is that, having married her and left her in the State of Missouri, he did not believe her to be dead. There is no evidence as to any belief or repute in any manner concerning the death of the former wife. As she was not dead, it would be folly for the court to presume a belief on the part of deceased as to a fact that did not exist, and that was never reputed to exist.
Counsel cites In re Harrington's Estate, 73 P. 1000, in support of his contention that there was no obligation on respondent to make any special effort to determine whether or not his first wife was alive, citing Harrington for the proposition that the statute imposes no such duty. In fact, Harrington declares that there is no particular duty on the party who has been abandoned to endeavor to ascertain the whereabouts of the first spouse, and that it was his duty to keep her advised of his whereabouts. The court held that unless she had contracted the second marriage in good faith believing her first husband to be dead the "beneficent provision of section 61" would not come into operation. Applying these principles to the present case it seems apparent that the obligation was on respondent (a) to inform his first wife as to his whereabouts, and (b) to ascertain the facts as to her existence or death, using all possible diligence. The presumption as to the validity of the second marriage does not arise to benefit respondent unless he has contracted the second marriage in good faith, believing his first spouse to be dead.
Counsel cites Board decisions Matter of F----, A-5229425, 5 IN Dec. 163 (Mar. 10, 1953), and Matter of T----, VP 13-8120, 6 IN Dec. 440 (Dec. 9, 1954). The facts in Matter of T----, supra, could hardly be farther from the facts in the instant case. Before T---- contracted his second marriage he went before a Commissioner for Oaths on April 16, 1952, at Kensington, London, England, and made a sworn affidavit regarding the disappearance of his first wife in 1944 under wartime conditions during the Russian occupancy of Estonia. He stated that he had made "all possible inquiries in an effort to trace the whereabouts" of his first wife and had been unable to ascertain whether she was alive or dead. This Board made inquiry of the British Embassy in Washington, D.C., and received a memorandum of law which concluded that T---- was as eligible to marry under the circumstances recited there as if he had obtained a decree of presumption of death and that T----'s second marriage in 1953 is valid under English law. It must be noted that T---- swore that he had made "all possible inquiries" in an effort to trace the whereabouts of his first wife and was found in the memorandum of law to be "a married man whose wife has disappeared." Respondent in the instant case cannot be found to be a married man whose wife has disappeared.
In Matter of F----, supra, we held that the presumption of the validity of the second marriage in New York State is stronger than and overcomes the presumption of the continuance of the first marriage and recognized as valid a common-law marriage contracted in New York in 1925 by an alien who had been married to a first wife in England in 1924. That decision specifically states, "This presumption of the validity of the second marriage can be negatived by proper proof on the part of the government which has questioned the marriage. * * * The Government has failed to establish by clear, convincing and substantial evidence that the first marriage was in existence at the time the respondent entered into the second marriage." In Matter of F----, the first spouse was not shown to be alive at the time the second marriage was contracted nor later. Therefore, the case is distinguishable from S---- and the presumptions applicable are different. New York has a statutory procedure which must be adhered to by the surviving spouse in order that a subsequent marriage be valid, if the first spouse returns (Sec. 7 (a), Domestic Relations Law). If the prescribed procedure is not followed, no presumptions are allowable in support of the second marriage ( Anonymous v. Anonymous, 62 N.Y.S. (2d) 130 (1946)). California has no such procedure, so far as we have discovered.
In the case now before us the first wife was still alive at the time the second marriage was contracted. Both parties to the second marriage were well aware that the marriage had not been dissolved legally, so far as either of them knew and, while they consulted an attorney to ascertain the proper procedure, they married before the attorney received an answer from respondent's first wife. The presumption provided by paragraph 2, section 61, California Civil Code, springs into being only if good faith and honest belief exist. The California "presumption of a valid marriage" was not intended to legalize every clearly bigamous marriage for every illegally resident alien who comes to this country and remains here in hiding from his foreign wife for a sufficient number of years. Many aliens who enter the United States illegally leave a wife and family abroad and enter into matrimonial relations in this country and plead "the presumption of a valid marriage" after they are apprehended by the immigration authorities.
It seems impossible to give respondent the benefit of the presumption when the facts so clearly show lack of good faith on his part. He admitted that he believed his wife and child were living in Grisse, Indonesia, when he told an immigration officer on August 11, 1955, that he had a wife and a child living in Indonesia. M---- testified that she knew at all times that P---- had a wife in his homeland. Respondent had plenty of time prior to his marriage to M---- to ascertain whether or not his first wife still lived and to obtain a divorce from her. He apparently made no serious attempt to secure a divorce from R---- until M---- was in advanced pregnancy. It is our conclusion that respondent did not conduct a bona fide search for his wife and that he was not unable to discover her whereabouts. We find that he abandoned her and that he was not free to marry again. The presumption springs into being only if respondent honestly believed that R---- was dead. The record does not establish this belief. In fact, it clearly establishes the contrary. Therefore, the marriage to M---- has no validity. The record will not support a grant of discretionary relief of any kind.
Order: It is ordered that the appeal be and is hereby dismissed.