A. G. Lancione, of Bellaire, for plaintiff. No appearance for defendant.
Action by Ernest Respole against Mary Josephine Respole to annual a proxy marriage.
Decree for plaintiff.A. G. Lancione, of Bellaire, for plaintiff. No appearance for defendant.
This cause came on for hearing on regular assignment and was submitted to the Court on the petition filed on September 29, 1945, and the evidence, defendant being in default for pleading and appearance. Personal service of summons was had on defendant. The pertinent allegations of the petition are, that the plaintiff has been a resident of the State of Ohio for more than one year, and a bona fide resident of Belmont County for more than thirty days, immediately preceding the filing of his petition; that plaintiff and defendant were united in marriage, by proxy, on the 14th day of August, 1943, at Elm Grove, W.Va; that at the time of said pretended marriage ceremony, plaintiff was in the army of the U.S., stationed at Burma, India; that said pretended marriage has never been consummated; and that plaintiff and defendant have not lived together as husband and wife, nor has said pretended marriage in anywise been ratified. Plaintiff prays that said pretended marriage be annulled, vacated, set aside and held for naught, for divorce, and such further relief as he may be entitled in law, equity, and justice.
The evidence discloses that plaintiff is a resident of this county and State as alleged; that he went overseas to the China, Burma, India Theatre of Operations as a member of the Army of the United States about the month of February or March, 1943; that after arriving overseas, he was advised by his commanding officer that defendant was claiming that she was then pregnant with child, and that plaintiff was responsible for her condition. Whereupon plaintiff executed a power of attorney, and a paper writing, bearing date of March 28, 1943, wherein he agreed to marry defendant and authorized such marriage to be performed by proxy; that he was married to defendant on the 14th day of August, 1943, by proxy, at Elm Grove, W.Va. Plaintiff's exhibit marked for identification ‘Pxl,’ was offered and admitted in evidence. Said exhibit is a certified copy of the records of the County Court of Ohio County, W.Va., which contains said power of attorney and authorization of marriage by proxy, executed by plaintiff under date of March 28, 1943, which recites that at that time plaintiff was a soldier in the Army of the United States assigned to foreign service. Said exhibit, also, contains an application for marriage license, to authorize marriage of plaintiff and defendant, bearing date of August 13, 1943, filed in the office of the Clerk of said Court on the same day, a marriage license issued by the Clerk of said Court on the 13th day of August, 1943, authorizing plaintiff and defendant to marry, and a minister's return of marriage showing that on the 14th day of August, 1943, Frederick G. Alpers united in marriage plaintiff and defendant at Elm Grove, W.Va. The evidence, also, discloses that plaintiff did not see defendant while he was overseas; that he was at all times from and after his arrival in India a member of the Army of the United States stationed and on duty overseas in the China, Burma, India Theatre of Operations until he returned to the United States in June, 1945 and was honorably discharged soon thereafter; that after his return from overseas and discharge he saw defendant two or three times, and on two occasions talked to her about, and requested her to cohabit and live with him as husband and wife, which she failed and refused to do; that they did not copulate at any time after said proxy marriage ceremony; that they did not hold each other out as having been married or as husband and wife, and that they did not associate together in anyway, except on one occasion when they met in a night club in Wheeling where they talked just a few minutes, he then requesting her to live with him which she refused to do, whereupon she left this place with another man, and at one other time when plaintiff went to defendant's mother's home where she was then staying and talked to her a short time about living with him, which she again refused to do.
The Court will take judicial notice of the statutory law of the State of W.Va., G.C. § 12102-31. The Court will not take judicial notice of the laws other than the statutory law of the State of W.Va., G.C. § 12102-35, but will presume, in the absence of evidence to the contrary, that the nonstatutory or common law of the State of W.Va. is the same as the Ohio nonstatutory or common law. Heater v. Mittendorf, 72 Ohio App. 4, 50 N.E.2d 559.
Section 4684(6) of the W.Va. Code of 1937, and the amendment thereto designated as Section 4684(6), 1941 Cumulative Supplement to the W.Va. Code of 1937, provides for the issuance by the Clerk of the County Court of a marriage license upon application therefor, in writing, signed by one or the other of the parties to the contemplated marriage, and upon other terms and conditions as provided therein. Section 4687(9), W.Va. Code of 1937, provides for the form of such marriage license. Section 4688(10), W.Va. Code of 1937, is captioned and provides as follows:
‘[Indorsement and return of licenses by persons solemnizing marriage.] Every person solemnizing a marriage shall take up the license authorizing such marriage, and on or before the fifth day of each month shall forward to the county clerk issuing such licenses all such licenses in his possession, with an indorsement thereon of the fact of such marriage and the time and place of celebrating the same.’
There is no statutory provision in W.Va. authorizing proxy marriage ceremonies. Only ministers of the gospel, who are duly authorized as provided by Section 4690(12) of the W.Va. Code of 1937, shall celebrate the rites of marriage and perform marriage ceremonies. The statutory law of W.Va. does not prescribe an exact form of marriage ceremony, but authorizes the form of ceremony prescribed by the law and customs of the various church denominations and religious societies. Since proxy marriage is not authorized by the statutory law of W.Va., and no exact ceremony is provided for celebrating the rights of marriage then the statutory law of W.Va., comprehends and requires a solemnization of the marriage ceremony as that term is generally understood and applied in law. Solemnization of marriage, or the celebration of the marriage ceremony or rites comprehends a personal appearance together by the contracting parties before one authorized by law to celebrate marriage ceremonies, and that the marriage ceremonies or rites be entered into and performed by the parties to such marriage together with the minister or other person authorized to perform such in the presence of each other and one or more witnesses, in order that the fact of the marriage contract may have due publication for the sake of notoriety, and the certainty of its being made. 18 R.C.L. Section 20, p. 400. Statutes regulating marriages do not generally prescribe any particular form, but recognizes the right of the parties to choose any form they may desife. Such is the effect of the W.Va. statutory law. Therefore, the marriage ceremony of plaintiff and defendant was not in conformity with the statutory laws of W.Va. Although proxy marriages are not authorized in Ohio, but if a proxy marriage is valid and legal in the jurisdiction where it was performed it would be recognized as a valid and legal marriage in Ohio, Hardin v. Davis, Com.Pl., 16 Ohio Supp. 19. If the proxy marriage herein had been consummated by copula, cohabitation as husband and wife, or other action or conduct of the parties which would have amounted to a consummation and ratification thereof, then an entirely different question would be presented.
If the power of attorney, and authorization of marriage by proxy, executed by plaintiff (pxl), and the securing of the marriage license by defendant, followed by her entering into the proxy marriage ceremony, plaintiff not being present thereat, be construed as a contract to marry in praesenti, still under the facts and circumstances proven there would not now be a common law marriage between plaintiff and defendant. To constitute a common law marriage an agreement in praesenti must be accompanied and followed by cohabitation as husband and wife, and they must be treated and reputed as being married in the community and circle in which they move, Umbenhower v. Labus, 85 Ohio St. 238, 97 N.E. 832.
Plaintiff and defendant are now in a status of voidable marriage. Shafher v. State of Ohio, 20 Ohio 2;Moser v. Long, 8 Ohio App. 10; Gill v. Gill, 2 Ohio Law, Abstract 14.
The Court in the exercise of its ordinary equity or chancery powers has jurisdiction to grant a decree of annulment as prayed for by plaintiff. Since the marriage is voidable, plaintiff is not entitled to divorce. Waymire v. Jetmore, 22 Ohio St. 271;Clowry v. Clowry, 16 Ohio Cir.Ct. R. 302;Miller v. Miller, 1 Ohio Dec. 354; Moser v. Long, supra; Gill v. Gill, supra; Smith v Smith, 72 Ohio App. 203, 50 N.E.2d 889;Heath v. Heath, 25 Ohio N.P. N.S. 123.
Not only are the plaintiff and defendant in this action affected by and concerned with their status resulting from the factual situation presented in this case, but society generally, and the communities in which they reside are, also, vitally concerned, in the interest of the ordinary rules of good morals. On the fact of the records of the County Court of Ohio County, W.Va., there is a marriage by and between plaintiff and defendant. If it be a void marriage, that fact should be determined and decreed by a Court of competent jurisdiction so that the parties could hereafter guide themselves accordingly. If it be a voidable marriage, that should be determined and decreed by a Court of competent jurisdiction. If it be a legal and valid marriage, then that should be determined by a Court of competent jurisdiction, so that the parties thereto may know their legal and moral obligations toward each other. Also, so that society generally, and the community in which plaintiff and defendant reside, may know for certainty whether or not the ordinary rules of morality are being complied with, and not digressed or violated by the future conduct of these parties.
For the reason above indicated, the Court is of the opinion that the marriage by and between plaintiff and defendant is voidable, and that plaintiff is entitled to a decree of annulment, and that plaintiff and defendant be placed in the position of being absolutely divorced from each other.
Counsel are advised that no entry is being made at this time, but it is requested that counsel prepare a docket entry, and journal entry in accordance with this opinion.