Smith v. Smith , 247 Ala. 213 ( 1945 )

The appeal is from a decree of annulment of marriage.

The appellant concedes the truth of the first aspect of the bill of complaint as last amended, that she married the appellee in Cedartown, Georgia, within sixty days following the granting of a divorce in her favor from her former husband, Kenneth O. Chesser. She further concedes, in view of the case of Brand v. State, 242 Ala. 15, 6 So.2d 446, that this ceremonial marriage was void, although at the time of the consummation of the same she did not know that her marriage to the appellee was illegal; that is, she concedes that it was void due to the fact that it was consummated within sixty days after the granting of a divorce in her favor from her former husband, Kenneth O. Chesser.

In support of assignment of errors 1 and 2, appellant insists that although her ceremonial marriage be void, nevertheless, she became the lawful wife of appellee through a common-law marriage, and was such lawful wife at the time of the filing of the original bill of complaint in this cause, previous thereto, and still is at this time. The appellant in her answer to the original bill of complaint admitted that she married the appellee in Cedartown, Georgia, on November 9, 1942. Upon oral examination before the court, she testified in substance as to the common-law marriage feature of this case, that within two weeks following the marriage of the appellant and the appellee, the appellee was inducted into the army; that during the two weeks immediately after the marriage of the appellant and appellee, and before his induction into the army, they lived together in Anniston, Alabama, and slept in the same bed; that upon the induction of the appellee into the army, he was first stationed at Fort Bragg, North Carolina, and that she did not accompany him there. The appellant further testified that after the appellee was inducted into the army, he first returned to Anniston, Alabama, in July, 1943, on a furlough from the army, at which time he stayed two weeks; that during this period in July, 1943, the appellant and appellee slept in the same bed as husband and wife, and during this time had sexual intercourse on several different occasions; that during July, 1943, the appellee held the appellant out to the public as his wife; that during this period of time, they went several places together; that they went to see all of the people of the appellee, and he, on these occasions, held out the appellant as his wife, and that they went to the movies several times during this time; that when the appellee was in Anniston in July of 1943, he never questioned their marriage at all; and that she did not know anything about the appellee questioning their marriage until the proceeding for annulment of the marriage came up. The appellant further testified that she is getting an allotment from the government on account of her marriage to the appellee; and that the appellee told the appellant that he was tired of having an allotment paid to her, and that he wanted to have it discontinued, and that is the reason he wanted an annulment of the marriage.

With reference to the common law marriage feature of this case, the appellee testified in substance that when he was in Anniston, Alabama, on furlough in July, 1943, he slept in the same bed with the appellant on one or two nights, but absolutely had no marital relations with her, and that he had not seen her since July of 1943; that the last time he had sexual intercourse with the appellant was on November 22, 1942, the night before he went into the army the next day; that he first learned their marriage was illegal on the 10th of October, 1943, or about that time; that upon his last visit to Anniston in July, 1943, he saw the appellant on several occasions, but soon discovered that she did not love him or ever want to live with him again, and all she wanted was the allotment she was getting from the government; and that on this occasion he did not have any sexual relations with her and did not live with her as her husband.

Relative to the common law marriage feature of this case, it was observed in Hill v. Lindsey, 223 Ala. 550, 137 So. 395,397, "It is the well-settled rule that if parties in good faith marry when in fact a legal impediment exists to their marriage, and they continue to cohabit as man and wife after the removal of the impediment of their lawful union, the law presumes a common-law marriage." To like effect is Prince v. Edwards,175 Ala. 532, 57 So. 714, 715.

It is established in this jurisdiction that, "Where parties who are incompetent to marry enter an illicit relation, with a manifest desire and intention to live in a matrimonial union, rather than in a state of concubinage, and the obstacle to their marriage is subsequently removed, their continued cohabitation raises a presumption of an actual marriage immediately after the removal of the obstacle, and warrants a finding to that effect." Prince v. Edwards, supra.

"The decisions are that marriage may be contracted in this state by parties competent to so contract without ceremony or solemnization, by mutual and actual agreement and consent by the parties capable in law to that marriage relation, permanent and exclusive of all others, followed by cohabitation as man and wife and their mutual assumptions openly of marital duties and obligations." Rogers v. McLeskey, 225 Ala. 148,142 So. 526, 527.

In the last cited case it was further held that the conduct and declarations of the cohabiting parties during the time are admissible as a part of the res gestae of the cohabitation, and illustrate the intention and act of the parties so cohabiting to be husband and wife, and that abandonment by the husband after common law marriage did not change the relationship of that as husband and wife.

No particular words or formalities are required to constitute a common law marriage in the State of Alabama. "To constitute such a marriage it is only necessary that there should be a mutual consent between the parties to be husband and wife, followed by cohabitation and living together as man and wife, and upon the establishment of such relation there is a lawful marriage, in this state, without regard to what the parties consider the legal effect of such relation to be." White v. White, 225 Ala. 155, 142 So. 524, 525.

At the time of the marriage in question, it is admitted that a legal impediment existed, to wit, that sixty days had not elapsed since the granting of the divorce in favor of the appellant against her former husband, Kenneth O. Chesser. However, after the running of the sixty days' restriction in the Chesser divorce decree, the impediment for a lawful marriage was then removed, and under the law the appellant was permitted to again contract marriage, which she could do either ceremonially or through the medium of a common law union. The impediment having been removed, as was shown in this case, the acts and doings of the parties subsequent thereto, to wit, in July, 1943, several months after the removal of the impediment, clearly evidence the fact that these two persons considered themselves as husband and wife. Although some of the evidence as to the acts and doings of the parties subsequent to the removal of the impediment is in conflict, the burden of proof resting on the appellant to establish the common law marriage she asserted through her answer in the pleadings has been met. It was shown that they lived together in Anniston, that they went out together to visit friends and relatives; that they slept together, and appellee held appellant out to the public as his wife, without objection on the part of the appellant.

It must be borne in mind that both the appellant and the appellee are cast in the category of young people, and it is the necessary and reasonable conclusion to be reached that they engaged in sexual intercourse during July, 1943, in Anniston, Alabama, even assuming the truth of the appellee's testimony that they only slept together for one or two nights. There is no evidence that either of the parties was sexually deficient. Judging the case at hand by the necessary elements that must be present to constitute a common law marriage, as enunciated in White v. White, 225 Ala. 155, 142 So. 524, and Rogers v. McLeskey, 225 Ala. 148, 142 So. 526, referred to hereinabove, there can be no doubt that the parties were husband and wife at the time of the filing of the original bill of complaint.

It is shown without dispute that in July, 1943, appellant and appellee slept together in the same bed for one or two nights in Anniston, Alabama, when appellee was on furlough from the army and this is evidence of the fact that they considered themselves to be husband and wife. There is nothing to show that this cohabitation was not voluntary. The appellee stated he does not love appellant, and that he found during the month of July, 1943, upon his visit to Anniston, Alabama, that appellant does not love him, but he did not discover the illegality of the marriage in Cedartown, Georgia, until October 10, 1943. When appellee left Anniston, Alabama, in July, 1943, he did not intend to return to live with the appellant. Nevertheless his acts and doings during the month of July, 1943, as heretofore indicated, brought into being the common law marriage in question, and any abandonment by him as the husband after the consummation of the common law marriage did not change the relationship he bore to appellant as her husband. Rogers v. McLeskey, 225 Ala. 148, 142 So. 526. During July, 1943, the appellee, according to the evidence given by the appellant, introduced the appellant to various persons as his wife. These declarations alone lend support to the fact that the parties intended to be husband and wife, and illustrated their intention and act to be husband and wife. Rogers v. McLeskey, supra.

In support of assignments of error 1 and 3, appellant says that, in event the court should disagree with the contention above and hold there was fraud as charged in the original bill of complaint, as first amended, concerning the concealment of the appellant from the appellee of her inability to bear children for him, there is no proof that the appellant was unable to bear children. The testimony on this point is to the effect that the appellant and appellee had never been examined by a medical doctor to determine their procreative powers; that is, their power to produce children. Therefore, it cannot be conclusively said with whom the fault lies for failure to produce children.

Assuming, as contended by appellee, that the appellant knew that she could not bear children and that she concealed this fact from the appellee when she knew that appellee wanted children, to constitute fraud perpetrated upon the appellee by the appellant, which the appellant denies, this marriage is still not legally subject to annulment on this ground in view of our cases of Hyslop v. Hyslop, 241 Ala. 223, 2 So.2d 443, and Raia v. Raia, 214 Ala. 391, 108 So. 11.

Appellee urges the validity vel non of the decree of divorce in the case of appellant and her former nonresident husband, brought in by service of publication and by posting at the court house. The question may be raised collaterally, and this is done on the instant pleading, and by argument of appellee's counsel. Ex parte Edwards, 183 Ala. 659, 62 So. 775; Ingram v. Ingram, 143 Ala. 129, 42 So. 24, 111 Am.St.Rep. 31. The general authorities on the subject are noted in 99 A.L.R. 1312, 1317; 17 Amer.Juris. § 480, p. 391.

Did the Circuit Court of Calhoun County have jurisdiction in the former suit for divorce by appellant against her former husband, as averred in the bill and in the affidavit alleging defendant to be a nonresident? That suit is governed by the rules that obtain in Code 1940. The cases of Anthony v. Anthony,221 Ala. 221, 128 So. 440; Wilkerson v. Wilkerson, 230 Ala. 567,161 So. 820, 821, were prosecuted to appeal under the former equity rules set out in the Code of 1923, §§ 9450, 6535; Equity Rule 22, Vol. 4, p. 914, Code 1923. It is held that the record should show with particularity the publication and posting rule was observed in order for the court to obtain jurisdiction of the person. The bill and affidavit in the case of the decree challenged by the instant appeal show that he was a nonresident, and that the place of his residence and post office address were unknown. Code 1940, Tit. 7, Appendix, Equity Rule 6, p. 1044; Rule 32, p. 1076.

In the instant case the reporter will set out the affidavit of nonresidence, the publisher's certificate of publication and the decree pro confesso entered by the register, and not by the trial judge. The order of August 11, 1942 of publication found in the record is not signed by the register, but the decree pro confesso entered by the register contained the recital of fact of service by publication and posting, stating particularly what and how publication was had, as required by the rule that obtains. Equity Rule 32, Code 1940, Tit. 7, Appendix, p. 1076, provides that no decree pro confesso can be rendered on notice by publication until the register makes and files such certificate.

Prior to the adoption of the new rules of equity, we had held that when the register makes a decree pro confesso which contains the recitals his certificate must contain, it was a compliance with the then existing rule. Code 1923, p. 916, Rule 29; Wilkerson v. Wilkerson, 230 Ala. 567, 161 So. 821; Phillips v. Ashworth, 220 Ala. 237, 124 So. 519; Cashen v. Baggett,233 Ala. 122, 170 So. 201.

We notice a difference in the language of the present Rule 32 and the old Rule 29. In the latter it was provided that when application is made to the chancellor for a decree, pro confesso, there must be a certificate, of publication made by the register before the chancellor shall enter the decree. That was necessary for the chancellor's information. Present Equity Rule 32 has such broad terms that it could be interpreted to mean that neither the chancellor nor the register shall enter a decree pro confesso without such certificate by the register. But this rule should have a reasonable construction so as to promote its purpose and not make it require useless repetition. If the register who has personal knowledge of when and how the publication was made makes the recital of that requirement in the decree pro confesso, it is not only such a decree, but it is also a certificate by him of the facts so recited, and is a sufficient compliance with Rule 32 as it now appears in Code 1940, supra.

We have examined the record and evidence as to the jurisdiction of the subject matter in appellant's former suit for divorce and find no failure in that respect. Ray v. Ray,245 Ala. 591, 18 So.2d 273; Harris v. Harris, 230 Ala. 508,162 So. 102; Murray v. Murray, 238 Ala. 158, 189 So. 877; Jones v. Jones, 189 Ala. 286, 66 So. 4.

The bill was timely filed. Johnson v. Johnson, 245 Ala. 145,15 So.2d 401. It is without merit as to the challenge of jurisdiction of the subject matter or of the person in the former suit.

It results that the decree of the circuit court annulling the marriage between appellant and appellee is in error and should be reversed.

Reversed and remanded.

GARDNER, C. J., and FOSTER and STAKELY, JJ., concur.

On Rehearing.