Brewer v. Miller , 673 S.W.2d 530 ( 1984 )

HIGHERS, Judge.

This action was commenced when Harry William Brewer (referred to as the plaintiff), filed suit against Hilda Faye Brewer (referred to as the defendant), to require the immediate sale of real property owned by the parties as tenants in common pursuant to a final decree of divorce dated October 15, 1979.

The final decree incorporated a property settlement agreement which contained the following language:

In the event wife remarries, her right to continue residing in the parties’ home shall terminate and the residence shall be immediately sold, and the net proceeds therefrom equally divided between the parties.

On or about October 16, 1981, the defendant remarried and the plaintiff alleges that the defendant thereby terminated her right to remain in the residence of the parties. The defendant answered and admitted the alleged marriage, but she averred that it had been annulled and declared void ab initio, and that she was entitled to continue to live in the home because there had been no valid remarriage.

The trial court denied the relief sought by the plaintiff and allowed the defendant to remain in the house. From that action the plaintiff brings this appeal.

The issue for consideration before this court is whether the defendant’s right to reside in the residential premises, as provided in the property settlement agreement incorporated into the final decree of divorce, is revived by the annullment of the defendant’s second marriage.

There are no reported Tennessee cases on the precise point at issue. Two cases have been cited to the Court, however, as bearing upon this question. In Gordon v. Pollard, 207 Tenn. 45, 336 S.W.2d 25 (1960), in a suit for personal injuries between a husband and wife whose marriage had been subsequently annulled, the Court stated: “We think that the annullment of a voidable marriage may well restore certain existing property and statutory rights to a spouse, but does not create in a spouse, husband or wife, a right to maintain an action against the other for a tort which occurred in Tennessee during the period the status of the parties was that of husband and wife.” 336 S.W.2d at 27. The doctrine of interspousal immunity was abolished in Tennessee by Davis v. Davis, 657 S.W.2d 753 (Tenn.1983), in which the Court stated: “We think the decision in Gordon v. Pollard, supra, is illustrative of the irrational and unjust results that may come from judicial adherence to once utilitarian, but now outmoded legal tenets.” 657 S.W.2d at 755. We do not believe that the ruling in Gordon v. Pollard, supra, is dispositive of the case sub judiee.

Further, we have been cited to the case of MacPherson v. MacPherson, 496 F.2d 258 (6th Cir.1974), a case arising out of the United States District Court for the Middle District of Tennessee, but applying Connecticut law, in which the court found that proof of a bigamous second marriage, standing alone, which resulted in annullment, was not sufficient to require the first husband to resume support payments under a prior separation agreement.

This problem has been dealt with in various ways in other jurisdictions. See 45 A.L.R.3d 1033 (1972). Some courts have held that a marriage which is void ab initio has no legal effect and annullment of such a marriage will serve to revive the obligations owed by a former spouse. Johnston v. Johnston, 3 Kan.App.2d 208, 592 P.2d 132 (1979); Broadus v. Broadus, 361 So.2d 582 (Ala.Civ.App.1978). Others have ruled that any remarriage terminates the right to alimony or support even where the second marriage is void. Torgan v. Torgan, 159 Colo. 93, 410 P.2d 167 (1966); MacPherson v. MacPherson, supra. Still others have held that annullment of a marriage which is not void but simply voidable will revive the former husband’s support obligations. Robbins v. Robbins, 343 Mass. 247, 178 N.E.2d 281 (1961); Peters v. Peters, 214 N.W.2d 151 (Iowa 1974).

The better-reasoned rule is that which distinguishes between second marriages which are void, and those that are voidable, and allows for reinstatement of the spouse’s right to support only in the former. A voidable marriage differs from a void marriage in that the former is treated as valid and binding until its nullity is ascertained and declared by a competent court. MacPherson v. MacPherson, supra. In Broadus v. Broadus, supra, the Court sets out in summary the following persuasive reasons for denying reinstatement where the second marriage is merely voidable:

(1) The first husband’s right to rely on the second marriage as a valid remarriage entitling him to recommit any assets previously chargeable to alimony to other purposes; (2) the fact that only the wife and her second husband would ordinarily know whether there was a cause for the annullment, thus creating a situation where the marriage might continue indefinitely and thereby cause the first husband’s affairs to be subject to the conduct of parties involved in a relationship in which he has no part; (3) the possibility that the wife’s divorce from her second husband could result in alimony from the second husband while an annullment could reinstate alimony from the first, thus permitting the wife to choose between two sources of support under circumstances where she should not be given such control in view of the fact that it was she who entered into the second marriage, and the subsequent vicissitudes of that marriage should not be attributable to her first husband; and (4) the potential for inequitable treatment to the first husband in that the wife’s obtainment of an annullment instead of a divorce could vitally affect the rights of her first husband by causing his obligation to pay alimony to be reinstated as a matter of law in a proceeding at which he was not represented or able to challenge the validity of the grounds asserted in support of the annullment. 361 So.2d at 584.

The foregoing reasons are inapplicable where the second marriage is void from the beginning. In the latter situation the parties stand in the same relationship as if there had never been a second marriage. A voidable marriage, however, is valid and binding upon the parties until such time as it is annulled by a competent court. Flaxman v. Flaxman, 57 N.J. 458, 273 A.2d 567 (1971). It is possible for a voidable marriage to be ratified and to ripen into a valid marriage. Evans v. Evans, 212 So.2d 107 (Fla.App.1968).

Although the trial court found in the instant case that the marriage between the defendant and Edward Miller was void ab initio, it is clear from an examination of the decree that it was merely voidable since the ground for annullment was that the marriage was never consummated. The trial court found that the marriage was void ab initio by application of the “relation back” doctrine which is a legal fiction fashioned by the courts to promote justice between parties to a voidable marriage. In Darling v. Darling, 44 Ohio App.2d 5, 335 N.E.2d 708, 711 (1975), the Court stated:

Although an annullment decree technically operates to hold both void and voidable marriages as nullities, as though they have never existed, this legal fiction of retroactive nullification of a once valid marriage should not be applied so as to work an injustice. The “relation back” doctrine is a legal fiction used to promote justice between the parties to a voidable marriage.

We believe the interests of justice are best served by holding that the voluntary remarriage of a party wherein the legal relationship is merely voidable at the option of that party operates to extinguish the right to alimony, support, or other benefits conferred as a result of a prior marriage which were decreed to terminate upon the remarriage of such party.

The judgment of the court below is accordingly reversed, and this matter is remanded for further proceedings consistent with this opinion. Costs of appeal are adjudged against the defendant.

NEARN, P.J. (W.S.), concurs. TOMLIN, J., dissents.