Cross v. Cross , 94 Ariz. 28 ( 1963 )

PHELPS, Justice (Retired).

This is an appeal from a judgment and decree granting an absolute divorce to appellee, Katherine Cross, from appellant, Benjamin S. Cross and denying to him an annulment. The decree also gave to appellee alimony, attorney’s fees, and it distributed the asserted community property to the parties.

The prime issue, both in the court below and here, is the validity of the parties’ marriage. Appellant asserts there was no valid marriage in the first instance, and therefore there can be no divorce of a nonexistent union, but only a declaration annulling the attempt at marriage and no allowance for alimony, and attorney’s fees or a distribution of property as community.

The circumstances of the courtship and marriage of these two people are practically undisputed in the evidence. They met in 1953 and in May of 1954 they decided to marry. They were at this time both residents of the City of Phoenix, Arizona, and had been so for some time. Appellant was not married but appellee was then the wife of one Ruel Herbert Wheeler. This fact was known to both parties. Being thus apprised, they sought a divorce for appellee from Wheeler. They concluded they couldn’t afford the cost of a divorce in Phoenix but were advised that they could obtain the divorce in Nogales, Old Mexico, for a fraction of the cost of a Phoenix divorce. Upon their arrival in Nogales, they were unable to make suitable arrangements and went to Juarez, Mexico, where they finally met with success. There they located a man, purportedly a Mexican attorney, who agreed to obtain a divorce for appellee for $50. Appellant furnished the money and in the space of one afternoon and the next morning a divorce was ostensibly obtained. Appellee and appellant then went into the State of New Mexico where they were married. There is no testimony that appellee ever went before a judge, although she did say she went to the court house that morning to pick up the papers. No decree of divorce was introduced in the court below.

It is patent that the activities outlined above, which are not disputed, could not have resulted in a severance of the bonds of marriage between appellee and Wheeler. The Mexican Court, if indeed a court was ever involved, did not have the slightest semblance of jurisdiction to adjudicate the marital status of appellee and Wheeler and no serious contention is made to the contrary. We are compelled to hold that the purported divorce was a nullity, totally void and without any effect on the marital status of appellee and Wheeler.

Thus, we are faced with the issue of whether appellant, because of his active participation in, and financing of the Mexican divorce, is estopped to assert its invalidity in a proceeding directly concerning the marital status of the parties. Clearly there is no estoppel here. Both parties were in pari delicto in procuring the Mexican divorce. Therefore appellee did not act to her damage in reliance upon anything appellant did. City of Glendale v. Coquat, 46 Ariz. 478, 52 P.2d 1178, 102 A.L.R. 837; Lillywhite v. Coleman, 46 Ariz. 523, 52 P.2d 1157; Insurance Company of North America v. Williams, 42 Ariz. 331, 26 P.2d 117. Nor is the conscience of the court repelled in the instant case because the conduct of both parties is equally repulsive. Both participating fully, both are equally guilty. This problem has been most recently considered by this Court in Unruh v. Industrial Commission, 81 Ariz. 118, 301 P.2d 1029. In that case we specifically reversed a finding that a spouse who had secured a patently invalid Mexican divorce was not the legal widow of the man whom she had supposedly divorced by the Mexican proceedings. However, we also held that the court would not permit her to question the validity of the divorce for her own personal financial advantage on the grounds of quasi estoppel for the reason that the conscience of the court was repelled by the assertion of rights inconsistent with the wife’s past conduct.

The rule of the Unruh decision is not applicable here where the proceeding is directly for the purpose of attacking the marital status, regardless of the participation of the parties in the acquisition of the divorce. Campbell v. Campbell, Sup., 62 N.Y.S.2d 245; Smith v. Smith, 72 Ohio App. 203, 50 N.E.2d 889; Christopher v. Christopher, 198 Ga. 361, 31 S.E.2d 818; Gruttemeyer v. Gruttemeyer, 285 App.Div. 1185, 141 N.Y.S.2d 227. cf. Green v. Green, 77 Ariz. 219, 269 P.2d 718. Otherwise under the facts of this case we would in effect give validity to a divorce where there was neither evidence given to support it nor a court convened to hear it and by so doing would validate a subsequent bigamous marriage of a participant therein.

Appellee further contends that appellant failed to overcome the very strong presumption of validity operating in favor of the subsequent marriage. See McCord v. McCord, 13 Ariz. 377, 114 P. 968; Kolombatovich v. Magma Copper Co., 43 Ariz. 314, 30 P.2d 832; Sanders v. Sanders, 52 Ariz. 156, 79 P.2d 523. This doctrine was not urged below, but we will consider any legal theory within the issues and supported by the evidence which tends to support and sustain the judgment of the trial court. Phelps Dodge Corp., Morenci Branch v. Industrial Commission, 90 Ariz. 379, 368 P.2d 450; Mountain States Const. Co. v. Riley, 88 Ariz. 335, 356 P.2d 648.

An examination of those decisions reveals that the presumption therein announced is not conclusive, nor does it place a burden upon the party attacking a marriage to prove beyond any possible doubt that the marriage was invalid. Here, all the proof strongly tends to rebut the presumption of a valid marriage. The evidence concerning Ruel Herbert Wheeler was that he was alive at the time of the purported divorce and subsequent marriage the same day. All the evidence shows that the parties relied on and intended the Mexican divorce to dissolve appellee’s marriage to Wheeler so as to enable her to marry appellant. On these facts the presumption of validity is overcome. Any other result would be patent absurdity.

On the state of this record where there was no valid marriage of appellant to appellee, there can be no acquisition of property rights based on their marital status. In re Mortenson’s Estate, 83 Ariz. 87, 316 P.2d 1106; See also Stevens v. Anderson, 75 Ariz. 331, 256 P.2d 712.

We do not imply, however, that appellee has no claim for labor and money contributed during the course of the purported marriage which enriched appellant. The evidence shows that appellee used her personal funds and labored to improve appellant’s real property. Based on general principles of law and equity and without resort to the existence of the marital status she may recover the value of these contributions. The fact of a meretricious relationship does not bar appellee’s claim for contribution of funds and labor performed in improving appellant’s property during this relationship. Garza v. Fernandez, 74 Ariz. 312, 248 P.2d 869.

The judgment of the trial court is hereby reversed and the cause is remanded to the superior court with directions to enter a decree of annulment for the appellant on his “cross-complaint”. The superior court is further directed to conduct an appropriate proceeding for the purpose of determining the amount contributed by appellee in funds and services which directly improved appellant’s property. This amount should be offset by all sums previously paid to' appellee by appellant, if any, under the former divorce decree as attorney’s fees, alimony, and appellee’s share of the nonexistent community, subject to the court’s discretion under A.R.S. § 25-371.

Order case reyersed and remanded with directions.

BERNSTEIN, C. J., UDALL, V. C. J., and STRUCKMEYER, J., concur.

Note: The Honorable LORNA E. LOCKWOOD being disqualified, the Honorable M. T. PHELPS, Justice (Retired) was called to sit in her stead.