Olinghouse v. Olinghouse , 265 P.2d 711 ( 1954 )

WILLIAMS, Justice.

Parties are referred to herein as in the trial court.

Plaintiff, Francis Olinghouse, sued defendant, Glenn Olinghouse, for divorce, alimony and child support money, alleging that Rebecca Lenora Olinghouse was the child of the parties hereto. After hearing, the trial court awarded plaintiff a divorce and child support money. Defendant has appealed.

Defendant alleges, and the evidence showed, that at the time of a purported ceremonial marriage between the parties, defendant had a living, undivorced wife, Mrs. Jerry Olinghouse, and that this was known to both plaintiff and defendant. On the other hand, there was evidence reasonably tending to support the finding of the trial court that Francis and Glenn Olinghouse lived together and held themselves out to the public as husband and wife after February 24, 1950, the date a divorce procured by Mrs. Jerry Olinghouse became final. She had filed suit for divorce before the ceremonial “marriage” between plaintiff and defendant.

The only question argued at length by defendant is the proposition of law that a marriage bigamous at its inception does not become a legal marriage when the previously existing impediment is removed; that plaintiff therefore was never the wife of defendant and is not now entitled to a decree of divorce or child support money, since there is no presumption that defendant is the father of the child involved.

In support thereof, defendant cites Clark v. Barney, 24 Okl. 455, 103 P. 598, wherein the court held that under circumstances such as exist here, when the impediment to marriage was removed “without more such could not ripen into a common-law marriage.”

However, the rule announced in Clark v. Barney, supra, has been considerably modified, though never expressly overruled, in later decisions of this court. In Mantz v. Gill, 147 Okl. 199, 296 P. 441, the court held that where the second marriage was entered into in good faith and the parties continued to cohabit as husband and wife after removal of the impediment, a common-law marriage resulted. Thereafter, in Mudd v. Perry, 108 Okl. 168, 235 P. 479, Branson v. Branson, 190 Okl. 347, 123 P.2d 643, Hess v. Hess, 198 Okl. 130, 176 P.2d 804, and other cases,' this court adopted ever-broadening interpretations of the meaning of the term "good faith”. This is in accordance with the liberal construction of marriage laws in this state, as discussed in Andrews v. Hooper, 138 Okl. 103, 280 P. 424, and is grounded upon the humane desire to avoid marking the children of such marital relationships with the stigma of illegitimacy, as could be the case here.

We think also that, possibly because of inadvisable use of the term “ripen”, the holding in Clark v. Barney has been misinterpreted. The court there said that a void ceremonial marriage, upon removal of an "impediment, did not “ripen” into a valid common-law marriage. With this statement there can be no dispute; a void (as opposed to voidable) marriage, being a nullity, cannot “ripen” into anything, because in legal contemplation there is nothing to “ripen”. But the rule in Clark v. Barney, supra, was in the earlier decisions interpret-ed to mean that- no common-law marriage can ever come into being between parties ■who have purportedly- -“married” while a legal impediment existed. Whether of not the court intended to convey this meaning in Clark v. Barney, and because the ruling in that case has lost much of its applicability under later modifications, our previous holding in Clark v. Barney is hereby expressly overruled insofar as it conflicts with the following rule, which we deem to be controlling in this case:

The acts living together and holding themselves out 'as husband and wife, after removal of a legal impediment to marriage, constitute a common-law marriage, even though both parties knew of" the impediment.

It is to be noted that nothing in this opinion should be construed as an approval of the conduct of the parties in the case at hand in cohabiting purportedly as husband and wife while the defendant had a living, undivorced spouse and prior to the expiration of the six months provided by statute.

In 55 C.J.S., Marriage, § 43d, a .rule is stated to the effect that where, as here, parties enter into a course of 'illicit relations while there is an impediment to their marriage, it is presumed that the relation continues to be illicit after removal of the impediment “and the burden of proving a subsequent intermarriage rests on the party asserting it”.

We -believe plaintiff sustained such burden. The parties hereto agree that the divorce from Mrs. Jerry Olinghouse -became final on February 24, 1950-; her sister testified that plaintiff and defendant lived together as husband and wife till Memorial Day of 1950; there was testimony that defendant, on Nov. 8, 1950, bought and paid for a monument to be erected at the grave of a deceased child of the parties hereto in a cemetery at Tulsa, and- that- on that occasion he introduced plaintiff as-his wife. Plaintiff’s own testimony, of course, was to the effect that she and defendant lived together as husband and wife after February 24, 1950. Defendant’s evidence contradicted much of the above, but we cam not say that the judgment of the trial court in this respect was against the clear weight of the evidence.

It is also contended that defendant lived with his first wife, Jerry, after their divorce, that he was therefore the common-law husband of Jerry and could not be the common-law husband of Francis. This contention is not supported by the record, which conclusively shows that Jerry Olinghouse, in an application for citation for contempt against Glenn, on February 13, 1950, said under oath that she and Glenn had not lived together as husband and wife since the issuance of the decree of divorce.

The rule which we adopt herein (syllabus 1 hereof) is followed in other jurisdictions. In Thomey v. Thomey, 67 Idaho 393, 181 P.2d 777, the Idaho Supreme Court dealt with a situation.in which two parties began living together as husband and wife while the woman had a living, undivorced spouse, both parties knowing this to be true. In holding that they became common-law husband and wife when they continued to live together as husband and wife after the wife procured a divorce from her first husband, the court quoted with approval from Morrison v. Sunshine Mining Co., 64 Idaho 6, 127 P.2d 766, 769, as follows:

“Although the contract and consent marriage between Morrison and appellant, entered into July 10, 1937, was absolutely void at the time, the more reasonable rule seems to be that a continuance of the marital relation and assumption of its duties, after the impediment ceased (decree of divorce became final) and Morrison was capable of contracting marriage, amounted to a consensual marriage, under the statute, and could not be assailed or avoided.”

At the hearing on motion for new trial, defendant Glenn Olinghouse produced one Scott Hamm as a witness; Hamm testified willingly as to illicit relations with plaintiff during June or July of 1950. Even if the testimony of this witness were fully credible (he was a former employee of defendant Glenn Olinghouse, and he testified to sexual relations with plaintiff two weeks before and three days after his “happy” marriage to another woman), it had remote, if any, bearing on the question of the existence of a common-law marriage between Glenn and Francis Olinghouse immediately after Glenn’s divorce from Jerry became final on February 24, several months before the alleged illicit intercourse.

In the consideration of this case, we have been governed by the following well-established rule of law:

“In cases of equitable cognizance this court will examine the entire record and weigh the evidence, but unless the judgment rendered is clearly against the weight of the evidence it will not be disturbed on appeal.” Guy v. Guy, 204 Okl. 642, 233 P.2d 266.

The judgment of the trial court is affirmed.

CORN, ARNOLD, O’NEAL and BLACKBIRD, JJ., concur. HALLEY, C. J., JOHNSON, V. C. J., and DAVISON, J., dissent.