CLARK VS. CLARK (DIVORCE)

Key holdings

Practitioner summary

Defendant appealed from a Washoe County decree of September 30, 1919 granting plaintiff a divorce for adultery (defendant's February 16, 1910 ceremonial marriage to and open cohabitation with Emily James) and from denial of new trial. Defendant pleaded the invalidity of his August 6, 1892 Winnemucca marriage to plaintiff because his prior wife Mary E. Clark was living; plaintiff's reply pleaded her ignorance of the prior marriage, the April 10, 1893 California minute order granting Mary E. Clark a divorce (decree absolute signed March 6, 1906), and continued cohabitation thereafter. Held: (1) reaffirming Parker v. De Bernardi, 40 Nev. 361, where parties desire marriage and do what they can to render their union matrimonial, cohabitation matrimonially meant and continued after removal of a disability makes them husband and wife from the moment the disability no longer exists, even absent express renewal of consent and even where the removal is unknown; (2) the presumption of innocence of bigamy is rebuttable and fact-dependent and does not overcome the marriage shown here as a matter of law; (3) the finding of a post-impediment express contract of marriage was outside the issues and a nullity, but not prejudicial because the remaining findings, supported by the evidence, sustain the judgment; (4) the parties having lived and cohabited in Nevada before and after removal of the impediment, Nevada law controls. On rehearing (Coleman, C.J.), the judgment was again affirmed: the trial court could credit plaintiff's testimony of a mutual agreement after both parties learned of the 1893 divorce, corroborated by conduct, and defendant was in any event estopped to deny the marriage (citing Mason v. Mason, 101 Ind. 25); Sanders, J., concurred in the order on his original reasoning. The $125 monthly alimony award was left to plaintiff's separate appeal.

In plain language

Phoebe Boswell Clark sued Allen L. Clark for divorce on the ground of adultery: in February 1910 he had gone through a marriage ceremony with Emily James and lived openly with her as his wife. Allen's defense was that Phoebe was never his lawful wife at all - when they married in Winnemucca on August 6, 1892, he still had a living wife, Mary E. Clark, whose California divorce was not entered until 1893. Phoebe replied that she knew nothing of the first wife, that the impediment was removed by the 1893 divorce, and that the couple's continued life together as husband and wife for roughly eighteen years made her his wife. The district court granted Phoebe the divorce, and Allen appealed. The Nevada Supreme Court affirmed. It adopted the general rule that when parties marry in good faith but one is under a disability, their continued matrimonial cohabitation after the disability is removed makes them husband and wife from that moment - even if they never expressly renewed consent and even if they did not know the impediment was gone. A finding that the parties made a new express marriage agreement was outside the pleadings and treated as a nullity, but the remaining findings supported the judgment. On rehearing the court affirmed again, emphasizing that both parties learned of the 1893 divorce years before Allen left in 1910, that the trial court was entitled to believe Phoebe's testimony, and that Allen's conduct estopped him from denying the marriage. The alimony portion of the decree ($125 per month) was left for the wife's separate appeal.