FITZPATRICK VS. FITZPATRICK (DIVORCE)

Key holdings

Practitioner summary

Plaintiff wife's appeal from a judgment for defendant in her divorce action, entered after the district court set aside a referee's report (taken on a consent reference) finding her entitled to a decree. Whitman, J., noted the irregularity of the procedure - on a general reference the report stands as the decision of the court (Stats. 1869, 224-5), and on a reference to find facts it stands as a special verdict on which the court finds conclusions of law (Stats. 1869, 225, 223) - but decided the case as argued, on the sole question whether the referee's findings supported the judgment. Under Stats. 1867, 88, males of eighteen and females of sixteen, not nearer of kin than second cousins and without a living spouse, may marry, provided males under twenty-one and females under eighteen first obtain parental or guardian consent; marriage is a civil contract at common law and under Stats. 1861, 94. The court held: (1) the second proviso (preserving legitimacy of issue) applies only to marriages of persons under the lawful ages of eighteen and sixteen and does not evidence intent to void non-consented marriages; (2) following the general construction of similar statutes (Parton v. Hervey, 1 Gray 119; Hervey v. Mosely, 7 Gray 479; Goodman v. Thompson, 2 C. Greene (Iowa) 329; 2 Kent 44, 52), absence of parental consent does not invalidate a marriage between parties of the statutory ages of consent - the statute substitutes eighteen and sixteen for the common-law ages of fourteen and twelve, and parties of consenting age are bound as by any other lawful contract voluntarily assumed. The referee found appellant was born in April 1853, married in September 1869 (over sixteen), and entered the marriage without force or fraud and with her full and free consent; those findings were conclusive, no ground of avoidance being presented. Judgment for defendant affirmed.

In plain language

A young wife brought a divorce action seeking to undo her marriage. By consent, the case was referred to a referee to take the testimony, and the referee filed findings concluding she was entitled to a decree. The same day, the district court set the report aside and directed judgment for the defendant husband, and the wife appealed. The Nevada Supreme Court affirmed. Under the 1867 marriage statute, males of eighteen and females of sixteen may marry, with a proviso requiring males under twenty-one and females under eighteen to first obtain the consent of a father, mother, or guardian. The referee found that the wife was born in April 1853 and married in September 1869 - so she was over sixteen at her marriage - and that the marriage was not procured by force or fraud but entered into with her full and free consent. The court held that eighteen and sixteen are the lawful ages of consent to marry, and that a marriage by parties of those ages without parental consent is nonetheless valid and binding: like courts construing similar statutes elsewhere, it read the parental-consent proviso as not making the marriage void. The second proviso protecting the legitimacy of children applies only to marriages of persons under the statutory ages and did not change that result. Because the wife made a valid, binding marriage contract and showed no legal ground to avoid it, the judgment for the husband stood.