
    McHenry v. McHenry.
    
      Divorce and alimony — Burden of proof — Status of former marriage — Presumption of death after seven years absence.
    
    1. Where suit is 'brought by a wife for divorce and alimony and the defendant husband files an answer and cross-petition asking for a divorce from the plaintiff on the ground that plaintiff at- the time of her marriage with defendant had a husband living, and the record is silent as to whether there was a divorce lof the parties to the former marriage, there is a presumption that the status of the parties to the first marriage remains the same, and the burden is upon the plaintiff to overcome the presumption.
    2. The rule as to presumption of death due to seven years absence is subject to limitations, and is not applicable where the failure of the absentee to communicate with his friends for seven years can be satisfactorily accounted for upon an hypothesis other than that of death.
    [1] Marriage, 38 C. J. §§102, 104; [2] Death, 17 C. J. §5.
    (Decided April 16, 1923.)
    Error: Court of Appeals for Hamilton county.
    
      Messrs. Alcorn & Alcorn, for plaintiff in error.
    
      Messrs. Rogers <& Simmonds, for defendant in error.
   Hamilton, J.

The plaintiff in error brought her action in the Court of Common Pleas, division of domestic relations, for a divorce and alimony.

She alleges in her amended petition many acts of extreme cruelty, some of which were amply proven at the trial, as shown by the record.

The defendant answered, denying the allegations of extreme cruelty, in part, and by way of cross-petition asked that he be granted the divorce on the ground that the plaintiff at the time of her marriage with him had a husband living, and alleged acts of misconduct and extreme cruelty toward him. Some of the allegations of the defense as to misconduct and cruelty are established by evidence, as shown by the record.

The trial court found that at the time of the marriage between plaintiff and defendant the plaintiff had. a husband living, and that by reason thereof the marriage was void, and found the allegations of defendant’s cross-petition to be true and entered a decree dissolving the marriage relation, setting the marriage aside and holding it for naught.

The court found that the allegations of plaintiff’s second amended petition were established and proven, but were immaterial, and made no findings as to the alimony and property. rights.

From that judgment, the plaintiff in error prosecutes error to this court. The only question presented is the claim that the decree is against the weight of the evidence.

As above stated, the trial court based its decree setting aside the marriage on the sole ground that the plaintiff, at the time of her marriage to the defendant, had a husband living.

The plaintiff testified that her first husband, Harry Britten, died on the 16th day of November, 1909, and that he was buried in a little graveyard near Preacher, Kentucky, on November 17, 1909. She was married to the defendant September 2, 1916.

The owners of a hotel at Crofton, Kentucky, testified that the plaintiff and her husband, Harry Britten, resided at their hotel from December 15, 1909, till March or April, 1910; that they were residing there when they purchased the hotel on December 15, 1909; that some time in March or April, 1910, the plaintiff left the defendant and left the hotel and came to Cincinnati; that the husband, Harry Britten, finding she had left, expressed satisfaction, although she had taken all their belongings with her.

It is contended by plaintiff in error that the burden of proof was on the defendant to prove that the former husband was living at the time of the marriage; and, further, that the absence of the husband of the defendant for a period of seven years raised the presumption of death.

The seven-year presumption, if strictly construed, would not apply, for the reason that from the testimony of plaintiff herself her husband was buried November 17, 1909, and her marriage to the defendant took place September 2, 1916. The seven years had not elapsed at the time of her marriage to defendant. But, waiving that, we go to the rule as to the presumption of death due to absence.

In the case of Curry, Trustee, v. Pierrot, decided by this court February 24, 1920, and reported in 12 Ohio App., 506, the first proposition of the syllabus is:

“The rule that an absentee who has not been heard of for seven years is presumed to be dead is subject to limitations, and circumstances may be such that no presumption of death will arise.. Where the failure of ail absentee to communicate with his friends1 is satisfactorily accounted for on some other hypothesis than that of death, the presumption of death resulting from his absence, unheard of for seven years, does not-arise.”

This rule, as announced by this court, is supported by a long line of authorities cited. The rule is applicable here.

There is no claim made that the husband, Britten, absented himself voluntarily from the plaintiff. The question is, Did the plaintiff’s former husband die, as claimed by the plaintiff? The question of the burden of proof on this proposition is argued in the brief of plaintiff in error, and, on this proposition, we are of opinion that the case of Industrial Commission v. Dell, Exrx., 104 Ohio St., 389, is applicable. The third proposition of the syllabus is:

“Where it is stipulated that both marriages have been lawfully solemnized and the record is silent as to whether there has been a divorce of the parties to the first marriage there is a presumption that the status of the parties to the first marriage continues, and the burden is upon the parties claiming the validity of the second marriage to overcome such presumption.”

We are of opinion that upon the evidence the trial court was justified in finding that the death of the first husband, Britten, did not occur, as testified to by the plaintiff; that the rule as to absentees does not arise in this case; that under the decision of the Supreme Court in the case of Industrial Commission v. Dell, supra, it was incumbent upon the plaintiff to show the validity of the second marriage, the one in issue here. ' Moreover, the trial court may have found that the defendant sustained the burden of disproving the validity of the second marriage.

Under the law and the' facts, the judgment of the trial court was correct and will be affirmed.

Judgment affirmed-

'Cushing and Buchwalter, JJ., concur.  