
    AS TO ALIMONY PFNDENTE LITE UNDER A MARRIAGE FOUND TO BE ILLEGAL.
    Common Pleas Court of Wayne County.
    Anna R. Fultz v. George W. Fultz.
    Decided, May 4, 1910.
    
      Husband and Wife—Marriage and Divorce—Alimony Pendente Lite— Woman Contracts a Second Marriage Under the Mistaken Impression that Her Husband was Dead.
    
    1. A woman, who believes her husband dead and marries another, is not entitled to alimony pendente lite in an action against the latter for a divorce on the grounds of gross neglect and cruelty, when it appears that after her second marriage she learned that her first husband was still alive and that neither had ever obtained a divorce.
    2. The second marriage was absolutely void and the plaintiff is not and never was the wife of defendant.
    
      Kean & Adair, for plaintiff.
    
      M. L. Spooner, contra.
   Weygandt, J.

This matter was heard on the motion of plaintiff for an allowance of alimony pendente lite in her action for divorce. The plaintiff, in her petition, charges the defendant with gross neglect of duty, extreme cruelty and adultery. The defendant, by answer, denies each and-every allegation in the petition, which denial' goes to the allegation of marriage as well as to the other allegations, and the evidence offered was chiefly directed to this allegation of marriage and its denial.

From the evidence offered, it appears that the plaintiff was married to one Jacob Sturgis in the year 1872 and that they lived together until 1878, when Sturgis left their home in Massillon, but the evidence is very indefinite and uncertain as to the cause of his hurried departure for parts unknown. Some time after this, the plaintiff claims that she was told by the father of Sturgis that he had been found dead by a haystack somewhere in Illinois, but it does not appear that she ever made any further inquiry or effort to verify this report. In 1882 she was married to the defendant at Aurora, Illinois, and later eame to Wooster, where they have oontinued to live as husband and wife until a few months ago, when plaintiff left their home because of the wrongs complained of in her petition. She never obtained a divorce from Sturgis and never knew of any application for a divorce by Sturgis.

From this evidence there is no doubt in my- mind that no divorce was ever granted either to Sturgis or to plaintiff. Sturgis is still alive and this plaintiff is still his lawful wife. In the year 1898 Sturgis visited his old home near East Union, in this county, and plaintiff admits that she knew of this visit. It further appears from statements of counsel that the deposition of Jacob Sturgis will be taken to be used in the final trial of this action. Under such circumstances, can this court make an allowance of alimony pendente lite ?

Tier marriage to defendant in 1882 was absolutely void because she then had a husband living. No divorce had been obT tained by either. It may be true that she never heard from Sturgis from 1878 until his visit to Wayne county in 1898. It is argued by counsel that the absence of Jacob Sturgis for so many years with no word from him, raised a presumption of his death, and a conclusive presumption after seven years. This may be true but it is still only a presumption and can not prevail against the fact that he is still alive, or, so far as the evidence - goes in ■this hearing, was alive in 1898. No presumption is of any avail as against this conclusive proof that he was still alive in 1898.

The plaintiff admits her marriage to Sturgis, and no presumption of divorce can arise. The marriage being admitted and the proof conclusive that Sturgis was alive in 1898, the burden is on the plaintiff to prove that a divorce was granted to either herself or to Sturgis. There is no such proof and the presumption is that they are still husband and wife while both are living. It necessarily follows that her alleged marriage to the defendant in 1882 was absolutely void, and she is not now and never was the wife of George Fultz. She may have acted in the utmost good faith when she married Fultz, honestly believing that Sturgis was dead. Conceding all that, yet, if Sturgis was still alive her marriage to Fultz was null and void.

Suppose that she did, in good faith, believe that Sturgis was dead when she married the defendant, she learned in 1898 that he was still living. Learning that fact at that time, what was her duty under the circumstances? She must be presumed to have known the law, and under the law to continue to live with Fultz as his wife was only to live with him in a state of adultery and in violation of law. She should have immediately left the home of Fultz and obtained a divorce from Sturgis. She could then have contracted a legal marriage with Fultz if she wished to be his wife.

It is also argued by counsel that more than seven years having elapsed since Sturgis was last seen alive in this county, a presumption of death arises, and the fact that these parties continued to live together as husband and. wife amounts to a common law marriage. This can not be true. She knew Sturgis was alive in 1898, and that she, therefore, was not the wife of Fultz. No presumption of death arises because she did not hear from bim here in Wayne county. This was not his home, and had not been for more than twenty years. There is no proof that he has not been seen or heard from during the past ten years at the place where he has lived since going away in 1878, and which, I am informed, is' in the state of Minnesota. Before such presumption can arise proof of this character must be offered.

But there is a still more serious objection to this claim of plaintiff. To establish a .common law marriage with the defendant after a presumption would arise that Sturgis was dead, there must have been an agreement between these parties to become husband and wife, and that agreement must have been carried out by their living together and cohabiting as man and wife. This is the rule announced by our circuit court in the Umbenhour case. There is no evidence whatever of any such an agreement, and I think it may be safely said there was no such agreement. True, they continued, to live together, but iji the absence of any such agreement they were living in a state of adultery and in violation of law.

But the plaintiff fixes her own status by the petition she files in this action. She does not allege a common law marriage to the defendant after 1898, but alleges her marriage to him in 1882, and this is the marriage which she seeks to have dissolved by a decree of divorce.

My attention is called to the first statutory cause for divorce, “that either party had a husband or wife living at the time of the marriage from which the divorce is sought. ’ ’

I think the reasonable construction to be given to this statute is, that a party who finds himself or herself wedded to one who has a wife or husband living by a former marriage may apply for a divorce. Perhaps one, who in good faith has1 contracted marriage, honestly believing a former spouse dead or divorced, may apply to have the subsequent marriage declared null and void after discovering that such former husband or wife is still living. The plaintiff does not ask this, but, as the wife of defendant, asks for a divorce on other statutory causes. In the casé of Collins v. Collins, 71 N. Y., 269, which is a case very like the one at bar, the court .say, speaking of alimony pendente lite:

“As the allowance is only authorized in favor of the wife, it must be admitted, or proof must be submitted, sufficient to authorize the court to determine that the applicant stands in the relation of a wife to the opposite party; and, when in answer to her allegation of marriage, facts are stated showing that the applicant was not competent to contract such marriage, and did not thereby become his wife, as that she was at the time the wife of another, such facts must.be denied or explained to the satisfaction of the court; if left uncontroverted, the court is not justified in making allowance.”

The facts in the ease at bar are not controverted but admitted. In the case just cited, the court say in the opinion:

‘ ‘ The plaintiff is bound to present a case to the court, showing that she has a fair prospect of success in the action, and that she controverts and intends to litigate the matter set up by the defendant, and has reasonable grounds for doing so. On these papers, as they stand, no ground is disclosed upon which she can maintain this action. ’ ’

Suppose that plaintiff obtained a decree of divorce in this action, -and then desired to marry while Jacob Sturgis was still living, would any lawyer advise her that she might legally do so without first obtaining a divorce from Sturgis? Why may she not, today, file her petition in this court for a divorce from Jacob Sturgis? She then has two divorce suits pending against two husbands. To one not of the Mormon faith this must seem ridiculously absurd.

Under the rule announced in the case of State v. Moore, 1 Dec. (Reprint), 171, if Sturgis were to die today, the plaintiff might legally marry again tomorrow without regard to her past relations with the defendant, Fultz. She would not be guilty of bigamy because she is not the wife of Fultz.

It is an unfortunate situation for this plaintiff, but the law will leave her where she has voluntarily placed herself, so far as this action is concerned. This petition charges this defendant with the commission of the grossest .wrongs which a wife can suffer, and naturally awaken sympathy in her behalf; but not being his wife, she can not complain. In equity she may obtain relief as to the property, if any, which they may have accumulated by their joint efforts, but not in this action. She seeks relief here as the wife of Fultz, and not being his wife, no relief can be awarded.

The motion will be overruled.  