
    No. 410
    KITTY N. McHENRY v. L. L. McHENRY
    Ohio Appeals, 1st Dist., Hamilton County
    No. 2122.
    Decided April 16, 1923
    DIVORCE — (1) Presumption of death from con tinued abuse for long period is subject to certaii exceptions — (2) Burden of proof as to whethe subsequent marriage is valid.
    Attorneys — Alcorn & Alcorn, for .Kitty McHenry Rogers & Simmonds, for Lowry McHenry.
   HAMILTON, J.:

Epitomized Opinion

Kitty, McHenry brought an action for divorce an< alimony in Common Pleas Court of Hamilton count? She claimed extreme cruelty. The defendant by wa; of cross-petition claimed that plaintiff had a husbam living at the time of her marriage to him, and tha she had been guilty of extreme cruelty. At the tria plaintiff produced evidence showing that defendan had been guilty of cruelty toward her, and the hus band did likewise. The plaintiff also claimed tha her first husband died on Nov. 16, 1909, at Preacher Ky. Defendant introduced evidence to show tha plaintiff and her first husband resided at a hotel ii Crofton; Ky., from Dec. 16, 1909, to April, 1910. Th court dissolved the marriage contract, granted th divorce to defendant and made no findings as to th' alimony and property rights. From this judgmeni plaintiff prosecuted error, claiming that the burdei of proof was on the defendant to prove that plaintif had a former husband living. In sustaining th judgment of the lower court, the Court of Appeal held:

1. The rule that an absentee who has not bee: heard of for seven years is presumed to be dead, doe not apply where the failure of an absentee to com municate with his friends can be satisfactorily ac counted for on some other hypothesis than that o death, as was the case here. '

2. When it appears that both marriages had bee lawfully solemnized and the record was silent as t whether there had ben a divorce of the parties to th first marriage there was a presumption that th status of the parties to the first marriage continuec and the burden of proof is upon the party claimin' the validity of the second marriage to overcome sue presumption, which plaintiff failed to do in this cast  