Summary
In Ramphrey v. Ramphrey, 243 Miss. 184, 137 So.2d 906 (1962), a husband attempted to set aside the divorce decree granted to his wife. He alleged that at the time of their marriage his wife was still married to a former husband, and as proof he submitted a divorce decree obtained by his wife from her first husband after her marriage to her second husband.
Summary of this case from Smith v. WeirOpinion
No. 42194.
February 19, 1962.
1. Divorce — petition to set aside divorce decree on ground of prior existing marriage — burden of proof — presumption of validity of subsequent or last marriage.
Husband who sought to set aside divorce decree granted wife on ground that at time of marriage wife was still married to former husband, was required to show that former husband had not obtained a divorce prior to marriage of wife to present husband or that former husband was not living at time of marriage.
Headnote as approved by McGehee, C.J.
APPEAL from the Chancery Court of Washington County; S.B. THOMAS, Chancellor.
Fountain D. Dawson, Greenville, for appellant.
I. The dismissal of the petition of the defendant by the Chancellor was manifestly wrong, against the overwhelming weight of the evidence, and not supported by substantial evidence.
A. The marriage to defendant was a nullity and void, ab initio. Clark v. Clark, 115 Miss. 726, 76 So. 638; Rundle v. Pegram, 49 Miss. 751.
B. The respondent, Neva Jackson, perpetrated a fraud upon the defendant, and she committed a crime. Blanks v. Southern R. Co., 82 Miss. 703, 35 So. 570; Sec. 2019, Code 1942.
C. The divorce decree entered by the Washington County Chancery Court on October 22, 1958, was a nullity and void, ab initio. Ellis v. Ellis, 152 Miss. 836, 119 So. 304; McIntosh v. McIntosh, 151 Miss. 78, 117 So. 352.
D. The Chancellor erred and was manifestly wrong in sustaining the motion to strike Paragraphs 6 and 7 of the defendant's petition. Germaine v. Harwell, 108 Miss. 402, 66 So. 396; Marshall v. Hamilton, 41 Miss. 299.
E. The Chancery Court of Washington County did not have jurisdiction of subject matter to grant a divorce decree on October 22, 1958. 17 Am. Jur., Divorce and Separation, Sec. 469 p. 384; C.J.S., Divorce, Sec. 169 p. 684.
Howard Dyer, Jr., Greenville, for appellee.
I. A presumption arises with a subsequent marriage that a former marriage has been terminated by divorce or by death of a prior spouse, and in the absence of proof to the contrary, the presumption must prevail. Anderson-Tully Co. v. Wilson, 221 Miss. 656, 74 So.2d 735; Bonds v. Bonds, 226 Miss. 347, 84 So.2d 397; Pigford Bros. Constr. Co. v. Evans, 225 Miss. 411, 83 So.2d 622; Vaughan v. Vaughan, 195 Miss. 463, 16 So.2d 23; Walker v. Matthews, 191 Miss. 489, 3 So.2d 820; Wallace v. Herring, 207 Miss. 658, 43 So.2d 100.
II. The recitals of a decree of a court of general jurisdiction granting wife a divorce are not subject to a collateral attack in a husband's subsequent suit to set aside a decree for child support. Chambliss v. Chambliss, 182 Miss. 480, 181 So. 715; Honeywell v. Aaron, 228 Miss. 284, 87 So.2d 562, 88 So.2d 558; Jones v. Goolsby, 218 Miss. 847, 68 So.2d 89; Stanley v. Stanley, 201 Miss. 545, 29 So.2d 641.
The appellant, George Ramphrey, Jr., and the appellee, Mrs. Neva Ramphrey, were married on April 27, 1947, in Washington County, Mississippi. They lived together pursuant to the said marriage for a period of more than eleven years and there were two children born of this marriage. Finally the appellee filed suit for an obtained a divorce from the appellant on the ground of habitual cruel and inhuman treatment, was awarded the custody of the two children and an allowance of $100 per month or $50 for each of the said children per month.
It later developed that the appellee obtained a divorce from her former husband, Leroy Jackson, on June 23, 1947. The proof discloses that Leroy Jackson was living in the State of California at the time Neva obtained her divorce from him in the State of Arkansas under the "quickie" divorce laws of that state.
Neva later cited the appellant for contempt of court in failing to meet the payments of alimony for the support of their two children. However the chancellor found and adjudicated that George was not in contempt of the court. Later he filed a petition to set aside the decree of divorce which had been granted to the appellee and to cancel the decree for the payment of alimony for the support of the two children, and wherein the decree also awarded the custody of the children to the appellee.
The trial court denied the relief sought by this petition and the husband appeals. The theory of his petition was that he was not legally married to the appellee on April 27, 1947, since she had not at that time been divorced from her former husband, Leroy Jackson, but obtained the divorce in Arkansas after her marriage to the appellant.
(Hn 1) The presumption of the validity of a subsequent or last marriage is one of the strongest presumptions known to the law. It was, therefore, incumbent upon George Ramphrey, the petitioner seeking to set aside the decree of divorce from the appellee, to show that Leroy Jackson had not obtained a divorce in the State of California prior to the marriage of the appellee to the appellant or that Leroy Jackson was not living at the time of the appellant's marriage to the appellee. The appellant frankly admitted that he had never seen Leroy Jackson and that he did not know whether he was dead or that if living, he had not obtained a divorce from the appellee at the time of the marriage of the appellant and the appellee on April 27, 1947. Therefore the decree appealed from must be and the same is hereby affirmed.
Affirmed.
Kyle, Arrington, Ethridge, and Gillespie, JJ., concur.