Estate of Wood

69 P. 900, 137 Cal. 129, 1902 Cal. LEXIS 513

• Court: California Supreme Court
• Decided: August 5, 1902
• Docket: S.F. No. 2789.
• Status: Published

Opinions

GAROUTTE, J.

This appeal is prosecuted from an order denying appellant’s application for a family allowance, she claiming to be the surviving widow of the deceased, Joseph M. ¡Wood. It is taken on a judgment-roll without the evidence, and the denial of the family allowance was based solely upon the ground that appellant’s marriage with the deceased was a nullity. The appellant, Abbie Rose Wood, and the deceased, Joseph M. Wood, were married at Reno, in the state of Nevada, on January 1, 1898. The marriage was by license, and solemnized in all respects according to the laws of that state. At the date of the marriage Joseph M. Wood was an unmarried man, and the appellant, Abbie, had been previously divorced. Her divorce took place in the courts of the state of California, August 19,1897, and the deceased and appellant were residents of California. The divorce upon its face was absolute in form, and had not been appealed from at the time of the second marriage, a period of four and one-half months after the decree was rendered. Aside from the question involved as to the validity and effect of the aforesaid decree of divorce, the marriage in the state of Nevada was a valid, binding marriage.

These parties were entitled to enter into a contract of marriage in the state of Nevada, if appellant, upon January 1, 1898, had been previously divorced from her former husband by the decree rendered in the state of California. The question is then presented, Was she a single woman at the time she married Wood in the state of Nevada? For if she was a married woman in California at that time, she was also a married woman in Nevada, and therefore could not contract this second marriage. The answer to this question demands a construction of section 61 of the Civil Code; and other sections of the same code bearing upon the same subject-matter must be considered in passing upon this question of construction. Section 61 is as follows: “A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning, unless: 1. The former marriage has been annulled or dissolved; provided, that in case it be dissolved, the decree of divorce must have been rendered and made at least one year prior to such subsequent marriage. ’ ’

The court does not find it necessary to seek for the moving cause actuating the legislature in amending this section by the recent addition thereto of that provision containing the one-year clause. It is argued upon the part of respondent that it was enacted in line with a sound public policy, which should prohibit marriages of divorced persons within the period of time given by the statute for an appeal from divorce decrees. Yet it is evident that this was not the whole reason for the legislation, for the evil to be avoided would still remain until the appeal from the decree was finally affirmed or reversed,— a result which would not be determined within the one-year period. It also may be mentioned that the time to appeal from a divorce decree has been shortened recently to a period of six months, and yet the one-year clause found in this section has not been changed to accord therewith. But whatever may be the public policy which demanded the law, the construction of that law can be arrived at, regardless of that particular policy.

At the outset it may be said that the policy of the law of the civilized world is to sustain the validity of marriage contracts. In this case an opposite conclusion to that declared by the majority of the court would nullify hundreds of marriages, place the stamp of illegitimacy upon scores of children, and change the source of title to great property interests. Unless the law points plainly to that end, such a conclusion should not -be declared. And, as the court views the law, it is not plain to that end, but plain to the contrary.

It is the contention of respondent that by virtue of the provisions of this section of the code appellant was not absolutely divorced until one year after the decree of divorce was rendered. In other words, it is claimed that this section is to be construed as part of the decree by operation of law, and so reading the decree, it is not absolute and not effectual until one year after its rendition; and, therefore, it is contended that it was not absolute in this case when the marriage took place in Nevada, and consequently appellant was not then a single woman. That the legislature had power to provide for the rendition of a decree of divorce by a court which should not be absolute for the period of one year after its rendition we have no doubt; but that the legislature has failed to so provide by section 61, or even attempted so to do, we also have no doubt. The obvious meaning of the section is, that neither of the divorced parties shall marry within the period of one year after the decree of divorce is rendered. The statute is a prohibition pure and simple upon the marriage of either party for one year; and declares the penalty for a violation of this prohibitory provision to be the nullity of the marriage. This is the obvious construction of the section, testing it by its face; and when it is tested in the light of other sections treating of the same general subject the soundness of this construction is made more certain.

Section 61 declares that the subsequent marriage is void from its inception, unless “the former marriage has been annulled or dissolved; provided, that in case it be dissolved, the decree of divorce must have been rendered and made at least one year prior to such subsequent marriage.” Thus the year provision in direct words applies to marriages already dissolved; for it declares in substance that the marriage must have been dissolved at least one year, or the second marriage will be void. The section thus speaks for itself, and when the verb “dissolve” is used, as relating to the first marriage, it means, and can only mean, a dissolution of the marriage—a divorce. Again, when a decree of divorce has been “rendered and made” the marriage is dissolved, and the section, by the use of those words, thus declares it must have been dissolved one year before either party may marry again. The meaning of the word “rendered” as applied to decrees and judgments is well settled, and when a decree or judgment is rendered it has full force and effect. Even the entry of it does not go to its validity. It has full force and effect regardless of the mere ministerial act of entering it upon the judgment-book. Hr. Freeman in his work on Judgments declares (vol. 1, see. 38): “Expressions occasionally find their way into reports and text-books indicating that the entry is essential to the existence and force of the judgment. These expressions have escaped from their authors when writing of matters of evidence, etc. . . . The rendition of a judgment is a judicial act; its entry upon the record is merely ministerial. A judgment is not what is entered, but what is ordered and considered. The entry may express more or less than what was ordered by the court, or it may be neglected altogether, yet in neither of these cases is the judgment of the court any less its judgment than though it were accurately entered. . . . It is therefore not indispensable to the validity of an execution, and a sale made thereunder, that a judgment should have been actually entered before the writ issued.” (See, also, Estate of Hughston, 133 Cal. 321.) This principle of law applies even with more force to decrees in probate and equity. And this court has held more than once that when a decree of divorce is rendered that decree is of full force and effect. (In re Newman, 75 Cal. 221 ; 1 In re Gook, 77 Cal. 232; 2 In re Cook, 83 Cal. 417.)

Section 61, subdivision 1, does not purport to operate upon or affect a decree of divorce! It deals with divorced persons. It affects them after the decree of divorce has been rendered. It deals with them after they have become unmarried. The article of the code under which this section is found deals with the validity of marriages. Under the article dealing with the dissolution of marriages we find section 91, which declares: "The effect of a judgment decreeing a divorce is to restore the parties to the state of unmarried persons.” By this section the effect of a judgment decreeing a divorce is laid down; and sections 90 and 91 substantially declare that when a marriage is dissolved, the parties are restored to the state of unmarried persons. The word “dissolved” is used in the same sense in sections 61 and 90, and thus it is made plain that the proviso found in subdivision 1 of section 61 contains legislation affecting unmarried persons alone.

Again, section 194 of the Civil Code provides: “All children of a woman who has been married, born within ten months after the dissolution of the marriage, are presumed to be legitimate children of that marriage.” The words “dissolution of the marriage,” as bearing upon a dissolution of marriage by divorce, can only refer to the time when the decree of divorce is rendered, and the ten months’ period mentioned in the section begins to run from that time. And it would be a contradiction of terms to say that the decree of divorce does not take effect until one year after its rendition, and at the same time say that the dissolution of the marriage takes place when the decree is rendered. If the decree does not take effect until one year after its rendition, then the dissolution of the marriage does not take place until that time. And it would follow that this ten months’ period of time referred to in the statute would not begin to run until one year after the decree of divorce was rendered. It is quite apparent that the statute should not be so construed.

Let us make a closer examination of this section. It says in substance that after the marriage is dissolved, the former husband and wife may contract a subsequent marriage with each other immediately. Thus the section itself recognizes that the first marriage is dissolved by the decree. For, if not dissolved by the decree when rendered, how could these two people intermarry again? If the decree when rendered is but an interlocutory or nisi decree,—that is, a decree which does not take effect until one year after its rendition,—then the former husband and wife could not intermarry within that period. In answer to this legal dilemma, it is said in substance that the decree dissolving the marriage is complete as to the husband and wife, but not full and complete as to any other person. This presents another dilemma; for it would be inconsistent to hold that these two people were entirely and completely divorced as to each other, but not divorced to the extent that either could marry a third person. Surely if they are completely divorced as to each other by the decree, then by all law they are completely divorced as to the whole world. This must be so, for the decree is inter partes, and, as far as its binding effect is concerned, the world at large has nothing to do with it.

Section 61, being general legislation prohibiting marriages between certain persons, has no extraterritorial operation. An exhaustive review of this question is found in State v. Shattuck, 69 Vt. 403. 1 It is there said: “The language of our statute is general, and it is a fundamental rule that no statute, whether relating to marriage or otherwise, if in the ordinary general form of words, will be given effect outside of the state or country enacting it. . . . Hence, if a statute, silent as to marriages abroad, as ours is, prohibits classes of persons from marrying generally, or from intermarrying, or declares void all marriages not celebrated according to prescribed forms, it has no effect upon marriages, even of domiciled inhabitants, entered into out of the state. Those marriages are to be judged of by the courts of such state just as though the statute did not exist.” Bishop on Marriage and Divorce (sec. 867) declares the same rule. Therefore, when section 61 uses the language, “a subsequent marriage contracted by any person,” etc., it only refers to a subsequent marriage contracted in the state of California by any person; and the section should be read as though the words “in the state of California” followed the word “contracted.” It cannot be possible that the legislature by this section attempted to declare what particular marriages contracted in the state of Nevada, or any other place in the whole world, would be invalid and void. Section 63 of the Civil Code, hereafter quoted, shows that the legislature never thought of such legislation. By inserting the words “in the state of California” in the section,—words which it is perfectly apparent should be inserted by construction,—then there is nothing left in this case for respondent. For the marriage here contracted, and which we have here under consideration, was not contracted in the state of California, but in the state of Nevada, and therefore section 61 has no application to it whatsover. Section 61 refers to marriages contracted in this state, exactly as does section 60, which declares: “All marriages of white persons with negroes or mulatto es are illegal and void.” In the face of that law, this court held that a marriage between a white man and a negro woman, contracted in the territory of Utah, being valid there, was a valid marriage in this state. (Pearson v. Pearson, 51 Cal. 120.) And this decision was based upon the broad proposition of law found formulated in section 63 of the Civil Code, which declares: “All marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, are valid in this state.”

Much weight is attached by respondent to the case of Brook v. Brook, 9 H. L. Cas. 193. As to the legal positions taken by the various learned English judges in that case, Dr. Bishop, in his work upon Marriage and Divorce (sees. 876-877 et seq.), shows them to be fallacious. (See, also, Commonwealth v. Lane, 113 Mass. 458. 1 ) The statute of this state (section 63 of the Civil Code) and the case of Pearson v. Pearson, 51 Cal. 120, are also entirely opposed to Brook v. Brook.

There is no finding of fact in this record that these two people, domiciled in the state of California, went to the state of Nevada to contract a marriage there, in order to evade the laws of the state of their domicile. Such conduct has been held by courts of some jurisdictions to be a fraud upon the law of their domicile, and therefore not to be countenanced. .Whether that be the law of this state, when considered in view of the provisions of section 63 of the Civil Code, it is not necessary for this court to consider upon the present state of facts. (Norman v. Thompson, 121 Cal. 624. 2 ) It follows, from what has been said, that when the decree of divorce was rendered,- August 19, 1897, Abbie Rose Wood became an unmarried person, and being an unmarried person, and otherwise competent to marry outside of the state of California, she could contract a valid marriage with J. M. Wood in the state of Nevada under its laws. And the marriage being valid in that state, it is valid in this state. (Pearson v. Pearson, 51 Cal. 120; Civ. Code, see. 63.)

For the foregoing reasons the order is reversed.

McFarland, J., and Henshaw, J., concurred.

1 7 Am. St. Rep. 146.

2 11 Am. St. Rep. 267.

1 60 Am. St. Rep. 936.

1 18 Am. St. Rep. 509.

2 66 Am. St. Rep. 74.