Mitchell v. Mitchell

239 S.W.2d 748, 219 Ark. 69, 1951 Ark. LEXIS 466

• Court: Supreme Court of Arkansas
• Decided: May 28, 1951
• Docket: 4-9510
• Status: Published

Opinions

Robinson, J.

On the 10th day of October, 1950, a complaint styled “William Frank Mitchell, in his own right and by his father L. B. Mitchell, as next friend, and individually, v. Bobby Jean Warren Mitchell” was filed in the Chancery Court. The complaint alleged that on the 4th day of October, 1950, William Frank Mitchell and Bobby Jean Mitchell were joined in marriage; that William Frank Mitchell was 18 years of age at the time; that he did not obtain the consent of his parents to the said marriage; and asked that the marriage be annulled. The case was tried on the 20th day of November, 1950. Neither William Frank Mitchell nor Bobby Jean Mitchell appeared as witnesses. The Chancellor denied the petition for annulment. § 55-102, Ark. Stats., provides:

“Every male who shall have arrived at the full age of 18 years, and every female who shall have arrived at the full age of 16 years, shall be capable in law of contracting marriage; if under those ages their marriage shall be absolutely void.

“Provided that males under the age of 21 years and females under the age of 18 years shall furnish the clerk, before the marriage license can be issued, satisfactory evidence of the consent of the parent or parents or guardian to such marriage, and, in all cases where the consent of the parent or parents or guardian is not provided or there shall have been a misrepresentation of age by a contracting party, such marriage contract may be set aside and annulled upon the application of the parent or parents or guardian to the Chancery Court having jurisdiction of the cause.” # *

The only evidence in the record as to the age of Bobby Jean Mitchell is the marriage license which gives her age as 19. In any event, she is probably of legal age as no guardian ad litem was appointed to defend for her. The undisputed evidence is that William Frank Mitchell was 19 years of age at the time of the marriage. Therefore, the marriage is not void but may be annulled. The Statute provides: ‘ ‘ Such marriage contract may be set aside and annulled upon application of the parent or parents, or guardian.” The word “may” as used in the Statute does not mean “shall,” but gives the court some discretion in the matter. Mo. Pac. R. R. Co. v. Fish, 181 Ark. 863, 28 S. W. 2d 333; Smith v. John Hancock Mutual Life Ins. Co., 195 Ark. 699, 114 S. W. 2d 15.

In other words, the Statute gives to the parents the right to petition the court to annul the marriage and provides that the court may grant the petition. If it were the intention of the Legislature that the Chancellor should have no discretion in the matter, but would be compelled to grant the petition on application of the parent, parents or guardian, in all probability, the Statute would have been framed to read: “Such marriage contract shall be set aside and annulled upon application of the parent, or parents, or guardian.” But such is not the case. The Statute provides that the marriage contract may be set aside upon such application. To hold that the Chancellor is required by law to grant the annulment on application of a parent or guardian and has no discretion in the matter, we would have to read something into the Statute that is not there, which would be changing the plain meaning of the Act. If the Chancellor had no discretion in the matter, one parent could have the marriage annulled, regardless of the injustice and hardship that might be caused by such annulment, and regardless of the fact that both parties to the marriage and three of the parents might vigorously protest the annulment.

In the case of Keith v. Pack, 182 Tenn. 420,187 S. W. 2d 618, 159 A. L. R. 101, the Supreme Court of Tennessee had occasion to construe a similar Statute and there said: “It will have been observed that § 1 of the Act from which we first above quoted provides that a marriage, either of the parties being under 16 years of age, ‘may be annulled upon proper proceedings’. The use of the word may obviously commits to the court a certain discretion as to the annulment of such marriages. The provision is not imperative. If it were, it could not be reconciled with § 6. The marriage is valid until set aside by the court.” Likewise, in the case at bar, as provided by the first paragraph of the Arkansas Statute above quoted, the marriage is valid until such time as it is annulled by the court.

William Frank Mitchell will be 21 years of age before November 20th of this year. Neither he nor his wife, Bobby Jean Mitchell, was called as a witness in this case, and we cannot say that the Chancellor abused his discretion by not rendering a decree annulling the marriage.

Affirmed.

Ward, J., concurs; Millwee and George Eose Smith, JJ., dissent.