B-32698, JUNE 30, 1943, 22 COMP. GEN. 1145

B-32698: Jun 30, 1943

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THE SECOND MARRIAGE WAS ILLEGAL AND VOID IN ITS INCEPTION AND WAS NOT VALIDATED BY THE SUBSEQUENT ENTRY OF THE FINAL DIVORCE DECREE. IN THE ABSENCE OF A SHOWING OF EITHER A CEREMONIAL OR A VALID COMMON-LAW MARRIAGE THEREAFTER OR A JUDICIAL DETERMINATION THAT THE CLAIMED SECOND WIFE IS HIS LAWFUL WIFE. "IS ENTITLED TO RENTAL AND SUBSISTENCE ALLOWANCES AS AN OFFICER WITH DEPENDENTS (LAWFUL WIFE. LE BARRON WAS DISSOLVED UNDER THE LAWS OF THE STATE OF CALIFORNIA.'. THE FACTS APPEARING ARE AS FOLLOWS: ON JUNE 13. WAS AWARDED THE PLAINTIFF IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES. WHICH WILL BE EXAMINED MORE CLOSELY HEREINAFTER. AS FOLLOWS: I HEREBY CERTIFY THAT I WAS MARRIED TO EVANGELINE MARY OLSEN ON THE ST DAY OF OCTOBER.

B-32698, JUNE 30, 1943, 22 COMP. GEN. 1145

RENTAL AND SUBSISTENCE ALLOWANCES - DIVORCE AND REMARRIAGE PRIOR TO FINAL DECREE WHERE, AFTER THE RENDITION BY A CALIFORNIA COURT OF AN INTERLOCUTORY DECREE OF DIVORCE BUT BEFORE ENTRY OF THE FINAL DECREE, A NAVAL OFFICER REMARRIED IN ANOTHER JURISDICTION, AND, UNDER CALIFORNIA LAW, THE SECOND MARRIAGE WAS ILLEGAL AND VOID IN ITS INCEPTION AND WAS NOT VALIDATED BY THE SUBSEQUENT ENTRY OF THE FINAL DIVORCE DECREE, THE OFFICER MAY NOT BE PAID INCREASED RENTAL AND SUBSISTENCE ALLOWANCES, AUTHORIZED UNDER THE PAY READJUSTMENT ACT OF 1942 ON ACCOUNT OF A LAWFUL WIFE, FOR PERIODS ON AND AFTER THE DATE OF ENTRY OF THE FINAL DIVORCE DECREE, IN THE ABSENCE OF A SHOWING OF EITHER A CEREMONIAL OR A VALID COMMON-LAW MARRIAGE THEREAFTER OR A JUDICIAL DETERMINATION THAT THE CLAIMED SECOND WIFE IS HIS LAWFUL WIFE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY JUNE 30, 1943:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF FEBRUARY 23, 1943, REQUESTING A DECISION AS TO WHETHER, UPON THE BASIS OF FACTS ESTABLISHED BY ENCLOSURES THEREWITH, LIEUTENANT COMMANDER HERBERT E. LE BARRON, I-V (S), USNR,"IS ENTITLED TO RENTAL AND SUBSISTENCE ALLOWANCES AS AN OFFICER WITH DEPENDENTS (LAWFUL WIFE--- EVANGELINE MARY OLSEN LE BARRON) ON AND AFTER JUNE 24, 1942, AS A RESULT OF HIS MARRIAGE ON OCTOBER 1, 1941, IN THE STATE OF COLORADO PRIOR TO THE DATE ON WHICH HIS MARRIAGE TO FLORANCE V. LE BARRON WAS DISSOLVED UNDER THE LAWS OF THE STATE OF CALIFORNIA.'

THE FACTS APPEARING ARE AS FOLLOWS: ON JUNE 13, 1941, AN " INTERLOCUTORY JUDGMENT OF DIVORCE," HEREINAFTER REFERRED TO AS INTERLOCUTORY DECREE, WAS AWARDED THE PLAINTIFF IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES, IN THE DIVORCE CAUSE OF FLORANCE V. LE BARRON, PLAINTIFF, V. HERBERT E. LE BARRON, DEFENDANT. THAT DECREE, WHICH WILL BE EXAMINED MORE CLOSELY HEREINAFTER, PROVIDED, INTER ALIA, THAT THE DEFENDANT SHOULD PAY PLAINTIFF $75 PER MONTH ALIMONY FOR A PERIOD OF TWO YEARS FROM AND AFTER THE FIFTEENTH DAY OF JUNE, 1941, AND APPROVED A PROPERTY SETTLEMENT AGREEMENT THERETOFORE ENTERED INTO BETWEEN THE PARTIES. WITH YOUR SUBMISSION INFORMAL, UNDATED "CERTIFICATE" SIGNED BY H. E. LE BARRON, LIEUTENANT COMMANDER, USNR, AS FOLLOWS:

I HEREBY CERTIFY THAT I WAS MARRIED TO EVANGELINE MARY OLSEN ON THE ST DAY OF OCTOBER, 1941, IN GRAND JUNCTION, COLORADO, BY THE REV. ARNOLD FENNER, SR. IN THE HOME OF MR. AND MRS. GOODSUL SLOCUM, GRAND JUNCTION, COLORADO.

I FURTHER CERTIFY THAT THIS MARRIAGE WAS NOT CONSUMMATED WITHOUT THE ADVICE OF AN ATTORNEY WHO STATED IT WOULD BE A VALID CONTRACT AND THAT THE ATTORNEY WAS ADVISED OF THE INTERLOCUTORY JUDGMENT GRANTED TO THE UNDERSIGNED ON THE 13TH OF JUNE, 1941, IN CALIFORNIA.

I FURTHER CERTIFY THAT FINAL JUDGMENT OF DIVORCE WAS GRANTED ON OCTOBER 15, 1942 (SIC) AND THAT CERTIFIED TRUE COPIES ARE ATTACHED HERETO AND THAT EVANGELINE M. LE BARRON IS MY LAWFUL WIFE AND HEIR.

ALSO, THERE IS FURNISHED A CERTIFIED COPY OF A "1FINAL JUDGMENT OF DIVORCE" HEREINAFTER CALLED FINAL DECREE, AWARDED THE PLAINTIFF JUNE 24, 1942, IN THE DIVORCE PROCEEDINGS OF FLORANCE V. LE BARRON V. HERBERT E. LE BARRON.

SECTION 4 OF THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, 42 STAT. 627, PROVIDED THAT THE TERM ,DEPENDENT" AS USED IN THE SUCCEEDING SECTIONS OF THE ACT--- INCLUDING PROVISIONS FOR THE PAYMENT OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES TO OFFICERS ON ACCOUNT OF DEPENDENTS--- "SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE. READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 359, CARRIES IDENTICAL PHRASEOLOGY. THESE STATUTORY PROVISIONS GENERALLY RELIEVE AN OFFICER CLAIMING RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF A LAWFUL WIFE OF ANY BURDEN OF PROOF THAT SAID LAWFUL WIFE IS IN FACT DEPENDENT ON HIM FOR HER SUPPORT. STRAUS V. UNITED STATES, 73 C.1CLS. 690, 693; RAWLINS V. UNITED STATES, 93 C.1CLS. 231, 236. IN THE FORMER CASE IT WAS SAID: "THE DEPENDENCY OF A WIFE IS PRESUMED BY LAW TO EXIST WHERE A LAWFUL MARRIAGE IS ESTABLISHED.' ( ITALICS SUPPLIED.) BUT THE STATUTES DO RELIEVE THE OFFICER OF THE RESPONSIBILITY OF ESTABLISHING IN THE FIRST PLACE THAT THE WOMAN ON WHOSE ACCOUNT HE CLAIMS RENTAL ALLOWANCES AS HIS WIFE ACTUALLY IS HIS LAWFUL WIFE, WHERE THAT MAY APPEAR SUBJECT TO QUESTION. THE LAWFULNESS OF A MARRIAGE DEPENDS PRIMARILY UPON THE CAPACITY OF THE PARTIES TO ENTER INTO A VALID MARRIAGE CONTRACT AND A COMPLIANCE WITH THE LEX DOMICILII OF THE PARTIES. BUT IF, AT THE TIME THE MARRIAGE IS UNDERTAKEN, THERE EXISTS ANY IMPEDIMENT PRECLUDING EITHER OR BOTH OF THE PARTIES FROM ENTERING INTO A LEGAL MARRIAGE WITH THE OTHER OR WITH EACH OTHER, A MERE COMPLIANCE WITH THE FORMALITIES REQUIRED BY LAW FOR THE CONSUMMATION OF A MARRIAGE WILL BE UNAVAILING TO ACCOMPLISH THE PURPOSE, AND NO VALID MARRIAGE CAN RESULT. THUS, IF EITHER PARTY TO AN ATTEMPTED MARRIAGE HAS A LIVING, UNDIVORCED, LAWFUL SPOUSE, THE ATTEMPTED MARRIAGE IS VOID, FOR IN THIS COUNTRY NO MAN OR WOMAN CAN HAVE TWO LAWFUL SPOUSES AT THE SAME TIME, AND "A SUBSEQUENT MARRIAGE DOES NOT AMOUNT TO A DIVORCE NOR WILL IT PREVAIL OVER A PRIOR ONE.' SMITH V. FULLER ( IOWA) 16 L.R.A. ( NS) 98, 109. LIKEWISE, IT HAS BEEN SAID THAT WHERE A FORMAL MARRIAGE HAS BEEN ENTERED INTO, AND "WHERE THERE IS NO EXTRINSIC EVIDENCE EITHER WAY, THE LEGALITY OF A MARRIAGE, LIKE SANITY, CONTINUANCE OF LIFE, AND LEGALITY OF ACTS OF PUBLIC OFFICERS, WILL BE ASSUMED. BUT WHERE IT IS ATTACKED, AND EVIDENCE IS INTRODUCED TENDING TO IMPEACH IT, THEN A QUESTION OF FACT ARISES, TO BE PROVED IN THE LIGHT OF ALL THE CIRCUMSTANCES AND THE REASONABLE INFERENCES FROM THEM.' BROKE SHOULDER V. BROKE SHOULDER ( OKLAHOMA) 34 A.L.R. 441, 458.

AS HAS BEEN POINTED OUT IN DECISIONS OF THE COURTS AND OF THIS OFFICE, MARRIAGE AND DIVORCE IN THE UNITED STATES ARE WITHIN THE CONTROL OF THE INDIVIDUAL STATES, WHICH POSSESS THE RIGHT TO PRESCRIBE FOR THEIR RESPECTIVE CITIZENS THE REQUIREMENTS FOR A VALID MARRIAGE, THE PROCEDURE OR FORM ESSENTIAL TO CONSTITUTE MARRIAGE, THE ACTS WHICH MAY CONSTITUTE GROUNDS FOR ITS DISSOLUTION, AND THE PROCEDURE AND REQUIREMENTS NECESSARY THEREFOR. ANDREWS V. ANDREWS, 188 U.S. 14. AND, OWING TO THE DIVERSITY IN THE STATUTES COVERING MARRIAGE AND DIVORCE, IT WOULD BE IMPOSSIBLE TO ENUNCIATE OR FORMULATE A RULE WHICH WOULD BE UNIVERSALLY APPLICABLE WITHOUT EXCEPTION TO MARRIAGES OR DIVORCES ENTERED INTO OR PROCURED IN ANY OR ALL OF THE SEVERAL STATES. SEE DECISION OF FEBRUARY 18, 1942, B- 22155. HENCE, DECISIONS OF THIS OFFICE BEARING UPON THE VALIDITY OF MARRIAGE OR ITS DISSOLUTION, FOR DEPENDENCY ALLOWANCE PURPOSES, IN ONE STATE, MAY NOT BE PERTINENT TO MARRIAGES CONTRACTED OR DIVORCES OBTAINED IN SOME OTHER STATE HAVING DIFFERENT AND DISSIMILAR STATUTORY PROVISIONS AND REQUIREMENTS RELATIVE THERETO, OR BE CONSIDERED AS UNFAILING PRECEDENTS. SUCH MATTERS REQUIRE CONSIDERATION OF THE APPLICABLE LAW OF THE PARTICULAR JURISDICTION INVOLVED.

THE SPECIFIC QUESTION POSED BY YOUR SUBMISSION AND QUOTED IN THE FIRST PARAGRAPH, SUPRA, DIVIDES ITSELF NATURALLY INTO TWO QUESTIONS, TO WIT, (1) DID THE OFFICER'S PURPORTED MARRIAGE TO EVANGELINE MARY OLSEN IN COLORADO, AFTER THE RENDITION OF THE INTERLOCUTORY DECREE IN THE CALIFORNIA DIVORCE PROCEEDING INSTITUTED BY HIS FORMER WIFE, BUT BEFORE THE RENDITION OF THE FINAL DECREE OF DIVORCE THEREIN, CONSTITUTE A VALID MARRIAGE IN ITS INCEPTION--- AT THE TIME IT WAS ENTERED INTO--- AND (2), IF NOT, WAS IT VALIDATED AND TRANSMUTED INTO A LAWFUL MARRIAGE BY THE SUBSEQUENT ENTRY OF THE FINAL JUDGMENT OF DIVORCE IN SAID PROCEEDINGS?

IT APPEARS THAT UNDER THE LAWS AND DIVORCE PROCEDURE OF CALIFORNIA, THE COURT HEARS THE EVIDENCE AND, IF SATISFIED AS TO ITS SUFFICIENCY, ENTERS AN " INTERLOCUTORY JUDGMENT OF DIVORCE.' THIS JUDGMENT MERELY ADJUDGE "THAT THE PLAINTIFF IS ENTITLED TO A DIVORCE FROM DEFENDANT; THAT ONE YEAR SHALL HAVE EXPIRED AFTER THE ENTRY OF THIS INTERLOCUTORY JUDGMENT A FINAL JUDGMENT DISSOLVING THE MARRIAGE BETWEEN THE PLAINTIFF AND DEFENDANT BE ENTERED, AND AT THAT TIME THE COURT SHALL GRANT SUCH OTHER AND FURTHER RELIEF AS MAY BE NECESSARY TO COMPLETE DISPOSITION OF THIS ACTION.' ADDITION TO THIS FINDING THE COURT MAY MAKE SUCH PROVISIONS FOR ALIMONY, CHILD SUPPORT, COUNSEL FEES, ETC., AD INTERIM, AS IT MAY DEEM PROPER. THE FACE OF THE CERTIFIED COPY OF THE INTERLOCUTORY DECREE ENTERED IN THE SUBJECT CASE THERE APPEARS IN CLEAR PRINT THE FOLLOWING LEGEND:

NOTICE--- CAUTION: THIS IS NOT A JUDGMENT OF DIVORCE. THE PARTIES ARE STILL HUSBAND AND WIFE, AND WILL BE SUCH UNTIL A FINAL JUDGMENT OF DIVORCE IS ENTERED AFTER ONE YEAR FROM THE ENTRY OF THIS INTERLOCUTORY JUDGMENT. THE FINAL JUDGMENT OF DIVORCE WILL NOT BE ENTERED UNLESS REQUESTED BY ONE OF THE PARTIES.

THE OFFICE, FORCE AND FUNCTION OF THE INTERLOCUTORY JUDGMENT IN DIVORCE PROCEEDINGS IN CALIFORNIA HAVE BEEN CONSIDERED BY THE COURT OF LAST RESORT OF THAT STATE IN NUMEROUS CASES INVOLVING DIVERS QUESTIONS. A FEW CITATIONS WILL SUFFICE FOR PRESENT PURPOSES.

IN SULLIVAN V. SULLIVAN, 28 PAC. (2D) 914, A WOMAN HAD GONE THROUGH A MARRIAGE CEREMONY WITH ANOTHER MAN IN TIA JUANA, MEXICO, AFTER OBTAINING AN INTERLOCUTORY DECREE FROM HER HUSBAND IN CALIFORNIA, BUT BEFORE SECURING A FINAL JUDGMENT OF DIVORCE. SHE LATER ENTERED ACTION AGAINST SULLIVAN, THE MAN SHE HAD UNDERTAKEN TO MARRY IN TIA JUANA, TO HAVE HER MARRIAGE TO HIM ANNULLED ON THE GROUND THAT BECAUSE SHE HAD NOT BEEN DIVORCED FROM HER FORMER HUSBAND HER MARRIAGE TO SULLIVAN WAS VOID AB INITIO. THE LOWER COURT HELD THAT THE PLAINTIFF KNEW OR OUGHT TO HAVE KNOWN THAT HER ,MARRIAGE" TO SULLIVAN WAS INVALID AT THE TIME SHE ENTERED INTO IT, AND REFUSED THE RELIEF "ON THE EQUITABLE MAXIM THAT HE WHO COMES INTO A COURT OF EQUITY MUST COME WITH CLEAN HANDS.' THE SUPREME COURT OF CALIFORNIA REVERSED THE JUDGMENT "WITH DIRECTIONS TO THE TRIAL COURT TO ENTER JUDGMENT AS PRAYED FOR.' THE COURT SAID: "THERE CAN BE NO QUESTION THAT THE ATTEMPTED MARRIAGE (TO SULLIVAN) ILLEGAL AND VOID UNDER CIVIL CODE SECTIONS 56 AND 61. SEE ESTATE OF ELLIOTT, 165 CAL. 339, 132 P. 102 P. 439.' FURTHERMORE, THE COURT HELD THAT THE EQUITABLE DOCTRINE OF "CLEAN HANDS" DID NOT APPLY IN SUCH A CASE AND THAT, AS A MATTER OF PUBLIC POLICY, THE COURT SHOULD, AT THE FIRST OPPORTUNITY, ENTER ITS DECREE ANNULLING SUCH A MARRIAGE,"TO THE END THAT THE PUBLIC BE PROTECTED SO FAR AS POSSIBLE FROM THE EVILS OF SUCH UNLAWFUL ACTS AND TO PREVENT THE INNOCENT FROM SUFFERING EREFROM," CITING AUTHORITIES FROM OTHER STATES.

IN RADICH V. RADICH, 222 PAC. 182, THE COURT SAID: "THE MARRIAGE WAS NOT DISSOLVED BY THE INTERLOCUTORY DECREE OF DIVORCE * * *.'

IN STRUPELLE V. STRUPELLE, 211 PAC. 248, IT WAS HELD: "THE INTERLOCUTORY JUDGMENT IS NOT A DECREE OF DIVORCE NOR DOES IT DISSOLVE THE MARRIAGE.'

IN LONDON GUARANTEE AND ACCIDENT COMPANY V. INDUSTRIAL ACCIDENT COMMISSION, 184 PAC. 864, 866, IT WAS HELD: "THE INTERLOCUTORY JUDGMENT IS PROVISIONAL OR TEMPORARY ONLY BY THE TERMS OF THE STATUTE, AND DOES NOT OF ITSELF DISSOLVE THE MARRIAGE RELATION * * *.' IN THE SAME CASE THE COURT, CITING SEVERAL EARLIER DECISIONS INVOLVING THE EFFECT OF AN INTERLOCUTORY JUDGMENT OF DIVORCE, AID:

* * * THE PRINCIPAL PROPOSITION ESTABLISHED BY THESE CASES IS THAT THE MARRIAGE RELATION IS NOT DISSOLVED BY THE INTERLOCUTORY JUDGMENT, AND THAT FOR ALL THE PURPOSES INVOLVED IN THOSE CASES IT REMAINED IN EXISTENCE UNTIL THE FINAL JUDGMENT OF DIVORCE. * * *

IN RE DARGIE'S ESTATE, 121 PAC. 320, IT WAS HELD:

IT IS THE FINAL JUDGMENT THAT GRANTS THE DIVORCE. THE INTERLOCUTORY JUDGMENT DOES NOT HAVE THAT EFFECT. IT MERELY DECLARES THE RIGHT: THAT THE PARTY IS "ENTITLED" TO A DIVORCE, A DIVORCE TO BE AFTERWARDS ADJUDGED. BY THE TERMS OF THE STATUTE, IT IS THE FINAL JUDGMENT ALONE THAT GRANTS THE DIVORCE, DISSOLVES THE MARRIAGE, RESTORES THE PARTIES TO THE STATUS OF SINGLE PERSONS, AND PERMITS EACH TO MARRY AGAIN. THE STATUTE DOES NOT ITSELF DECLARE THE MARRIAGE DISSOLVED AT THE EXPIRATION OF THE YEAR FROM THE INTERLOCUTORY JUDGMENT. IT MERELY SUSPENDS FOR ONE YEAR THE POWER OF THE COURT TO DISSOLVE IT, AND, IN EFFECT, PROVIDES THAT IT BECOMES DISSOLVED ONLY WHEN, AFTER THE EXPIRATION OF THAT PERIOD, THE COURT HAS, BY ITS FINAL JUDGMENT SO DECLARED. IN THE MEANTIME THE PARTIES REMAIN IN THE LEGAL RELATION OF HUSBAND AND WIFE. * * * CF. IN RE SEILER'S ESTATE, 128 PAC. 334, TO THE SAME EFFECT, CITING AND FOLLOWING THE DARGIE DECISION.

THE FOREGOING APPEAR ADEQUATE TO ESTABLISH BEYOND QUESTION THAT UNDER THE STATUTES OF CALIFORNIA THE INTERLOCUTORY JUDGMENT OF DIVORCE OBTAINED BY LE BARRON'S FORMER WIFE AGAINST HIM IN THE COURTS OF THAT STATE DID NOT OPERATE OR PURPORT TO DISSOLVE HIS MARRIAGE TO HER, OR IN ANY FINAL WAY ALTER HIS STATUS AS A MARRIED MAN AND HER HUSBAND.

AS TO WHETHER THE ENTRY OF THE FINAL JUDGMENT OF DIVORCE IN THE CALIFORNIA PROCEEDINGS WAS EFFECTIVE TO VALIDATE THE MARRIAGE IN COLORADO BEFORE SUCH JUDGMENT, THE LAW OF CALIFORNIA PROVIDES THAT THE ENTRY OF A FINAL JUDGMENT OF DIVORCE WILL NOT VALIDATE ANY MARRIAGE CONTRACTED BY EITHER PARTY BEFORE THE ENTRY THEREOF NOR CONSTITUTE ANY DEFENSE IN ANY CRIMINAL PROSECUTION MADE AGAINST EITHER ( CALIFORNIA CODE 131, 132). MOREOVER, THE WEIGHT OF AUTHORITY APPEARS TO BE TO THE EFFECT THAT AN ATTEMPTED MARRIAGE ENTERED INTO BY ONE ALREADY MARRIED IS ABSOLUTELY VOID FROM THE BEGINNING AND IS NOT VALIDATED MERELY BY THE REMOVAL OF THE ORIGINAL IMPEDIMENT TO A VALID MARRIAGE. IN THE CASE OF BROKE SHOULDER V. BROKE SHOULDER, SUPRA, THE SUPREME COURT OF OKLAHOMA STATED THE RULE AS FOLLOWS:

THE RULE OF LAW IS THAT, IF, AT THE TIME OF CONTRACTING A SECOND MARRIAGE, ONE OF THE SPOUSES HAS A LIVING HUSBAND OR WIFE OF A FORMER MARRIAGE, AND SUCH FORMER MARRIAGE HAS NOT BEEN DISSOLVED, SUCH SECOND MARRIAGE IS A NULLITY. * * * (34 A.L.R. PP. 459-60.) ALSO--- * * * IF A MARRIAGE IS ILLICIT IN ITS INCEPTION, IT IS PRESUMED TO CONTINUE AN ILLICIT MARRIAGE UNTIL THE IMPEDIMENT TO A LEGAL MARRIAGE IS REMOVED AND A LEGAL MARRIAGE SUBSEQUENT TO THE REMOVAL OF THE IMPEDIMENT IS SHOWN. AND, UNDER THE RULES OF LAW PREVAILING THIS BURDEN TO REMOVE THIS PRESUMPTION RESTS UPON THE PARTIES WHO ENTERED SUCH ILLICIT MARRIAGE. ( PAGES 461, 462) ( ITALICS SUPPLIED.)

IN THE RECENT CASE OF PRINCE V. FREEMAN, 112 PAC. (2D) 821, DECIDED BY THE SUPREME COURT OF NEW MEXICO FEBRUARY 14, 1941, THE FACTS WERE SOMEWHAT SIMILAR TO THOSE IN SULLIVAN V. SULLIVAN, SUPRA. THE COURT HELD, QUOTING THE SYLLABUS, IN PART: WHERE CALIFORNIA COURT IN DIVORCE ACTION ENTERED INTERLOCUTORY JUDGMENT THAT PARTIES WERE ENTITLED TO DIVORCE AND UPON EXPIRATION OF ONE YEAR FROM DATE OF SUCH INTERLOCUTORY JUDGMENT A FINAL JUDGMENT OF DIVORCE SHOULD BE ENTERED, A CEREMONIAL MARRIAGE BETWEEN DIVORCED WIFE AND MAN IN NEW MEXICO PRIOR TO EXPIRATION OF THE YEAR WAS VOID, NOTWITHSTANDING THAT WIFE WAS MISLED BY MAN INTO BELIEVING THAT A LEGAL MARRIAGE COULD BE CONSUMMATED IN NEW MEXICO, AND THAT WIFE REQUESTED MAN TO FULFILL HIS PROMISE OF ENTERING INTO ANOTHER CEREMONIAL MARRIAGE AFTER FINAL DECREE OF DIVORCE WAS ENTERED IN CALIFORNIA.

IT APPEARED IN THAT CASE THAT FOLLOWING THE CEREMONIAL MARRIAGE OF THE PARTIES IN NEW MEXICO THEY LIVED TOGETHER AND CONTINUED TO LIVE TOGETHER AS HUSBAND AND WIFE IN NEW MEXICO FOR SEVERAL MONTHS AFTER THE WOMAN WAS FINALLY DIVORCED IN CALIFORNIA. APPARENTLY WITH RESPECT TO THAT PHASE OF THE MATTER, THE COURT SAID:

IT WAS HELD BY A DIVIDED COURT IN RE GABALDON'S ESTATE, 38 N.M. 392, 34 P.2D 672, 94 A.L.R. 980, THAT COMMON LAW MARRIAGES ARE INVALID IN NEW MEXICO. IT IS IMMATERIAL WHETHER THE MAJORITY OR MINORITY ARE CORRECT IN THAT DECISION, SINCE THERE IS NO CLAIM HERE OF A COMMON LAW MARRIAGE. LANHAM V. LANHAM, 136 WIS. 360, 117 N.W. 787, 17 L.R.A., N.S., 804, 128 AM. ST. REP. 1085.

IN SOME JURISDICTIONS THE RULE APPEARS TO BE THAT UPON THE DISSOLUTION OF A SUBSISTING MARRIAGE BY DEATH OR DIVORCE, AN INTENDED MARRIAGE CONTRACTED IN GOOD FAITH BY A PARTY THERETO PRIOR TO THE REMOVAL OF THE DISABILITY IS RENDERED VALID AND BINDING BY THE CONTINUED COHABITATION OF THE PARTIES TO SUCH UNION, AS THE ORIGINAL INTENTION TO BECOME HUSBAND AND WIFE IS PRESUMED TO CONTINUE SO AS TO EFFECTUATE A VALID COMMON-LAW MARRIAGE. CORPUS JURIS 1297. SUCH APPEARS TO BE THE RULE IN COLORADO WHERE THE OFFICER HERE INVOLVED REMARRIED BEFORE BEING DIVORCED IN CALIFORNIA. POOLE V. PEOPLE, 24 COLO. 510, 52 PAC. 1025; DAVIS V. PEOPLE, 264 PAC. 658, DECIDED BY THE SUPREME COURT OF COLORADO, JANUARY 30, 1928. IN THE POOLE CASE THE COURT SAID:

* * * IF PARTIES DESIRE MARRIAGE, AND DO WHAT THEY CAN TO RENDER THEIR UNION MATRIMONIAL, BUT ONE OF THEM IS UNDER A DISABILITY, THEIR COHABITATION THUS MATRIMONIALLY MEANT AND CONTINUED AFTER THE DISABILITY IS REMOVED WILL, IN LAW, MAKE THEM HUSBAND AND WIFE FROM THE MOMENT THAT SUCH DISABILITY NO LONGER EXISTS. 1 BISH. MAR., DIV. AND SEP. SECTIONS 970, 979. OR, AS OTHERWISE STATED BY THIS AUTHOR: "TO EMPLOY WORDS MORE NICELY ACCURATE, AND COVER A LARGER GROUND, THE LIVING TOGETHER OF MARRIAGEABLE PARTIES A SINGLE DAY AS MARRIED, THEY MEANING MARRIAGE, AND THE LAW REQUIRING ONLY MUTUAL CONSENT, MAKES THEM HUSBAND AND WIFE.' ID. SECTION 975. THE FACTS IN THIS CASE CERTAINLY BRING THE PARTIES WITHIN THE DOCTRINE ABOVE ANNOUNCED. THEY ATTEMPTED, IN GOOD FAITH, TO ENTER INTO A LEGAL MARRIAGE CONTRACT BY PROCURING LICENSE AND SOLEMNIZATION OF MARRIAGE IN THE USUAL WAY. AFTER THE DISABILITY OF MRS. POOLE HAD BEEN REMOVED, THEY CONTINUED TO LIVE TOGETHER AS HUSBAND AND WIFE; HELD EACH OTHER OUT TO THE PUBLIC AS SUSTAINING THAT RELATION; AND ALTHOUGH NO SUBSEQUENT MARRIAGE CEREMONY WAS PERFORMED, AS IS USUAL TO EVIDENCE CONTRACTS OF THIS CHARACTER, THEY HAVING ORIGINALLY ASSUMED THE MARRIAGE RELATION IN GOOD FAITH, IN PURSUANCE OF WHAT THEY BELIEVED TO BE A VALID CONTRACT OF MARRIAGE, AND HAVING CONTINUED THAT RELATIONSHIP FOR A LONG PERIOD AFTER IT COULD HAVE BEEN LEGALLY ASSUMED, THIS RAISES THE PRESUMPTION THAT THEREBY THEY INTENDED AND MEANT MARRIAGE,--- MUTUALLY ASSENTED TO A CONTRACT OF THAT CHARACTER.

APPLYING THE SAME PRINCIPLE IN THE DAVIS CASE, THE COURT AFFIRMED A CONVICTION FOR BIGAMY WHERE THE DEFENDANT HAD MARRIED THE THIRD TIME IN THE BELIEF THAT HIS SECOND MARRIAGE WAS VOID BECAUSE ENTERED INTO BEFORE HE WAS DIVORCED FROM HIS FIRST WIFE; IT APPEARING THAT HE HAD CONTINUED TO LIVE WITH HIS SECOND WIFE IN COLORADO AS HUSBAND AND WIFE AFTER THE DIVORCE FROM HIS FIRST WIFE, SO THAT A COMMON-LAW MARRIAGE WAS EFFECTUATED UNDER THE COLORADO RULE.

HOWEVER, IN THE PRESENT CASE, IT DOES NOT APPEAR, ON THE RECORD PRESENTED, THAT THE OFFICER LIVED WITH HIS CLAIMED SECOND WIFE IN COLORADO AFTER HIS DIVORCE IN CALIFORNIA--- OR IN ANY OTHER STATE WHERE THE SAME RULE MIGHT APPLY--- SO AS TO EFFECTUATE A VALID COMMON-LAW MARRIAGE UNDER THAT RULE.

IN THE LIGHT OF THE CITED CASES, AND IN THE ABSENCE OF A SHOWING OF EITHER A CEREMONIAL OR A VALID COMMON-LAW MARRIAGE AFTER THE FINAL DECREE OF DIVORCE IN CALIFORNIA, OR A JUDICIAL DETERMINATION BY A COURT OF COMPETENT JURISDICTION THAT THE CLAIMED SECOND WIFE IS THE OFFICER'S LAWFUL WIFE, YOU ARE ADVISED THAT THE MATTER ADMITS OF TOO MUCH DOUBT FOR THIS OFFICE TO APPROVE INCREASED RENTAL AND SUBSISTENCE PAYMENTS TO THE OFFICER ON HER ACCOUNT. ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE NEGATIVE.