Opinion
No. 4353.
Submitted January 5, 1955.
Decided January 28, 1955.
A marriage entered into in good faith on the part of both parties in Oklahoma before the wife's decree of divorce in Massachusetts from a prior marriage became absolute was validated in accordance with Massachusetts law (G. L., c. 207, s. 6) when the parties continued to live together as husband and wife in good faith in Massachusetts after the impediment had been removed, and was properly recognized as valid in this state where the parties later became domiciled.
The denial of a petition for annulment, without findings or a request therefor, implies the finding that a valid marriage exists between the parties.
PETITION, for annulment of a marriage entered into by the parties at Lawton, Oklahoma, on February 12, 1945. On January 15, 1945, the defendant, who had previously been married and was residing in Massachusetts, was granted a decree nisi in divorce proceedings brought by her in that state, which decree did not become absolute until six months from that date. Early in February, 1945, in accordance with plans made by her and the plaintiff, she went to Oklahoma for the purpose of marrying the plaintiff who was then in the military service and stationed in that state.
After their marriage on February 12, 1945, the parties lived together as man and wife in Oklahoma until June 28, 1945. On that date, the plaintiff was discharged from the service and the parties started living together in Abington, Massachusetts, where they continued to reside together until on or about October 1, 1945. At that time the plaintiff went to Jaffrey in this state to resume the employment there in which he had been engaged prior to entering the military service and the defendant followed in October as soon as living quarters had been secured. Since October, 1945, the parties have both resided in Jaffrey and lived together there as man and wife until the commencement of these proceedings in July, 1953.
The following decree was entered: "Annulment denied. Petition dismissed." By its reserved case, the Trial Court (Leahy, J.) transferred no exceptions and the matter is considered to be before this court on the plaintiff's exception to that decree.
William D. Tribble and Walter H. Gentsch for the plaintiff, furnished no brief.
Ernest L. Bell, Jr. for the defendant, furnished no. brief.
By his petition, the plaintiff seeks to have his marriage to the defendant annulled on the basis that they were never legally married. No findings were made by the, Trial Court nor were any requested. Under these circumstances, all special findings necessary to justify the decree were presumably made (Lincoln v. Langley, 99 N.H. 158, 159) and it is assumed that the denial of the annulment was based on a finding that a valid marriage between the parties did exist. The sole question raised by the plaintiff's exception to the decree relates to this finding, it being the only question of law apparent upon the face of the decision. Hackett v. Railroad, 95 N.H. 45, 46; Eastman v. Waisman, 94 N.H. 253, 254.
Neither party disputed the fact that the defendant was a married woman at the time of the ceremony in Oklahoma, her divorce from her former husband not then having become absolute, and that under the laws of that state, her marriage to the plaintiff was void. Whitney v. Whitney, 192 Okla. 174. On the other hand, the Court could find that one or both parties entered into that marriage contract in good faith, in the full belief that the defendant's prior marriage had been fully terminated. In June, 1945, the parties moved from Oklahoma to Massachusetts and were living in the latter state on July 15, 1945, when the defendant's divorce became absolute. On the record before it, the Trial Court could clearly find that after the impediment to their marriage had thereby been removed, the plaintiff and defendant continued to live together as husband and wife in Massachusetts, in good faith on the part of both of them, until they moved to New Hampshire on or about October 1, 1945, and that they continued to so reside in this state until shortly before July 3, 1953, when this action was commenced.
On these facts, the requirements of General Laws of Massachusetts (Ter. ed.), c. 207, s. 6 were met. The marriage of the parties, entered into in Oklahoma, "became valid [on July 15, 1945] upon the removal of the impediment during their cohabitation as domiciliaries" in Massachusetts (Smith v. Smith, 99 N.H. 362), and was properly recognized by the Trial Court as valid in this state where the parties later became domiciled. Smith v. Smith, supra.
Petition dismissed.
All concurred.