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District Court of Appeal, First District, Division 1, California.


Civ. 9714.

Decided: February 27, 1935

U. S. Webb and Hester W. Webb, both of San Francisco, for appellant. C. Harold Caulfield and Edward D. Keil, both of San Francisco, for respondent.

The plaintiff brought this action against the defendant for separate maintenance. Defendant answered, and also filed a cross-complaint in which he alleged that both plaintiff and defendant being minors and residents of this state, and desirous of marrying each other, but unable to obtain the consent of their respective parents thereto, and with the intent of evading the law of this state requiring such consent, and with no intention of changing their domicile, went to the state of Nevada and there married, returning immediately thereafter. The prayer of the cross-complaint is for the annulment of such marriage.

The plaintiff interposed a general demurrer to this cross-complaint, which the trial court sustained without leave to amend. Judgment was thereupon entered dismissing the cross-complaint, and this appeal is taken from the judgment.

The question presented for determination by the appeal therefore is the validity of a marriage contract entered into in the state of Nevada between a young man of the age of eighteen years and a young woman of the age of sixteen years, both being residents of California, who, with no intention of changing their domicile and for the purpose of evading some requirement of the law of this state, went to Nevada and there married without the consent of their respective parents or guardians, immediately thereafter returning and resuming their residence here.

The action of the trial court in sustaining the demurrer to the cross-complaint was based upon section 63 of the Civil Code of this state which in terms provides that “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,” the court adopting the view that this marriage is valid in Nevada and, therefore, valid here.

The appellant urges various contentions in support of the appeal, among them being: (1) That the trial court misconstrued the law of Nevada; (2) that even if valid there, still this marriage, having been entered into without the consent of parent or guardian required by the law of this state, it is not saved by section 63 for the reason that that section is but the enactment of a rule of comity theretofore followed by our courts, and that that rule did not and does not require the recognition here of a marriage repugnant to the policy of this state by reason of having been contracted without the required consent; and (3) that said rule of comity will not be followed, with consequent inapplicability of said section, for the reason that the parties to the marriage left the state of their domicile and went to the foreign state for the specific purpose of evading the domiciliary law.

This marriage would admittedly be subject to annulment if celebrated in California. Civ. Code, § 82, subd. 1. We must, therefore, look to the law of Nevada to see if it is free from attack there.

The law of Nevada relating to this subject is found in “An Act relating to marriage and divorce,” approved Nov. 28, 1861 (Compiled Laws of Nevada 1861-1900, §§ 482, 483, 499, 501), pp. 112, 115, from which we quote the following pertinent provisions:

“Section 1. That marriage, so far as its validity in law is concerned, is a civil contract, to which the consent of the parties capable in law of contracting, is essential.

“Section 2. Male persons of the age of eighteen years, and female persons of the age of sixteen years * * * may be joined in marriage; provided, always, that male persons under the age of twenty-one years, and female persons under the age of eighteen years, shall first obtain the consent of their fathers, respectively, or in case of the death or incapacity of their fathers, then of their mothers or guardians. * * *

“Section 19. When either of the parties to a marriage, for want of age or understanding, shall be incapable of assenting thereto * * * the marriage shall be void from the time its nullity shall be declared by a court of competent authority. * * *

“Section 21. When a marriage is supposed to be void, or the validity thereof is disputed, for any of the causes mentioned in the two preceding sections, either party may file a complaint in the probate court * * * for annulling the same; and such complaint shall be filed, and proceedings shall be had thereon, as in the case of proceedings in said court for a divorce, and upon due proof of the nullity of the marriage, it shall be adjudged null and void.”

The next section of the act (section 502) prescribes the proceedings to be taken for divorce and the grounds upon which it will be granted.

It will be observed that section 19 above set out, unlike section 82, subd. 1, of the Civil Code of this state, does not make lack of consent of parent or guardian to the marriage of a minor a ground for its annulment. “Where a foreign statute has been construed by the courts of the state or country where enacted such construction will be followed by the courts of other states.” 59 Cor. Jur. Stats. § 565, p. 946; Osborne v. Home Life Ins. Co., 123 Cal. 610, 56 P. 616; McManus v. Red Salmon Canning Co., 37 Cal. App. 133, 173 P. 1112. These statutory provisions of Nevada were construed by the Supreme Court of that state in the case of Fitzpatrick v. Fitzpatrick, 6 Nev. 63. In that case the plaintiff, a minor but over the age of sixteen years, brought suit to annul her marriage to the defendant. (The suit is designated in the court's opinion as one for divorce, which seems to be quite justified by the language of the statute, section 21 above, but it is quite clear that it was one for annulment and was not sought upon any ground upon which in Nevada a divorce can be granted.) The facts showed that the plaintiff freely consented to the marriage but failed to obtain the consent of her mother, who was her guardian. A reference for the purpose of finding the facts and making conclusions of law being ordered, the referee found the facts mentioned and, as a conclusion of law, that the plaintiff was entitled to a decree of divorce; evidently being of opinion that the lack of parental consent went to the capacity of the minor to contract. The trial court, however, disagreed with this conclusion and ordered judgment for the defendant. An appeal being taken, the Supreme Court affirmed the judgment. In doing so that court construed section 2 of the act of November 28, 1861, above quoted, as changing the common-law ages of consent to sixteen for the female and eighteen for the male, and then in its opinion proceeded:

“Now, it remains to be seen what is the effect of the first proviso, and how a marriage between persons of lawful age is affected, if at all, by reason of non-consent of parent or guardian. In deciding this question, the hardship of a particular case can properly have no effect. What the authorities have declared the law to be, must be the rule of decision.

“By the common law and the statute law of this State (Stats. 1861, 94), marriage is held to be a civil contract. To render the contract valid, the parties must be able and willing to contract. At common law the age of capacity to make the contract of marriage was fixed at fourteen years for males and twelve years for females, upon the supposition, all things considered, that such provision was for the best interests of society; and by so fixing the age of capacity to contract, the inference naturally follows, ‘that the parties at that age have sufficient discretion for such a contract, and they can then bind themselves irrevocably, and cannot be permitted to plead ever their egregious indiscretion, however distressing the result of it may be. Marriage before such age is voidable at the election of either party, on arriving at the age of consent, if either of the parties be under that age when the contract is made.’ (2 Kent, 44.)

“The statute of this State does not alter the common law, save by substituting the ages therein named for the common law ages; and it has been generally, if not universally held, in construing similar statutes, that in the absence of any provision declaring marriage made in violation of the statutory proviso void, it was a valid and binding contract, upon the theory that persons of the consenting or lawful age, voluntarily entering into a contract, should be held thereto precisely as they would be held to any other lawful contract voluntarily assumed at the legal age, or upon majority. In other words, that the age fixed by statute as the age of consent, renders parties of such age no longer infants with regard to that special contract” (Citing cases.)

The same court in a later case (State v. Zichfeld, 23 Nev. 304, 46 P. 802, 805, 34 L. R. A. 784, 62 Am. St. Rep. 800), in considering the question of the validity of a common-law marriage in Nevada in the light of its statute requiring marriages to be solemnized, referred to the decision of Fitzpatrick v. Fitzpatrick, supra, with approval, and said: “It will be observed that the court held, in effect, that in the absence of any provision of the statute declaring the marriage of a minor, without the consent of parent or guardian, void, the marriage was valid, notwithstanding the explicit requirements of the statute that such consent shall first be obtained.”

We can readily agree that a different construction of the Nevada statute would have been logical and reasonable; but that is no sufficient reason for this court under the principle of comity to disregard the construction by the Supreme Court of Nevada of its own statute.

It is suggested by the appellant that the case of Fitzpatrick v. Fitzpatrick, supra, did not decide the question of a minor's right to annulment of a marriage by reason of its having been contracted without the consent of parent or guardian, but that it was a suit for divorce, and that such lack of consent is not a ground for divorce. We have no difficulty, however, in reaching a contrary conclusion in view of the facts that the statutory grounds for annulment are contained in a section of an act entitled “An Act relating to marriage and divorce”; that the same act directs that the proceedings in a suit for annulment shall be as in a proceeding for divorce; that the court in Fitzpatrick v. Fitzpatrick, supra, while characterizing it as an action for divorce, did not decide it upon the ground that the lack of parental consent was not one of the grounds of divorce specified in the statute but treated it as in fact a suit for annulment; and that it later in the case of State v. Zichfeld, supra, referred to it in terms as a suit for annulment.

It is also contended by the appellant that the case of Fitzpatrick v. Fitzpatrick, supra, cannot be given application to the case at bar, for the reason that our Civil Code classifies marriages into three kinds, viz., valid, void, and voidable, and that section 63 covers valid marriages only, whilst the marriage under consideration is of the voidable sort. A sufficient answer to this contention, we think, is that a voidable marriage is valid until avoided in the manner provided by law (Fensterwald v. Burk, 129 Md. 131, 98 A. 358, 3 A. L. R. 1562), and also that, as we have seen under the authority of the case cited, the marriage here in question would in Nevada be recognized as valid.

In the same connection it is urged by appellant that the precise facts involved in the case at bar were not present in the case cited, so that that case cannot be regarded as establishing a rule to be followed here. The difference in the facts, it is pointed out, is that in that case the element of a citizen leaving his domicile and going into a foreign state for the purpose of evading the law of the former, was not present.

We think this contention overlooks the fact that our examination of the law of the foreign state is not to be confined to what is expressed in one decision only, but extends to its statutes and to the entire body of the decisions of its highest courts. There is in Nevada, no more than in California, any statutory requirement that persons contracting marriage therein shall be legally domiciled in the state, or as to the existence of any specific intent in seeking the hospitality of the state, in the absence of which we know of no principle of law which would authorize its officials or its courts to inquire concerning it; nor in fact has appellant called our attention to any decision in which they have done so.

We come now to the second contention of appellant, viz., that the marriage here involved, even if valid in Nevada, is repugnant to the policy of this state because contracted without the consent of parent or guardian, which circumstance, it is said, would absolve this court from the obligation of the rule of comity referred to or its statutory enactment in section 63, so that the validity of said marriage should be determined by our law, under which it admittedly is voidable at the suit of a minor party or his guardian. Civ. Code, § 83, subd. 1. The argument of appellant is that section 63 will not be applied to a marriage which is repugnant to the public policy of the state, and that the consent of parent or guardian not having been obtained, an essential prerequisite to the marriage of minors under our law, it is therefore repugnant to such policy.

Under this principle, foreign marriages which under our law would be regarded as incestuous or bigamous have been generally considered as not protected by the rule of comity or the section of our Code referred to; and it has been sometimes said that the law of a state indicates or establishes its public policy. We donbt very much whether it can be fairly said with reference to such a broad subject as matrimony that any single one of a number of statutory regulations governing it establishes the public policy of a state with regard to that subject. Such policy, we think, must be deduced from such regulations as a whole. It would be difficult to maintain that the requirement of parental consent is of such fundamental importance in our marriage requirements as to overcome the long, and perhaps universally, established rule that a marriage valid in the state where contracted will be accepted as valid elsewhere; and especially if, as here, its validity may only be called into question by the minor or his guardian, and only by them under the conditions prescribed in section 83, subd. 1, of our Civil Code. If the argument of appellant in this respect were sound, it would in fact leave no field of operation for section 63, for that section necessarily presupposes the existence in the foreign marriage of an element which would render its validity questionable in this state.

The question has been resolved in principle by our Supreme Court in Estate of Wood, 137 Cal. 129, 69 P. 900, 901. The marriage there considered, if it had been contracted in this state, would have been illegal and void; but the court, applying directly to it this section, held that, inasmuch as it was valid in the state of Nevada where contracted, it was free from attack here. We quote from the main opinion in that case: “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. * * * 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, 38 A. 81, 40 L. R. A. 428, 60 Am. St. Rep. 936. 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 (section 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 whatsoever. Section 61 refers to marriages contracted in this state, exactly as does section 60, which declares, ‘All marriages of white persons with negroes or mulattoes 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 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.”’

In a concurring opinion in the same case, Chief Justice Beatty expressed his views on the subject thus: “If the Reno marriage was lawful in Nevada, it is valid here (Civ. Code, § 63).”

Our Supreme Court reached the conclusion stated, although, as is seen from the dissenting opinion in that case by Mr. Justice Harrison (page 146 of 137 Cal., 69 P. 900, 907), the findings of the lower court showed (a consideration pertinent to the next contention of appellant to be considered) that at the time of the marriage in question the parties thereto were domiciled in this state, and that “the plaintiff and the said Wood, for the sole purpose of marrying each other, and without any intent to change their residence, went to Reno, in the state of Nevada, and there married each other, and at once returned to their said residence in California, and continued to reside there,” etc.

It is also to be noted that the marriage considered in the case last cited would in this state have been absolutely void; in the case at bar it is merely voidable; so that, if anything, there is even greater propriety in applying to this case the principle there approved and followed.

Coming now to appellant's third contention, viz., that this court will not regard the marriage here involved as protected by section 63 for the reason that the parties to it resorted to the foreign state for the express purpose of evading our law, and intended to return immediately after entering into the marriage.

The decisions of various jurisdictions on this question are conflicting, some holding that if such motive be present the courts of the domicile will refuse to recognize the marriage, whilst in others it will not have this effect. In a number of the states the question has been set at rest by the enactment of a statute declaring that such marriages shall not be judged by the standard of the foreign law, but by that of the domicile. In this state we have no such statute. There arises, perhaps, in the normal mind a first impulse to condemn such marriages because of the disregard or defiance of the domiciliary law involved. On the other hand, once the marriage has taken place, a new situation is created to which a different order of considerations applies and which should rather be regarded objectively than under the influence of a feeling of disapproval aroused by a deliberate evasion of a salutary law. In the case at bar, the parties, following their marriage, established a home, and a child has been born to them. The right given by section 82 of the Civil Code to a minor, already referred to, is usually one to be exercised by him or her against a person of maturer years, which circumstance undoubtedly must have influenced the Legislature in conferring the right. Occasionally it happens, as in this case, that both parties to the marriage are minors; and we have here the man, the elder of the two, attempting to exercise it against the younger. It is a situation in which, although by the general terms of said section the right exists unless excepted by the application of section 63, it has not the same ethical basis as in the ordinary case of marriage of a minor to one who has attained majority.

Inquiring first as to what has been held on this question in other jurisdictions, it is said in 38 Corpus Juris, Marriage, § 3, p. 1278, that: “The fact that the parties to the marriage left their domicile for the purpose of evading its laws does not alter the general rule (that the validity of a marriage is to be determined by the law of the place where contracted), unless a statute expressly provides to the contrary.”

As already stated, we have in California no such statute; but this element of evasion was present in Estate of Wood, supra, in which, as we have seen, the marriage, although void under our law, was held to be saved by the application of section 63. It is true that this element in the case was not specifically considered, but it was nevertheless glaringly apparent. But in the case of Norman v. Norman, 121 Cal. 620, 54 P. 143, 144, 42 L. R. A. 343, 66 Am. St. Rep. 74, this question was directly considered, and it was there held that such evasion did not invalidate the marriage. The court said: “It seems to be well settled that the motive in the minds of the parties will not change the operation of the rule. Chief Justice Gray, in Commonwealth v. Lane, 113 Mass. 458 [18 Am. Rep. 509], said: ‘A marriage which is prohibited here by statute, because contrary to the policy of our laws, is yet valid if celebrated elsewhere * * * even if the parties are citizens and residents of this commonwealth, and have gone abroad for the purpose of evading our laws, unless the legislature has clearly enacted that such marriages out of the state shall have no validity here.’ This has been repeatedly affirmed by well-considered decisions. The authorities are found fully reviewed in that case, as they also will be found in support of the general rule in Milliken v. Pratt, 125 Mass. 374 [28 Am. Rep. 241], by the same learned jurist. See, also, as to marriages in evasion of the law of the domicile of the parties, Bish. Mar. and Div. § 880 et seq. If the marriage in question can find support by the laws of any country having jurisdiction of the parties at the place where the marriage ceremony was performed, we should feel constrained by our code rule and well-considered decisions to declare it valid here, even though the parties were here domiciled at the time, and went to the place where they attempted to be married for the purpose of evading our laws, which they believed forbade the banns.”

We hold, therefore, that this third contention of appellant has not been established, and accordingly that the ruling of the trial court on the general demurrer to the complaint was correct.

It follows that the judgment should be affirmed, and it is so ordered.


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