226 Ark. 881, 295
S.W.2d 330, 61 A.L.R.2d 841 Supreme Court of
Arkansas. Dave DE POTTY,
Appellant, v. Susie Waggoner DE POTTY, Appellee. No. 5-1037. Nov. 5, 1956. Concurring Opinion
Nov. 12, 1956. Dissenting Opinion
Nov. 26, 1956. Rehearing Denied Dec.
3, 1956. SUBSEQUENT HISTORY: Nelson v. Marshall, 869 S.W.2d
132 (Mo.App. W.D. Nov 16, 1993) (No. WD 47669), rehearing and/or transfer
denied (Dec 28, 1993), transfer denied (Feb 22, 1994) [**330] [*882] COUNSEL: Van Johnson, Texarkana, for appellant. LeRoy Autrey and Dennis K. Williams, Texarkana, for appellee. OPINION BY: HOLT, Justice. This is an action by appellant seeking to annul his marriage to
appellee. From a decree denying and dismissing his prayer for annulment comes
this appeal. There appears to be little if any dispute as to essential facts.
The parties were united in marriage in the border city of Texarkana on the
Arkansas side by a duly ordained minister, whose credentials are not
questioned, and the marriage was solemnized in the presence of witnesses
according to the forms and customs of the church to which the minister
belonged. The parties were fully competent to marry. Prior to the marriage
requisite blood tests were had. They lived together for some 16 months prior to
the present suit, holding themselves out as husband and wife. Prior to the
marriage it appears undisputed that appellant borrowed from his wife
approximately $3,000, which he had not repaid at the time of the marriage. It
appears that all requirements for a valid marriage under our marriage statutes,
§§ 55-201-55-236, Ark.Stats.1947, were fully complied with,
except the marriage license used was obtained on the Texas side of Texarkana in
Bowie County, Texas. The parties at all times, until discord arose shortly
before divorce proceedings were filed, lived together in good faith, cohabited
as husband and wife, and believed that their marriage was legal. The question presented for our determination, says appellant, is whether
residents of this state may legally contract marriage in this state with a
license issued by a foreign state. Arkansas Statutes, §
55-201 provides for the procurement of an Arkansas license by those contracting
marriage. But we have no statute providing that a marriage is void where no
license is obtained. [*883] Here, a marriage license was issued by
the State of Texas, but no Arkansas license was acquired. If § 55-201
is mandatory, the marriage is void. On the other hand, if the statute is [**331] merely directory, the marriage is valid. The appellant, in
his contention that the statute is mandatory, relied largely on Furth v.
Furth,
97 Ark. 272, 133 S.W. 1037, 1038. The issue in that case was whether a common
law marriage is valid in this State. In dealing specifically with that issue,
the court said: * * * we hold our statutes regulating and prescribing
the manner and form in which marriages may be solemnized are mandatory and not
directory merely. In short, we hold that the doctrine of so-called common-law
marriages has never obtained or become a part of the laws of this
state. In the Furth case, there was no marriage ceremony of any kind,
whereas, in the case at bar, there was a ceremonial marriage performed by a
duly qualified minister. Although there are some cases to the contrary, the great weight of
authority holds that marriage license statutes are merely directory. In Feehley
v. Feehley, 129 Md. 565, 99 A. 663, 665, L.R.A.1917C, 1017, the court said: There
are differences of judicial opinion in various jurisdictions as to what are the
essential features of a marriage under the rules of the common law, but the
courts are generally in accord upon the proposition that a statutory provision
for a license to marry shall not be regarded as mandatory, and vital to the validity
of a marriage, in the absence of a clear indication of a legislative purpose
that it should be so construed. The Supreme Court of Nebraska said in
Melcher v. Melcher, 102 Neb. 790, 169 N.W. 720, 721, 4 A.L.R. 492: A
marriage may be annulled when one of the parties is under the age of legal
consent at the suit of the parent entitled to the custody of such minor. * * *
But that no license was obtained, on that the license was obtained
fraudulently, is no ground for the annulment of a marriage. Compliance
with license statutes is not generally essential to the validity of a marriage,
at least in the absence of statutory provision expressly making it so
essential. 35 Am.Jur. 195. Statutes in the various
jurisdictions usually require a [*884] license to be obtained. While, according
to some authorities, such a statute is mandatory and a marriage performed
without the required license is void, the general rule with regard to the
construction of such statutes is that they are directory merely, and do not
destroy the validity of a marriage contracted contrary to their provisions,
unless it is provided, expressly or by necessary implication, that the marriage
shall be invalid. 55 C.J.S., Marriage, § 24, p. 857. A long
list of cases from many different states are cited in support of the text. We
believe the better view is that of the majority. Affirmed. McFADDIN and MILLWEE, JJ., dissent. WARD, J., concurs. CONCURRING OPINION BY: WARD, Justice (concurring). My concurrence in this opinion springs from the hope that it will
not in the future be misconstrued. It should be obvious to everyone that it
deals with an important and sacred item of our social structure. In the first place, it is unthinkable that this court should hold
it has absolutely no power to decree valid a marriage in some extreme situation
that might hereafter arise. For instance, lets suppose that these
people had lived together for 40 years and had been blessed with several
children who in turn had married and reared children. For this court to hold
that they were never married would portend consequences of serious magnitude. On the other hand I feel sure that this court does not desire to
announce categorically that a marriage license is not necessary, or to put its
stamp of approval upon mere cohabitation and dignify that relationship with the
status of a legal marriage. Such is not the intent of the opinion in this case. [**332] I feel sure that the opinion in this case intends only to
approve a marriage relationship [without license] only where; (a) the parties
engaged in a ceremony substantially in compliance with that prescribed by the [*885] statutes; (b) the parties to the ceremony acted in good faith
and believed that they were complying with all the provisions of our statutes;
(c) they consummated the ceremony by cohabitation, and; (d) the proof of (a),
(b), and (c) mentioned above is clear and convincing. It is my thought that, in this opinion, our court has gone further
than it has ever gone before in approving what might be termed a ceremonial
marriage. It is easy to envision how this new power assumed and sanctioned by
the court could be misconstrued and misapplied. Therefore, it seems to me that the majority opinion should have
laid more stress on the items above mentioned, and, I think, it should have
pointed out that this court will look with disfavor on a marriage
without a license and will sanction it only if unusual circumstances and the
social welfare clearly dictate such action. DISSENT BY: McFADDIN,
Justice (dissenting). The majority opinion in this case will have a far-reaching effect
on our marriage laws. It not only nullifies a portion of our Statutes, but also
over-rules our cases and creates confusion and uncertainty regarding marriages.
So I am compelled to dissent. The validity of a marriagein the absence of any
questions of public policy in the domiciliary stateis determined by
the law of the state wherein the marriage is contracted. So Arkansas has the
rightin fact, the dutyto determine what is a valid marriage
in this State. Our lawsas found in § 55-201 et seq.,
Ark.Stats.provide for the issuance of a license, form of the license,
applicants being required to take blood tests, sobriety, waiting period,
performance of the marriage ceremony, and returning of the certificate of
marriage to the issuing county. In short, up to the date of this case, if
anyone had wanted to see about a marriage, the information could have been
found in the office of the county clerk wherein the marriage license was
issued. Hereafter where will we look for the recording of a marriage performed
in Arkansas? According to this opinion, we will have to [*886] look in one of the county clerks offices
in Texas. We might just as well have to look in Oregon, Maine, California or
Mexico, and then consult every preacher in Arkansas to see if he had performed
such a marriage in this State on a license issued in some other state. No
record of such a ceremonial marriage in Arkansas on a license from another state
could be found in any county courthouse in Arkansas. There have existed for many years throughout the State of the
American union two types of marriages: (a) a common-law marriage; and (b) a
licensed (or statutory) marriage. A common-law marriage exists when a man and
woman agree to live together and publicly do so. A licensed marriageor
statutory marriageexists when a man and woman obtain a license from
the proper authority to become husband and wife and then have a ceremony of
marriage and return the certificate of marriage to the proper recording office.
By Act No. 127 of 1875 (now found in § 55-201, Ark.Stats.), the
Arkansas Legislature provided: All persons hereafter contracting marriage in this State
are required to first obtain a license from the clerk of the County Court of
some county in this State. It will be observed that this Statute says all persons contracting
marriage n this State; and it says that such persons are required to first
obtain a license; and it says that such license must be obtained from the Clerk
of the County Court of some county in this State. Now, in the case at bar, the
license was obtained from [**333] the County Clerk of a county in Texas;
and so these parties did not comply with the law. In the case of Furth v. Furth, 97 Ark. 272, 133
S.W. 1037, the Arkansas Supreme Court in 1911 held that a common-law marriage
could not be validly contracted in this State and furthermore held that
compliance with our Statutes is mandatory. Judge Hart used
this language in this opinion: Because the marriage relation is the source from which
arises the home and the family, we have concluded [*887] to decide this
question rather than pass upon the preponderance of the evidence in the case. *
* * It will be seen that before the common law was adopted
here, statutes had been enacted which regulated marriages and which prescribed
the manner and form in which they might be solemnized. Such statutes having
directed that marriages should be solemnized in a particular manner before
certain authorized persons, that way is exclusive; and we hold our statutes
regulating and prescribing the manner and form in which marriages may be
solemnized are mandatory and not directory merely. (Italics our own.) That case of Furth v. Furth has remained the cornerstone of our
marriage law; and we cited it when approval as late as Woods v. Bell, 218 Ark. 307, 236
S.W.2d 63, decided in 1951. But in the present case the majority holds that our
Statute which says that a license is required, is not mandatory, even though we
held in Furth v. Furth as above quoted, our Statutes * * * are
mandatory and not directory merely. To sustain its conclusions in the case at bar, the majority says: Although
there are some cases to the contrary, the great weight of authority holds that
marriage license statutes are merely directory. Of course there are
some cases to the contrary; but the point is that the Arkansas Supreme Court
has directly held that our marriage license statute is mandatory; and so I make
the point that the present majority opinion over-rules our cornerstone case on
the necessity of a marriage license being issued in this State. To sustain its
holding, the majority cites only two cases and two general statements of the
law. I discuss each of these: 1. The first case that the majority cites is Feehley v. Feehley, 129 Md. 565, 99 A.
663, L.R.A.1917C, 1017. Here is the salient portion of the headnote to the case
in 99 A. 663: Where two Catholics, who had been divorced, called in a
priest, who went through a ceremony intended to be [*888] an essential feature
of the new marital agreement into which the parties were entering, the priest
and the man and woman understanding that he was officiating in order that they
might live together in lawful wedlock, the validity of the remarriage was not
open to question. There are several reasons why this Maryland case should not even
be persuasive in Arkansas; but one reason is sufficient to give, because it is
shown in the opinion itself. It is this: the Maryland Court said in Feehley
v. Feehley that it could reach the conclusion there reached because, under
the laws of Maryland, the marriage statutes were directory and not mandatory.
[FN1] [**334] But in Arkansas we have held that our
marriage license statutes are mandatory; and we cannot continue to hold the
marriage license statutes mandatory and follow a Maryland case based on the
opposite holding. I submit that this Maryland case is absolutely no authority
for an Arkansas Court to hold that people can get a license in Texas and have
the marriage ceremony performed in Arkansas; and that is the point which the
majority is holding in the case at bar. FN1. Here is some of the language from the
Maryland opinion: * * * the courts are generally in accord upon the
proposition that a statutory provision for license to marry should not be
regarded as mandatory, * * *; and again: The principle that
such provisions are directory only has been adopted in jurisdictions where a
religious ceremony is not regarded as an essential element of a marriage
according to the common law, and it would seem that in a state like our own,
where this additional sanction and safeguard is required, there is even
stronger reason for the rule that the validity of such a marriage should be
sustained. 2. The second case cited by the majority to sustain its conclusion
is that of Melcher v. Melcher, 102 Neb. 790, 169 N.W. 720, 4 A.L.R. 492.
But it must be remembered that common-law marriages are recognized in Nebraska;
[FN2] so certainly a ceremonial marriage without a license would be recognized.
The Nebraska case is no authority to justify the over-ruling of Furth v.
Furth. FN2. That common-law marriages are recognized
in Nebraska can be learned by consulting an Annotation in 39 A.L.R. 538; and
also by consulting Keezer on Marriage and Divorce, 3rd Ed.,
page 1065 et seq. 3. The majority next cites from 35 Am.Jur. 195 this quotation: Compliance
with license statutes is not generally essential to the validity of a marriage,
at least [*889] in the absence of statutory provision
expressly making it so essential. To sustain that text, cases are
cited from a number of American jurisprudence, some of which recognize a
common-law marriage and others of which hold that the requirement for a
marriage license is directory and not mandatory. I find no case which
recognizes the validity of a ceremonial marriage as coming from a State that
holds the marriage license is mandatory; and that is exactly what we held in Furth
v. Furth. The majority failed to cite 35 Am.Jur. 204, wherein the text
reads: In a number of jurisdictions, the statutory requirements as to
the manner and formalities of marriage are regarded as mandatory, and a
common-law marriage is not valid; and the first case cited to sustain
that statement is the Arkansas case of Furth v. Furth. Furthermore, it is
interesting to note that the tendency of states is to abrogate the validity of
common-law marriages by statute. For instance, in 35 Am.Jur. 206, the Statutes
of California, Illinois, Kentucky and Louisiana are mentioned to sustain the
statement that in some states the common-law marriage was first adopted by the
courts but later abrogated by the statutes. In the present case, the majority
is nullifying our Statute. 4. Finally, the majority, to sustain its holding, cites from 55
C.J.S., Marriage, § 25, p. 857, to the effect that the general rule is
that marriage license statutes are directory merely. Let us admit that most
states so hold, and that many states also recognize the common-law marriage.
The point is that in Arkansas since 1875 the law has been that persons desiring
to be married in this State are required to first obtain a license
from the Clerk of the County Court of some county in this State;
and let it be remembered that in Furth v. Furth we held that Statute
to be mandatory. The majority is now saying that even though the Statute was
mandatory, still the marriage was valid. As I see it, the majority is recognizing a hybrid state of
marriage. Where is the authority for this Court to put validity into such a
hybrid marriage? Let us agree [*890] that it is an act of hardship to hold
that these parties to this record are not married; but, if so, let the majority
build some equitable estoppel in this one case rather than start us out on a
new form of hybrid marriage. Merely because these particular parties were
ignorant of the law is no excuse for upsetting our entire law regarding
marriages. Ignorance may be bliss; but it does not excuse non-compliance with
mandatory provisions of the law. For the reasons herein given, I respectually dissent. |