Appeal by plaintiff from the Superior Court of Cook county;
the Hon. PETER H. SCHWABA, Judge, presiding. Heard in the second
division of this court for the first district at the February
term, 1953. Judgment affirmed. Opinion filed December 15, 1953.
Released for publication January 5, 1954.
MR. JUSTICE ROBSON DELIVERED THE OPINION OF THE COURT.
This is an appeal by plaintiff, Josephine M. Linneman, from an order dismissing her petition for a rule requiring defendant to show cause why he should not be held in contempt for failure to pay alimony. The plaintiff, who had divorced the defendant and remarried in Illinois, subsequently had her second marriage annulled in California. She predicated her petition for renewal of her alimony payments on the ground that the annulment of her second marriage revived defendant's responsibility to support her.
The first and vital issue to be decided is whether the California decree based on a provision of the California Code annulling the second Illinois marriage of plaintiff is a good and valid decree binding on defendant in Illinois.
It has been said that marriage is a civil contract to which there are three parties: the husband, the wife and the State, and it is regarded as a status based upon public necessity controlled by law for the benefit of society at large. VanKoten v. VanKoten, 323 Ill. 323, 326; In re Estate of Young, 319 Ill. App. 513. The law governing the validity of this contract is the law of the State where it was made. Reifschneider v. Reifschneider, 241 Ill. 92, 96; Lehmann v. Lehmann, 225 Ill. App. 513, 523. Illustrative of this point is the case of Ertel v. Ertel, 313 Ill. App. 326, in which it was held that the statutes and construction thereof by the courts of review of Missouri, the place of the marriage, governed the question of the competency of the husband to enter into a marriage.
Further, the Supreme Court of Colorado, in a well-considered opinion in the case of Payne v. Payne, 121 Colo. 212, enunciates this same principle. The court said on pages 217, 218:
"We appreciate the difference between actions for divorce and annulment . . . Our study persuades us that irrespective of whether the action is brought in the jurisdiction where the marriage ceremony was performed or in that where the parties, or one thereof, is domiciled at the time of the commencement of the annulment action, nevertheless, in such an action . . . the marriage contract is held to be valid or void, according to the statutes in force and effect in the jurisdiction where the same was entered into, and if, according to these statutes, it is found to be valid, it must be, with exception not necessary here to note, so considered in all other jurisdictions, notwithstanding the fact that under the statutes of another jurisdiction the marriage might be voidable or even void."
The Civil Code of California (sec. 63) provides:
"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."
This provision of the Civil Code declares the general rule of conflicts of law governing the validity of the marriage, namely, that a marriage valid where celebrated is valid elsewhere. Restatement of Conflict of Laws, secs. 121, 131, 132. This is also the law in Illinois. Construing this provision the courts of California have refused to annul marriages performed elsewhere which would have been voidable under the California Code. McDonald v. McDonald, 6 Cal.2d 457; Vaughn v. Vaughn, 62 Cal.App.2d 260.
In our case the record reveals that the plaintiff and the defendant, Francis P. Linneman, were divorced by a decree of the superior court of Cook county on July 2, 1947. By the terms of the decree the plaintiff was given custody of the minor son of the parties and provision was made for his support by defendant. The decree also provided for alimony payments to be made monthly to the plaintiff "until her death or remarriage, whichever event shall first occur."
On June 10, 1950, plaintiff was married to John Foster Corlett in Glencoe, Illinois. She had been and was then a resident of this State. Plaintiff and Corlett went on a honeymoon for a week and then returned to her home in Glencoe where they stayed for a week. On June 24, 1950, they left for San Francisco, California, where they made their residence.
Upon plaintiff's marriage to Corlett, defendant ceased making alimony payments to her. There was no protest from plaintiff. Plaintiff and her son and Corlett lived together in San Francisco from June until about the end of October or the first part of November in 1950. After the separation, plaintiff and her son continued to live in San Francisco. In July of 1951 plaintiff filed a complaint for annulment of her marriage with Corlett in the superior court in San Francisco on the ground of impotency pursuant to the following provision of the California Code, sec. 82:
"A marriage may be annulled for any of the following causes existing at the time of the marriage. . . .
"6. That either party was at the time of the marriage physically incapable of entering into the marriage state, and such incapacity ...