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03/18/97 MARRIAGE TAMERA SUE MAY v. TOMMY JOE MAY

March 18, 1997

IN RE THE MARRIAGE OF: TAMERA SUE MAY, PETITIONER-APPELLEE,
v.
TOMMY JOE MAY, RESPONDENT-APPELLANT.



Appeal from the Circuit Court for the 14th Judicial Circuit, Rock Island County, Illinois. No. 94 D 909. Honorable Alan G. Blackwood, Judge, Presiding.

Released for Publication April 23, 1997.

Present - Honorable Michael P. Mccuskey, Justice, Honorable Thomas J. Homer, Justice, Honorable Peg Breslin, Justice. Justice Breslin delivered the opinion of the court. Homer and McCUSKEY, JJ., concur.

The opinion of the court was delivered by: Breslin

JUSTICE BRESLIN delivered the opinion of the court:

In this case, we are confronted with the intriguing issues of bigamy and deceit. But the fundamental question we must answer is whether a second husband may have his marriage declared void after his wife's prior marriage has been dissolved, despite the fact that he lived in a conjugal relationship with his wife for almost four years thereafter. We hold that he cannot.

FACTS

Tamera and Tommy were married in Illinois in 1989. They had three children, Randy, born in 1989, Michael, born in 1991, and Megan, born in 1992. At the time the parties were married, Tamera was still married to her first husband, and she remained married to him until a dissolution judgment was entered in Texas in 1991. Tamera testified that she married her first husband solely to enable him to obtain an immigration visa.

At the time Tamera and Tommy were married, Tommy was aware that Tamera's divorce had not yet been presented to the Texas court. However, Tamera told Tommy that the divorce would be entered by the court within a week of their marriage. Tommy and Tamera continued to cohabit as husband and wife until shortly before Tamera filed her petition for dissolution of marriage in December 1994. During a deposition in the instant divorce proceedings, Tommy discovered that Tamera's divorce from her first husband had been delayed.

After the trial court entered the judgment of dissolution, Tommy filed a motion to reconsider which asked the court to clarify the duration of the marriage in light of Tamera's prior marriage. The trial court ruled that the parties' marriage was void in 1989, but became valid on the date Tamera's marriage to her first husband was dissolved. In making this ruling, the trial court relied on section 212 of the Illinois Marriage and Dissolution of Marriage Act (Act), which provides that parties to a prohibited marriage who cohabit after removal of the impediment are lawfully married as of the date of the removal of the impediment. 750 ILCS 5/212(b) (West 1994). Thereafter, Tommy filed another motion to declare the marriage void ab initio and set aside all orders related to the marriage. The trial court denied this motion because it had previously entered a ruling on the validity of the parties' marriage. This appeal followed.

ARGUMENT(S)

The sole issue on appeal is whether the cohabitation required by section 212(b) of the Act must occur with knowledge that the prior impediment to the marriage has been removed.

The overriding objective in interpreting a statute is to ascertain and give effect to the intent of the legislature. Roser v. Anderson, 222 Ill. App. 3d 1071, 584 N.E.2d 865, 165 Ill. Dec. 431 (1991). If statutory language is susceptible to more than one interpretation, the court may look beyond the language to consider the purposes to be served by the statute. Sisters of Third Order of St. Francis v. People ex rel. Barra, 151 Ill. App. 3d 875, 503 N.E.2d 1069, 105 Ill. Dec. 63 (1987). If, however, the language is clear, the court must confine its inquiry to a consideration of that language and must not look to extrinsic aids. In re Marriage of Logston, 103 Ill. 2d 266, 469 N.E.2d 167, 82 Ill. Dec. 633 (1984). This court reviews questions of statutory construction de novo. See Wright v. Chicago Municipal Employees' Credit Union, 265 Ill. App. 3d 1110, 639 N.E.2d 203, 203 Ill. Dec. 164 (1994).

Section 212 of the Act prohibits marriage prior to the dissolution of an earlier marriage of one of the parties. 750 ILCS 5/212(a)(1) (West 1994). This section further provides that "parties to a marriage prohibited under subsection (a) of this Section who cohabit after removal of the impediment are lawfully married as of the date of the removal of the impediment." 750 ILCS 5/212(b) (West 1994).

Although Tommy does not deny that he and Tamera lived together as husband and wife after Tamera's 1991 divorce from her first husband, he claims that such cohabitation is not enough to validate the marriage under section 212(b) of the Act. He argues that since a bigamous marriage is void ab initio (see Cartwright v. McGown, 121 Ill. 388, 12 N.E. 737 (1887)), section 212(b) can only operate to create a lawful marriage if all of the requisite elements of a valid marriage exist. Because consent is a requisite element of marriage ( Larson v. Larson, 42 Ill. App. 2d 467, 192 N.E.2d 594 (1963)), Tommy claims that section 212(b) operates to validate a prohibited ...


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