Gainey v. Gainey

MUSSELL, J.

This is an action for separate maintenance. Plaintiff married one Arthur Polk in Genessee County, Michigan, on or about April 12, 1935. Soon thereafter the parties to this marriage separated and did not live together thereafter. In 1936 plaintiff met the defendant herein in Flint, Michigan. They then went to Ohio, and settled near Youngstown. Plaintiff and defendant there bought and sold real property together as “husband and wife.” They were known in the community

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as Mr. and Mrs. Gainey and held themselves out as husband and wife. In 1943 plaintiff and defendant returned to Michigan, where they continued to live together as husband and wife. In 1944 they came to California and lived together in San Diego until 1948. On February 10th of that year they separated and executed a property settlement agreement in which they acknowledged that they lived together for approximately 12 years as man and wife and that a marriage had never taken place between them. About six months after this separation the parties again lived together for approximately three weeks, separating permanently in August, 1948.

This action was filed on April 22, 1952. An order to show cause was issued and the trial of the action was commenced on May 15, 1952. Plaintiff testified that she married Arthur Polk in 1935 and that in 1939 he secured a divorce from her and that she had not seen Mr. Polk since; that she received copies of the divorce papers in 1939 and that the date of the divorce was February 6, 1939; and that the defendant had the papers in his possession and read them. However, plaintiff also testified that she did not have copies of the divorce papers; that she did not remember what court granted the

divorce;

that she did not remember whether the papers which she received were certified or not and stated that she was never served with a complaint by her husband. No further proof as to the claimed existence of the divorce decree was offered in evidence.

The trial court found, in part, “that no impediment existed preventing the plaintiff and defendant from consummating their marriage while they resided in Ohio in 1939, and that when they came to California in 1943, they had the status of husband and wife.”