Birch v. Birch

NOURSE, P. J.

Plaintiff sued for the annulment of the marriage of the parties on the ground that the defendant was married to another and not divorced. Defendant cross-complained seeking a divorce on the ground of plaintiff’s cruelty. Judgment went for the defendant on plaintiff’s complaint, and on her cross-complaint a divorce was denied on the ground that her testimony concerning the acts of cruelty was not corroborated. Plaintiff alone appeals.

The trial court found that plaintiff had failed to prove that defendant’s former marriage had not been legally dissolved prior to the marriage of the parties herein. Appellant first contends that this finding is contrary to the evidence. Admitted is the fact that defendant was married to Alexander Feodorovieh Magnitsky on April 17, 1930, in the Saint Iversky Church of Harbin, Manchu-Di-Kuo, China. The affidavit of Magnitsky was received in evidence averring that in March, 1937, the Byzantine-Russian Church issued to him, for presentation to the district court, its certificate that the parties had been ecclesiastically divorced in the year 1935 on the

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ground of wilful desertion by respondent, but that he did not present the certificate to the district court at Harbin. However, the respondent testified that she presented her copy of the ecclesiastical divorce decision to the one Chinese court in Harbin and that she was present when that court granted a divorce.

So far as appears from any evidence offered by appellant there was nothing to show that a divorce as testified to by respondent was not valid and final. If the practice under the laws of Manchu-Di-Kuo at that time was for the court to confirm the decision of the Byzantine-Russian Church at the request of either party there can be no question that the parties were legally divorced at that time. The burden was on the plaintiff and appellant to show that the marriage had not been dissolved in a legal manner pursuant to the judicial practice in Harbin in the period 1935-1937.

The case is controlled by the settled rule that when a person has entered into two separate marriages a presumption arises as to the validity of the second marriage. This rule is clearly stated in

Estate of Smith,