Parmann v. Parmann

GOULD, J. pro tem.

Defendant-appellant seeks to set aside an order requiring him to pay court costs and attorney’s fees in an action brought to terminate a void marriage.

Plaintiff Bette Jane Parmann filed her complaint in two counts. In the first she alleged that she and defendant, Clarence Fred Parmann, intermarried at Yuma, Arizona, March 21, 1940, at which time defendant had a former wife living, and that his marriage to his former wife was in force, undissolved by decree of divorce or otherwise. In the second cause of action she alleged that defendant since said marriage had wrongfully inflicted upon her grievous mental and physical suffering, anguish and pain. Her prayer was that the court decree that said marriage be declared void on account of defendant’s preexisting marriage, or, in the alternative, that she be granted a decree of divorce upon the ground of extreme cruelty. By appropriate allegations and prayer she sought alimony, costs and attorney’s fees.

Upon hearing of an order to show cause why defendant should not be required to pay such support money, costs and fees, an order was made by the trial court that he pay to plaintiff $25 per week for her support and the further sum of $250 attorney’s fees, and $15 court costs. Subsequently the court vacated the requirement for support, but otherwise allowed the former order to stand.

Not only by the allegations of plaintiff’s verified complaint was the fact of the void marriage presented to the court, but both defendant and plaintiff testified to the same effect at the show cause hearing. Such a marriage by the provisions of

[69]

section 61 of the Civil Code is illegal and void from the beginning. The invalidity of such a marriage may be shown at any time.

(Estate of Gregorson,

160 Cal. 21 [116 P. 60, Ann. Cas. 1912D, 1124, L.R.A. 1916C, 697];

People

v.

Glab,

13 Cal.App.2d 528 [57 P.2d 588].) Under section 137 of the Civil Code the court’s power to order alimony, costs and attorney’s fees may be exercised only in favor of a “husband” or “wife.”