Sellers v. Sellers

DRAPER, P. J.

Plaintiff wife was granted interlocutory decree of divorce, and defendant was denied relief on his cross-complaint for annulment. He appeals.

By Nebraska decree entered June 6, 1933, Paul Christopher was granted a divorce from his wife, plaintiff herein. On November 16,1933, plaintiff and defendant, both of whom were residents of Nebraska, were married in Iowa. They returned to Nebraska a week later, and continued as residents of Nebraska until the following May, when they moved to California. They have resided here as husband and wife ever since.

The parties concede that Nebraska law proscribed remarriage until expiration of six months after a Nebraska divorce decree, and that the marriage ceremony of the parties to this action occurred less than six months after plaintiff’s divorce. They differ as to what Nebraska statute was in effect in 1933. Plaintiff points to an act which made it “unlawful” for a party to a divorce proceeding to marry another within a specified period. Concededly such a statute is penal only, and would

[867]

not invalidate the Iowa marriage. Defendant relies on a Nebraska statute which provides that a divorce decree “shall not become final or operative” for six months. Neither has traced the legislative history of the provisions.

Our research shows that the statute relied upon by plaintiff appears in a 1907 compilation (Nebraska Comp. Stats., 1907, ch. 25, § 45). It was repealed in 1909, and the statute relied upon by defendant was substituted (Nebraska Session Laws, 1909, ch. 45, p. 234). This remained the law in 1933 (Nebraska Comp. Stats., 1929, §42-340). We have informed counsel of this research and they do not question it.

The Nebraska decisions hold that a divorce decree, under this statute, does not dissolve the marriage until six months have elapsed, and that remarriage of one of the parties within that period is invalid

(Copple

v.

Bowlin,

172 Neb. 467 [110 N.W.2d 117];