In Re Cook

NOURSE, P. J.

Petitioner seeks his release in habeas

corpus

from a commitment for contempt for failure to comply with an order for payment of alimony and suit money.

The petition alleges and the proof is that he was married to Mary Jane Cook on August 2, 1909. She procured an interlocutory decree of divorce from him on July 18, 1928, and on March 31, 1931, the final decree was entered. The parties lived together as husband and wife, and children resulted from the union. On February 28, 1920, while this relation existed, the petitioner married Hilda E. Cook. They also lived together and raised children. On May 31, 1940, Hilda filed an action for divorce against petitioner to which he cross-complained setting up the illegality of this marriage because of the existing marriage with Mary. Upon the demand of Hilda in her divorce proceedings the petitioner was ordered to pay alimony

pendente lite

and suit money. He was adjudged guilty of contempt for failure to comply with that order. In this proceeding for

habeas corpus

Hilda filed an answer to the petition denying the allegation that in her divorce proceedings she filed an answer to this cross-complaint in which she denied that petitioner was married to another person at the time of the marriage of these parties. On the hearing of this petition there was received in evidence duly certified copies of the certificate of marriage of petitioner ánd Mary, certified copy of the final decree of divorce, and proof of Hilda’s knowledge of the former marriage relation.

The one question before us is whether the trial court had jurisdiction to make the contempt order. It is the petitioner’s contention that the second marriage was void

ab initio

and that he is not for that reason subject to the orders of the court through an award of alimony payable to the second wife. This position must be sustained.

[3]

Section 61 of the Civil Code declares in part: “A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning, unless:” The exceptions found in subdivisions one and two of this section are in no sense applicable here.