In Re Morgan

GATES, J.,

pro tem.

Petitioner having formerly applied for a writ, which was denied, the facts are there stated (98 Cal. App. 745 [277 Pac. 740]). The question is, Was petitioner guilty of a contempt of court for having failed and refused to pay alimony pursuant to an order based upon conflicting evidence as to the validity of the marriage of the parties

1

The plaintiff in the divorce action alleged that she was petitioner’s lawful wife, whereas he averred that their marriage was illegal and void for the reason that the wife at the time had a husband living from whom she had not been divorced. Authorities are cited and quoted to the effect that an asserted prior marriage, and the illegality of the marriage of the parties litigant, cast the burden upon the party urging them of so showing.

It is well established that a marriage may be established by the testimony of one of the parties thereto.

(Budd

v.

Morgan,

187 Cal. 741 [203 Pac. 754];

In re Richards,

133 Cal. 524 [65 Pac. 1034]; 38 C. J. 1335.) The burden of proving a marriage rests on the party who asserts it. (38 C. J. 1321.) This obligation was satisfactorily met when the plaintiff in the divorce action proved by her .own testimony that she married petitioner. It then became incumbent upon the latter to show that his marriage to Mrs. Morgan was invalid. It is well settled that if a second marriage is attacked upon the ground of a prior existing union between one of the spouses and a third person, the burden of proving the prior mar

[604]

riage rests on the party asserting it.

(Wilcox

v.

Wilcox,

171 Cal. 770 [115 Pac. 95];