Hite v. Hite

GAROUTTE, J. In the pending action for divorce the trial court made an order for alimony and counsel fees. [217]This appeal is now prosecuted by defendant from that order. The answer of defendant denies the fact of marriage, and it is now insisted upon his part that the evidence taken at the hearing does not justify the order. It is thus apparent that the question directly confronts us, What amount of evidence is necessary to justify the trial court in awarding alimony and counsel fees in a pending action for divorce, where the existence of the marriage relation is denied? Yet, in view of the future trial of this ease upon its merits, where this question will undoubtedly be the all-important question to be tried and decided, we feel that the discussion of the matter upon an appeal from the preliminary order should be circumscribed within small limits. Any other course might result in embarrassment to both parties at the trial of the cause, and therefore its discussion will serve no good purpose at the present time.

There must be some evidence tending to show a marriage relation between the parties before an order similar to the one at bar should be made. It is perfectly evident that the requirements of the law demand this, or else the doors are spread wide open for the perpetration of the greatest frauds. At the same time, that degree of evidence required to establish the marriage relation at the trial is not demanded; for, if such were the law, then the material issue arising at the trial would be litigated in advance, and this in face of the fact that the money to be obtained by the order is largely to be applied in making preparation for the trial of that identical question. In Sharon v. Sharon, 75 Cal. 43, 16 Pac. 345, it is declared that the marriage should be established “by satisfactory evidence showing at least prima facie a marriage in fact.” We deem the foregoing statement fairly illustrative of the true rule for the guidance of trial courts. There should be evidence establishing prima facie the fact of marriage. The evidence of plaintiff upon the hearing should be such that the trial court may be able to say that a fair presumption of the fact of marriage arises from the showing. Does the evidence bring this case within the foregoing rule? There is no claim that a marriage between these parties was even regularly solemnized. The evidence tends to show that defendant furnished plaintiff a house in which to live, and that she resided there for the greater portion of twenty-five years; that he supplied her [218]