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Gradias v. Gradias

Supreme Court of Arizona

December 13, 1937

ANTONIA M. GRADIAS, Appellant,
v.
JESUS G. GRADIAS, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.

Mr. L. J. Cox and Mr. Wm. J. Fellows, for Appellant.

Mr. Greg Garcia, for Appellee.

OPINION

[51 Ariz. 36] LOCKWOOD, J.

This is an appeal from a judgment of the superior court of Maricopa county, in favor of Jesus G. Gradias, hereinafter called plaintiff, and against Antonia M. Gradias, hereinafter called defendant, granting a divorce and settling the community rights of the parties.

There is in reality but one question for us to determine on the appeal, and that is whether, at the time the action was brought, plaintiff and defendant were husband and wife by virtue of a common-law marriage, as contended by plaintiff, or had merely been cohabiting together, as claimed by defendant.

It is urged most strenuously, on behalf of defendant that at the time the relationship is alleged to have commenced, to wit, March, 1905, common-law marriages did not exist within the territory of Arizona, and that the parties, therefore, could not have entered into such a marriage. We think the state of the record is such that it is unnecessary for us to determine this question. It is the general rule of law that a marriage [51 Ariz. 37] valid under the laws of the country where contracted will be recognized as valid everywhere. 18 R.C.L., p. 388. The question of the validity of the marriage, therefore, depends upon the place where it is contracted, and not the place where an action for divorce is brought.

This case comes before us on the abstract of record, the reporter's transcript of the evidence not being brought up, and we, of course, can consider, in determining the validity of the marriage, only the matters appearing in the record, and not arguments made by counsel, either orally or in their briefs. McGinty v. Bass, 40 Ariz. 385,

Page 54

12 P.2d 283; Cubbison v. Cubbison, 45 Ariz. 14, 40 P.2d 86.

The allegations of the complaint, in regard to the marriage, are as follows:

"Plaintiff further alleges that on or about the month of March, A.D. 1905 this Plaintiff and the said Defendant commenced to live together as husband and wife and ever since that date and up to the month of October, A.D. 1935, plaintiff and defendant have lived and co-habited together as husband and wife and Plaintiff and Defendant always presented each other and treated each other as husband and wife, and that Defendant is the Common-law wife of this Plaintiff."

Nowhere in the complaint is there any suggestion as to where this alleged marriage was contracted. The defendant, in her answer, denies that there ever was any marriage, although she admits that she and plaintiff did live and cohabit as husband and wife for some thirty years after 1905. ...


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