Patsy Ruth DAVIS, Widow, In the Matter of Robert Deway Davis, Deceased, Petitioner,
INDUSTRIAL COMMISSION of Arizona, and Sun Supply Company, Respondents.
[88 Ariz. 118] Cunningham, Carson & Messinger and Philip W. Messinger, Phoenix, for petitioner.
John R. Franks and Frances M. Long, Phoenix, Donald J. Morgan, James D. Lester, Phoenix, Edward E. Davis, Glendale, C. E. Singer, Jr., Phoenix, of counsel, for respondent Industrial Commission of Arizona.
By certiorari to this Court petitioner Patsy Ruth Davis, a widow, presents two questions for our determination (1) whether her marriage to the decedent Robert Dewey Davis, on February 27, 1954, was void under the provisions of A.R.S. Subsection B of Section 25-320, by reason of the fact that the marriage was solemnized in Arizona within one year following an Arizona divorce from a former husband, (2) whether the misrepresentations of herself and husband in procuring the marriage license by authority of which they were married rendered said marriage void?
The facts are that petitioner and her deceased husband each were married previously and each were divorced from their respective spouses in the State of Arizona on February 11, 1954. On February 27 following, petitioner and decedent were married at Florence and lived together as husband and wife in Arizona until his death on August 6, 1958. One child was born as a result of their union. On August 6, 1958, decedent suffered an injury by accident arising out of and in the course of his employment with Sun Supply Company, a
party thereto, from which he died on the same date.
[88 Ariz. 119] Petitioner thereafter and within due time made application to the respondent Industrial Commission for compensation under the Workmen's Compensation Act, A.R.S. § 23-901 et seq. The Commission, after hearing, made its findings and award allowing reasonable burial expenses, and awarded to petitioner for and on behalf of their daughter Tannius Jean Davis, the sum of $87,22 per month from September 6, 1958, to continue monthly until such child dies, marries or attains the age of 18 years. But it denied to petitioner any compensation upon the ground that her marriage to decedent on February 27, 1954, within one year following her Arizona divorce, was void under the provisions of the above-designated statute. The Commission further found that their marriage license, obtained preceding said marriage was procured by misrepresentations made in the application therefor and based its denial of award to petitioner in part upon such finding.
This is a question of first impression in this State. A.R.S. Subsection B of Section 25-320 provides that:
'Either party may marry again only after one year has elapsed from the date of the judgment of divorce, but if proceedings are begun prior to the expiration of the one year period to set aside the judgment, then neither party may marry again until the proceedings are finally terminated.'
It is true that in Horton v. Horton, 22 Ariz. 490, 198 P. 1105, under the provisions of section 3839, Revised Statutes of 1913, and section 3864 as amended by Chapter 54, Session Laws of 1917, this Court held that a marriage of Arizona residents solemnized in New Mexico was not void although the parties thereto went to New Mexico to marry to evade the provisions of Section 3864, supra. Section 3864 was, in substance, so far as here material, the same as A.R.S. Subsection B of Section 25-320. The restrictive clauses are identical.
Section 3839, Revised Statutes of 1913, considered by the court in that case reads as follows:
'All marriages valid by the laws of the place where contracted, shall be valid in this state; provided, that all marriages solemnized in any other state or country by parties intending at the time to reside in this state shall have the same legal consequences and effect as if solemnized in this state; parties residing in this state cannot evade any of the provisions of its laws as to marriage by going into another state or country for the solemnization of the marriage ceremony.' [Emphasis ours.]
The court stated in the Horton decision that the fact that the parties left here and went to New Mexico to marry with intent to evade the restrictions in the bill did not render such marriage invalid in this State [88 Ariz. 120] and pointed out that [22 Ariz. 490, 198 P. 1106]:
'* * * It will be observed that the statutes above cited do not in terms, or by necessary implication, declare such a marriage void. The statutes merely in general terms prohibit such a ...