Grace v. Grace (162 So. 2d 314, 1964)

MASON, Associate Judge.

Pursuant to Rule 4.2, F.A.R., 31 F.S.A., appellant has taken an interlocutory appeal from an order entered by the chancellor below awarding temporary alimony and other relief pendente lite.

After appellant filed his brief herein the appellee moved to strike that portion of the record below designated as. “Testimony and Proceedings” which was filed by appellant herein in lieu of incorporation in an appendix of those portions of the record below (including extracts from the testimony) considered necessary for this. Court to determine this appeal. This Court does not feel impelled to strike that portion-of the record moved to be stricken by ap-pellee inasmuch as the portion sought to be stricken consists only of 78 pages, and the rule (3.7, subd. j, F.A.R.) provides that appendices may be omitted entirely if the record on appeal consists of 75 pages or less.. Although this Court does not countenance breaches of the rules of appellate procedure, which have been purposely designed to expedite the disposition of appeal by the appellate courts of this State, the Court does not feel that in this instance there has been such a violent departure from the requirements of Rule 4.2, subd. d, F.A.R. as would justify such radical action as striking from the record herein the transcript of the testimony before the chancellor below. Furthermore, reference has been made by appellant in his brief to specific portions of the transcript below relied upon by him to support his assignments of error, and the Court in this particular instance has not been hindered or handicapped by the rule departure in the expeditious determination of this appeal. A rule should not be so construed as to require an unnecessary expense to a litigant (Thompson v. Food Fair Stores of Florida, Inc., Fla.App., 107 So.2d 393).

The assignments of error pose two questions concerning' the validity of the chancellor’s pendente lite order herein. The first assignment of error raises the question as to whether the record before the chancellor sufficiently established a valid marriage between the parties to this suit, which is a necessary prerequisite to the award of temporary alimony and other relief pendent lite. Concerning this point, the evidence shows that appellant and appellee were married to each other at Ft. Lauder-dale, Florida, on May 1, 1959, and lived together in Florida as husband and wife from that time until October, 1963, a period of over 4 years. The appellee had been previously married and was divorced from her first husband in the State of Alabama in 1959, prior to her marriage to appellant. She had three children by her first husband, two of whom lived with her and the appellant prior to their separation. At the time of the temporary hearing below, ap-pellee was receiving Two Hundred Dollars ($200.00) a month for the support of her children from her first husband. She testified that she had never established residence in any other state other than Florida and New Jersey, except “temporary residence to get a divorce in Montgomery, Alabama”, during which time she physically remained in the State of Alabama over a weekend. This testimony was elicited by appellant’s counsel on cross examination. It is not disputed that the plaintiff was a resident of Florida for a time much longer than the statutory requirement for a divorce in this state. Appellant, however, charges that the present marriage between the parties to this suit is invalid for the reason that appellee was not a bona fide resident of the State of Alabama, and therefore, was guilty of fraud in the procuring of the Alabama divorce decree, and that such decree was invalid, and the appellee not competent for that reason to marry appellant herein.

This point is not well taken. It is an elementary principle of domestic relations law that a marriage, once shown to have been ceremonially entered into as was that between the appellant and the appellee, is presumed to be legal and valid. All the presumptions necessary to make a marriage valid, including capacity to contract, attach on proof of a ceremonial marriage and cohabitation by the parties under the belief that they were lawfully married. Furthermore, as to the validity of a subsequent as against a previous marriage of the same person, the second or subsequent marriage is presumed to be valid. Such presumption is stronger than and overcomes, or rebuts, the presumption of the continuance of the previous marriage, and the burden of proving the continuance of the previous marriage and the invalidity of the subsequent marriage is on the party attacking the validity of the latter. The presumption in favor of the validity of the subsequent marriage formally entered into is so great that in the absence of competent proof to the contrary it is to be assumed that the previous marriage has been dissolved either by death or legal action (21 Fla.Jur., Marriage, Sec. 42) ; and where the parties are united in a ceremonial marriage which has been consummated by cohabitation an order for temporary alimony is supported by prima facie proof or admission of the marriage (Arendall v. Arendall, 61 Fla. 496, 54 So. 957).

It is to be noted that the first time the appellant raised the question of the validity of his marriage to the appellee was at the time of hearing upon her application for temporary alimony. At that time no defensive pleadings had been filed and no formal attack made upon the Alabama divorce by appellant. He did, in a left-handed manner, attempt to show the invalidity of the Alabama divorce by eliciting from appellee the statement that she established ■“temporary residence to get a divorce in Montgomery, Alabama”. Having accepted .all of the benefits and privileges of the marital relation with appellee for a period •of over 4 years, it ill behooves appellant to question the validity of his marriage to appellee in any such manner.

Appellant’s conduct in accepting the benefits of the marriage which he now attempts to invalidate may not in law amount to an estoppel against him to raise .the question, but it is a circumstance which