1 Reported in 122 P.2d 497. Plaintiff brought this action for separate maintenance. Defendant filed a cross-complaint, praying for annulment of marriage or, in the alternative, for divorce. The cause first came on for trial in July, 1939. July 19th, the court entered a decree annulling the marriage and awarding plaintiff a money judgment of two thousand dollars against defendant. From the latter portion only of the decree, defendant appealed. The decree annulling the marriage was predicated on the court's sixth finding of fact:
"Through their respective attorneys, plaintiff and defendant Thomas H. Davis orally stipulated and agreed in open court that a decree of annulment should herein be entered."
After entry of that decree, plaintiff made application to the superior court for allowance of attorneys' fees and suit money pending appeal. The superior court having indicated its intention of making such an allowance, defendant applied to this court for a writ of prohibition. State ex rel. Davis v. Superior Court,200 Wash. 670, 94 P.2d 478. This court granted the writ, saying:
"Where the existence of the marriage is not admitted or established — in the action of Blanche E. Davis against the relator, the invalidity of the marriage of plaintiff and defendant was admitted and the interlocutory order established the nonexistence of a marriage between them — in an action for annulment, no assistance will be granted to the wife from the means of the husband."
After hearing the appeal on the merits, this court set aside the decree on the ground that the findings of fact were insufficient to sustain it. Davis v. Davis, 3 Wash. 2d 448,101 P.2d 313. The cause was "remanded *Page 501 for further proceedings not inconsistent with this ruling." After the remittitur went down, defendant moved that a time be fixed "for the hearing of additional evidence and testimony," and offered "to produce at said hearing evidence that upon October 3, 1938, and at the time of a purported marriage ceremony performed upon said date in which plaintiff and defendant Davis were parties, the said plaintiff was then the wife of Albert J. Pettit."
The court denied the motion. It, however, made and entered "Amended Findings of Fact and Conclusions of Law," among others, as follows:
"II. That the parties hereto were married at Tacoma, Washington, on the 3rd day of October, 1938.
"III. That there are no children as a result of the aforementioned marriage.
"IV. That on the 3rd day of February, 1939, plaintiff commenced a suit against defendant Thomas H. Davis for separate maintenance. That defendant Thomas H. Davis cross-complained for an annulment and in the alternative for a divorce. . . .
"VI. That plaintiff has failed to show that she is entitled to separate maintenance.
"VII. That defendant has failed to sustain the allegations ofhis cross-complaint." (Italics ours.)
Upon the foregoing findings of fact, the court entered the following conclusions of law:
"I. That the action of the plaintiff for separate maintenance should be dismissed without prejudice to her right to bring an action for divorce.
"II. That the cross-complaint of defendant for an annulment and in the alternative for a divorce should be dismissed without prejudice.
"III. That neither party recover costs herein."
Judgment was accordingly entered dismissing plaintiff's action for separate maintenance, and defendant's cross-complaint for annulment of marriage or, in the alternative, for divorce — both without prejudice. Defendant *Page 502 perfected an appeal from this judgment, whereupon plaintiff applied for an allowance of attorneys' fees and suit money pending such appeal. From an order granting the application, in the amount of $175, defendant prosecutes the present appeal.
The basic question for determination is whether the amended findings of fact and conclusions of law present a different situation from that passed upon by the court in State ex rel.Davis v. Superior Court, supra, where it was held that plaintiff was precluded from an allowance of attorneys' fees and suit moneypendente lite because, through her counsel, she agreed to the entry of a decree annulling the marriage.
[1] The general rule is that, where a husband seeks annulment of marriage, the wife is entitled to alimony pendente lite until the invalidity of the marriage is clearly proved. 6 Bancroft's Code Practice and Remedies, 6447, § 4904; Poole v.Wilber, 95 Cal. 339, 30 P. 548; Webb v. Wayne Circuit Judge,144 Mich. 674, 108 N.W. 358; Ascher v. Ascher,202 Mo. App. 622, 216 S.W. 576; North v. North, 1 Barb. Ch. (N.Y.) 241, 43 Am. Dec. 778; McMurray v. McMurray, 58 Mont. 229, 190 P. 924;Griffin v. Griffin, 47 N.Y. 134; Eliot v. Eliot, 77 Wis. 634,46 N.W. 806; Hart v. Hart, 198 Ill. App. 555; Ricard v.Ricard, 143 Iowa 182, 121 N.W. 525, 26 L.R.A. (N.S.) 500, 136 Am. St. 763, 20 Ann. Cas. 1346. In the case last cited, the court said, p. 184:
"The statute provides, for the allowance of alimony in the case of divorce; and, if the section of the statute which we have set out above is to be given any force or effect at all, it must be held that alimony may be awarded in proper cases brought to annul a marriage alleged to be illegal. In this case the husband is the complaining party, and makes an allegation against the wife which she alleges to be untrue, and which she is called upon to defend. Her marriage to the plaintiff is presumed to be legal until the contrary is shown, *Page 503 and we know of no sound reason in law or in morals why a wife who has had so serious a charge made against her should not have the same right of assistance from her husband in defending against his charge that she would have were he asking a divorce."
Considering the record now made by the amended findings of fact and conclusions of law, we think, in the light of the rule laid down in the cases above cited, the respondent is entitled to an allowance of suit money and attorneys' fees pending the appeal. For the trial court, in finding two, found "That the parties hereto were married at Tacoma, Washington, on the 3rd day of October, 1938."
[2, 3] This finding carries with it the presumption of the validity of the marriage and of the legal capacity of the parties to enter into the relationship. Thomas v. Thomas, 53 Wash. 297,101 P. 865; State ex rel. Bentley v. Frenger, 158 Wash. 683,291 P. 1089. One who attacks the validity of a second marriage on the ground of an existing prior marriage assumes the burden of proving the illegality of the second marriage, and must not only prove the prior marriage, but also that it has never been dissolved. Goldwater v. Burnside, 22 Wash. 215, 60 P. 409;Donofrio v. Donofrio, 167 Wash. 80, 8 P.2d 966.
[4] The court, in the present case, amended finding of fact No. VII, found "That defendant has failed to sustain the allegations of his cross-complaint." In other words, the appellant has failed to establish that the prior marriage of respondent to Pettit has not been dissolved. While that question remains undecided, respondent is entitled, under the authorities we have cited, to an allowance for attorneys' fees and suit moneypendente lite.
The order appealed from is affirmed.
ROBINSON, C.J., SIMPSON, and JEFFERS, JJ., concur. *Page 504