This court, in the case of State ex rel. Davis v. SuperiorCourt, 200 Wash. 670, 94 P.2d 478, held that the plaintiff herein, respondent Blanche E. Davis, was at that time not entitled to suit money to enable her to resist an appeal to this court taken by appellant from the decree annulling the marriage ceremony which purported to make the parties husband and wife. At that stage of the proceedings, Blanche E. Davis had entered into a stipulation agreeing to the entry of a decree of annulment. She thereby, with the greatest possible formality, admitted that she and Thomas H. Davis were not husband and wife, and that the marriage ceremony between the parties had not resulted in the establishment of that relationship. As stated in the majority opinion, this court, in the case above cited, held that "the existence of the marital relation is a condition precedent to the power of the court to grant alimony, counsel fees, or suit money to the wife."
Upon the appeal from the decree of annulment, this court held (Davis v. Davis, 3 Wash. 2d 448, 101 P.2d 313) that the record then before us disclosed no facts which would support a decree of annulment, and that the decree appealed from rested solely upon the stipulation for annulment entered into between the parties before the court. This court held that such an agreement is against public policy, and that a decree based thereon is a nullity. The decree was therefore reversed, and "the cause remanded for further proceedings not inconsistent with this ruling."
After the filing of the remittitur, the record shows that Thomas H. Davis moved the court that a time be fixed for the hearing of additional evidence in the cause, stating that at such a hearing he would produce evidence to the effect that, at the time of the purported marriage ceremony between the parties, Blanche E. *Page 505 Davis was then the wife of one Albert J. Pettit. The record shows that this motion was formally denied by the court, March 13, 1941. On the same date, the trial court entered so-called "Amended Findings of Fact and Conclusions of Law." In these findings, the history of the litigation between the parties is recited, including the entry of the decree of annulment, the appeal therefrom by Thomas H. Davis, the reversal of the decree by this court, and the remand from this court to the superior court for further proceedings, as above stated. We then find the following recital: "That these findings are entered pursuant to the opinion of the court in that case," referring, of course, to the decision of this court reversing the decree of annulment.
The so-called amended findings show beyond question that they were entered by the trial court without the taking of any further evidence in the cause, although Thomas H. Davis had requested that a time be fixed for the taking of further testimony.
To me, it seems clear that it was the intention of this court that the case be reopened for further evidence, and that a final decree be entered upon findings based upon such evidence, but the record now before us shows beyond question that that course was not followed.
In making the amended findings, the trial court then had before it no evidence other than that which it had heard prior to the entry of the decree of annulment, which was based upon the stipulation of the parties. In the amended findings, the court found the residence of the parties in King county; "that the parties hereto were married at Tacoma, Washington, on the 3rd day of October, 1938"; that there were no children; that this action had been commenced by Blanche E. Davis, seeking separate maintenance, and that the defendant, *Page 506 Thomas H. Davis, had cross-complained for an annulment, or in the alternative, for a divorce; that the case had come on for hearing before the judge who was making the amended findings; "that plaintiff has failed to show that she is entitled to separate maintenance"; and "that defendant has failed to sustain the allegations of his cross-complaint."
From the findings of fact the court concluded that plaintiff's action for separate maintenance should be dismissed without prejudice, and that the defendant's cross-complaint should be dismissed without prejudice. On the same day, the trial court signed an order of dismissal, in accordance with the conclusions of law. From this order of dismissal, Thomas H. Davis has appealed, his appeal not having been at this time submitted to this court for decision.
In its amended finding above quoted, the trial court was careful to find no more than that the parties went through a marriage ceremony on the date mentioned. There is no finding that the parties ever became husband and wife, or that such relationship ever existed between them.
Certainly it appears beyond question from the record that, at the time of making these amended findings, the trial court could not have had before it evidence upon which to base any finding that the relationship of husband and wife ever existed between the parties. It was always admitted that the parties went through a marriage ceremony, because the parties stipulated that that purported marriage ceremony should be formally annulled.
In my opinion, the presumption which often follows, that the performance of a marriage ceremony between a man and woman results in a valid marriage, does not apply in this situation, as the parties themselves have *Page 507 formally stipulated that no such result followed the marriage ceremony referred to.
The so-called amended findings, in my opinion, add nothing whatever to the record as it existed when this court held that Blanche E. Davis was not entitled to suit money. State ex rel.Davis v. Superior Court, supra.
The mere fact that the trial court found that Thomas H. Davis failed to sustain the allegations of his cross-complaint is unimportant. The evidence taken in the course of the trial which resulted in the decree of annulment is not before us. It would seem highly probable that, when the parties stipulated that a decree of annulment be entered, and the court signified its willingness to sign a decree of annulment, based upon that stipulation, neither party would have any interest in introducing any further evidence. Surely if the evidence had even indicated that a valid marriage ceremony had been performed, the court would not have entered a decree of annulment, even though the parties stipulated that such a decree might be entered. A decree of annulment can be entered only in cases of an invalid marriage ceremony, which for some reason has failed to result in the establishment of a valid marriage. Prior to the entry of the findings of fact and conclusions of law now before us, Mr. Davis formally requested leave to introduce further testimony, and the trial court refused to permit him to do so. The fact that, upon the record made prior to the entry of the decree of annulment, the trial court, after the lapse of considerable time, found that Mr. Davis failed to sustain the allegations of his cross-complaint, to me signifies nothing.
This is the same action in which Blanche E. Davis stipulated that the marriage ceremony entered into between the parties be annulled. She thereby has admitted *Page 508 in this action that there was no valid marriage between the parties.
This being true, and in view of the record before us, I am convinced that we have simply again presented the same question which was decided in State ex rel. Davis v. Superior Court,supra, and I am accordingly of the opinion that the order appealed from should be reversed.