On Rehearing.
LAVENDER, Justice.In the petition for rehearing filed herein by plaintiffs in error, she asserts her original propositions four and six which are set forth verbatim in the original opinion promulgated August 3, 1965.
In considering these propositions the original opinion did not discuss the evidence adduced at the trial nor the offered evidence set forth in the plaintiff’s motion to reopen, which was rej ected by the trial court. The plaintiff in error asserts that the cumulative effect of the evidence which was admitted at the trial, together with that which plaintiff in error says should have been admitted, necessitates our reversal of the trial court, in that such evidence, plaintiff urges, was sufficient to rebut the presumption of validity of the marriage under attack.
What was the evidence before the trial court ?
First, we have the testimony of Emily Lebell Filmore Marcum, the principal plaintiff. She testified that William Filmore was her uncle; that she had known him *974ever since she was a little girl; that William and Linna lived at Roff, Oklahoma “and at different places.” That when William died in 1934, Linna at that time lived in Colorado.
The next witness was C. A. Marcum, husband of the witness just mentioned. He testified that when he was a boy living in Chickasha, Oklahoma, he knew William Filmore and Linna and knew that they lived there together as husband and wife. That in addition to living at Chickasha, William and Linna lived, according to this witness, at Henryetta, Pauls Valley and Sulphur, all in Oklahoma. That when this witness first knew William, he and Linna, as stated, were living at Chickasha, and it was about 1912. That it was about 1915 when William and Linna moved to Pauls Valley where they lived, in the words of witness, “Quite a while”; that they thereafter moved to Sulphur, and that after that for several years this witness did not see William Filmore. That witness did not visit William at Sulphur or know whether Linna lived with him then or not. This witness further stated that he did not know the whereabouts of William or Linna in 1921 (the year William entered into the second marriage with Tina).
There was other evidence that William lived in Oklahoma City, and Ardmore perhaps, during a part of those years between the date of his first marriage and 1921, the date of the second marriage. When he lived there or how long is not shown.
The above constituted all the evidence as shown in the record upon the point of where William and/or Linna lived or had their respective residences during the time prior to 1921.
Plaintiff, after the close of the evidence, moved for leave to re-open and introduce records of those counties mentioned in the testimony, which records would show that no divorce was obtained by either William Filmore or Linna Filmore in those counties.
Even if the above evidence had been admitted and considered by the trial court in conjunction with the other evidence adduced at the trial, such evidence would have been, under the past decisions of this court, insufficient to rebut the presumption of validity of the second marriage.
There is no evidence in the record to establish that William and Linna, or either of them, continued to reside in Sulphur, the last place to which they moved. There was a total lack of evidence as to the whereabouts of Linna Filmore from the time she and William moved to Sulphur until she began living in Colorado. There was no evidence as to how long before 1921 it was that William moved to Sulphur. The burden of proof was on the plaintiff here attacking the validity of the second marriage, and the proof was insufficient.
While the presumption of validity of a marriage is rebuttable, Madison v. Steckleberg, 101 Okl. 237, 224 P. 961, and Puntka v. Puntka, 174 Okl. 517, 50 P.2d 1092, same can only be rebutted by clear, cogent and convincing evidence. Sam v. Sam, 172 Okl. 342, 45 P.2d 462 (cited in the original opinion). See also Templeton v. Jones, 127 Okl. 1, 259 P. 543; Thomas v. Jones, 143 Okl. 23, 289 P. 339, (cited in the original opinion). For a case almost directly in point, see Hale v. Hale, 40 Okl. 101, 135 P. 1143, where this court said:
“ * * * Nor does the evidence establish that the counties named in the depositions are the only counties in which Shugart resided during said time, or that said courts were the only courts that would have had jurisdiction to grant him a divorce. * * * ”
Brokeshoulder v. Brokeshoulder, 84 Okl. 249, 204 P. 284, 34 A.L.R. 441, is not in point upon the facts, for there the continuous residence of both participants in the first marriage, from the time of the first marriage until his death and in the case of the wife to the time of trial, was affirmatively shown by the evidence.
Petition for rehearing denied.
HALLEY, C. J., JACKSON, V. C. J., and DAVISON, WILLIAMS, BLACKBIRD, and BERRY, JJ., concur.