28 Barb. 299 | N.Y. Sup. Ct. | 1858
Lead Opinion
The parties to this action were married in October, 1857. The wife, at the time, was an infant of about 19 years of age. In November of the same year proceedings were commenced for a dissolution of the marriage contract upon the ground of impotence. A guardian was appointed for the infant defendant, who put in an answer, consented to a reference on two days’ notice, to a hearing on ten days’ notice before a referee; to a hearing before the court on four days’ notice; and without any opposition permitted a decree to be taken against the defendant by default.
During these proceedings, the mother was not informed of them until the last of December, by a letter from the defendant. She immediately came to see her daughter and remained with her in New York for about a month. During that time she exerted her influence with the daughter, to induce her to resist the dissolution of the marriage contract. And for that
Shortly after this time the defendant was removed from her residence to some other habitation in Mew York, where her expenses were defrayed by the plaintiff, and her present place of residence has been concealed from the mother, all access to her prohibited, and since that time the daughter has refused to see her mother, or to return to her former home, but has avowed to her mother, by letters, her determination to part from her entirely.
The mother thereupon applied to this court by petition, in February, 1858, stating the above and other matters and claiming, as the natural guardian of the daughter, to be allowed to intervene, and asking to have the decree opened, to be appointed guardian ad litem for her daughter, and for leave to defend the action. She also charges other matters against the husband and guardian which it is unnecessary here to repeat.
In answer to this petition the plaintiff and defendant have both united to sustain the decree. They have, by affidavits, denied many of the allegations of the petitioner, and have furnished testimony of physicians, giving a contrary account of the daughter’s health and condition, and fully affirming that such incompetency exists and that the defendant is totally unfitted for the marriage state.
An objection is taken to the right of the mother to intervene in this action, or in any manner to interfere with the proceedings. This view as to the petitioners rights was
That the petitioner has no claim to be appointed guardian ad litem for the defendant is clear; even if the litigation between the parties was not closed.
The code (§ 116) prescribes the mode in which the guardian ad litem for a person over 14 years of age shall be appointed. This is to be on the application of the infant. Ho guardian would be appointed against such consent, and by the 63d rule it is provided that such appointment must be made on a petition of the infant proposing the guardian; and by the 64th rule the court is to be satisfied that the infant has made a voluntary nomination of such guardian. It would therefore be out of the power of the petitioner to be appointed such guardian without the infant’s consent.
Has the mother then any other right to intervene in this action, as the protector of her daughter, or as entitled to her services during her minority, and being liable for her support and therefore as having an interest in the litigation ?
The statute providing for a dissolution of the marriage contract, (2 R. S. p. 325,) after providing for various cases in which relatives or guardians or next friends might be parties, in section 38, provides that for physical incapacity of one of the parties, the action shall only be maintained by the injured party against the party whose incapacity is alleged; thus excluding from the action, as parties, any but the husband and wife.
Although the mother might have intervened under the rule in the ecclesiastical courts in England, I do not understand that the rule has been adopted in this country. The cases relied upon as showing that the chancellor adopted the same rule here do not sustain that position.
The only question then would be whether the petitioner had any interest in the matter, which would allow her to become a party to the litigation.
Whatever may be her relations, or feelings of affection for her child, that is not the interest which the law recognizes as entitling a person to become a party to a litigation affecting the daughter’s rights. There must be some other interest, of a pecuniary character, and I know of none unless it arises from the relation of parent and child, depending on the right of the parent to the services, and the obligation of the parent to provide for and support the child during its minority.
There is no doubt that such responsibility exists on the part of the father. Does it also rest upon the mother after the father’s death ? In Bartley v. Richtmyer, (4 Comst. 46,) Bronson, chief justice, says', “at the common law the mother has not like the father a legal right to the services of a minor child.” (South v. Denniston, 2 Watts, 274. Davies v. Williams, 10 Ad. & Ellis, N. S. 725.) . In 2 Kent's Com. 205, it is said “ The father is bound to support his minor children if he be of ability, even though they have property of their own, but this obligation does not extend to the mother.”
In the Commonwealth v. Murray, (4 Binney, 487,) it was held in regard to a minor child, whose father was dead, that although he owed obedience and respect to his mother, yet the law gave her no control over him, and she was not entitled to the fruits of his labor.
In the present case, also, there is another obstacle which, even if such right existed in the mother, would stand in the way of allowing her thus to interfere. It is that before any such application was made by the mother the suit had progressed and terminated. A guardian ad litem had been appointed, and the case had been tried before a referee, who had found as a fact in the case that such incompetency as was relied on by the husband existed at the time of the marriage. That report, and the evidence, had been submitted to Justice Davies at special term, and he had also found the fact to be as stated by the referee, and had thereupon ordered the dissolution of the marriage contract. This fact, for the purposes of this action, must be considered as established, until the judgment is reversed, and the finding cannot be reviewed on appeal.
I am free to say that from a careful examination of the evidence I entertain much doubt whether any such incompetency existed at the time of the marriage. The evidence in favor of its existence at that time is slight, and there is evidence to show that it may have been produced since, and the distinction between the existence of the difficulty at that time and at the subsequent period when more thorough examinations were made, does not appear to have been kept in view, when this case was before the referee. Had the case been properly defended and the attention of the referee been more directly called to the inquiry whether the state of the defendant, at the time of the marriage, was the same as it was found to be
It is well said by the chancellor, in Devanbagh v. Devanbagh, (5 Paige, 557,) “ In every case of this kind it is necessary that the court should proceed with the greatest vigilance and care, not only to prevent fraud and collusion by the parties, but also to guard against an honest mistake under which they may be acting merely from the want of proper medical advice and assistance.” “ If the allegations have neither been admitted nor denied by an answer on oath, the defendant should be examined on oath before the master as to the truth of these allegations.”
It is unnecessary, however, to discuss this branch of the case, at the present time. If the petitioner has no right to intervene in this action, or to become a party thereto, it follows of course that she has no right to appeal from any decision made in the cause, so as to bring the merits thereof before the court for examination. It was said before the special term, and is repeated here by the petitioner’s counsel, that the court may act on the information furnished by the petitioner acting as “ amicus curiae.” In this character her application was received by the justice at special term, and for the purpose of obtaining more information on the subject, he suggested to the referee a private examination of the defendant as to her wishes in continuing the litigation. The result of that examination is contained in an affidavit of the referee, which shows that the defendant objects to any interference on the part of the petitioner, and an utter unwillingness on her part to engage in any proceeding to vacate the judgment of the court herein.
The views of this case above expressed, if correct, establish that the petitioner has no right to intervene in this action, either on account of her relationship to the defendant or on
There is however a view of this case which is not free from difficulty. In all actions brought to obtain a dissolution of the marriage contract, whether for adultery or other causes, the court is charged with a duty which seldom devolves upon it, in other actions, and that is scrupulously to guard this proceeding from being used by the parties collusively, and not to suffer a judgment therefor without being fully satisfied that the cause really exists, as provided for in the statute. Whenever facts are placed before the court, which cause any suspicion
This unnecessary haste, concealment from the relatives, and union of all parties in behalf of the judgment of divorce, requires some explanation. What necessity existed for such haste that even the guardian had to consent to shorten the time that the law had given to the parties, is not disclosed by these proceedings; and when in addition thereto, the disagreement between the physicians as to the existence of the alleged incompetency is remembered; the uncertainty whether it existed before the marriage, as no other proof was furnished than the opinion of Dr. Nichols from an examination afterwards; the neglect to examine the defendant, her mother, or her immediate relatives, all tend to throw doubt on the propriety of the course which the parties have seen fit to adopt in this matter. Had the parties intended to obtain such a judgment collusively, without any real cause existing for it, other than temporary disease which proper treatment might have removed, no plan could have been more successfully adopted, and none more easily effected. I do not wish to be understood as imputing to the parties that such improprieties really exist, or that such collusion has really taken place; but that the circumstances are such as to call upon the court to institute an inquiry whether there was any such collusion or other cause for further examination into the validity of this judgment.
Dames, Clerke and Ingres ham, Justices.]
For this purpose it appears to me proper that the court should order a reference to one or more suitable persons to inquire whether there has been any such collusion between the parties in obtaining this judgment, and for that purpose to call before them the parties and such other witnesses as they may deem proper. A reference was ordered at the special term, but not for this purpose. The object of that order was to ascertain whether the defendant wished to have the judgment opened, and had no reference to the order above suggested.
If upon such reference the court shall be satisfied that no ground exists for the charge made by the petitioner, the judgment will then be free from the imputations which may now be made against it, and no cause exist for any further objections thereto.
Concurrence Opinion
I concur in the disposition of this matter, proposed in the opinion of Justice Ingraham ; but I differ entirely from that portion of it which intimates that the impotency of the defendant, at the time of the marriage, was not satisfactorily proved. The permanency of the physical obstruction referred to by some of the witnesses may be questionable; but I have little doubt her whole nervous organization was so shattered, and her sexual organs were in such a state of chronic irritability, if not congenitally defective, that she was incapable of consummating her nuptials; and we have no sufficient reason to suppose that her impotency is curable.
Davies, P. J., concurred with Justice Clerke.
Judgment directing a reference, to inquire as to the existence of collusion between the parties, in obtaining the decree of divorce.