309 Mass. 230 | Mass. | 1941
This is a libel for annulment of a marriage. (G. L. [Ter. Ed.] c. 207, § 14.) The case was referred to an auditor, a demurrer filed by the libellee having been reserved for consideration by the judge until the hearing should be had on the merits of the libel. The case was heard upon the auditor’s report, and certain affidavits and counter affidavits filed in connection with the libellee’s motion to recommit the report, that of her attorney for counsel fees, and her motion for alimony pendente lite. After hearing, the judge denied the several motions before referred to, as well as motions of the libellee to strike certain findings from the auditor’s report, and the motion that “judgment be entered” for her, and ordered that the libel for annulment be allowed. The libellee’s exceptions to these actions of the judge bring the case before us.
Material facts found by the auditor may be summarized as follows: The parties first met in August, 1937, when the libellee, while standing on Harvard Street, Brookline, waiting for a street car, motioned to the libellant, who was seated in an automobile which was “stopped in traffic,” and requested him to drive her to Commonwealth Avenue. He acquiesced. From that time on during that year they associated together on frequent occasions. On December 23, 1937, the libellant told the libellee that he was going to New York on a vacation. She suggested that she go with him. He consented and she “arranged for the transportation, which consisted of tickets for the boat to New York.” On December 24, 1937, they travelled together on the boat to New York, and during the voyage had sexual relations. At that time the libellee employed a certain artifice, which need not be here described, to convince the libellant that, as she had previously represented to him, she was a “virgin.” At some prior time she had told a third person that she intended to marry the libellant by “hook or crook,” to make him believe that she was a virgin, and to that end to employ the artifice in question. Arriving in New York City they registered as man and wife at a hotel in which they occupied a room. The libellee informed the libellant that she was pregnant as a result of their relations, and said that she
When the libellee represented to the libellant that she was a “virgin” she had pending in the Superior Court four actions, in each. of which allegations were made by her that one of the defendants had had intercourse with her with resulting pregnancy, and against other defendants that they had performed an abortion upon her at the persuasion of the first defendant without her knowledge or consent. These actions were settled in September, 1938, after the libellant and libellee had separated, by the payment to her of $3,000. She signed releases “in the name of Helen Bornstein” running to all the defendants. She was not pregnant when she so represented to the libellant nor at any time thereafter to the conclusion of the hearings before the auditor in the summer of the year 1939. Her
Since the parties were domiciled in Massachusetts the Superior Court had jurisdiction to entertain the libel. G. L. (Ter. Ed.) c. 207, § 14. Hanson v. Hanson, 287 Mass. 154, 156. Am. Law Inst. Restatement: Conflict of Laws, § 115. It is settled that, if the laws of this Commonwealth govern the determination of the case, the libellant cannot prevail since he had criminal intercourse with the libellee before his marriage to her. Arno v. Arno, 265 Mass. 282, 284, and cases cited. See also Cassin v. Cassin, 264 Mass. 28. It is also settled that, with certain exceptions based on public policy which do not affect the present case, the law governing nullity of marriage is that of the place where the marriage contract was entered into. Commonwealth v. Lane, 113 Mass. 458, and cases cited. Cummington v. Belchertown, 149 Mass. 223, 226. Levy v. Downing, 213 Mass. 334. Hanson v. Hanson, 287 Mass. 154, 156. Van Voorhis v. Brintnall, 86 N. Y. 18, 25, and cases cited. Incuria v. Incuria, 155 Misc. (N. Y.) 755, 758. Beale, Conflict of Laws, §§ 121.2, 136.1. Am. Law Inst. Restatement: Conflict of Laws, § 115, (1) comment b; § 136.
Section 1139 of the Civil Practice Act of the State of New York, so far as here material, provides as follows:
In support of the order of the judge that the libel for annulment be allowed, the libellant relies largely on DiLorenzo v. DiLorenzo, 174 N. Y. 467, and Shonfeld v. Shonfeld, 260 N. Y. 477. In the DiLorenzo case it was established by the facts that, prior to the marriage of the parties, the defendant falsely represented to the plaintiff that during a time when he was absent from the State she had given birth “to a male child, of which he was the father, [and] whom she exhibited to him as such,” and that the plaintiff’s consent to marry her was obtained by this fraudulent misrepresentation and stratagem which caused him to believe that he was the father of a child by the defendant. After the plaintiff discovered the falsity of these representations of the defendant, which was shortly before the commencement of the action to annul the marriage, he had not cohabited with her. In holdihg that the plaintiff was entitled to prevail the court said that one of the causes for annulment of marriage set forth in the Code of Civil Procedure is that “the consent of one of the parties was obtained by force, duress, or fraud,” and that “the only limitation imposed, where the action is on the ground of fraud, is that it must appear that the parties have not, at any time before the commencement of the action, ‘voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud’” (page 471). At pages 472 and 473 the court said: “The free and full consent, which is of the essence of all ordinary contracts, is expressly made by the statute necessary to the validity of the marriage contract. The minds of the
The auditor found, as before set forth, that the libellant married the libellee because "he feared that because of the pregnancy, she would commit suicide.” The subsidiary facts found by the auditor, however, disclose that the parties first had sexual relations on the boat trip to New York on or about December 24, 1937. When they arrived in the city of New York they occupied the same room in a hotel. It was there that the libellee "informed the . . . [libellant] that she was pregnant by reason of the intercourse he had had with her; [and] that she could not go back to Boston unless he married her.” For two or three days she was hysterical and threatened to jump out of the window, unless he married her. The application for the marriage license was filed on December 31, 1937. It thus appears that the representations of pregnancy were made by the libellee if not upon the arrival of the parties at the hotel, then, at the latest, not more than three or four days after they had had intercourse for the first time. In these circumstances we are of opinion it could not properly be found
It follows that the order of the judge that the libel for annulment be allowed was erroneous.
The disposition of the motion of the libellee’s attorney for counsel fees and of the libellee’s motion for temporary alimony rested in the discretion of the judge. No exception lies to their denial. It is unnecessary to consider other exceptions of the libellee.
The libellee’s exception to the order of the judge that the libel for annulment be allowed is sustained; and a decree is to be entered dismissing the libel.
So ordered.
See Annulment of Marriage for Fraud in New York, Drexler, 71 U. S. Law Review, 318.