Opinion
April 11, 1950. Rehearing Denied May 4, 1950.
Appeal from Circuit Court, Bay County; E. Clay Lewis, Judge.
Charles S. Isler, Jr., Panama City, for appellant.
Paul Carter, Marianna, for appellee.
Affirmed.
ADAMS, C.J., and TERRELL, CHAPMAN, and THOMAS, JJ., concur. HOBSON and ROBERTS, JJ., dissent. SEBRING, J., not participating.
The plaintiff-appellant filed suit for divorce or, in the alternative, annullment of his marriage to defendant-appellee, on the ground that defendant was pregnant by another man at the time of her marriage to plaintiff. Defendant admitted in her Answer her antenuptial pregnancy, but alleged that she had advised plaintiff of her condition prior to the marriage and that there was, therefore, no fraud perpetrated on plaintiff. She also alleged that plaintiff had waived the fraud by residing with her after he admittedly learned of her pregnancy by another man.
It appears, therefore, that there were two issues made by the pleadings: (1) Did the defendant conceal from plaintiff, prior to their marriage, her antenuptial pregnancy? (2) If so concealed, did plaintiff ratify the marriage by his actions subsequent to the disclosure to him by defendant of her pregnancy?
The Chancellor in his final decree found, in substance, that (1) the plaintiff failed to sustain the allegations of the bill of complaint, (2) the testimony failed to establish mental cruelty on the part of defendant, (3) the plaintiff ratified and confirmed the marriage to the defendant by residing with her after the marriage, (4) the defendant was entitled to a portion of plaintiff's disability compensation from the government as support money in lieu of alimony, and (5) the infant son of defendant was not the child of the plaintiff. He thereupon decreed that the bill of complaint be dismissed and that plaintiff be required to pay the defendant the sum of $16.56 per month as support money in lieu of alimony. It is this final decree which we review on this appeal.
It will be noted that the Chancellor made no finding as to the concealment prior to the marriage of her antenuptial pregnancy by defendant. However, he did specifically find that the plaintiff ratified the marriage by residing with the defendant after the marriage; and it necessarily follows that the Chancellor must have found that there was actually a concealment of her pregnancy by defendant, since otherwise there would have been no fraud, the marriage would have been valid, and there would have been no necessity for a ratification of the marriage by plaintiff.
We are required, then, to examine the evidence only as to the question of the ratification of the marriage by plaintiff. If not so ratified, the lower court erred in dismissing plaintiff's bill of complaint, since the courts are practically agreed in holding that antenuptial pregnancy by another man, if concealed by the wife from the husband, who was himself innocent of improper relations with her, is a fraud upon him, justifying a divorce or annulment of the marriage as the appropriate remedy in the jurisdiction may be. Gould v. Gould, 78 Conn. 242, 262, 61 A. 604, 2 L.R.A., N.S., 531; Reynolds v. Reynolds, 3 Allen 605, 85 Mass. 605; Harrison v. Harrison, 94 Mich. 559, 54 N.W. 275, 34 Am.St.Rep. 364; Baker v. Baker, 13 Cal. 87; Fontana v. Fontana, 77 Misc. 28, 135 N.Y.S. 220; Morris v. Morris, 1 Terry, Del., 480, 13 A.2d 603; 17 Am. Jur., Divorce and Separation, page 215.
Fraud in the procurement of marriage is not a ground for divorce in this state. However, under chancery's general authority to grant relief against contractual undertakings induced by fraud, a court of equity indubitably has jurisdiction to annul a marriage contract perpetrated in fraud. 1 Bishop on Marriage, Divorce and Separation (1891), sec. 550; also sec. 461. This principle was recognized by this court in Cooper v. Cooper, 120 Fla. 607, 163 So. 35.
As to the circumstances surrounding the marriage here involved, the evidence is undisputed that plaintiff and defendant met each other for the first time on Saturday night, January 22d 1949, about 9:30 p.m. in Panama City, Florida, and were married the next day, Sunday, about 4:00 or 5:00 p.m. in Donaldsonville, Georgia; that they spent Saturday evening and the early hours of Sunday morning in visiting various nightspots in Panama City, accompanied by a female acquaintance of defendant's; that the plaintiff was drinking heavily Saturday night and all day Sunday and, according to his own testimony, drunk; that plaintiff and defendant left Panama City in a car belonging to plaintiff's father around 7:00 or 8:00 a.m. Sunday, and wound up in Donaldsonville that afternoon, where they were married. Plaintiff testified that they started out on Sunday morning to take defendant to her home in Alabama, while defendant contended that they left with the intention of getting married. There is no contention that there were illicit relations between the parties.
It was shown by plaintiff, and not contradicted by defendant, that he had just about a dollar in his pocket when they left Panama City; that defendant paid for his whiskey and bought gasoline for the car, bought the marriage license, paid the preacher, and paid for their hotel room Sunday night; and that the money she used was $50.00 given to her by the father of her child for the purpose of procuring an abortion in Panama City.
The parties lived together from the time of their marriage until the last of April or first of May, at which time the defendant departed either because she would not stay with plaintiff if he would not sleep with her, or because the plaintiff told her to leave because he couldn't stand to live with her any more. The plaintiff filed this suit soon after defendant's departure.
There is a conflict in the evidence as to when the plaintiff learned of the defendant's pregnancy. The defendant contended, of course, that the plaintiff knew it all the time. The plaintiff testified that he discovered it about two months after their marriage, and that they did not live together as man and wife after such discovery. The plaintiff's brother testified to a conversation between plaintiff and defendant, from which it appeared that plaintiff was apprised of defendant's condition some seven or eight days after the marriage. It was undoubtedly this testimony which is responsible for the Chancellor's finding that the plaintiff ratified the marriage since, if true, the parties must have lived together almost three months after plaintiff had knowledge of the fraud.
However, we think the learned Chancellor overlooked the testimony of the defendant that "We had already talked it over and planned everything and he told me he would see me through this if I would give him a divorce in August, without any strings, and I said all right." Then, in response to the question, "And you are now seeking to contest it?" the defendant replied, "He wouldn't wait until August; if he can't keep his word I can't either." The defendant's child was born on July 14th, during the pendency of this suit, so that it is obvious that the plaintiff agreed merely to wait until after the birth of the child before filing suit for divorce.
It thus clearly appears, from the defendant's own testimony, that there was not such condonation of the fraud by plaintiff as to deprive him of his right to avoid the marriage on account of such fraud. It is essential to condonation that there be an intention to condone the misconduct of the other party, and there must be either forgiveness or conduct on account of which the court, actuated by consideration of public policy will not permit the injured party to say there was no forgiveness. 17 Am. Jur., Divorce and Separation, Section 204, page 252. The fact that the plaintiff, moved perhaps by pity for the defendant or her unborn child, consented to postpone his suit to avoid the marriage until after the birth of the child, certainly does not show an intention to forgive and condone defendant's misconduct; nor do we feel impelled by considerations of public policy to hold that plaintiff is estopped from saying that he did not forgive defendant. On the contrary, we feel that no good public purpose would be served by holding the parties bound by this unfortunate marriage. In the language of this court in McGee v. McGee, 149 Fla. 31, 5 So.2d 49, "From the very first the venture was a failure * * This couple can never sail the matrimonial sea, except in storm, tempest, fog and misery. They can only wound and never comfort one another."
It is the opinion of the writer that the defendant, by her own testimony, proved that the plaintiff disaffirmed the marriage as soon as he learned of the fraud perpetrated upon him, whether such knowledge came to him eight days or two months after the marriage, and agreed merely to postpone any legal action of disaffirmance until after the birth of the child; and that was therefore no ratification of the marriage.
For the reasons stated, the lower court erred in dismissing the plaintiff's bill of complaint, and the final decree should be reversed with directions to enter a decree not inconsistent with the opinions herein expressed.
HOBSON, J., concurs.