Opinion
01-29-1907
TRIMPE v. TRIMPE.
E. C. Harris, for complainant. James D. Carton and P. H. Durand, for defendant.
Suit by Richard H. Trimpe, an infant, by his next friend, against Eleanor M. Trimpe to annul a marriage between the parties. Annulment denied.
E. C. Harris, for complainant. James D. Carton and P. H. Durand, for defendant.
EMERY, V. C. This is a bill by a husband to annul a marriage on the ground of fraud. Both parties were under age at the time of the marriage, December 23, 1903, complainant having been born on June 24, 1887, and defendant on July 10, 1885. The parties had marital intercourse on the 5th of July, 1903, and for several days afterwards, and at the time of the marriage both parties knew that defendant was pregnant. A child was born on February 6, 1904. The fraud alleged by complainant is that on the 5th day ofJuly, the time of the first Intercourse, defendant, knowing that she was then pregnant with child by another person, enticed and allured him to have sexual intercourse, for the purpose and with the intention of charging complainant with getting her with child, and compelling him to marry her; that shortly after the first intercourse defendant insisted that complainant had got her into trouble, and from time to time insisted that he must marry her; that complainant feared to tell his father or mother, and did not consult them or any one else; that finally, about December 19, 1903, complainant was summoned from Newark, where he resided, to Bradley Beach, where defendant resided with her parents, and, on arriving there, defendant and her mother both charged that defendant was with child by him, insisted that he must marry defendant and advised that nothing be said to his father and mother until after the marriage. Believing that defendant was with child by him, he consented to marry her, and she arranged to come to Newark on December 23, 1903, when they were married by a justice of the peace. After the marriage defendant returned to her home and the parties have never lived together since. The child, born seven months after the first intercourse, is alleged to have been a fully developed child. The defendant denies any fraud, alleges that the intercourse between the parties commenced in the holidays of 1902, and first took place at the residence of complainant's father, where she was then visiting, during complainant's school vacation. The first intercourse in July, 1903, was, as she says, a continuance of the previous relations between them, which took place under a tacit understanding of an engagement of marriage, and were continued on complainant's persistent inducements and solicitations; that when, in December, 1903, she discovered beyond doubt that she was in trouble, she wrote complainant to come to her home, which he did, and after a talk between them alone, complainant proposed marriage at once, by a minister at Bradley Beach. They went to this minister, who refused to marry them because they were under age, and the marriage in Newark four days later was arranged solely by complainant, who summoned her for that purpose by telegraph, whereupon she went to Newark alone and was married by a justice of the peace, to whose office complainant took her for that purpose. Defendant alleges that the marriage was entirely of complainant's motion and volition, and without any fraud or compulsion; that defendant had no Intercourse with any other person; and that the child born on February 6th was his child.
In reference to the right of a husband to annul a marriage with a woman pregnant at the time of the marriage, but with whom the husband has previously had illicit intercourse, the general rule is settled in this state that the husband's own previous misconduct bars him from this relief in a court of equity. In Carris v. Carris, 24 N. J. Eq. 516 (Err. & App. 1873), it was finally settled that a court of equity had jurisdiction, independent of our divorce statute, to annul the marriage contract for fraud, and the marriage was annulled in that case because the pregnancy of the wife at the time of the marriage was fraudlently concealed from the husband, who had never had any previous intercourse with her. The child in this case was born two months after the marriage. In defining the fraud which would vitiate a marriage, it was said by Mr. Justice Bedle in this case that a mistake of the husband as to the paternity of the child born after marriage, but begotten before by another, where the husband himself had been guilty, would not be a case of fraud. This point was not directly involved in the decision of the case, but in subsequent decisions it has been treated as the rule to be applied. In States v. States, 37 N. J. Eq. 195 (1883), an ex parte case, Vice Chancellor Bird refused to annul a marriage where a child was born about two months after the marriage and about four months after the husband's first intercourse, and the marriage was alleged to have taken place on the fraudulent representations of the wife at the time of the marriage as to the duration of her pregnancy and the paternity of the child. Vice Chancellor Van Fleet, in Seilheimer v. Seilheimer, 40 N. J. Eq. 412, 2 Atl. 376 (1885), refused to annul a marriage where the first intercourse took place 7 months and 20 days before the birth of the child, and the child was born 4 months after the marriage. He rests his decision upon the ground taken in the Carris and States Cases, that for relief of this kind the husband himself must be pure, so far, at least, as his wife is concerned, and that, in such cases, where both have been guilty, the husband should be held, both on the ground of good morals' and sound policy, to have accepted all the risks. In Foss v. Foss, 12 Allen (Mass.) 26 (1866), the court refused to annul a marriage made three months after the first intercourse of the parties, and where the child was born within two months of the marriage. The husband, at the time of the marriage, believed the statements of the wife that he was responsible for the pregnancy, and took no steps to ascertain the truth or to protect himself. Chief Justice Bigelow puts his decision on the additional special ground that the husband himself was reasonably put on inquiry as to the truth of the allegations of paternity, because of the defendant's known unchastity and actual pregnancy. If, under these circumstances, he failed to protect himself by proper inquiry or investigation at the time, or by a delay of the marriage for a period sufficient to test the truth of the statements as to his paternity, he is in no position to call upon a court to make' subsequently for his protection the investigation and decision he had the opportunity ofmaking for himself and neglected or declined to make.
Counsel for complainant, fully recognizing the effect of the above decisions of our courts, contend that they do not reach the present case, where the complainant claims an allurement to intercourse by a woman who knows herself to be pregnant by another, and with the fraudulent intention of procuring a marriage by a false charge of paternity. Such case was hypothetically stated by Vice Chanceller Van Fleet in the Seilheimer decision, 40 N. J. Eq. 414, 2 Atl. 376, with the statement that it was not intended to decide it. I am inclined to think that the omission to take proper steps for his own protection, by a delay of the marriage or otherwise, would, as a general rule, disentitle the husband, even in such cases, to relief against the credulity and improvident haste induced by his own criminality, and that he is in no situation to call upon the court subsequently, to make for him the investigation and give the protection which he neglected for himself. But, assuming in this case that the complainant, being a mere youth, is not to be judged by the same standards of reasonable protection of himself, which would be imposed on an adult, the main question of fact to be determined on this aspect of the case is whether the fraud charged has been satisfactorily proved. In my judgment, it has not been so proved. On the question whether the intercourse in July, 1903, was a fraudulent allurement of the defendant, or whether it was the repetition of a previous intercourse in the holidays of 1902, complainant's own testimony is the only direct evidence, and is contradicted by defendant. The complainant's credibility is seriously impeached, and defendant's statements supported by the character of letters written by the complainant during this interval, and while these letters do not in terms admit improper intercourse, many of the confidential allusions in them are clearly explainable, if such intercourse did take place, and no other explanation has been attempted by complainant. On all the evidence, I can reach no other conclusion than that the plaintiff in July, 1903, was himself inclined to and seeking the improper intercourse, and that it did not take place solely by reason of the defendant's allurement. This is especially true of expressions in several letters in which he refers to her keeping a "promise." Defendant says this was a promise to complainant that she would be true to him, and not be guilty of misconduct with any other person. In one written from Florida, where he was in February, 1903, he says: "Now Till if you really-love me, keep your promise and be a good girl." In another, written about April, 1903, from his school, he says: "Say sister are you keeping your promise—don't forget it—I hope you have kept it so far and will hold out as long as you know me." On April 18, 1903, at Newark, he writes again: "Don't do anything very reckless and be very careful how you keep that promise." As to this promise, referred to so clearly and frequently, the complainant now swears that he does not remember what was meant, and has no explanation to make. A complete failure of memory is not credible, and defendant's credible explanation is, therefore, corroborated by the complainant's failure to make any. Complainant has destroyed all of defendant's letters, and his own testimony, as to the innocence of the relations before July, 1903, is the only evidence offered to support the bill. This is not sufficient to outweigh the defendant's evidence, supported by his letters, and I conclude that the weight of evidence shows that the parties did have illicit relations before July, and that this intercourse was not an allurement of an innocent young boy, for the purpose of fraud, but a continuance of their previous intercourse, at the solicitation of the complainant and the mutual fault and transgression of both parties. Nor is it shown with such certainty, as a charge of this kind requires, either that the defendant was, in fact, pregnant at the time of the first intercourse in July, 1903, or that she then knew this to be her condition. No previous connection with any person other than the plaintiff is shown, and the case upon the point of actual pregnancy rests upon the claim that the child born on February 6, 1903, seven months after the intercourse, was a fully developed child, or so far developed that it must have been conceived before July, and if so, then from another father than the complainant, who admitted he had no intercourse between January and July, 1903. The evidence of the physician, the attendant nurse, and of defendant and her mother, has been given bearing on this point. The evidence establishes that, by reason of a fall occurring a few days before, the birth of the child was premature. To what extent, is the disputed question. The physician who was called was obliged to use instruments and chloroform for the delivery, and his attention seems to have been directed at the time to the question of premature birth. The child was not fully developed in some particulars, which he mentions—the nails and the skin—and his judgment is that the child was slightly premature, but was more fully developed than a seven-months child. The evidence of the nurse and of an expert witness would seem to indicate that, so far as they could judge, the child was probably 8 1/2 months old. The nurse's evidence, however, is subject to the criticism that it is apparently somewhat influenced by a dispute over the payment of her bill by defendant's mother. And the effect to be given to all of the evidence upon the period of gestation of the child is, in my judgment, to be very much controlled by the fact that a premature delivery has been satisfactorily proved. In that contingency, the evidence should not be merelymatter of doubt, but, in order to annul a marriage and bastardize the issue, the evidence should admit of no other conclusion than that it was not a seven-months child. The evidence in this case is not of that conclusive character, and upon this branch of the case, complainant's claim is not satisfactorily proved.
As to the defendant's knowledge of her pregnancy, at the time of the first intercourse in July, the evidence of the parties shows, I think, that they were both in doubt as to her actual condition until some time in October or November, 1903, and that they were, during the summer, consulting and acting together about surely ascertaining the condition, and that medicines for that purpose were procured by complainant During the whole interval up to November, when the defendant's condition was surely determined by the examination of a physician, both parties took it for granted that if defendant was in trouble, complainant was responsible for it, and both had, I believe, the same belief at the time of the marriage. The evidence certainly does not justify the conclusion that the wife, at the time of the marriage, knew that complainant was not the father of her unborn child.
These conclusions as to the facts, if correct, bring the case clearly within the application of the salutary rule followed in the States and Seilheimer Cases, unless the circumstances of the marriage itself show that a fraudulent advantage was taken of complainant's youth and lack of counsel, by reason of which he was deprived of counsel in a situation where he was not competent to act for himself. On carefully weighing all the evidence, I cannot reach this conclusion. After an interview at defendant's mother's house in Bradley Beach, the parties went unaccompanied to the Rev. Mr. Hayter, a minister at Asbury Park, who knew them both, for the purpose of being married. He refused to perform the ceremony because they were both under age. He recognized defendant's embarrassing situation and advised complainant to disclose the whole situation to his father for his advice. Complainant returned with defendant to her home, and on the same day, or the next, returned alone to Newark. Before leaving, he told defendant, so she says, that he was going to consult with a cousin, the same person whom he had consulted in the summer previous, when it was supposed defendant was in trouble. Whether he did this, does not appear, but he did not consult with either his father or mother, and after four or five days, himself made the arrangements for the marriage in Newark, and defendant came up alone on his summons, and the marriage took place before a justice of the peace whom he selected. He was thus for several days entirely away from the direct Influence of either defendant or her mother, and had abundant time and opportunity to act on Mr. Hayter's friendly advice and get counsel, had he been disposed to do so. It is probable that at Bradley Beach, when first arranging for the marriage, it was understood between them that neither complainant's father nor mother, nor defendant's father, should be told of the marriage, until after it had occurred, but this arrangement was due, I think, as much to complainant as defendant On the evidence in the case, I find that the marriage itself was not actually made while the complainant was under any improper or fraudulent influence of the defendant or her mother which deprived him of the advice of his parents or friends, but was the result of his own decision while actually living with his own friends and relatives, whom he could have consulted for protection, had he wished. The complainant must be held responsible for his act, and the annulment of the marriage denied.