Opinion
09-06-1929
RIESEN v. RIESEN.
Aro G. Gabriel, of Weehawken, for petitioner.
(Syllabus by the Court.)
Suit by Thelma Blesen, by Herbert H. Rohde, her next friend, against Harry K. Riesen for annulment of marriage. On petitioner's exceptions to special master's report recommending dismissal of petition. Exceptions sustained.
Aro G. Gabriel, of Weehawken, for petitioner.
FALLON, Vice Chancellor. This matter is before me on exceptions to special master's report. Rule 113. The parties in interest were married February 2, 1927, at which time the petitioner, Thelma Rlesen, was under the age of 16 years. She filed her petition herein November 1, 1928, at which time she was of the age of 17 years and 6 months. The master reported that the marriage was never sexually consummated, and that it was not confirmed by the petitioner after she attained the age of 16 years. When the marriage was entered into, the law provided for a decree of nullity of marriage, at the suit of the wife, "when she was under the age of sixteen years at the time of the marriage, unless such marriage be confirmed by her after arriving at such age." P. L. 1907, p. 475, § 1, subd. 5 (2 Comp. St. 1910, p. 2022, § 1, subd. 5). The master reported adverse to the petitioner and recommended that her petition be dismissed, on the ground that she had instituted her suit before she had reached the age of 18 years. He based his determination upon P. L. 1928, p. 139, § 1, amending P. L. 1907, p. 475, § 1, subd. 5, supra, whereby the age was changed to 18 instead of 16 years, and also upon the case of Palmer v. Palmer (N. J. Ch.) 80 A. 486. Said case, in my judgment, is inapplicable to the case sub judice. The petitioner's legal right to disaffirm her marriage, and to institute a suit for the annulment of the marriage, vested in her when she attained the age of 16 years. The fact that she did not exercise her right to institute her suit until 6 months after she was authorized to do so is inconsequential. That an amendatory act takes effect only from the time of its passage and approval (where the act provides it shall take effect immediately) and has no application to prior transactions, unless an Intent to the contrary is expressed in the act or is clearly to be implied from its provisions, is demonstrated by the decision of our present Chancellor (then Vice Chancellor) in Re St. Michael's Church, 76 N. J. Eq. 524, 76 A. 491. In Public Service Electric Co. v. Board of Public Utility Commissioners, 88 N. J. Law, 603, 607, 96 A. 1013, 1014, it is said: "It has been decided over and over again that statutes are to be given prospective and not retroactive effect, unless their language makes them retroactive and admits of no other construction." The remedy which existed for the annulment of the petitioner's marriage when the marriage contract was made was not affected by the amendatory act aforesaid. Baldwin v. City of Newark, 38 N. J. Law, 158; Williams v. Brokaw, 74 N. J. Eq. 561, 70 A. 665, 666.
As stated by Vice Chancellor Stevens In Williams v. Brokaw, supra, the language of the Court of Errors and Appeals in Citizens' Gas Light Company v. Alden, 44 N. J. Law, 648, 653, is applicable to the amendatory act aforesaid: "Laws, generally, are enacted for the regulation of future affairs and conduct, and to establish the basis on which rights may thereafter under them be rested, and are not usually designed to alter or affect the quality or legal relation of past acts and concluded transactions, much less to disturb rights which have arisen under laws concurrently with their birth. Hence we do not look for or expect in any enactment that it shall be operative as of time prior to its own existence, and before we are permitted to ascribeto it such a purpose there must be found in the law such clear and indubitable expression of the legislative design as precludes any other reasonable interpretation of the words used. The rule in the courts is that retroactive effect will not be given to a statute when the words in it can be construed as designed to make it prospective only." Williamson v. N. J. S. R. R. Co., 29 N. J. Eq. 311. "All legislation is framed, or presumed so to be, in view of this conspicuous canon of construction governing the court where the duty of interpretation is reposed. And when the Legislature intend to give to law of their enactment operation upon the past, they will and must do it with such choice Of words as places it beyond the realm of doubt." The effect of a decree of nullity, when pronounced, is to render the marriage null and void from the beginning. Steerman v. Snow, 94 N. J. Eq. 9, 118 A. 696.
The exceptions to the master's report, in so far as said report recommends a dismissal of the petitioner's petition, should be sustained. A decree nisi should be entered in favor of the petitioner. I will advise a decree accordingly.