Anonymous, In re, M--5762

• Decision Date: 31 March 1954
• Docket Number: No. M--5762,M--5762
• Parties: In re ANONYMOUS. . Chancery Division
• Court: New Jersey Superior Court

Page 599

32 N.J.Super. 599

108 A.2d 882

In re ANONYMOUS.

No. M--5762.

Superior Court of New Jersey Chancery Division.

March 31, 1954.

Herr & Hartman, Elizabeth, for plaintiffs (Morris N. Hartman, Elizabeth, appearing).

Irving W. Rubin, New Brunswick, for defendant.

GOLDMANN, J.S.C.

This action was originally brought by the father of a 14-year-old minor, in the father's individual right and also as guardian Ad litem of his daughter, to annul her 13-day-old marriage, on the ground that the marriage was effected by fraud and duress without the free consent of the minor, and on the alternate ground of nonage. The court, with the consent of counsel, took proofs as to non-age only. The evidence disclosed the following factual situation:

On July 31, 1946 a final decree was entered in our former Court of Chancery (Docket 154/673) wherein the mother and father of the infant plaintiff were divorced from the bond of matrimony. By the decree Nisi custody of the infant was awarded to the mother. Following the divorce the mother remarried. She now has two additional children by her present husband and resides in the City of New Brunswick. The father has remarried and he and his present wife also live in New Brunswick. No children were born of the latter marriage.

For the past few years the infant plaintiff has been regularly visiting with her father, spending alternate weekends at his home. The last visit took place on Saturday and Sunday, June 20--21, 1953. On Sunday evening the father, as was his custom, drove his daughter to the home of her mother. At that moment the father was in complete ignorance of events which had taken place concerning his daughter in the previous two months. For on or about Mother's Day in May 1953 the mother had consented to the infant's engagement to the defendant herein, a 19-year-old boy who was then in the service of the U.S. Navy, stationed at Charleston, South Carolina. He had given the young girl an engagement ring. Thereafter the infant was informed by her mother that she could marry, and this without the father's consent, provided she became pregnant. The mother permitted the defendant to visit with the infant in her home, without any supervision, thus providing the opportunity to engage in the sexual relations which took place. The mother then made plans for the marriage to be performed by a county judge on the pretext that the infant child was pregnant. An announcement of the proposed marriage was prepared for insertion in the local newspaper and such announcement was published on Monday, June 22, 1953, the afternoon following the father's return of his daughter to the mother's home. He first became aware of what was happening when he read the announcement in the newspaper that day.

The father took immediate steps to prevent the marriage. A conference was arranged the following afternoon, Tuesday, June 23, 1953, in the chambers of the county judge, at which time there were present the mother, father, two county probation officers, the prosecutor and the county judge. The father testified that at the close of the conference his understanding was that another conference would take place a few days hence and that before such conference took place attempts were to be made to dissuade the youngster from the proposed marriage. The following morning, June 24, 1953, the father engaged his present attorneys to file an action on his behalf for custody of the infant child and for an injunction against the mother's proceeding with her plans for the marriage of the infant. The entire day was devoted to the preparation of a complaint and supporting affidavits, including an order to show cause and appropriate orders for the arrest of the infant and for her production into court on the return date of the order to show cause. The complaint was actually filed on the morning of June 25, 1953, at Trenton, and the aforementioned orders were secured. Service of the complaint and of the orders were made on the mother and the defendant herein the following day, June 26, 1953. It was then disclosed that a marriage had been performed between the infant and the defendant on the afternoon preceding the filing of the complaint, without the knowledge of the father. This action for annulment was thereupon instituted.

The infant child was placed in the custody of her father by the Ad interim orders of this court in the custody action on June 26, 1953, two days following the infant's marriage, and the infant has been in the father's custody down to the present time. On the continued return day of the order to show cause in the custody action the infant was privately examined by the court and a transcript of that examination has been introduced in evidence in this action. I have taken notice of and have fully examined the file in the custody action. Since my determination in this matter and prior to the writing of this opinion I signed a consent judgment in the custody action awarding custody of the infant to the father.

The evidence in this case further discloses that following the placing of the custody of the infant with the father three separate pregnancy tests were performed at the Monmouth Memorial Hospital at Long Branch, New Jersey. The resident pathologist of that hospital appeared as a witness and produced the records of the hospital, from all of which it appears that the three tests were performed at different periods following the marriage, and that all the tests proved negative as to pregnancy.

The infant testified that she was upset and all 'mixed up' in mind and emotions at the time of the marriage. She did not know whether she wanted to get married or not and was acting under her mother's influence. It is evident that she did not clearly understand all that took place at the time of the marriage. There has been no physical access between her and the defendant since the day following the marriage.

At the close of the summer of 1953 the father obtained an order in the custody proceedings permitting him to enter his child in a private girls' school in Pennsylvania, and the infant was enrolled in that school in September of that year. All reports indicate that she is doing well and that she is happy. She now realizes that the marriage was a mistake. I am satisfied that her conclusion is the result of a clear and intelligent consideration of what has occurred; that she has not been influenced in this decision, and that she now desires that the marriage be annulled.

The defendant filed an answer in which he admitted the allegations of the complaint, including the allegations which charged the alleged fraud and duress. The answer is under oath and further discloses that he had been advised by the mother that her daughter was pregnant and that he would have to proceed with the marriage. Defendant appeared in court with his attorney but did not take the stand. Counsel stipulated that he appeared by consent of defendant and his mother; that if annulment were granted by the court it would be best for all concerned, and hence no defense would be made.

The infant was born on March 18, 1939. On the day of her marriage (June 24, 1953) she had attained the age of 14 years, 3 months and 6 days. The annulment action was instituted when she was 14 years, 3 months and 19 days old, and on the date of the final hearing she had attained the age of 15 years and 13 days.

The infant having elected to disaffirm her marriage and to have the same annulled, it remains for the court to determine whether she is entitled to a judgment of nullity or whether the relief is proscribed until she shall have attained the age of 18 years.

Research discloses but one published decision squarely on point, Palmer v. Palmer, 80 A. 486, 487 (Ch.1911, not officially reported), decided by Vice-Chancellor Howell. In that case the petitioner was the husband. He was under 18 at the time of the marriage as well as at the time of the institution of the action to annul it. The action had been brought under the 1907 Divorce Act (L.1907, c. 216, § 1). The vice-chancellor, in sustaining a demurrer to the petition, held that 'the common-law rules regulate the controversy in this case,' and that the 'common-law rule manifestly did not permit a dissent from the infantile marriage until the dissenting party had reached the age of consent.'

The Palmer opinion took note of a Dictum to the contrary in Titsworth v. Titsworth, 78 N.J.Eq. 47, 49, 78 A. 687, 688 (Ch.1910), in which Vice-Chancellor Stevenson, in dealing with a husband's suit, said that it was 'optional with the husband alone to affirm or disaffirm the marriage when he shall reach the age of 18 years Or at any time before.' (Italics supplied.) And in the case of Hess v. Kimble, 79 N.J.Eq. 454, 81 A. 363 (Ch.1911) Vice-Chancellor Leaming dealt with a suit for annulment brought by a husband through his next friend on the ground that he was under the age of 18 at the time of the marriage. He was still under 18 years of age when he brought the action. It was dismissed on the ground that neither party was a Bona fide resident of New Jersey at the time the petition was filed. No comment was made on the fact that the action was brought before the petitioner attained the age of 18 years, a significant omission if, as Vice-Chancellor Howell thought, no cause of action had yet accrued. See also the Dicta in Taub v. Taub, 87 N.J.Eq. 624, 629, 101 A. 246 (E. & A.1917); Riesen v. Riesen, 105 N.J.Eq. 144, 145, 147 A. 225 (Ch.1929); Scularekes v. Gullett, 106 N.J.Eq. 369, 372, 150 A. 826 (Ch.1930), and In re Olcott, 141 N.J.Eq. 8, 11, 55 A.2d 820 (Ch.1947). In none of these cases was the present question directly raised or analyzed.

The jurisdiction of our courts to annul a marriage on the ground of non-age is purely statutory. The portion of the statute, applicable to this action, and the cognate portion relating to actions brought by a husband, are as follows:

'Judgments of nullity of...