Brown v. Brown

• Decision Date: 27 October 1966
• Citation: 274 N.Y.S.2d 484,51 Misc.2d 839
• Parties: * Petitioner, v. Thomas BROWN * Respondent. Family Court, City of New York, New York County
• Court: New York Family Court

Page 484

274 N.Y.S.2d 484

51 Misc.2d 839

In the Matter of a Proceeding for Support Under Article 4 of the Family Court Act Anna BROWN, ^* Petitioner, v. Thomas BROWN * Respondent Family Court, City of New York, New York County.

Oct. 27, 1966.

Mario J. Aquino, New York City, for petitioner.

Alan E. Kahn, New York City, for respondent.

GUY J. MANGANO, Judge.

The petition herein is brought pursuant to Article 4 of the Family Court Act by petitioning wife for an order of support on behalf of herself and her two children.

At a hearing held on October 10, 1966, it was established that petitioner and respondent had been the principals in a formal marriage ceremony on November 15, 1950. The testimony and proof further showed that petitioner was previously married to one James Norris on August 7, 1936. That they lived together as husband and wife for a period of approximately sixteen months when the parties then separated. Petitioner has not seen her first husband since that time. However, the marriage has never been set aside. Respondent also introduced into evidence a marriage application showing that at the time that petitioner contracted her first marriage, she was only 17 years of age and that she misstated her age on the application as being 21. On the application for the second marriage, petitioner neglected to disclose her prior marriage. There was also additional testimony establishing the fact that there was one issue of the first marriage and two issues of the second marriage.

The respondent disclaims liability for support stating that petitioner's marriage to him is without force and effect; it is void.

Petitioner on the other hand takes the position that a presumption of validity attaches to the second marriage and the burden of showing its invalidity falls upon the person attacking the legality of the marriage, namely, the respondent in this proceeding.

The question before the Court is whether petitioner and children are entitled to support from the respondent. This point revolves upon the question of whether the second marriage is void or voidable. If the latter is true, a presumption of validity would attach and the burden would be upon the respondent to rebut said presumption.

It is not incumbent upon the one asserting the validity of a marriage to prove that an earlier marriage was terminated by death, annulment or divorce. The law is well settled that in the case of conflicting marriages of the same spouse this presumption of validity operates in favor of the second marriage and the burden of showing the first marriage is on the party asserting it. Even where this is well established it may be presumed in favor of the second marriage that at the time thereof, the first marriage had been dissolved either by a decree of divorce or the death of the former spouse so as to cast the burden of adducing the contrary on the party attacking the second marriage. Kopit v. Zilberszmidt, Sup., 35 N.Y.S.2d 558.

the evidence adduced herein sufficiently established that respondent did not rebut the presumption; he offered no proof to show that the second marriage was void. The petitioner testified, however, that her first marriage was not dissolved and the record supports that allegation. The fact that petitioner was under-age at the time she contracted her first marriage and that she misrepresented her age at that time renders the marriage only viodable. Nevertheless, if the petitioner was the wife of another at the time the marriage contract was entered into with respondent, the marriage between her and respondent is a nullity.

The bases upon which an order may be entered by this Court for the support of the petitioner is that the marriage between her and respondent is valid. It follows, therefore, that this Court, though it may not annul a marriage or divorce husband and wife or enter a decree of separation, it may as an incident to the power vested in it to order the support of dependents, inquire into the legal status of the relationship which is involved in support of such a petition. See Bracy v. Bracy, 167 Misc. 253, 3 N.Y.S.2d 827; England v. England, 205 Misc. 645, 129 N.Y.S.2d 167.

The legal relationships, the basis upon which this Court derives its power to order the support for a dependent wife or child, must be established by competent proof. In the absence of such proof, it would manifestly be unjust and unlawful to hold a person chargeable with support of alleged dependents when not required by the law.

The evidence before me clearly shows that the petitioner did not initiate any proceedings to terminate her first marriage. No proof was offered by petitioner to indicate that her first marriage ended in divorce or that it was annulled. The only proof offered on this aspect of the case was the petitioner's own admission that she and her first husband had separated in 1937 and that she has not seen him since that time. However, even under this set of facts the petitioner has no standing to invoke the provisions of Section 221 of the Domestic Relations Law (so called Enoch Arden Law).

Formerly, under the Common Law, a marriage by one having a spouse living and undivorced was void 'ab initio' even though the spouse had been absent and was believed to be dead. The Common Law rule was modified by statutory enactment under former Section 6 of the Domestic Relations Law, which provided:

'A marriage...