Brown v. Brown

CourtNew York Family Court
Writing for the CourtGUY J. MANGANO
Citation274 N.Y.S.2d 484,51 Misc.2d 839
Decision Date27 October 1966
Parties* Petitioner, v. Thomas BROWN * Respondent. Family Court, City of New York, New York County

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.

Page 485

[51 Misc.2d 840] Mario J. Aquino, New York City, for petitioner.

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

Page 486

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[51 Misc.2d 841] 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.

Page 487

The fact that petitioner was under-age...

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4 practice notes
  • Hahn v. Falce
    • United States
    • New York City Court
    • 5 Marzo 1968
    ...continuity of the first marriage is on the party asserting it (Kopit v. Zilberszmidt, Sup., 35 N.Y.S.2d 558, 566--567; Brown v. Brown, 51 Misc.2d 839, 274 N.Y.S.2d 484; Matter of Case v. Case, 54 Misc.2d 20, 281 N.Y.S.2d 241) the respondent sought to show that the petitioner's marriage to h......
  • People v. NYRA
    • United States
    • New York City Court
    • 31 Agosto 1984
    ...or sentenced the defendants to nominal fines. See e.g. People v. Feinberg, 48 Misc.2d 187, 189, 264 N.Y.S.2d 424 People v. Looe, supra, 51 Misc.2d at 839, 274 N.Y.S.2d It is well documented that in the 1960s and 1970s courts expanded defendants' constitutional rights, particularly those bas......
  • Edgar v. Johnson, No. 2
    • United States
    • Court of Appeals of Arizona
    • 31 Diciembre 1986
    ...v. Burger, 156 So.2d 905 (Fla.App.1963); Davis v. Misiano, 373 Page 133 [152 Ariz. 238] Mass. 261, 366 N.E.2d 752 (1977); Brown v. Brown, 51 Misc.2d 839, 274 N.Y.S.2d 484 The primary concern of the court should be to determine the amount necessary to support the child. If satisfying the nee......
  • Smith v. Smith, No. 4664.
    • United States
    • 17 Septiembre 1969
    ...Harsley v. United States, 88 U.S.App.D.C. 150, 151, 187 F.2d 213, 214 (1951). New York has the same rule. See Brown v. Brown, 51 Misc.2d 839, 274 N.Y.S.2d 484 2. Wheeler v. Terrell, supra. 3. 73 App.D.C. 93, 116 F.2d 556 (1940). 4. The rules of the Domestic Relations Branch provide in perti......
4 cases
  • Hahn v. Falce
    • United States
    • New York City Court
    • 5 Marzo 1968
    ...continuity of the first marriage is on the party asserting it (Kopit v. Zilberszmidt, Sup., 35 N.Y.S.2d 558, 566--567; Brown v. Brown, 51 Misc.2d 839, 274 N.Y.S.2d 484; Matter of Case v. Case, 54 Misc.2d 20, 281 N.Y.S.2d 241) the respondent sought to show that the petitioner's marriage to h......
  • People v. NYRA
    • United States
    • New York City Court
    • 31 Agosto 1984
    ...or sentenced the defendants to nominal fines. See e.g. People v. Feinberg, 48 Misc.2d 187, 189, 264 N.Y.S.2d 424 People v. Looe, supra, 51 Misc.2d at 839, 274 N.Y.S.2d It is well documented that in the 1960s and 1970s courts expanded defendants' constitutional rights, particularly those bas......
  • Edgar v. Johnson, No. 2
    • United States
    • Court of Appeals of Arizona
    • 31 Diciembre 1986
    ...v. Burger, 156 So.2d 905 (Fla.App.1963); Davis v. Misiano, 373 Page 133 [152 Ariz. 238] Mass. 261, 366 N.E.2d 752 (1977); Brown v. Brown, 51 Misc.2d 839, 274 N.Y.S.2d 484 The primary concern of the court should be to determine the amount necessary to support the child. If satisfying the nee......
  • Smith v. Smith, No. 4664.
    • United States
    • 17 Septiembre 1969
    ...Harsley v. United States, 88 U.S.App.D.C. 150, 151, 187 F.2d 213, 214 (1951). New York has the same rule. See Brown v. Brown, 51 Misc.2d 839, 274 N.Y.S.2d 484 2. Wheeler v. Terrell, supra. 3. 73 App.D.C. 93, 116 F.2d 556 (1940). 4. The rules of the Domestic Relations Branch provide in perti......

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