Caruso v. Caruso

• Court: New Jersey Court of Chancery
• Writing for the Court: WALKER, Chancellor
• Citation: Caruso v. Caruso, 104 N.J.Eq. 588, 146 A. 649 (N.J. Ch. 1929)
• Decision Date: 13 June 1929
• Parties: CARUSO v. CARUSO.

146 A. 649

CARUSO

v. CARUSO.

Court of Chancery of New Jersey.

June 13, 1929.

(Syllabus by the Court.)

Suit by Belle Caruso against Thomas Caruso. Petition dismissed without prejudice to subsequent suit.

Leo S. Carney, of Newark, for petitioner.

WALKER, Chancellor. A petition was filed in the above-stated cause for the annulment of a marriage. The cause is improperly entitled. If petitioner thinks it was no marriage and that she is entitled to have it annulled, it should be entitled "Belle Riedinger, otherwise Belle Caruso, Petitioner, v. Thomas Caruso, Defendant." However, this defect is of form and not of substance, and the parties being sufficiently identified there can be no doubt of the validity of the proceedings and decree. Dooley v. Dooley, 93 N. J. Eq. 22, 115 A. 268.

The petitioner alleges that on May 1, 1926, a form or ceremony of marriage took place between her and the defendant; that on July 16, 1926, a son was born to her; that defendant at the time of entering into said pretended ceremony of marriage, intended never to consummate it nor to live with petitioner, nor to perform any of the duties of a husband, and intended the said ceremony should be a marriage in name only, and that petitioner should never have or enjoy any of her rights as a wife; that at the time of the performance of the ceremony petitioner believed and expected that the marriage would be in all respects genuine, and that defendant would live with her and would permit her to live with him, that he would maintain a suitable home for her and that they should mutually enjoy all the rights, and perform all the duties of husband and wife, but defendant fraudulently concealed from petitioner until after the performance of the ceremony his then existing intent, as alleged; that immediately following the ceremony the defendant left petitioner and has refused, and still refuses, to live with her or to permit her to live with him, or to perform any of the duties of a husband or to permit her to enjoy any of the rights of a wife; that petitioner would not have entered into said ceremony had she been informed of defendant's intent aforesaid, but that she was induced to marry the defendant by reason of such fraudulent concealment; that the marriage between the petitioner and defendant has never been consummated. And the petitioner therefore prays that the said marriage may, for the fraud of the defendant, be declared to be null and void, and that petitioner may have such other and further relief as may seem equitable and just.

Petitioner was sworn and testified in part as follows: That she was twenty years of age and had been "going" with the defendant three or four months when they had sexual intercourse together; that she afterwards told defendant that she was pregnant and asked him to marry her; that on the day mentioned they were married, before which defendant promised to make a home for her but after they were married, he came to her mother's home and stayed there about one hour, then left and never returned to her, nor did he write her any letters nor send her any money or clothing; that a boy, Vincent, who was in her custody, was born and was at the time of her deposition two years of age; that her maiden name was Belle Riedinger. Defendant's brother testified that defendant told him before the marriage that he would never live with petitioner; and that his only reason for going through the ceremony was because he "wanted to give the child a name."

The matter of marriage, residence and cause alleged for annulment, also that defendant never returned to, lived with, nor supported petitioner or their child, were corroborated. It is true the petitioner swears that the marriage was never consummated, that is, that there was no copula after the ceremony. As to that hereafter.

In Ysern v. Horter, 91 N. J. Eq. 189, 110 A. 31, Vice Chancellor Stevenson held that an unconsummated marriage which is infected with fraud of any kind whatsoever, which would render a contract voidable, is voidable at the option of the injured party, if promptly disaffirmed before any change of status has occurred.

Now, the question recurs, is the present marriage a consummated or an unconsummated one? There can be no doubt but that the defendant married the petitioner because of the fact that he was responsible for her pregnancy, and, as such marriages often do, this one led to a desertion by the defendant of the petitioner immediately after the ceremony. The fraud she relies upon is the fact that the defendant promised to live with her, provide a home and admit her to all the rights and privileges of a wife, but at the same time had secretly resolved not to do so. While this, it seems, would be good ground for nullity under the general jurisdiction of the court if the marriage were unconsummated, it seems to me this marriage was consummated in theory and contemplation of law, that is, in the sense that consummation (sexual intercourse) preceded solemnization. It...