Danes v. Smith

• Decision Date: 22 March 1954
• Docket Number: No. A--67,A--67
• Citation: 104 A.2d 455,30 N.J.Super. 292
• Parties: DANES v. SMITH. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 292

30 N.J.Super. 292

104 A.2d 455

DANES v. SMITH.

No. A--67.

Superior Court of New Jersey Appellate Division.

Argued Feb. 8, 1954.

Decided March 22, 1954.

Raymond F. Brady, Newark, argued the cause for the appellant (Inez M. Stanziale, Newark, attorney).

Harry Kay, Newark, argued the cause for Peter A. Williams, receiver.

No appearance for respondent.

Before Judges EASTWOOD, JAYNE and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.A.D.

Appellant sought an annulment of his marriage to respondent, a partition of real estate which they owned ostensibly as tenants by the entirety, discovery with respect to moneys entrusted to her, and an accounting. A dwelling house on the premises referred to was operated as a rooming house except for the first floor thereof which was used as the home of the parties. During the litigation a receiver was appointed to manage the property.

After a number of hearings respondent received a favorable judgment and this appeal followed.

The parties were married on May 30, 1942 in Newark, New Jersey, by a minister of the gospel. Thereafter they lived together as man and wife, except for three years when the husband was in the armed forces. Danes' army service began in November 1942 and he was discharged in November 1945. Upon the termination of his military career they resumed living together and continued to do so until December 1950, when he separated from respondent. He claimed that the separation took place because he discovered then for the first time that she was already married when she went through the ceremony with him. Some months later this annulment action was instituted.

It appears without dispute that on October 12, 1926 the wife went through a valid ceremonial marriage in North Carolina with one John Smith and that he was still alive at the time of the marriage under consideration.

The testimony is in conflict as to whether Danes was aware that respondent had a husband in North Carolina when he married her. She said he knew about it and in fact assisted her in the making of false statements about her marital history in the application for a marriage license at the bureau in Newark, New Jersey. He denied it.

Smith died on October 23, 1944, while Danes was overseas, and Mrs. Danes testified that she wrote advising him of the fact. Danes admitted receiving the letter which he said simply told him of the death of John Smith. He knew a number of John Smiths and was not aware that she was referring to another husband.

There is further conflict in the testimony as to whether there was conversation between them about the elimination of the impediment to their marriage upon Danes' return to this country and after his discharge from service. In any event, as already indicated, they continued living as man and wife until December 1950 when according to her he left, saying he had another woman.

After considering the facts recited and all the circumstances in the case, the trial court concluded that Danes knew his wife had a living husband when he married her and was therefore estopped to question the validity of their marriage. Our examination of the record discloses no justifiable basis for interference with this conclusion. Capozzoli v. Capozzoli, 1 N.J. 540, 64 A.2d 440 (1949); Sabia v. Sabia, 16 N.J.Super. 273, 84 A.2d 559 (App.Div.1951).

Aside from the determination of the issue of credibility of the parties on the subject of knowledge of the previous marriage, the decision of the trial court was predicated primarily upon the legal principle appearing in Tonti v. Chadwick, 1 N.J. 531, 64 A.2d 436 (1949); Smith v. Hrzich, 1 N.J. 1, 61 A.2d 497 (1948); Keller v. Linsenmyer, 101 N.J.Eq. 664, 139 A. 33 (Ch.1927); Dolan v. Wagner, 96 N.J.Eq. 298, 125 A. 5 (E. & A.1924); Tyll v. Keller, 94 N.J.Eq. 426, 120 A. 6 (E. & A.1923).

These cases demonstrate the law of New Jersey to be that where a person enters into a ceremonial marriage with another, knowing of the existence of an impediment to lawful wedlock and thereafter cohabits with the spouse thus acquired, he will be barred from questioning the legality of the union under the doctrine of estoppel or unclean hands. In our judgment the factual conclusion reached here amply justified the application of the doctrine so as to deny the claim for annulment.

The trial court decided additionally that even if Danes found out for the first time that his wife was under the disability of an existing marriage when he married her, his cohabitation with her in New Jersey after the removal of the impediment, matrimonially meant, made them man and wife. While this ruling was not necessary to the disposition of the case in view of the determination already alluded to, it was predicated upon Tegenborg v. Tegenborg, 26 N.J Super. 467, 98 A.2d 105 (App.Div.1953), and would appear to be a fair construction of the opinion in that case.

The broad language of the Tegenborg case apparently was taken to mean that if, at the present time, a ceremonial marriage is entered into while there is an existing impediment to its validity, and the parties continue to live together with matrimonial intent after the impediment is removed, they will be considered as legally husband and wife from that time by virtue of a common-law marriage.

This was the law prior to the enactment of N.J.S.A. 37:1--10 in 1939. Margulies v. Margulies, 109 N.J.Eq. 391, 157 A. 676 (Ch.1931); Burger v. Burger, 105 N.J.Eq. 403, 148 A. 167 (Ch.1929); Dolan v. Wagner, supra; Robinson v. Robinson, 84 N.J.Eq. 201, 93 A 699 (E. & A.1915); Chamberlain v. Chamberlain, 68 N.J.Eq. 736, 62 A. 680, 3 L.R.A.,N.S., 244 (E. & A.1905). The statute declares that after December 1, 1939, no marriage

'shall be valid unless the contracting parties shall have obtained a marriage license as required by section 37:1--2 of this Title, and unless, also, the marriage, after license duly issued therefor, shall have been performed by or before any person, religious society, institution or organization authorized by section 37:1--13 of this Title to solemnize marriages; and failure in any case to comply with both prerequisites aforesaid, which shall always be construed as mandatory and not merely directory, shall render the purported marriage absolutely void.'

No case has yet been decided in our state courts as to the effect of this enactment on a situation where the parties complied with the formal requisites of license and ceremony in good faith unconscious of an obstacle in the path of a valid marriage, and then continued to live together as man and wife after the removal of the bar. Is the union of these persons void, regardless of their belief and conduct? Has the strong public policy manifested by the statute completely overcome the strong public policy of the common law in favor of recognition of marriage in such cases? Unquestionably the Legislature has the authority to abrogate the common-law doctrine completely if it sees fit to do so.

Strangely enough, a holding that a common-law marriage is barred by the statute in the instance described would bring about a most anomalous situation from a public policy standpoint. When, as here, parties to a ceremonial marriage enter into the relation with knowledge that an impediment exists, they are barred by estoppel or unclean hands from asserting its invalidity, And their status is unaffected by the statute. Yet where two persons in good faith undergo a ceremonial marriage unaware of an invalidating obstacle and that obstacle is subsequently removed, continuance of cohabitation matrimonially meant will accomplish nothing for them; their state will still be concubinage. It has been suggested that in such cases there is social and legal justification for the recognition of common-law marriage. Annual Survey of American Law, 1952, p. 665.

Perhaps some indication of the intended impact of the statute on the problem is furnished by R.S. 9:15--2, N.J.S.A., which renders legitimate the children of a bigamous marriage ceremonially performed, even where the marriage is annulled, whereas under N.J.S. 2A:34--20, N.J.S.A., the children of a bigamous common-law marriage are illegitimate whether the marriage is annulled or not.

The Federal District Court for New Jersey declared that the statute controlled and the relation between the parties was one of concubinage, irrespective of their good faith in contracting the marriage and their continued cohabitation upon the removal of the impediment. Brown v. United States, 72 F.Supp. 153 (D.C.1947); affirmed 164 F.2d 490 (C.C.A.3 1947), certiorari denied, 333 U.S. 873, 68 S.Ct. 902, 92 L.Ed. 1149 (1948). In view of the state of the record here, it is not necessary to decide the question and it is reserved until the issue is directly presented.

The problem is discussed or posed here only to point out that it was neither presented, decided, nor intended to be decided in the Tegenborg case. In that case the ceremonial marriage between the parties took place in Florida. When the impediment to the validity of the marriage was removed they continued to live together as husband and wife in that state for some time before they moved to New Jersey. Common-law marriages are valid in Florida. Warren v. Warren, 66 Fla. 138, 63 So. 726 (Sup.Ct.1913); McClish v. Rankin, 153 Fla. 324, 14 So.2d 714 (Sup.Ct.1943); Carretta v. Carretta, 58 So.2d 439 (Fla.Sup.Ct.1952); Porter v. La Fe, 68 So.2d 602 (Fla.Sup.Ct.1953). And the courts of that state have specifically followed the New Jersey rule set forth in Chamberlain v. Chamberlain, supra. Jones v. Jones, 119 Fla. 824, 161 So. 836, 104 A.L.R. 1 (Sup.Ct.1935), citing with approval Smith v. Reed, 145 Ga. 724, 89 S.E. 815, L.R.A.1917A, 492 (Sup.Ct.1916), which adopted the holding of the Chamberlain case. Consequently, since the Tegenborgs were legally husband and wife in Florida, they occupied the same status here.

The Tegenborg opinion did not make clear to...