Fraser v. Fraser

• Decision Date: 29 March 1956
• Citation: 334 Mass. 4,133 N.E.2d 236
• Parties: Carol A. FRASER v. Stewart A. FRASER and another. . Essex
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 236

133 N.E.2d 236

334 Mass. 4

Carol A. FRASER v. Stewart A. FRASER and another.

Supreme Judicial Court of Massachusetts. Essex.

Argued Oct. 5, 1955.

Decided March 29, 1956.

Arnold H. Salisbury, Lawrence, for appellant.

Maxwell H. Robinson, Lowell, for respondent Mary Jane Bigbee.

Before QUA, C. J., and RONAN, WILKINS, SPALDING & COUNIHAN, JJ.

RONAN, Justice.

This is a petition brought in the Probate Court under G.L. (Ter.Ed.) c. 231A, inserted by St.1945, c. 582, § 1, against the male respondent with whom the petitioner had gone through a ceremony of marriage, and also against the female respondent who had also gone through a marriage ceremony with him, to determine the marital status of the petitioner. See Hogan v. Hogan, 320 Mass. 658, 70 N.E.2d 821. The petitioner appealed from a final decree declaring that the male respondent and herself are not husband and wife. The parties have designated the evidence that they desired reported, and the judge has made findings of material facts.

The male respondent married one Germaine Verrette at Andover in this Commonwealth in 1947, and obtained a decree nisi from her in the Probate Court for Essex County on November 2, 1950. That decree became absolute on May 3, 1951. Fraser and Mary June Bigbee, both residents of this Commonwealth, went to Salem, New Hampshire, on December 1, 1950, and were married there. They returned to this Commonwealth on the same day and lived here together until Fraser left her in January, 1954. A child was born on April 9, 1951. The petitioner met Fraser while he was living with his second wife, learned the circumstances connected with his marriage with that wife, and married him on May 11, 1954, at Barnstable. The judge found Mary Jane believed that Fraser had been divorced and was free to marry her in New Hampshire on December 1, 1950, that they lived together as husband and wife, in good faith on her part, until January, 1954, when he left her, and that the marriage of the petitioner and Fraser was invalid.

Mary Jane testified that before their marriage Fraser had told her that he expected his divorce case would come up in the fall of 1950, and that as soon as he had secured it 'we were going to be married in New Hampshire, because he said we couldn't get married in Massachusetts, but it was all right to get married in New Hampshire; that he told her that he would have to wait a six months' period in Massachusetts 'but he said it was all right to go to New Hampshire, and I went up there in good faith'; that she knew at that time that she could not marry him here but she thought she could marry there and they could then return to this State and live together; and that she believed what Fraser had told her as his reason for their going to New Hampshire to be married.

It is a well settled rule of evidence that a party is bound by his testimony concerning his knowledge, motives, beliefs, purposes, feelings, and other similar subject matters of which he alone may be presumed to have personal information and concerning which he might be thought to speak with reasonable assurance of the truth. Testimony upon such subjects has properly been held to bind the party who gives it. He has no right to ask a judge or a jury to disregard it. Mary Jane in the face of this testimony must be held to have known that Fraser was incapable of entering into a marriage with her in this Commonwealth before the decree nisi had become a decree absolute. Laffey v. Mullen, 275 Mass. 277, 175 N.E. 736; Butler v. Graves, 284 Mass. 84, 85, 187 N.E. 115; Germaine v. Boston & Albany Railroad Co., 298 Mass. 501, 11 N.E.2d 447; Ramseyer v. Conlon, 303 Mass. 270, 21 N.E.2d 272; Beebe v. Randall, 304 Mass. 207, 210-211, 23 N.E.2d 142; McFaden v. Nordblom, 307 Mass. 574, 575, 30 N.E.2d 852; McCarthy v. Brockton National Bank, 314 Mass. 318, 327, 50 N.E.2d 196; Meunier's Case, 319 Mass. 421, 424, 66 N.E.2d 198; Du Bois v. Atlantic Corp., 322 Mass. 512, 522, 78 N.E.2d 185.

Notwithstanding her unequivocal testimony, Mary Jane contends that her marriage was valid within G.L. (Ter.Ed.) c. 207, § 6. ¹ She relies principally upon Vital v. Vital, 319 Mass. 185, 65 N.E.2d 205. That case is plainly distinguishable from the instant case. It did not appear in the record that the wife in that case knew that she could not be married in this Commonwealth. In the case at bar Mary Jane knew when she amrried Fraser in New Hampshire on December 1, 1950, that he could not marry her in this Commonwealth before May 3, 1951. G.L.(Ter.Ed.) c. 208, § 21, as amended by St.1934, c. 181, § 1. It was to evade that provision that she was married in New Hampshire. On this record no other explanation is possible.

At the time of their marriage both parties were domiciled here, and both knowing they could not marry in this Commonwealth intended to go through a marriage ceremony in New Hampshire and to return here to live as husband and wife. This was contrary to the provisions of G.L. (Ter.Ed.) c. 207, § 10. ² Chapman v. Chapman, 224 Mass. 427, 113 N.E. 359, L.R.A.1916F, 528; Murphy v. Murphy, 249 Mass. 552, 144 N.E. 394; Payzant v Payzant, 269 Mass. 70, 72, 168 N.E. 168; Atwood v. Atwood, 297 Mass. 229, 8 N.E.2d 916; Levanosky v. Levanosky, 311 Mass. 638, 42 N.E.2d 561; Belcher v. Belcher, 324 Mass. 757, 88 N.E.2d 344; Korostynski v. Korostynski, 328 Mass. 6, 101 N.E.2d 356.

We do not agree that G.L. (Ter.Ed.) c. 207, § 6, applies where, as here, one of the parties learns from the other that the latter is prohibited from marrying here within six months of the time he has been granted a divorce and that in order to circumvent our laws it is necessary to have the ceremony performed in another State.

An attempt by residents of this Cmmonwealth to avoid her laws through the expedient of a marriage ceremony in another State is not the 'good faith' to which special consideration is extended by that section. Gardner v. Gardner, 232 Mass. 253, 258, 122 N.E. 308. In that case the parties had gone to New York to be married, and it was said by this court at page 257 of 232 Mass., at page 309 of 122 N.E., 'If they went to New York, both knowing of the impediment to their marriage in this commonwealth and with a purpose to avoid the force of the laws of this commonwealth and to return here to live, then that marriage would be void here.' That statement is precisely applicable to the present case.

A few words will serve to make plain the difference between the case last cited and the present case. On Rosella Gardner obtained a divorce from her husband Horace on January 16, 1901, but in November, 1900, he under an assumed name went through a marriage ceremony in New York with one Sadie, then a young school girl eighteen years of age. She learned of Horace's real name in April, 1901, and separated from him. Later she joined Horace in this Commonwealth and then learned of his real marital situation. He took her to New York where they were remarried on July 15, 1901, one day before Rosella's divorce had become absolute. The trial judge found that 'She [Sadie] knew that she could not be remarried in Massachusetts without a license, and that a license could not be obtained without her parent's consent, because she was still under age.' As the statutes then stood it was section 10 of R.L. c. 151 which made a marriage in the foreign State void here only if it was to evade any of the first five sections of that chapter. Those sections pertained to real impediments to a marriage. They contained no mention of a license. It is with that thought in mind that the court stated at page 257 of 232 Mass., at page 309 of 122 N.E., 'The pivotal question is whether, in entering into the marriage of July, 1901, both parties, being resident in this commonwealth and intending to return here to live, went to New York to have their marriage solemnized with an intent to evade any of the provisions of the first five sections of R.L. c. 151, contrary to section 10 of that chapter.' (Emphasis supplied.) There was in fact a real impediment, that is, the marriage of Horace before the decree granting a divorce to Rosella from him became final but Sadie knew nothing about that fact. In brief the distinction between the Gardner case and this case is that, since in that case the woman lacked the consent of her parents, she could not obtain a license authorizing anyone to perform in this Commonwealth a marriage between Horace and herself while in the instant case Mary Jane knew at the time she married Stewart there could not be any valid marriage between them in this Commonwealth.

Mary Jane knew of his impediment and she joined with him in evading the statute. Even if she honestly took Fraser's advice and joined with him in a marriage ceremony which she knew could not be performed here, such a marriage was violative of the provisions of G.L. (Ter.Ed.) c. 207, § 10.

The final decree should be reversed and a decree entered that the male respondent and the petitioner are husband and wife.

So ordered.

COUNIHAN, Justice.

I regret that I am unable to concur in the opinion of the court in this case.

The issue to be determined depends upon the construction of G.L. (Ter.Ed.) c. 207, § 6 and § 10, both of which are set out in footnotes to the opinion.

I am in accord with the facts as set forth in the opinion but I differ in the inference which the court draws from such facts. I think it should be emphasized that, although Fraser told Mary Jane that they could not be married in Massachusetts, he also told her that it was all right to be married in New Hampshire. In her testimony Mary Jane insisted several times that she honestly thought that it was all right and legal to be amrried in New Hampshire.

The probate judge found as a fact that 'Mary Jane acted in the full belief that the respondent Fraser had been divorced and was free to marry her in New Hampshire on December 1, 1950,' and that 'after the marriage they lived together...