Levy v. Levy

• Decision Date: 28 May 1941
• Citation: 309 Mass. 230,34 N.E.2d 650
• Parties: LEVY v. LEVY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 230

34 N.E.2d 650

LEVY

v.LEVY.

Supreme Judicial Court of Massachusetts, Norfolk.

May 28, 1941.

Exceptions from Superior Court, Norfolk County; Pinanski, Judge.

Libel for nullity of marriage by Julius Levy against Helen Levy. Judgment for libelant and libelee brings exceptions.

Exceptions sustained.

Argued before FIELD, C. J., and LUMMUS, QUA, DOLAN, and COX, JJ.

H. Snyder, of Boston, for petitioner.

M. Caro and S. Z. Kaplan, both of Boston, for respondent.

DOLAN, Justice.

This is a libel for nullity of marriage. G.L.(Ter.Ed.) c. 207, § 14. The case was referred to an auditor, a demurrer filed by the libelee having been reserved for consideration by the judge until the hearing should be had on the merits of the libel. The case was heard upon the auditor's report, and certain affidavits and counter affidavits filed in connection with the libelee's motion to recommit the report, that of her attorney for counsel fees, and her motion for alimony pendente lite. After hearing, the judge denied the several motions before referred to, as well as motions of the libelee to strike certain findings from the auditor's report, and the motion that ‘judgment be entered’ for her, and ordered that the libel for nullity be allowed. The libelee's exceptions to these actions of the judge bring the case before us.

Material facts found by the auditor may be summarized as follows: The parties first met in August, 1937, when the libelee, while standing on Harvard Street, Brookline, waiting for a street car, motioned to the libelant, who was seated in an automobile which was ‘stopped in traffic,’ and requested him to drive her to Commonwealth Avenue. He acquiesced. From that time on during that year they associated together on frequent occasions. On December 23, 1937, the libelant told the libelee that he was going to New York on a vacation. She suggested that she go with him. He consented and she ‘arranged for the transportation, which consisted of tickets for the boat to New York.’ On December 24, 1937, they travelled together on the boat to New York, and during the voyage had sexual relations. At that time the libelee employed a certain artific, which need not be here described, to convince the libelant that, as she had previously represented to him, she was a ‘virgin.’ At some prior time she had told a third person that she intended to marry the libelant by ‘hook or crook,’ to make him believe that she was a virgin, and to that end to employ the artific in question. Arriving in New York City they registered as man and wife at a hotel in which they occupied a room. The libelee informed the libelant that she was pregnant as a result of their relations, and said that she could not go back to Boston unless he married her. For two or three days she appeared to be hysterical and ‘threatened to jump out of the window unless the * * * [libelant] married her.’ On December 31, 1937, the parties filed an application for a marriage license with the ‘New York State Department of Health,’ in which the libelee, who was thirty-seven years of age, represented her age to be twenty-nine years. The libelant was then thirty-eight years of age, was president of an electric service corporation, and had accumulated over $5,000 in cash. The libelant did not know that the libelee was thirty-seven years of age. The parties were married in the city of New York on January 3, 1938, and returned to Boston on that day. On March 15, 1938, they went to live together in an apartment in Brookline. In the interim they had gone to New Hampshire for a week's vacation, during which time they occupied the same room. They lived together in Brookline until late in May. Prior to the separation the libelant had given the libelee $421 to pay for a ‘so-called engagement ring,’ and had turned over to her ‘by way of orders on banks' $4,550.42, a substantial part of which she used to purchase ‘furniture and other things connected with the housekeeping.’ She had promised the libelant that she would ‘return to him on demand such money as was left after using it for said purpose.’

When the libelee represented to the libelant that she was a ‘virgin’ she had pendingin the Superior Court four actions, in each of which allegations were made by her that one of the defendants had had intercourse with her with resulting pregnancy, and against other defendants taht they had performed an abortion upon her at the persuasion of the first defendant without her knowledge or consent. These actions were settled in September, 1938, after the libelant and libelee had separated, by the payment to her of $3,000. She signed releases ‘in the name of Helen Bornstein’ running to all the defendants. She was not pregnant when she so represented to the libelant nor at any time thereafter to the conclusion of the hearings before the auditor in the summor of the year 1939. Her statement to the libelant in December, 1937, that she was a ‘virgin’ was ‘knowingly and falsely’ made. Although she intended to procure his ‘monies and properties' by means of the marriage, she intended to live with him as his wife, and subsequent to the marriage so lived with him and had intercourse with him. The finding of the auditor as to the reason why the libelant consented to marry the libelee is that ‘he feared that because of the pregnancy, she would commit suicide if he did not marry her.’ The parties at all times ‘had their place of domicile in Massachusetts.’ The auditor found and ruled that ‘Insofar as it * * * [was] within * * * [his] province * * * the law of Massachusetts is applicable to the facts * * * found’ by him, and found for the libelee.

Since the parties were domiciled in Massachusetts the Superior Court had jurisdiction to entertain the libel. G.L.(Ter.Ed.) c. 207, § 14. Hanson v. Hanson, 287 Mass. 154, 157, 191 N.E. 673, 93 A.L.R. 701, Am.Law Inst. Restatement: Conflict of Laws, s. 115. It is settled that, if the laws of this Commonwealth govern the determination of the case, the libelant cannot prevail since he had criminal intercourse with the libelee before his marriage to her. Arno v. Arno, 265 Mass. 282, 284, 163 N.E. 861, and cases cited. See also Cassin v. Cassin, 264 Mass. 28, 161 N.E. 603, 58 A.L.R. 319. It is also settled that, with certain exceptions based on public policy which do not affect the present case, the law governing nullity of marriage is that of the place where the marriage contract was entered into. Commonwealth v. Lane, 113 Mass. 458, 18 Am.Rep. 509, and cases cited; Cummington v. Belchertown, 149 Mass. 223, 226, 21 N.E. 435,4 L.R.A. 131;Levy v. Downing, 213 Mass. 334, 100 N.E. 638;Hanson v. Hanson, 287 Mass. 154, 156, 191 N.E. 673, 93 A.L.R. 701.Van Voorhis v. Brintnall, 86 N.Y. 18, 25,40 Am.Rep. 505, and cases cited; Incuria v. Incuria, 155 Misc. 755, 758, 280 N.Y.S. 716; 2 Beale, Conflict of Laws, §§ 121.2, 136.1; Am.Law Inst. Restatement: Conflict of Laws, § 115, (1) comment b; § 136. It is the contention of the libelant that the facts found by the auditor constitute ground for the annulment of his marriage to the libelee under the laws of the State of New York.

Section 1139 of the Civil Practice Act of the State of New York, so far as here material, provides as follows: ‘An action to annul a marriage on the ground that the consent of one of the parties thereto was obtained by force, duress or fraud may be maintained at any time by the party whose consent was so obtained. * * * But a marriage shall not be annulled on the ground of force or duress if it appears that, at any time before the commencement of the action, the parties thereto voluntarily cohabited as husband and wife; or on the ground of fraud, if it appears that, at any time before the commencement thereof, the parties voluntarily cohabited as husband and...