Loringer v. Kaplan, 35971

• Court: Supreme Court of Nebraska
• Writing for the Court: Heard before WHITE; CARTER
• Citation: 137 N.W.2d 716,179 Neb. 215
• Parties: Phonda Ann LORINGER, Appellant, v. Joseph R. KAPLAN, Appellee.
• Docket Number: No. 35971,35971
• Decision Date: 29 October 1965

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137 N.W.2d 716 179 Neb. 215 Phonda Ann LORINGER, Appellant,
v.
Joseph R. KAPLAN, Appellee. No. 35971. Supreme Court of Nebraska. Oct. 29, 1965.

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Syllabus by the Court

1. Public policy will not permit a married person to contract for or enter into a marriage with another when his or her spouse is alive and not divorced.

2. A person contracting marriage has a primary duty to know his or her marriage status and to know that he or she is eligible to marry.

3. It is a general rule that fraud and deceit cannot be predicated upon misrepresentation of law for the reason that everyone is presumed to know the law.

4. An exception to the foregoing rule may exist under some circumstances where there is a relation of trust and confidence between the parties or where the speaker has, or professes to have, superior knowledge of the law.

5. Where a married person commences an action for a divorce, such party is conclusively bound to know the contents and legal effect of the decree which she herself sought, and where the decree did not purport to grant an absolute divorce such person is estopped from asserting fraud and deceit in contracting a void marriage.

Schrempp, Lathrop & Rosenthal, Omaha, for appellant.

White, Lipp, Simon & Powers, Albert L. Feldman, Omaha, for appellee.

[179 Neb. 216] Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.

CARTER, Justice.

The plaintiff, Rhonda Ann Loringer, filed her petition in the district court for Sarpy County against the defendant, Joseph R. Kaplan, for damages for a breach of contract to marry, and for fraud and deceit in inducing her to become a party to a void marriage. A general demurrer was filed to plaintiff's petition which the trial court sustained. Plaintiff elected to stand on her petition and the action was dismissed. The plaintiff has appealed.

The petition alleges the following facts: During the times herein mentioned plaintiff was the wife of John Loringer, although separated from him. Defendant met the plaintiff about December 1961 and commenced courting her at that time. He importuned her to obtain a divorce from Loringer in order that she could marry him. She refused. She then moved to California to where the defendant followed her, continuing his avowals of affection. Eventually defendant employed attorneys in California, who proceeded to obtain a divorce for the plaintiff. An interlocutory decree was obtained on December 12, 1962. Defendant gave plaintiff engagement and wedding rings and purchased expensive gifts for her. He promised to buy a nice home in Omaha and to maintain plaintiff and her children in accordance with his

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means, which he assured her were considerable. Defendant caused plaintiff to select a home on South One hundred seventh Avenue of the value of between $40,000 and $50,000, which he was to purchase.

Under the law of California the decree of December 12, 1962, in the divorce action was interlocutory only and the purported divorce became effective after 1 year from the date of the interlocutory decree and the subsequent entry of a final decree of divorce. No contention is here made that the divorce decree ever became[179 Neb. 217] effective, in fact the parties now agree that it did not.

Plaintiff alleges that defendant, claiming to have...