Loringer v. Kaplan

Decision Date29 October 1965
Docket NumberNo. 35971,35971
Citation137 N.W.2d 716,179 Neb. 215
PartiesPhonda Ann LORINGER, Appellant, v. Joseph R. KAPLAN, Appellee.
CourtNebraska Supreme Court

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.

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 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 effective, in fact the parties now agree that it did not.

Plaintiff alleges that defendant, claiming to have obtained legal advice in the matter, persuaded her that although she could not remarry in California for 1 year from the date of the decree, she could remarry in Nebraska 6 months after the date of the interlocutory decree. By this means defendant induced plaintiff to return to Nebraska to engage in a marriage ceremony, which she did at Papillion, Nebraska, on August 7, 1963, such date being more than 6 months and less than 1 year from the date of the California decree. They proceeded to live together as husband and wife.

Shortly thereafter marital difficulties developed and the defendant filed an action to annul the purported marriage on the ground that plaintiff was legally married at the time of their purported marriage and that their purported marriage was void.

Plaintiff then commenced this action, alleging that defendant had induced her to return to Nebraska and enter into a marriage contract by fraud and deceit. She alleges that his representations as to the validity of the marriage were false and known to him to be such. She alleges that she and defendant were in a confidential relationship and that she relied upon defendant and the means he had of finding the legal effect of the California decree. She alleges that, by the fraud and deceit of defendant, she has been unlawfully seduced by him, causing her great humiliation, distress of mind, and mental pain and anguish. She alleges further that because of his fraud and deceit she has been deprived of the benefits of the home and wealth of the defendant. The prayer of her petition is for damages in a substantial amount. We accept the allegations of the petition as true in considering whether or not a cause of action is stated.

Public policy will not permit a married person to enter into a...

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8 cases
  • Haltom v. Haltom
    • United States
    • Nebraska Court of Appeals
    • May 1, 2012
    ...895, 509 N.W.2d 627 (1994) (applying law of Minnesota to determine when divorce issued in Minnesota became final); Loringer v. Kaplan, 179 Neb. 215, 137 N.W.2d 716 (1965) (turning to law of California to determine whether divorce issued in courts of California was final decree). John bore t......
  • Moe v. Moe, No. A04-953 (MN 2/15/2005)
    • United States
    • Minnesota Supreme Court
    • February 15, 2005
    ...was see that her divorce was legal" when he "aided and abetted" her in obtaining divorce for purpose of marrying him); Loringer v. Kaplan, 137 N.W.2d 716, 719 (Neb. 1965) (stating that "[i]t would be against public policy to hold that [complainant] could claim lack of knowledge of the conte......
  • Marriage of Sumners, In re
    • United States
    • Missouri Court of Appeals
    • January 3, 1983
    ...as superior to hers. Nebraska law would charge defendant with knowledge of the terms of the decree. Cf. Loringer v. Kaplan, 179 Neb. 215, 137 N.W.2d 716, 718-719[4, 5] (1965). Defendant proposed marriage to the plaintiff "[f]ormally with a diamond ring on December 14th of 1963." The parties......
  • Barry v. Bohi
    • United States
    • Nebraska Supreme Court
    • January 24, 1986
    ...251 N.W.2d 727 (1977) (may not at one and the same time invoke provisions of statute and challenge its validity); Loringer v. Kaplan, 179 Neb. 215, 137 N.W.2d 716 (1965) (party petitioning for divorce estopped from denying legal effect of decree). The argument overlooks, however, that Mrs. ......
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