Martin v. Martin, No. 4038.

• Docket Nº: No. 4038.
• Citation: 240 A.2d 363
• Case Date: April 03, 1968
• Court: Court of Appeals of Columbia District

240 A.2d 363 Andrew D. MARTIN, Appellant,
v.
Lucy P. MARTIN, Appellee. No. 4038. District of Columbia Court of Appeals. Argued February 12, 1968. Decided April 3, 1968.

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Robert H. Reiter, Washington, D. C., for appellant.

Kurt Berlin, Washington, D. C., for appellee.

Before HOOD, Chief Judge, and MYERS and KELLY, Associate Judges.

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MYERS, Associate Judge.

On October 12, 1962, in the United States District Court for the District of Columbia, appellant was found to be of unsound mind and incapable of managing his own affairs, and was committed to a mental institution for treatment and care. On February 1, 1963, while on weekend leave from the hospital, appellant and appellee went through a ceremonial marriage in Arlington, Virginia. At that time, appellee was pregnant but appellant admittedly was not the natural father of the child who was born September 25, 1963. On September 3, 1964, while appellant was still legally incompetent, appellee filed suit for a limited divorce, alleging cruelty and seeking custody and support for the child. Subsequently she voluntarily withdrew her prayer for support. Appellant was restored to his civil rights on June 30, 1965, and on August 12, 1965, answered the complaint and filed a counterclaim for annulment and other relief.

I ANNULMENT OF MARRIAGE

Following a hearing on the merits, the trial judge issued a judgment of annulment, wherein he ruled that "the marriage between the parties * * * was void ab initio" and that "the Plaintiff [appellee] is entitled to a judgment of this Court declaring the nullity of said marriage." Clearly a marriage contracted by a person who has been adjudged mentally incompetent is illegal under the provisions of § 30-103 D.C.Code, 1967,¹ but such a marriage is void only "from the time when [its] nullity shall be declared." The trial judge erred, therefore, in holding the marriage void ab initio.

He further erred in awarding the judgment of annulment to appellee. Appellant's counterclaim sought the annulment based upon his mental incompetence, which rendered the marriage voidable. Appellee, who admittedly knew of appellant's commitment at the time of the marriage was not entitled to an annulment. § 30-104 D.C.Code, 1967,² "limits the remedy of annulment to the party whose consent was impaired when the other party, having full capacity, knew of the impairment." Sears v. Sears, 110 U.S.App.D.C. 407, 409, 293 F.2d 884, 886 (1961). The annulment should, therefore, have been granted to appellant.

II PATERNITY AND LEGITIMACY OF MINOR CHILD

The trial judge also held that, in accordance with § 16-907 D.C.Code, 1961, (Supp. IV, 1965), the child born subsequent to the marriage "shall be deemed to be the legitimate issue of the parties." [Emphasis added.] In the next paragraph of the judgment, however, he ruled that the minor child is declared to be "the legitimate issue of the Plaintiff [appellee here]."

The word "issue" has, in several contexts, been held to mean descendant, or issue of the body. In re Collins' Estate, 393 Pa. 195, 142 A.2d 178, 185, 187 (1958); Hall v. Crandall, 25 Del.Ch. 339, 20 A.2d 545, 547 (1941). The language in the judgment, "legitimate issue of the parties," can, therefore, reasonably be interpreted to mean that the judge found paternity of the child in appellant. We do not believe he intended such a conclusion, nor would the record support such ruling. Although there is a strong presumption that a child born during the course of a marriage was fathered by the husband, that presumption is rebuttable. Harrington v. Harrington, D.C. Mun.App., 145 A.2d 121, 122 (1958). In the instant case, the presumption of paternity was completely rebutted. Appellee herself testified that appellant was not the father of the child. Insofar as the language

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of the judgment can be read as a finding of appellant's paternity, that language must be deleted.

Our difficulties with the judgment go beyond the ambiguity of the language used. We are hard pressed to find any authority in the trial judge to declare the legitimacy of...