Martin v. Martin

Citation240 A.2d 363
Decision Date03 April 1968
Docket NumberNo. 4038.,4038.
PartiesAndrew D. MARTIN, Appellant, v. Lucy P. MARTIN, Appellee.
CourtCourt of Appeals of Columbia District

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.

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 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 the child in the case at bar. § 16-907, upon which the trial judge relied, empowers the trial court to declare the legitimacy of children born of a bigamous marriage. Such a fact situation is not present here, and § 16-907 is, therefore, inapplicable.

Equally inapplicable is § 16-908 D.C.Code, 1961, (Supp. IV, 1965), which provides that the issue of a marriage which is declared null and void because of the idiocy or lunacy of either party at the time of the marriage shall be deemed legitimate. In the instant case, the child born to appellee was not the issue of her marriage to appellant. A child begotten out of wedlock is illegitimate even if that child is born after the marriage of the mother to a man other than the father. People ex rel. Hood v. Gleason, 211 Ill.App. 380 (1918); A. C. v. B. C., 12 Misc.2d 1, 176 N.Y.S.2d 794, 796 (1958); 10 C.J.S. Bastards § 1. Unless appellant had adopted the child, there was no authority for the trial judge to declare her legitimacy under the circumstances of the case at bar.3

III CUSTODY OF THE MINOR CHILD

The trial judge also awarded custody of the minor child to appellee. Such an award is wholly unnecessary in this case where the natural mother had actual custody and control since the birth of the child, without objection by any person. At no time has appellant contested appellee's request for custody, nor has any other person intervened to challenge it. The adjudication of custody therefore took on the character of an ex parte hearing which resulted, in effect, in a declaratory judgment. The record does not disclose whether any attempt was made to establish appellee's fitness as a mother or whether the best interests of the child were ever considered. We do not think that the statute creating the Domestic Relations Branch of the trial court confers upon that Branch authority to determine the custody of illegitimate children where custody is not contested. We therefore vacate the custody award, without prejudice to its determination if required in some future adversary proceeding in which contesting interests might appear.

IV COUNTERCLAIM FOR MONIES RECEIVED BY APPELLEE

Appellant is a veteran who, at the time of the marriage, was receiving disability payments from the Veterans Administration. After the birth of the child, appellee wrote a letter, in appellant...

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4 cases
  • Fattibene v. Fattibene
    • United States
    • Connecticut Supreme Court
    • April 14, 1981
    ... ... Martin v. Martin, 240 A.2d 363, 365 (D.C.App.1968); Duley v. Duley, 151 A.2d 255, 257 (D.C.Mun.App., 1959). The burden is on the one claiming the fraud to ... ...
  • 718 Associates v. Banks
    • United States
    • D.C. Court of Appeals
    • June 23, 2011
    ...case to issues presented in other contexts and addressed by our decisions. Specifically, the trial court cited Martin v. Martin, 240 A.2d 363, 365 (D.C.1968) (“ Martin I ”), for the proposition that “marriages contracted by persons who are mentally incompetent are voidable, not void.” 6 The......
  • Martin v. Martin, 4987.
    • United States
    • D.C. Court of Appeals
    • October 20, 1970
    ...Associate Judges. NEBEKER, Associate Judge: This appeal results from an order of the trial court on our remand in Martin v. Martin, D.C.App., 240 A.2d 363 (1968). We directed the trial judge to conduct a hearing on the merits of appellant's prayer to declare a constructive trust over monies......
  • In Re Estate Of Darrell Randall, 09-PR-271.
    • United States
    • D.C. Court of Appeals
    • July 8, 2010
    ...falls within this latter category, and therefore, by statute, is voidable only from the time of the decree. Id.; see also Martin v. Martin, 240 A.2d 363, 365 (D.C.1968) (holding that the trial court erred in holding that a marriage contracted by a mentally incompetent person was void ab ini......

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