Mason v. Mason

• Decision Date: 28 April 1924
• Docket Number: 332
• Citation: 261 S.W. 40,164 Ark. 59
• Parties: MASON v. MASON
• Court: Arkansas Supreme Court

261 S.W. 40

164 Ark. 59

MASON v. MASON

No. 332

Supreme Court of Arkansas

April 28, 1924

Appeal from Johnson Chancery Court; J. B. Ward, special chancellor affirmed.

Decree affirmed.

Jesse Reynolds, for appellant.

OPINION

MCCULLOCH, C. J.

Appellant and appellee are husband and wife, having intermarried in Johnson County, Arkansas, on October 22, 1921. Each of the parties was about nineteen years of age at the time of their intermarriage, and they have never cohabited as husband and wife or lived under the same roof since the ceremony was performed.

The appellee, Hallie Mason, filed her complaint against appellant, Ewell Mason, in the Johnson Chancery Court on October 9, 1922, to recover a monthly allowance of money for her support. It is alleged in the complaint that, immediately after the intermarriage of the parties, and on the same day, appellant "wilfully abandoned and deserted plaintiff, and since has failed and refused to live with the plaintiff," and that appellant was able to support appellee, but has refused to do so. Appellant filed his answer, denying that he had refused to support appellee, and also filed a cross-complaint against appellee for divorce, on the ground that she had been guilty of conduct which was sufficient to render his condition intolerable. He alleged in his cross- complaint that, at the time of the intermarriage, appellant was a schoolboy, attending a college in Clarksville, and that the parties, together with their respective parents, entered into an agreement that appellant should return to school and remain there for the balance of the term, and that appellee should remain with her father and be supported by him until the expiration of the school year. Appellant also alleged that appellee and her father, disregarding this agreement, at once commenced and persisted in efforts to harass and annoy appellant by having him arrested for crime--that, immediately after the marriage, they employed a lawyer and began to institute prosecutions against him. Appellee answered the cross-complaint, denying all of the allegations thereof with respect to any misconduct on the part of appellee or her father.

On December 26, 1922, while the action referred to above was pending, appellant, by his father as next friend, commenced an action in the Johnson Chancery Court against appellee to obtain an annulment of the marriage relation between the parties, on the ground of alleged fraud on the part of appellee and her father in inducing appellant to marry. It is alleged in this complaint that, prior to the intermarriage, appellant and appellee had been indulging in sexual intercourse with each other, and that appellee and her father falsely represented to appellant that appellee was then pregnant with a child, and that appellant was the father of the child, that said representation was false, and was made for the fraudulent purpose of inducing appellant to marry the girl. Appellant also set forth in his complaint the same statements as in his cross-complaint in the other action, with respect to the alleged agreement between the parties that appellant should return to school and remain there until the end of the school year. The court sustained a demurrer to this complaint, and, appellant declining to plead further, final decree was rendered against him, dismissing the complaint for want of equity.

The other action for alimony, and appellant's cross-complaint for divorce, proceeded to final hearing on oral testimony, and resulted in a decree dismissing appellant's cross-complaint for want of equity, and he has prosecuted an appeal in each of the cases. The two appeals have been consolidated here for the purpose of being briefed together, and will be disposed of in one opinion.

A marriage obtained by fraud or duress is not void, but is voidable at the election of the injured party, when annulment is sought within apt time. Nelson on Divorce and Separation, § 569. There is some conflict in the authorities as to what acts will constitute fraud sufficient to justify the annulment of a marriage contract, but we are unable to find any authority which goes to the extent of holding that the facts set forth in appellant's complaint would justify annulment of a marriage. The only misrepresentation set forth in the complaint is in regard to appellee's condition of pregnancy. It is admitted that appellant had been having sexual intercourse with appellee prior to this time, and there is a further allegation that appellant was represented as being the father of the unborn child; but there is no allegation in the complaint that another person was the father of the child; on the contrary, the allegation is that the representation as to pregnancy was altogether false.

It has been held that a marriage induced by misrepresentation as to the paternity of a child will afford grounds for annulment where the parties had been having sexual intercourse before the marriage and the husband was induced to believe, by the false representations, that he was the father of the child. Nelson on Divorce and Separation, §§ 607, 608, 609. But, as before stated, there is no allegation in the complaint before us as to misrepresentations in regard to the paternity of the unborn child, but the allegation is that the representation as to pregnancy was false. We do not...