Michels v. Fennell

• Court: North Dakota Supreme Court
• Writing for the Court: ENGERUD
• Citation: Michels v. Fennell, 15 N.D. 188, 107 N.W. 53 (N.D. 1906)
• Decision Date: 20 February 1906
• Parties: MICHELS v. FENNELL.

15 N.D. 188

107 N.W. 53

MICHELS

v.FENNELL.

Supreme Court of North Dakota.

Feb 20, 1906.

Syllabus by the Court.

An action to annul a marriage, which is void because the defendant had contracted a prior marriage which was still in force, is not an action to annul a marriage for fraud within the meaning of the statutes relating to that subject, even though it is alleged and found that the plaintiff was the innocent victim of defendant's fraudulent representation that her former husband had died.

Section 2734, Rev. Codes 1899, relating to the custody of the children of an annulled marriage, applies only in actions for the annulment of a voidable marriage, in which the fraud or force are essential facts to be proved in order to establish the cause of action.

By virtue of section 2733, Rev. Codes 1899, the children resulting from a marriage annulled for any cause are legitimate, and both parents have the same rights and are under the same obligations with respect to such children as if the marriage were valid.

Evidence examined, and held, that the mother has a better right to the custody of the child in question than the father.

Appeal from District Court, Benson County; John F. Cowan, Judge.

Action by James Michels, Sr., against Martha M. Fennell, known as Martha M. Michels. Judgment for plaintiff. Defendant appeals. Modified.B. D. Townsend, for appellant. R. A. Stuart and McClory & Barnett, for respondent.

ENGERUD, J.

Defendant has appealed to this court from a judgment declaring the nullity of a pretended marriage theretofore existing between herself and plaintiff, and awarding to plaintiff the custody of the child which resulted from the union. The case is here for trial de novo.

It is conceded that the marriage was bigamous, and void for that reason. The only controversy is as to the custody of the child. Plaintiff claims that he was induced to enter into the pretended marriage by reason of defendant's fraudulent representation that her former husband was dead. This contention was sustained by the trial court, and hence the custody of the child was awarded to plaintiff pursuant to the provisions of section 2734, Rev. Codes 1899. That section provides: “The court must award the custody of the children of a marriage annulled on the ground of fraud or force to the innocent parent, and may also provide for their education and maintenance out of the property of the guilty party.” Each party charges the other with being an unfit person to have the custody of the child, but no findings were made on that subject. In the view taken of the case by the trial court such findings were immaterial.

The appellant contends, first, that the finding of fraud is not warranted by the evidence; and, second, that if a deceit was practiced upon plaintiff he is barred from relief on that ground because he continued to freely cohabit with defendant after knowledge of the deceit. We are fully convinced from a careful examination of the evidence, that appellant's contention must be sustained for reasons which will appear in subsequent portions of this opinion. Discussion of that subject would, in the view we take of the case, be unnecessary were it not because the facts relative to the alleged fraud have a bearing on the question of the comparative fitness of the two opposing parents to be intrusted with the custody of the child. In our opinion, section 2734 does not govern the disposition of the child in this case, even if the plaintiff had been the innocent victim of defendant's deceit. The allegations of the complaint as well as the findings and the undisputed facts show that this pro forma marriage was not one which could be annulled for fraud within the meaning of the statutes of this state on that subject.

Plaintiff and defendant were married on November 27, 1901, and the child in controversy was born October 24, 1902. At the time of this marriage the defendant was and still is the wife of one George Fennell, to whom she was duly married in 1890, and with whom she lived as his wife until February, 1901. She and Fennell separated at that time, but there has never been any divorce. “A marriage contracted by a person having a former husband or wife living, if the former marriage has not been annulled or dissolved, is illegal and void from the beginning; unless such former husband or wife was absent, and believed by such person to be dead for a period of five years immediately preceding.” Section 2723, Rev. Codes 1899. In this case only about nine months had elapsed since the separationfrom George Fennell, and hence the pro forma marriage was an absolute nullity. Although the marriage ceremony was a nullity it had the appearance of validity, and therefore an action may be maintained by either party to it or by the former husband for the purpose of obtaining a decree declaring the fact of nullity. Section 2731, subd. 2, and section 2732, subd. 2, Rev. Codes 1899. It is wholly immaterial in an action for annulment on this ground whether the party capable of making the contract was deceived by the other party or not. The pretended marriage is a nullity for all time and under all circumstances, whether questioned directly or collaterally. The statute recognizes five other grounds for annulling a marriage. Section 2731, subds. 1, 3-6, Rev. Codes 1899. These grounds are: That the party in whose behalf relief is sought was under the age of legal consent and marriage without the consent of his or her parent or guardian, unsoundness of mind, fraud, force, incurable physical incapacity. It will be noticed that where relief is sought on any of these five grounds, the right to relief is conditional. Where the marriage is voidable for infancy, mental incapacity, fraud, or force, the marriage becomes valid if, after the removal of the disability, or discovery of the fraud, or termination of the force, the injured party freely continues the marital relation. For any of these five causes relief can be obtained only by the injured party or in his or her behalf, by a relative or guardian, and, save as to mental incapacity, the relief must be sought within four years after the marriage or discovery of the fraud or withdrawal of the force. Section 2732, subds. 1, 3-5. In short the statute plainly recognizes and gives effect to the distinction between a pretended marriage that is an utter nullity and one that is only voidable. Subdivision 2 of section 2731 and subdivision 2 of section 2732, refer to void marriages that can never become valid. All the other subdivisions refer to marriages which, although void in their inception because the aggrieved party was incapable of consenting, or because his or her apparent consent was obtained by fraud or force and hence not free, may, nevertheless, become valid by ratification. As in any other contract in form not binding for want of the element of free consent, a marriage void for that reason may be affirmed and become valid from the beginning, if after the incapacity is removed or the force withdrawn, or the fraud discovered, the aggrieved party freely gives his or her consent. This distinction between an action to annul a voidable marriage, and an action to establish the nullity of one that is and forever must be absolutely void, must be kept in mind and applied in construing section 2734. With this distinction in mind, it is apparent that section 2734 applies only to actions where a voidable marriage is annulled for fraud or force-that class of actions where the fraud or force is an essential fact to be proved in order to sustain the cause of action. We are not disposed to extend the arbitrary rule established by this section further than the express language of the statute demands. It follows that the allegations and findings with respect to fraud, even if true, are immaterial, and section 2734 has no application to this case.

Although the marriage was a nullity, the child is in law legitimate. Section 2733, Rev. Codes 1899, declares: “When a marriage is annulled children begotten before the judgment are legitimate and succeed to the estate of both parents.” The effect of this humane provision is to protect the offspring of an annulled marriage from the stain and disability of bastardy. It places both parents of such a child in the same position with respect to the child and the latter in the same relation to each of them as if it had been born in lawful wedlock. Watts v. Owens, 62 Wis. 512, 22 N. W. 720;Harris v. Harris, 85 Ky. 49, 2 S. W. 549;Graham v. Bennet, 2 Cal. 503. The general rules, therefore, which should govern in awarding the custody of this child are those found in section 2817, Rev. Codes 1899: “In awarding the custody of a minor or in appointing a general guardian the court or judge is to be guided by the following considerations: (1) By what appears to be for the best interests of the child in respect to its temporal and its mental and moral welfare;...