Minder v. Minder

• Decision Date: 23 March 1964
• Docket Number: No. M--58,M--58
• Citation: 199 A.2d 69,83 N.J.Super. 159
• Parties: June L. MINDER, Plaintiff, v. William MINDER, Defendant.
• Court: New Jersey Superior Court

Page 159

83 N.J.Super. 159

199 A.2d 69

June L. MINDER, Plaintiff, v. William MINDER, Defendant.

No. M--58.

Superior Court of New Jersey

Chancery Division.

March 23, 1964.

Irving Mandelbaum, Newark, for plaintiff (Irving & Barry R. Mandelbaum, Newark, attorneys, Barry R. Mandelbaum, Newark, on the brief).

Ronald Reichstein, Montclair, for defendant (Camarata & Colonna, Montclair, attorneys).

The opinion of the court was delivered by

CONSODINE, J.C.C. (temporarily assigned).

Defendant moves to vacate the portions of the judgment Nisi in this matter relating to the payment of $150 weekly by defendant for the support and maintenance of plaintiff; the maintenance of a medical, hospital and surgical policy to her benefit; an order directing trustees William J. Camarata and Irving Mandelbaum to pay over to defendant the balance of $7,500 held in trust by them; and the return to defendant of an insurance policy on his life in the sum of $30,000. The agreement was incorporated in the judgment Nisi.

The agreement predicated its benefits on plaintiff's not remarrying.

On March 22, 1962 plaintiff was readmitted to Overbrook Hospital where John Canning was also a patient. On September 7, 1962 plaintiff escaped from the hospital aided by John Canning, and they were married on September 10, 1962 in Elkton, Maryland.

Thereafter, application was made to the Superior Court of New Jersey, Chancery Division, for the appointment of a guardian for plaintiff. After a hearing her sister Nancy L. Busch was appointed as guardian. The guardian then instituted proceedings to annul the purported marriage between plaintiff and John Canning on the ground that plaintiff was incapable of consenting to the marriage by reason of her insanity or incompetency. On February 19, 1964, after a contested hearing, judgment Nisi annulling the marriage between the plaintiff and John Canning was entered, which judgment provided:

'* * * That the said pretended marriage between June L. Minder and John V. Canning was from the beginning a nullity and should and shall be deemed to have been and to be null and void, and that the plaintiff and defendant did not and could not thereby contract in marriage, and that they are so far as said ceremony of marriage may affect them each unmarried. * * *'

The questions involved on this motion are:

A. Whether the obligation of a divorced husband to pay alimony will be affected by a subsequent void marriage where such marriage is annulled by reason of the wife's lack of consent occasioned by her memtal incapacity to comprehend the nature of her act.

B. Whether the plaintiff's subsequent void marriage is a 'remarriage' within the meaning of N.J.S 2A:34--25, N.J.S.A., and within the meaning of the agreement incorporated in the judgment Nisi.

Out of the confusion in jurisdiction between the ecclesiastical and temporal courts of England grew the distinction between void and voidable marriages. This distinction is firmly rooted both in the common law and in the law of New Jersey. A voidable marriage is valid and not Ipso facto void, until sentence of nullity is obtained. A void marriage is void Ab initio. The judgment of nullity is merely declaratory that no marriage in law ever existed, while in a voidable marriage the judgment of nullity relates back to the time of the marriage and renders the marriage void. Wigder v. Wigder,188 A. 235, 14 N.J.Misc. 880 (Ch.1936). Civil disabilities, such as a prior marriage, want of age, idiocy, inability to consent, and the like, make the contract of marriage void Ab initio and not merely voidable. They render the parties incapable of contracting. If persons under these legal incapacities come together, the relationship is meretricious and not a matrimonial one. Therefore, no sentence of nulity is necessary. Carris v. Carris, 24 N.J.Eq. 516 (E. & A. 1873); Steerman v. Snow, 94 N.J.Eq. 9, 118 A. 696 (Ch.1922). Furthermore, it is to be emphasized that even though a void marriage has never been annulled in a direct proceeding, the said marriage constitutes no obstacle to a valid second marriage. Dunn v. O'Day, 16 A.2d 195, 18 N.J.Misc. 679, (Dept. Labor, W.C.B. 1940).

N.J.S. 2A:34--1(d), N.J.S.A., provides that a marriage shall be annulled where one of the parties was at the time of the marriage incapable of consenting thereto. Mutual consent of competent parties to assume a marital status is essential to a marriage in New Jersey. A marriage lacking at its inception the contractual element of mutual consent is totally void and not merely voidable. 10 N.J. Practice Series (Herr, Marriage, Separation, and Divorce), § 79, p. 78:

'A marriage * * * (is) void * * * for lack of consent occasioned by the memtal deficiency of one of the parties. * * *' Herr, supra, at page 79.

The issues raised here are novel in this State. However, as a matter of public policy and sound reasoning, the conclusion is inescapable that N.J.S. 2A:34--25, N.J.S.A., is not applicable to a subsequent void marriage. Hence the defendant in the instant matter is still obligated under the incorporated agreement to make payment for the support and maintenance of the plaintiff. Firstly, the marriage entered into between the plaintiff and Canning was void Ab initio without the necessity of a decree from this court, and in New Jersey is looked upon as no marriage at all. Herr, supra. Furthermore, the public policy of this State, as indicated in N.J.S 2A:124--2, N.J.S.A., which provides that it is a misdemeanor for anyone to marry an insane or feeble-minded person, and in N.J.S.A. 37:1--9 which provides that no marriage license shall issue where one of the contracting parties is of an unsound mind or an inmate of an insane asylum, clearly demonstrates that this State treats a marriage by a person who is of an unsound mind or an inmate of an insane asylum as being void from its very inception.

Herr, in his treatise on Marriage, Separation, and Divorce, supra, 11 N.J. Practice Series § 702, p. 7, discusses the very issue raised in the case Sub judice and sets forth the proposition of law which he believed existed in this State:

'The obligation of a divorced husband to pay alimony will not be affected by a subsequent void marriage entered into by the wife where such marriage is declared invalid by a competent court.'

However, this issue is not novel in other jurisdictions. In Sutton v. Lieb, 199 F.2d 163, 33 A.L.R.2d 1451 (7 Cir. 1952), the court was faced with the exact issue raised here. In that case, Sutton divorced Lieb in 1939 and the decree for divorce provided for monthly support until she remarries. Sutton in 1944 married H in Nevada. H had obtained a divorce from his first wife also in Nevada. New York then declared H's divorce from his first wife null and void, and thereafter plaintiff sued for an annulment against H in New York because of his prior valid marriage. Plaintiff then...