Morris v. Morris

• Citation: 40 Del. 480,13 A.2d 603
• Court: Superior Court of Delaware
• Decision Date: 18 March 1940
• Parties: RICHARD M. MORRIS, an infant, by his mother and next friend, v. VIOLA L. MORRIS

13 A.2d 603

40 Del. 480

RICHARD M. MORRIS, an infant, by his mother and next friend, v. VIOLA L. MORRIS

Superior Court of Delaware, Sussex County

March 18, 1940

Superior Court for Sussex County, Annulment of Marriage, No 16, June Term, 1938.

This was a petition for annulment of marriage based on Section 3497 of Revised Code of 1935, which provides:

"A marriage may be annulled for any of the following causes existing at the time of marriage: * * *

"(d) Fraud, force or coercion, at the suit of the innocent and injured party, unless the marriage has been confirmed by the acts of the injured party."

The plaintiff testified that he was first in the company of the defendant on May 29, 1937, at which time he had sexual intercourse with her and that this was repeated during the following week. At the time the plaintiff was about 18 years of age and the defendant a trifle younger. In the early part of June the parties were together and the defendant was crying and said she was pregnant by the plaintiff and stated that the plaintiff would have to marry her as she was "under age." This marriage took place June 16 1937. The parties lived together as husband and wife at several places until December 14, 1937, when the defendant went to a hospital and gave birth to a child. The medical testimony stated the child was entirely normal and born after the full and normal period of gestation and that the child had been conceived within two weeks of March 7, 1937.

On December 24, 1937, the defendant left the hospital and returned to her husband and they lived together as man and wife until about January 18, 1938 when, after an argument, a separation took place which has since continued.

In addition to the testimony of the husband, the plaintiff, as to his "non-access" with his wife at the time of conception, there was also introduced evidence of a statement of the defendant to the effect that May 29th was the earliest date when the plaintiff and defendant had been together. There was no other testimony whatever on this point.

Frederick P. Whitney for plaintiff.

Houston Wilson, amicus curiae.

RODNEY J., sitting.

OPINION

RODNEY, J.

From the facts at least three important questions arise:

(1) Can a husband obtain an annulment of marriage on the ground of fraud based on ante-nuptial pregnancy by another man when the husband himself had, prior to the marriage, had sexual relations with the woman whom he afterward married?

(2) Can either the husband or the wife testify as to "non-access" of the husband at the time of conception?

(a) In the absence of any relevant statute.

(b) As affected by any Delaware statute.

(3) Has the marriage been confirmed?

Before considering the stated questions it seems wise to eliminate certain questions as not here involved, but which some courts seem to have loosely used as the basis of decisions that have some pertinency. I may eliminate all cases based on fraud where the fraud consisted in a false claim of pregnancy, thereby inducing a marriage, but where pregnancy, in fact, did not exist. I may also eliminate all cases where the fraud consisted merely of a false claim of premarital chastity. In these cases relief has ordinarily been denied.

I may also eliminate cases where the fraud consisted in pre-marital pregnancy, unknown to the man at the time of marriage and where he had had no pre-marital sexual relations with his wife. In such cases the prevailing rule in America is that relief will be granted to the husband, although the rule may be different in England.

These latter cases are only pertinent to the extent that they show that pregnancy existing at the time of marriage, and which pregnancy is attributable to intercourse with a man other than the husband, does constitute "fraud" within the meaning of the Statute. In Williams v. Williams, 2 W. W. Harr. (32 Del.) 39, 118 A. 638, it was held that, to avoid a marriage, the fraud must go to the very essence of the marriage contract relation. I am of the opinion that fraud as to the very essence of the marriage relation is shown when at the time of marriage the wife is pregnant by a stranger and has thus put it out of her power to completely fulfill the marriage contract. L. R. A. 1916E, 650; Ann. Cas. 1914C, 1291.

We thus come to the first stated question:

(a) "Can a husband obtain an annulment of marriage on the ground of fraud based on ante-nuptial pregnancy by another man when the man himself had, prior to the marriage, had sexual relations with the woman whom he afterwards married."

It must be admitted that a number of decisions hold that under the stated circumstances relief should be denied to the husband, and some of these decisions are from jurisdictions entitled to the greatest respect, and whose pronouncements are ordinarily accorded great weight. They must here be more critically examined. Foss v. Foss, 12 Allen (Mass.) 26; Crehore v. Crehore, 97 Mass. 330, 93 Am. Dec. 98; Safford v. Safford, 224 Mass. 392, 113 N.E. 181, L. R. A. 1916F, 526; States v. States, 37 N.J. Eq. 195; Seilheimer v. Seilheimer, 40 N.J. Eq. 412, 2 A. 376; Santer v. Santer, 324 Pa. 140, 188 A. 531.

The cases denying relief to a husband under the given circumstances generally fall into two groups (1) those that deny relief on the ground that the husband does not come into Court with clean hands, and (2) those which deny relief because of the failure on the part of the man to exercise the necessary degree of independent investigation to determine the truth of the woman's statement. In the first group fall the New Jersey cases such as Seilheimer v. Seilheimer, supra. It is difficult to agree with this reasoning. The man may have been guilty of illicit relations with the woman, and such relations might be a bar to an action to dissolve the marriage if such action was based upon fornication or lack of chastity, but such is not the case. The gravamen of the action is not unchastity but because the woman by reason of her action with another resulting in pregnancy is unable to properly enter into the marriage relation with the plaintiff. The parties are in no sense in pari delicto. In the second group fall the Massachusetts cases headed by the leading case of Foss v. Foss, supra. Massachusetts seems firmly committed to the doctrine that relief will be refused to a man who marries a pregnant woman, having had pre-marital sexual relations with her, where his investigation of the truth of her charge of his responsibility for her condition, did not extend to such a degree as to receive judicial sanction. As a matter of fact these cases have no place in support of a doctrine that premarital relations by the husband, as a matter of law, will deny relief to a husband who has married a pregnant woman upon her assurance that he was the father of the child, when in fact he could not have been. The mere fact that the Courts base their conclusions on the inadequacy of his investigation shows that the pre-marital relation is not the real basis of the decision, for the inference is strong that if the investigation had been made as complete, full and searching as the circumstances would admit, that then relief must be granted notwithstanding the pre-marital relations. But the Massachusetts rule is unsatisfactory on other grounds. The suit is based on willful, positive and actual fraud on the part of the woman. To say that it lies in the mouth of a person guilty of such conduct to object that the defrauded party did not make the most searching investigation to prove the falsity of her statement is reversing a rule of law often applied even in such simple matters as vendor and purchaser. In many cases it would be impossible to determine from whom information could be obtained. An investigation might disclose a lack of chastity, but such is not the basis of the action. The parentage of the unborn child is peculiarly within the knowledge of the woman. Finally it does not follow, as pointed out in Winner v. Winner, infra, that all truthfulness and decency has gone from a woman imprudent enough to anticipate with her lover the rights of the marriage relation. It does not follow that her conduct would utterly have destroyed her character and made her unworthy of belief, and I see no reason why a man may not properly place some reliance upon her statement.

It is a noteworthy fact that no case, pertinent to the present discussion, denying relief to the husband, has been determined since 1892. Every case since that time which has come to my attention has granted such relief.

Opposed to the foregoing authorities and holding in direct opposition thereto is an equal number of more modern decisions based, I think, on sounder reasoning. Lyman v. Lyman, 90 Conn. 399, 97 A. 312, L. R. A. 1916E, 643; Wallace v. Wallace, 137 Iowa 37, 114 N.W. 527, 14 L. R. A. (N.S.) 544, 126 Am. St. Rep. 253, 15 Ann. Cas. 761; Gard v. Gard, 204 Mich. 255, 169 N.W. 908, 11 A. L. R. 923; Winner v. Winner, 171 Wis. 413, 177 N.W. 680, 11 A. L. R. 919; Jackson v. Ruby, 120 Me. 391, 115 A. 90, 19 A. L. R. 77.

See also: Ritayik v. Ritayik, 202 Mo. App. 74, 213 S.W. 883; Di Lorenzo v. Di Lorenzo, 174 N.Y. 467, 67 N.E. 63, 63 L. R. A. 92, 95 Am. St. Rep. 609; Short v. Short, 265 Ill.App. 133; Notes in 11 A. L. R. 931; 19 A. L. R. 80.

I do not propose to consider, in detail, the reasoning of the foregoing cases. It is sufficient to say that their reasoning and conclusions appeal to my judgment. In most cases where a man has had pre-marital intercourse and is informed that he is the cause of pregnancy he offers marriage as the honorable solution of the problem which he thinks he has caused. When he finds he has been falsely and fraudently deceived and is refused judicial relief, the refusal of...