Pretlow v. Pretlow

• Decision Date: 21 April 1941
• Citation: 14 S.E.2d 381
• Court: Virginia Supreme Court
• Parties: PRETLOW. v. PRETLOW.

14 S.E.2d 381

PRETLOW.

v.PRETLOW.

Supreme Court of Appeals of Virginia.

April 21, 1941.

CAMPBELL, C. J., and GREGORY, J., dissenting.

Appeal from Circuit Court, Southampton County; Allan R. Hanckel, Judge.

Action for divorce from bed and board by Louise Curdts Story Pretlow against Robert Ashton Pretlow who filed a crossbill. From an adverse decree, plaintiff appeals.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, GREGORY", BROWNING, EG-GLESTON, and SPRATLEY, JJ.

Savage & Lawrence, of Norfolk, for appellants.

Hunton, Williams, Anderson, Gay & Moore and H. Merrill Pasco, all of Richmond, for appellee.

HOLT, Justice.

Louise Curdts Story Pretlow, plaintiff in the court below and appellant here, married Robert Ashton Pretlow on March 10, 1937. Her maiden name was Curdts. In 1917 she married a Mr. Story and with him moved to the town of Franklin. He died in 1927, leaving two children, Dorothy, then ten years old, and Elliott, six, fruits of that marriage. After Mr. Story's death she continued to make that town her home. Mr. Pretlow was a widower who also lived in Franklin. He had three children, all of whom are now living and one of whom lives with him.

As might have been expected, Mr. Pretlow and Mrs. Story were casual friends, but his interest in her became more than casual in the autumn of 1936. About the first of February, 1937, he proposed marriage and was then accepted. On March 6, 1937, an antenuptial settlement was entered into, and they were married four days thereafter. Mr. Pretlow was then 67 years old and she was 44. She moved into the Pretlow home and lived there about six months. In June, 1938, she filed her billcharging cruelty and desertion and asked that she be given divorce from bed and board. To that bill was filed an answer and cross-bill, which cross-bill was, in turn, answered, The marriage settlement, crossbill and answer thereto will be found in a footnote. (See page 389). To the crossbill a demurrer was also interposed.

The major objections set out in the demurrer to the cross-bill are that it is multifarious and that equity jurisdiction is not conferred by statute and therefore does not exist.

The court was of opinion that fraud which goes to the fundamentals of marriage relations gives jurisdiction and that in this case property rights growing out of that fraud could be adjusted also. We think this is right. Jurisdiction of equity at all will hereafter be considered more in detail. If equity has jurisdiction, the demurrer should have been overruled. Having reached the conclusion that inherent equity jurisdiction did exist, the cause came on to be heard upon its merits and was so heard and decided.

A detailed discussion of the evidence would serve no good purpose. It is enough to say that we have examined it with care and are of opinion that the marriage was never consummated and that for this Mrs. Pretlow is to blame. She never at any time intended that it should be consummated. This conclusion is strengthened by the judgment of the trial court; before its chancellor both the plaintiff and defendant testified. In other respects she conducted herself normally and as was to have been expected.

It is also said that even if equity had jurisdiction in this case that jurisdiction has been lost through laches.

We have not yet had occasion to pass upon equity's jurisdiction in annulment proceedings which are based upon causes not named in the statute.

Code, section 5105, in general terms gives to equity jurisdiction in suits to annul marriages.

Code, section 5087, declares that all marriages between white and colored people, and all marriages prohibited on account of either of the parties having a former husband or wife then living, are void without any decree of divorce or other legal process.

Code, section 5088, provides that all marriages which are solemnized in this State and which are prohibited shall be void from the time they are so declared by decree of divorce or annulment.

Code, section 5089, declares that those who leave the State for the purpose of evading her laws stand as if their marriage had been solemnized within the State, while Code, section 5090, deals with the age of consent.

Code, section 5100, declares that any marriage supposed to be void for any of the causes mentioned in section 5087, 5088, 5089 or 5090 may be declared void in a suit instituted for that purpose by either party, subject to an unimportant exception.

Plaintiff contends that these statutes tell us when marriages may be annulled and name the causes for which that may be done; that this list is inclusive, from which it, of course, follows that other causes are excluded. Attention is also called to the fact that all of them deal with causes existing at the time the marriage is solemnized and that incapacity to perform marital duties is nowhere mentioned.

In Heflinger v. Heflinger, 136 Va. 289, 118 S.E. 316, 320, 32 A.L.R. 1088, the court points out the difference between marriage contracts and other contracts. They can not be dissolved by mutual agreement and in them the State is "interested to preserve the integrity of the marriage tie, and to enforce its laws against prohibited marriages, and general rules applicable to private contracts should not be permitted to thwart the public policy of the state established for the protection of society."

English law is cited and relied upon.

"The decisions under the English Divorce Act follow the principles of the ecclesiastical law and are not affected by any statutory provisions on the subject of fraud. Upon a review of all the ecclesiastical decisions it has recently been held that fraud as a ground for annulment of marriage does not include such fraud as induces a consent, but only such fraud as produces the appearance without the reality of consent." Am. & Eng. Enc. of Law, 2d Ed., p. 1183. The text is supported by Moss v. Moss, 1897, P.D. 268, where it is said:

"When in English law fraud is spoken of as a ground for avoiding a marriage, this does not include such fraud as induces a consent, but is limited to such fraud as procures the appearance without the reality of consent."

Reliance is placed upon the rule in Pennsylvania. In Barnett v. Kimmell, 35 Pa. 13, it is said:

"The consent of the parties to the alleged marriage is to be determined by what took place at the time of its celebration; and it is not affected by a secret reservation of one of the parties."

It was also held in Eisenberg v. Eisenberg, 1932, 105 Pa.Super. 30, 160 A. 228, 229,. that a court of equity has no jurisdiction to cancel fraudulent contracts of marriage, but the force of that rule is weakened by this fact there stated:

"It is admitted by the appellant that courts of equity in Pennsylvania do not possess general powers of a court of chancery; their jurisdiction is confined to the authority conferred upon them by statute."

In Bielby v. Bielby, 333 111. 478, 165 N.E. 231, 233, it was held that evidence was insufficient to warrant a decree annulling marriage on account of fraudulent pretence of affection and because of refusal to consummate marriage. That is to say, this case was reversed for insufficiency of evidence among other causes.

"Appellee does not testify that he ever requested that the marriage be consummated or that she ever refused so to do."

Clark v. Clark, 219 Iowa 338, 258 N.W. 719, 720, is a case in which a woman represented to a man that he was the father of her unborn child. The court pointed out that the Iowa Code specified grounds upon which the marriage might be annulled and said that this was not one of them. It further said:

"It is our conclusion that, under the situation in which the plaintiff found himself in this case, the statute has provided him a remedy as pointed out in section 10476, and so long as the statute has provided the remedy for the condition in which he claims to have found himself, we think that he is bound to follow that remedy and that he has no right to maintain this independent action in equity."

It, however, added this saving clause: "We do not say that a condition might not arise in which equity will afford relief."

Phillips v. Phillips, 182 Ark. 206, 31 S.W.2d 134, 135, is a case in which duress was relied upon. In reversing the decree of the court below, it was said:

"The subjects of marriage, divorce, and annulment are regulated by statute, and no divorce can be granted for any cause other than those specified in the statute, and no decree of annulment can be had except for the causes mentioned in the statute."

In Lyannes v. Lyannes, 171 Wis. 381, 177 N.W. 683, 687, there appears to have been false representations as to age when the license was secured. Relief was denied. The court said:

* * * We deem it proper to say that we can see no valid reason for holding otherwise than that the jurisdiction and power to annul is exactly the same as that to divorce, and that both are exclusively of statutory creation, and neither rest upon nor can be extended by resort to the general equitable powers inherent in the circuit court as a court of equity." See, also, Southern Pac. Co. v. Industrial Commission, 1939, 54 Ariz. 1, 91 P.2d 700.

Many States by statute, among them Virginia, catalogue the causes or conditions which will support a decree. An opinion which without more rests its decision upon the statute is not very helpful. The fact that a given case does or does not measure up to its requirements is merely a matter of evidence, and such cases become of importance only when they undertake to deal with the inherent jurisdiction of equity courts.

Many cases in Virginia tell us of the alertness of equity to search out fraud. Others draw attention to the fact that the contract of marriage differs from ordinary contracts because it is affected with a public interest. The nearest approach to an expression of opinion by us on the issue here presented appears in Heflinger v. Heflinger, supra, where Judge Burks said:

"The right to bring a...