Richard J. Harrison v. Cora A. Harrison
| Decision Date | 07 February 1939 |
| Citation | 4 A.2d 348,110 Vt. 254 |
| Parties | RICHARD J. HARRISON v. CORA A. HARRISON |
| Court | Vermont Supreme Court |
January Term, 1939.
Annulment of Marriage---1. Status of Findings of Trial Court---2. Of Exceptions Not Briefed---3. Question Raised by Ground of Exception Stated---4. Status of Marriage Induced by Threat of Seduction or Bastardy Prosecution---5. Intendments in Favor of Judgment---6. Threat of Bastardy Prosecution Held Not Malicious by Reason of Prior Release Obtained by Fraud---7. Failure to Return Consideration for Release Not Determinative of Malice---8. Burden of Proof in Annulment Proceedings---9. Claim as to Effect of Failure to Return Consideration Held Not Before Supreme Court.
1. Supreme Court does not weigh evidence, and findings of trial court must stand if there is legitimate evidence fairly and reasonably tending to support them.
2. Exceptions which are not briefed are waived.
3. Where only exception briefed was to a finding of the trial court and sole ground stated therefor was in effect that finding was against weight of evidence and unsupported by evidence, only question before Supreme Court was whether there was any legitimate evidence fairly and reasonably tending to support the finding.
4. Where a man marries under threat of or constraint from a lawful prosecution for seduction or bastardy he cannot avoid the marriage on ground of duress, but it is otherwise in case of prosecution which was instituted maliciously or without probable cause.
5. Every reasonable intendment is in favor of judgment of trial court, which cannot be reversed unless all reasonable intend-ments are against it.
6. In suit to annul marriage on ground that consent thereto was obtained by force or fraud, where it was found that petitioner was induced to marry petitionee by threat of prosecution for bastardy and that release previously signed by petitionee purporting to discharge petitioner from further liability with respect to expected child was obtained by fraud, release did not compel inference that threatened prosecution was malicious or without probable cause and stated inability of trial court to find that petitioner was entrapped or forced into marriage was not error.
7. Failure of petitionee in marriage annulment suit to return consideration paid her by petitioner for release from further liability with respect to expected child was not determinative of petitionee's malice or lack of probable cause for bastardy proceeding found to have induced marriage though a possible defense to such proceeding, where it was found that petitionee was willing to return such consideration.
8. Petitioner in suit to annul marriage on ground that consent thereto was obtained by force or fraud had burden of proof and it was incumbent upon him to obtain finding that contemplated prosecution for bastardy, by which he was induced to marry petitionee, was malicious or without probable cause.
9. In suit to annul marriage on ground that consent thereto was obtained by force or fraud, where petitioner claimed in brief that because consideration paid therefor was not refunded, release, signed by petitionee and purporting to discharge petitioner from further liability with respect to expected child, was bar, even though obtained by fraud, to prosecution for bastardy by threat of which petitioner was induced to marry petitionee, so as to require finding that such threatened prosecution was malicious or without probable cause, but where petitioner failed to bring before Supreme Court exception to refusal or failure of court so to find and claim was not stated or suggested by exception to finding briefed or by stated grounds therefor, such claim was not before Supreme Court for consideration.
PETITION FOR ANNULMENT OF MARRIAGE on ground that consent thereto was obtained by force or fraud. Trial by court at the March Term, 1938, Rutland County, Shields, J., presiding. Petition dismissed. The petitioner excepted. The opinion states the case.
Judgment affirmed.
Angelo J. Spero for the petitioner.
Ernest E. Moore for the petitionee.
Present: MOULTON, C. J., SHERBURNE, BUTTLES and STURTEVANT, JJ., and CUSHING, SUPR. J.
This is a petition for annulment of the marriage contracted between the parties before a justice of the peace on October 23, 1937, on the ground that the consent of the petitioner thereto is claimed to have been obtained by force or fraud.
Hearing on the petition was duly had in Rutland county court, findings were made and filed and judgment entered dismissing the petition. The petitioner took exceptions to certain of the findings made, and other exceptions to the court's failure to find in accordance with certain requests to find. He took no exception to the judgment and in coming to this Court has briefed only one exception which is to that portion of the court's ultimate finding which reads as follows: "We are unable to find that the petitioner was entrapped or forced into a marriage ceremony with the petitionee by wrongful threats, deception, or otherwise."
The only ground stated for petitioner's exceptions is that "each of said findings and refusal to find is against the weight of the evidence, unsupported by said evidence, and is contrary to the law and evidence, and that on all of the evidence in the case said finding and refusal to find are not substantiated." As has so often been said this Court does not weigh evidence. The findings of the trial court must stand if there is legitimate evidence fairly and reasonably tending to support them. Trask v. Walker's Estate, 100 Vt. 51, 55, 134 A. 853; Hyde Park Lumber Co. v. Shepardson, 72 Vt. 188, 189, 47 A. 826; Kelton, Admr. v. Leonard et al., 54 Vt. 230, 232. Exceptions which are not briefed are waived. Valiquette v. Smith et al., Trs., 108 Vt. 121, 125, 183 A. 483; Bucklin v. Narkwich, 108 Vt. 1, 7, 182 A. 207. It follows that we have only the one exception before us, with respect to which the only question here is whether there is any legitimate evidence fairly and reasonably tending to support it.
It appears that the petitioner, for something over a year prior to the date of the marriage, was accustomed to visit the petitionee at rather frequent intervals. At some time during this period the parties commenced having sexual relations and eventually the petitionee became pregnant. The court finds that this condition was the result of her intimacy with the petitioner and the finding is supported by evidence.
Further findings of the court, supported by proper evidence, are in substance that the petitioner was informed of the petitionee's condition and thereafter they had considerable talk about being married. As they were of different religious faiths he told her that he would see a priest to arrange about the matter, and also spoke to her uncle with respect to the matter. Although she knew that he had also been keeping company...
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