Seagriff v. Seagriff
| Decision Date | 22 January 1960 |
| Citation | 195 N.Y.S.2d 718,21 Misc.2d 604 |
| Parties | Loretta SEAGRIFF, Petitioner, v. Alfred SEAGRIFF, Respondent. |
| Court | New York Domestic Relations Court |
Charles H. Tenney, Corp. Counsel, New York City (Mathilda Miller Cuneo, Corp. Counsel, of counsel), for petitioner.
Abraham J. Brill, New York City, for respondent.
In this proceeding by the petitioner for an order of support, it is conceded there was no ceremonial marriage between the parties. The pivotal issue is whether there exists a valid common-law marriage.
The petitioner and one Burker were married in May 1920, and separated seven months later. In 1921 petitioner and respondent entered into an illicit relationship and lived together as man and wife from then until 1957. During all of this time they were residents of the City of New York and lived there continuously except for yearly summer so-journs in Massachusetts where the parties lived on the premises of respondent's employer.
An action for a divorce, in which Seagriff was named as co-respondent, was duly commenced by petitioner's husband in the Supreme Court, Bronx County, in 1927. This resulted in an uncontested divorce decree in 1928, although petitioner and respondent did not learn of this decree until 1932. At no time did the petitioner seek a modification of the decree to permit her remarriage as she might have done after the lapse of three years from the date of its entry. Furthermore, it is probable that such an application would have been denied in view of the requirement of 'satisfactory proof * * * that the conduct of the defendant since the dissolution of said marriage has been uniformly good' (Domestic Relations Law, Section 8).
Assuming without deciding that the parties hereto at some later time intended and actually attempted to create a common-law marriage relationship between them in New York State, they are met by insuperable obstacles. Prior to 1928, petitioner was legally married to another. After 1928 she was at all times forbidden to remarry by the divorce decree and any remarriage by her in New York State in violation of the decree would be void ab initio (Amsterdam v. Amsterdam, Sup., 56 N.Y.S.2d 19; Polizzi v. Polizzi, 13 Misc.2d 309, 177 N.Y.S.2d 935). In addition, by virtue of Chapter 606, Laws of 1933, in effect April 29, 1933, common-law marriages could not thereafter be established in this State.
The fact that they were known as husband and wife in the Massachusetts community in which they spent their summers does not assist the petitioner. It appears that Massachusetts does not recognize common-law marriages (Commonwealth v. Munson, 127 Mass. 459; Rhodes v. Rhodes, 68 App.D.C. 313, 96 F.2d 715; G.L.Mass. c. 207, Secs. 19, 38). Furthermore no marriage between these New York residents could be contracted in Massachusetts 'if such marriage would be void if contracted in such other jurisdiction (New York), and every marriage contracted in this commonwealth in violation thereof shall be null and void'. G.L.Mass. c. 207, Sec. 11.
In the face of these impediments to a marriage either in New York or in Massachusetts, petitioner suggests that the parties entered into a valid common-law marriage in New Jersey, which permitted common-law marriages if established prior to December 1, 1939 (Chap. 227, Laws 1939; N.J.Statutes Sec. 37:1-10, N.J.S.A.). 'The factors of consent, ability, present promise and cohabitation, or mutual and open assumption of marital duties and obligations, are necessary elements of a common law marriage, and the absence of any one is fatal'. Grossman, N.Y.Law of Domestic Relations, Sec. 91--citing numerous cases. Intent is the prime factor and no marriage can result without it even though other factors be present (Graham v. Graham, 211 App.Div. 580, 207 N.Y.S. 195; Ziegler v. P. Cassidy's Son's Inc., 220 N.Y. 98, 115 N.E. 471; Gall v. Gall, 114 N.Y. 109, 21 N.E. 106). And the parties must then and there, i. e. per verba de praesenti, promise to be an to take each other as husband and wife (Fisher v. Fisher, 250 N.Y. 313, 165 N.E. 460, 61 A.L.R. 1523; Matter of O'Neil's Estate, 187 Misc. 832, 64 N.Y.S.2d 714).
The common-law requirements in...
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