Ventura v. Ventura

• Decision Date: 12 May 1967
• Docket Number: Nos. 1,2,s. 1
• Citation: 280 N.Y.S.2d 5,53 Misc.2d 881
• Court: New York Supreme Court
• Parties: Rose VENTURA, Plaintiff, v. Joseph VENTURA, Defendant. Joseph VENTURA, Plaintiff, v. Rose VENTURA, also known as Rose Ensminger, and Colon T. Ensminger, Defendants. Action

Page 5

280 N.Y.S.2d 5

53 Misc.2d 881

Rose VENTURA, Plaintiff, v. Joseph VENTURA, Defendant.

Joseph VENTURA, Plaintiff, v. Rose VENTURA, also known as Rose Ensminger, and Colon T.

Ensminger, Defendants.

Action Nos. 1, 2.

Supreme Court, Queens County, Special Referee's Part.

May 12, 1967.

William B. Bernhardt, Jamaica, for Joseph Ventura.

David Goldstein, New York City, for Rose Ventura, a/k/a Rose Ensminger, by Albert Kostrinsky, New York City, of counsel.

Mary B. Tarcher, The Legal Aid Society, New York City, for Colon T. Ensminger, by Lillian R. Bassman, New York City, of counsel.

SAMUEL S. TRIPP, Special Referee.

In the first of the above-entitled actions, Rose Ventura, hereinafter referred to as Rose, obtained a judgment of separation dated June 11, 1965 from the defendant, Joseph Ventura, hereinafter referred to as Joseph, upon the withdrawal of his answer during trial on March 23, 1965. By order to show cause dated November 29, 1966, Joseph moved to vacate that judgment on the ground 'that newly discovered evidence indicates there never was a legal and valid marriage in the first instance.' (CPLR 5015(a) 2.) This motion was referred to the trial justice, who made an order dated January 10, 1967, referring the matter to the undersigned 'to hear and report on the issues and any other issue that may properly be raised'.

When the foregoing reference was reached for trial, the attorneys for the parties requested that the second of the above-entitled actions, in which Joseph seeks to annul his marriage to Rose, be tried at the same time. The justice presiding in Special Term, Part III, of this court, thereupon made an order dated March 14, 1967 referring that action to the undersigned to hear and determine. The written consent of the attorneys for the respective parties was appended to that order. (CPLR 4317(a).) Inasmuch as the disposition of both matters turned upon the resolution of identical issues of fact and law, all parties consented on the record that the reference to hear and report in the separation action (CPLR 4212) should likewise be 'to hear and determine'. (Rayex Corp. v. Sanchez, 6 A.D.2d 903, 177 N.Y.S.2d 630.)

Rose's first husband, Colon T. Ensminger, hereinafter referred to as Colon, was subpoenaed by Joseph. He appeared by an attorney assigned by the Legal Aid Society, and on an oral motion voluntarily joined as a defendant in the annulment action. He denied the material allegations of Joseph's complaint, verified September 10, 1966, and as an affirmative defense alleged his remarriage on October 22, 1966, in reliance upon the subsisting Enoch Arden decree dated February 19, 1959 obtained by Rose pursuant to former section 7--a, now sections 220--221, of the Domestic Relations Law, dissolving her marriage to him, as of May 21, 1959, when it became final as of course.

That marriage was solemnized, in New York City, on January 16, 1943, three days prior to Colon's departure for military service. No issue was born of this union. He saw Rose twice before going overseas in 1944, the last time during a one month furlough preceding his departure. He returned to her after his discharge from the army on October 3 or 5, 1945. When he found out, within a week or so, of Rose's friendship with Joseph, Colon 'took off' as he put it, without saying a word and he never communicated with or saw her again until the trial on March 14, 1967, although he continued to reside in New York City.

Joseph met Rose in March or April 1945 and learned of her marriage to Colon several months thereafter. Following his disappearance, Joseph and Rose lived together as husband and wife and so held themselves out to the world as any normal married couple would, including the acquisition in both names of a home in Brooklyn followed by the purchase of another in Rosedale, Queens County. A daughter, now married, was born on September 15, 1946. But it was not until November 16, 1958, that they married. A Justice of the Peace performed the ceremony in the City of Yonkers, New York.

From the time he commenced living with Rose, following Colon's disappearance, Joseph never bothered to ascertain whether Colon was alive. From time to time, prior to his ceremonial marriage in November 1958, and more particularly subsequent to the birth of his child he suggested marriage. Rose postponed it, however, explaining that they could not marry until after Colon had been absent for seven years. Finally, after a reconciliation following a three month separation between June and October 1958 as the result of a quarrel, she suggested marriage to which he agreed. In her application for a marriage license she disclosed her prior marriage to Colon, stating that he died on February 3, 1951. This statement was based upon her unsuccessful search for him since 1950, particularly through the Missing Persons Bureau of the Police Department of the City of New York, whose representative finally told her in February 1951--'If you didn't hear * * * (from Colon) till now, he probably is dead'.

Colon, too, attempted to find Rose. After consulting a private attorney in 1957, whom he was unable to pay the required expenses of a search, he went to the Legal Aid Society, which referred him to the Family Location Service in Union Square, West, New York City. That Service, however, was unsuccessful in locating her. He tried again in 1960 or 1961 but to no avail. He returned to the Legal Aid Society and although he believed that Rose had died, no proceedings were instituted to dissolve their marriage.

Sometime in the Summer of 1966, Joseph located and his attorney communicated with Colon who thereupon again consulted the Legal Aid Society. Its attorney then commenced an action for divorce and Rose was served with process on September 28, 1966 through a process server apparently furnished by Joseph's attorney. Nothing further was done in the prosecution of that action. Colon's attorney advised him that he could legally remarry in reliance upon the final decree of dissolution obtained by Rose, a certified copy of which was made available to him by Joseph's attorney.

The attorney, who had represented both Rose and Joseph when they purchased at least one of their two houses, was a frequent social visitor at their home and present when their marital status was discussed. He commenced a then 7--a dissolution proceeding by obtaining an order of publication in this court, dated November 6, 1958, returnable on February 3, 1959, based upon Rose's petition verified November 3, 1958. Her testimony was taken on February 3, 1959 (Pltff's Ex. 2). Proof of publication was made in an affidavit sworn on November 29, 1958 by the principal clerk of the Queens Ledger, the newspaper designated in the aforementioned order. According to this affidavit, the required notice was published in the Queens Ledger 'once in each week for three successive weeks commencing in its issue of November 13, 1958 and continuing on November 20, 27, 1958'.

It is thus clear that the validity of Rose's November 16, 1958 ceremonial marriage to Joseph cannot rest upon the interlocutory dissolution decree dated February 19, 1959, filed and entered the following day. By its terms, it was to 'become * * * final * * * as of course, three months after the entry and filing thereof * * * (when) the marriage heretofore existing between Rose Ensminger, the petitioner, and Colon Ensminger, the respondent, shall be dissolved.'

Under section 6 of the Domestic Relations Law a marriage entered into with another whose spouse is living is absolutely void (Cave v. Cave, 285 App.Div. 897, 137 N.Y.S.2d 857), as is one entered into prior to the finality of a decree annulling a wife's earlier marriage. (Landsman v. Landsman, 302 N.Y. 45, 96 N.E.2d 81.) Neither laches (Campbell v. Campbell, 239 App.Div. 682, 268 N.Y.S. 789, affd. 264 N.Y. 616, 191 N.E. 592) nor the birth of a child of the second marriage can clothe it with sanctity. (Matter of Richmond's Estate, 178 Misc. 1018, 1022, 37 N.Y.S.2d 19, 22.) As held in Landsman (supra at page 48 of 302 N.Y., at page 82 of 96 N.E.2d), a void marriage creates 'neither right nor duty' and gives 'neither scope for recrimination nor room for any counteractive estoppel'. The doctrine of clean hands cannot bar relief to the second husband and the wife's good faith in marrying him cannot aid her in obtaining a judgment of separation.

Failure to obtain an Enoch Arden decree does not render a subsequent marriage void on that ground (Randolph v. Randolph, 28 Misc.2d 66, 68, 212 N.Y.S.2d 468, 470) since protection is afforded by the common law presumptions (1) of death after the unexplained absence of a person for seven successive years (Butler v. Mutual Life Ins. Co. of New York, 225 N.Y. 197, 203, 121 N.E. 758, 760; Di Claudio v. Di Claudio, 205 Misc. 532, 132 N.Y.S.2d 602, affd. 285 App.Div. 1139, 142 N.Y.S.2d 365; Cavanaugh v. Valentine, 181 Misc. 48, 55, 41 N.Y.S.2d 896, 902; Richardson on Evidence, 8th Ed., § 65; Fisch on New York Evidence, § 1123) and (2) of the validity of the subsequent marriage. The latter presumption is not overcome by mere proof of the prior marriage inasmuch as the inference of the continuity of the first yields to the stronger presumption of the validity of the subsequent marriage. (Matter of Dugro's Will, 261 App.Div. 236, 240, 25 N.Y.S.2d 88, 92 affd. 287 N.Y. 595, 38 N.E.2d 706; Romps v. Romps, 209 App.Div. 832, 204 N.Y.S. 803; Smith v. Smith, 194 App.Div. 543, 551, 553, 185 N.Y.S. 558, 564, 565; Matter of Meehan's Estate, 150 App.Div. 681, 683, 135 N.Y.S. 723, 724.)

As noted, however, by the late Mr. Justice Shientag in Anonymous v. Anonymous, 186 Misc. 772, 776, 62 N.Y.S.2d 130, 133, 'the return of the absent spouse or proof that he is still alive completely nullifies the common-law presumptions'. (Emphasis supplied.) When Rose entered into a ceremonial marriage with Joseph without a final decree dissolving her marriage to Colon, she 'took...