Vital v. Vital

• Decision Date: 07 February 1946
• Parties: VITAL v. VITAL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

319 Mass. 185

65 N.E.2d 205

VITAL

v.VITAL.

Supreme Judicial Court of Massachusetts, Bristol.

Feb. 7, 1946.

Libel by Catherine Freitas Vital against Anthony Rigo Vital for affirmation of marriage and that libelant be given custody of the minor child of herself and libelee and that allowance be made to her for her support and that of the minor child. From adverse decree, the libelant appeals.

Reversed and final decree entered.Appeal from Probate Court, Bristol County; M. R. Hitch, Judge.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, and WILKINS, JJ.

J. B. Nunes, of New Bedford, for libelant.

B. Smola, of New Bedford, for libellee.

DOLAN, Justice.

This is a libel for affirmation of marriage. See G.L.(Ter.Ed.) c. 207, § 14. The libel also contains prayers that the libellant be given the custody of the minor child of herself and the libellee and that an allowance be made to her for her support and that of the minor child. The ordering part of the decree entered by the judge, from which the libellant appealed, reads as follows: ‘It is decreed that the marriage of the libellant to this libellee is void in accordance with the provisions of General Laws Chapter 207, Section 10, and it is further decreed that the libellant contracted said marriage with the libellee with the full belief that he was capable of contracting said marriage, and that his former wife had been divorced, leaving the party to the former marriage free to marry again, and that the issue of her said marriage, namely, Mildred Rego Vital, is and shall be the legitimate issue of the libellant.’ The recitals of the decree include a statement of the material facts upon which the judge based his decision. See Curley v. Curley, 311 Mass. 61, 67, 40 N.E.2d 272, and cases cited. They may be summed up as follows: At the time of the marriage of the parties on July 2, 1927, the libellee was married to another. His then wife had obtained a decree of divorce which did not become absolute until July 7, 1927, and the libellee was thereafter prohibited from remarrying for two years. The parties were married on July 2, 1927, in Rhode Island, into which State the libellee went for the purpose of avoiding the laws of this Commonwealth and intending to continue to reside in New Bedford. Said marriage of the libellant to the libellee is void here, but the libellant contracted said marriage in the full belief that the libellee was capable of contracting said marriage and that he had been divorced from his then wife and was free to marry her. The parties thereafter on September 15, 1928, ‘went through a religious ceremony in * * * Providence, but that was simply a religious ceremony because the first ceremony had not been performed in church. It was not under the authority of any license of the civil authorities, and even if it had been it would have made no difference to the final result. Thereafter the parties lived together in good faith on the part of the libellant until after the expiration of two years from the date of the divorce aforesaid of the libellee's wife from him.’ We construe this to mean from the date when the decree nisi became absolute.¹

The libellant contends that, upon the facts found, she is entitled to a decree affirming her marriage under the provisions of G.L. (Ter.Ed.) c. 207, § 6, which reads as follows: ‘If a person, during the lifetime of a husband or wife with whom the marriage is in force, enters into a subsequent marriage contract with due legal ceremony and the parties thereto live together thereafter as husband and wife, and such subsequent marriage contract was entered into by one of the parties in good faith, in the full belief that the former husband or wife was dead, that the former marriage had been annulled by a divorce, or without knowledge of such former marriage, they shall, after the impediment to their marriage has been removed by the death or divorce of the other party to the former marriage, if they continue to live together as husband and wife in good faith on the part of one of them be held to have been legally married from and after the removal of such impediment, and the issue of such subsequent marriage shall be considered as the legitimate issue of both parents.’ General Laws (Ter.Ed.) c. 207, § 4, provides as follows: ‘A marriage contracted while either party thereto has a former wife or husband living, except as provided in section six and in chapter two hundred and eight, shall be void.’ General Laws (Ter.Ed.) c. 208, § 21,² provides that ‘Decrees of divorce shall in the first instance be decrees nisi, and shall become absolute after the expiration of six months from the entry thereof, unless the court within said period, for sufficient cause, upon application of any party interested, otherwise orders.’ General Laws (Ter.Ed.) c. 208, § 24,³ provides that ‘After a decree of divorce has become absolute, either party may marry again as if the other were dead, except that the party from whom the divorce was granted shall not marry within two years after the decree has become absolute.’ General Laws (Ter.Ed.) c. 207, § 10, provides that ‘If any person residing and intending to continue to reside in this commonwealth is disabled or prohibited from contracting marriage under the laws of this commonwealth and goes into another jurisdiction and there contracts a marriage prohibited and declared void by the laws of this commonwealth, such marriage shall be null and void for all purposes in this commonwealth with the same effect as though such prohibited marriage had been entered into in this commonwealth.’

General Laws (Ter.Ed.) c. 207, § 10, imposes no other consequences upon a marriage contract entered into in a foreign jurisdiction in violation of its provisions than those that would follow had the contract been entered into at the same time in this Commonwealth. The purpose of G.L.(Ter.Ed.) c. 207, § 10, was to except marriages entered into in violation thereof from the ‘general rule of law * * * that marriage contracted elsewhere, if valid where it is contracted, is held valid here, although the parties intended to evade our laws, unless * * * the marriage is one deemed ‘contrary to the law of nature, as generally recognized in Christian countries.’' Commonwealth v. Graham, 157 Mass. 73, 75, 31 N.E. 706, 707,16 L.R.A. 578, 34 Am.St.Rep. 255, and cases cited. So, as in the case of marriages within the Commonwealth in violation of c. 208, § 24, marriage contracts entered into without the Commonwealth in violation of the provisions of c. 207, § 10, are void just as though they had been entered into here. The present case is therefore governed by the same principles as though the marriage in question had been entered into in this Commonwealth.

The present case comes within the literal provisions of G.L. (Ter.Ed.) c. 207, § 6, since at the time of the marriage of the parties the decree of divorce obtained by the former wife of the libellee had not become absolute, and accordingly that marriage was then ‘in force.’ Rollins v. Gould, 244 Mass. 270, 272, 138 N.E. 815.Eldridge v. Eldridge, 278 Mass. 309, 312, 180 N.E. 137. We are, however, of opinion that under the proper interpretation of section 6 the prior marriage continued ‘in force’ for the purposes of section 6 during the period after the decree of divorce bacame absolute within which the libellee was prohibited from remarrying. Within the meaning and for the purposes of section 6, the prior marriage of the libellee continued ‘in force’ not only until the decree of divorce became absolute but also until the impediment created by G.L. (Ter.Ed.) c. 208, § 24, ceased to exist. That was so held in Commonwealth v. Josselyn, 186 Mass. 186, 187, 188, 71 N.E. 313. That case was an indictment for polygamy. The defendant was found guilty and his exceptions were overruled. The facts were these: The defendant was divorced by a wife whom he had married on July 20, 1887. The decree nisi of divorce was made absolute on November 11, 1894. On June 15, 1896, that is, within two years thereafter, the defendant married one Wiley. They lived together as husband and wife until November 2, 1903. On November 9, 1903, the defendant married one Trommer. That marriage was the subject of the indictment. Holding that, when entered into, the marriage of the defendant to Wiley was invalid, the court, speaking through Knowlton, C. J., said: ‘There was evidence tending to show that the second marriage contract was entered into with due legal ceremony; that the parties thereafter lived together as husband and wife; that the marriage was entered into by the wife in good faith, in the full belief that the former marriage had been annulled by divorce; that the impediment to the marriage was removed by the decree of divorce previously entered, and the lapse of two years from the entry of the decree; and that the parties then continued to live together as husband and wife, the wife acting in good faith. Under the instructions of the court, the jury must have found all these propositions in favor of the contention of the commonwealth, and in accordance with the testimony of Linda G. Josselyn. It follows that she and the defendant are deemed to have been legally married, and their children are deemed to be legitimate issue of both parents, if it can be said that at the time of the marriage the former marriage was still in force, within the meaning of the statute. The statute applies only to cases in which, at the time of the ‘marriage ceremony, a former husband or wife of one of the parties was living, and the former marriage with such person was still in force.’ This [St.1895, c. 427, now G.L.(Ter.Ed.) c. 207, § 6] is a remedial statute, intended for the protection of persons who marry innocently and in good faith, and of their children. It is intended to cover cases in which the marriage is invalid by reason of a previous marriage of one of the parties, that makes it illegal for him or her to...