Willits v. Willits

• Decision Date: 05 April 1906
• Citation: 107 N.W. 379,76 Neb. 228
• Parties: WILLITS v. WILLITS.
• Court: Nebraska Supreme Court

76 Neb. 228

107 N.W. 379

WILLITS

v.WILLITS.

Supreme Court of Nebraska.

March 22, 1906.

On Rehearing, April 5, 1906.

Syllabus by the Court.

While our law defines marriage as a civil contract, it differs from all other contracts in its consequences to the body politic, and for that reason, in dealing with it, or with the status resulting therefrom, the state never stands indifferent, but is always a party whose interest must be taken into account.

A marriage, where one of the parties is under the age of consent, but who is competent by the common law, is not void, but merely voidable, and, until annulled by a court of competent jurisdiction, is valid for all civil purposes.

A court annulling a marriage at the suit of a husband, who was under the age of consent when the marriage was solemnized, may require him to pay a reasonable amount for the support and nurture of the issue of such marriage.

In such case, the court may also require the husband, if the circumstances of the party warrant it, to pay reasonable suit money to enable the wife to make a defense, and to reimburse her for expenditures on behalf of the family during the existence of the marriage relation.

Suit money may be allowed, in the sound discretion of the court, at any stage in the litigation, and may be included in the final decree.

Commissioners' Opinion. Department No. 2. Appeal from District Court, Harlan County; Adams, Judge.

Action by Edith M. Willits against Lee C. Willits. Judgment for plaintiff. Defendant appeals. Affirmed.Flansburg & Williams, J. G. Thompson, and Gomer Thomas, for appellant.

W. S. Morlan and R. L. Keester, for appellee.

ALBERT, C.

The petition on which this cause was submitted is substantially as follows: That on the 15th day of November, 1903, the plaintiff and the defendant were married in Harlan county, Neb., and immediately thereafter, the defendant, without just cause or excuse, abandoned the plaintiff, and has ever since neglected to contribute any sum whatsoever for her support and maintenance. That on the 30th day of June, 1904, the plaintiff gave birth to a male child, the issue of the defendant, which is in her custody. That the plaintiff is in ill health and without means of support for herself and the child, and without the necessary means of prosecuting the suit. That the defendant is the owner of a large amount of real and personal property, of about the value of $40,000, and, that his income therefrom, and his earnings, amount to at least $5,000 per year. The prayer is for a reasonable allowance for the support of herself and child, and for such other relief as may be deemed equitable. The answer admits the marriage between the parties and the birth of the child. By way of a cross-bill the defendant alleges that on the evening of the marriage between himself and the plaintiff he called upon the plaintiff at her father's house, whereupon the plaintiff's father accused the defendant of being the father of the plaintiff's unborn child, and threatened with bodily injury unless he, at once, contracted a marriage with the plaintiff. That the defendant, believing that he was in danger of death or great bodily injury, and influenced by such fears, was then and there induced to contract a marriage with the plaintiff. That immediately after the marriage ceremony was performed, he left the plaintiff, and, that they never cohabited together as husband and wife. The defendant further alleges, that at the time the said marriage was contracted, he was under the age of 18, being only 17 years, 4 months and 11 days old, and that the plaintiff was over the age of 18 years. The defendant's guardian, upon order of the court, was joined as a party defendant.

The court made no finding on the question of duress, and while it is quite clear from the evidence that the defendant, in contracting the marriage, was influenced somewhat by fears of a prosecution for bastardy, those fears were born rather of a consciousness of guilt, than of any threats made by the plaintiff's father. In other words, we think the evidence justifies a finding that the defendant contracted the marriage in the hope of escaping a prosecution for bastardy, and not because of any fear of the plaintiff's father or other relatives. The court found, as was necessary in view of the evidence, that the defendant, at the time of the marriage, was under the age of 18 years, and entered a decree annulling the marriage, but requiring the defendant to pay plaintiff the sum of $150, which she had expended for lying-in expenses, and for the support of the child up to the commencement of the suit, and that he provide for the support of the child as follows: $150 per year for the period of five years from the date of the decree; the sum of $120 per year for the next five years, and the sum of $100 per year for the next four years, should the child live so long. The court further ordered that the defendant should pay the further sum of $100 as suit money, for the benefit of the plaintiff's attorneys, and all costs. Defendant appeals.

The defendant takes the ground that, the court having found that he was under the age of 18 years when the marriage was solemnized and entered a decree of annullment, the decree relates back to the date of the marriage, and places him in precisely the same position, with respect to his liability to the plaintiff and for the support of the child, that he would have occupied had the marriage never been contracted. In other words, his contention amounts to this; that, by virtue of such finding and decree, the plaintiff was never his wife, and the status of the issue of the marriage is merely that of an illegitimate child of the plaintiff, and consequently he is required to provide for neither of them, either pendente lite or otherwise. This position seems to be untenable. While our law defines marriage as a civil contract (section 1, c. 52, Comp. St. 1903), it differs from all other contracts in its far-reaching consequences to the body politic itself, and for that reason, in dealing with it or the status resulting therefrom, the state never stands indifferent, but is always a party whose interest must be taken into account. There can be no doubt that a decree of annullment leaves the parties, in many respects, as though the marriage had never taken place; in just what respects is not necessary to determine at this time. But a marriage, where one of the parties is under the age of consent, but who is competent by the common law, is not void, but merely voidable. Section 2, c. 25, Comp. St. 1903. It is valid for all civil purposes, until annulled by a judicial decree. State v. Lowell, 78 Minn. 166, 80 N. W. 877, 46 L. R. A. 440, 79 Am. St. Rep. 358 (extended note); Gathings v. Williams (N. C.) 44 Am. Dec. 49, and notes.

We cannot overlook the fact that during the period of recognized validity of such a marriage, the rights of third parties--children who are the issue of what at the time was a lawful relation--frequently intervene, and that such rights would be prejudiced by placing the parties to the marriage contract in precisely the...