Yager v. Yager, 9.

• Decision Date: 07 January 1946
• Docket Number: No. 9.,9.
• Citation: 313 Mich. 300,21 N.W.2d 138
• Parties: YAGER v. YAGER.
• Court: Michigan Supreme Court

313 Mich. 300

21 N.W.2d 138

YAGER

v.YAGER.

No. 9.

Supreme Court of Michigan.

Jan. 7, 1946.

Appeal from Circuit Court, Sanilac County, in Chancery; Xenophon A. Boomhower, Judge.

Suit to annul a marriage by Grant Yager against Frances Yager, wherein the defendant filed a cross-bill for divorce which was withdrawn at time of trial. From a decree annulling the marriage, the defendant appeals.

Affirmed.

Before the Entire Bench.

Charles W. Rigney, of Sandusky, for plaintiff and appellee.

Paterson & Paterson, of Sandusky, for defendant and appellant.

STARR, Justice.

Defendant appeals from a decree annulling her marriage to plaintiff. These young people, both residents of Michigan, first had sexual relations in the early part of September, 1942. Thereafter, on September 10th, plaintiff was inducted into the United States army and was stationed at an army camp in Texas. They did not see each other again until the early part of April, 1943, when plaintiff returned to Michigan on a furlough. At this time they became engaged to be married, and on April 8th they again had sexual relations. He returned to comp, and in June defendant advised him by letter that she was pregnant as a result of their relations. Plaintiff came home on furlough, and they were married August 19, 1943. He returned to camp, and on October 8th defendant gave birth to a child in the Port Huron General Hospital.

On November 30, 1943, plaintiff filed bill of complaint to annul the marriage, alleging that his consent to the marriage was obtained by defendant's false and fraudulent representation that she was pregnant as a result of their sexual relations, and that he had not cohabited with her subsequent to his discovery of said fraud.^* Defendant answered, denying the charge of fraud and misrepresentation and by cross bill asked for a divorce on the ground of extreme and repeated cruelty. However, at the time of trial she withdrew the cross bill. Subsequent to trial, but prior to the entry of decree, defendant filed motion for the appointment of a guardian ad litem for the child, which motion was denied. The case was tried, and the trial judge determined that plaintiff was not the father of the child and that he had been induced to marry defendant by her false and fraudulent representation. A decree was entered annulling the marriage. Defendant appeals, and, this being a chancery case, we review de novo.

Defendant denied having had sexual relations with any man other than plaintiff and claimed that the baby was prematurely born. It was admitted that her pregnancy did not result from her sexual relations with plaintiff in September, 1942. It was also admitted that they did not again have sexual relations until April 8, 1943, which was only six months prior to the birth of the child on October 8th. At birth the child was 19 inches long and weighed 6 1/2 pounds. Dr. Patterson, who attended defendant at the time of delivery, testified:

‘Q. Was there anything unusual about the baby you delivered to Mrs. Yager? A. No, I noticed nothing unusual. * * *

‘It was relatively an easy delivery. * * *

‘The usual period of gestation is approximately nine months. * * * I considered the baby that I delivered to Mrs. Yager a full-term baby. * * * The principal facts that you consider is * * * the length and weight of the baby. A full-term baby can be all the way from 5 1/2 to 8 1/2 or possibly 9 pounds. * * * The usual length of a new-born baby is from 18 to 20 inches, and this baby was 19 inches. I don't think that baby could be over six weeks or a month premature. * * *

‘The baby I delivered to Frances Yager appeared to be a normal baby and not weak.’

In response to a hypothetical question as to whether or not a child of the description of that born to defendant could have been conceived in April, 1943, Dr. Tweedie, who had attended the delivery of over 1,000 babies, testified:

‘That description fits a full-term baby which is 280 days. The time limit which you have given there is six months, which is approximately 180 days, therefore, that baby could not be conceived the first week in April and be of that description. * * *

‘The average weight of a premature child, born at six months is three and a half pounds.’

The law is established in this State that a marriage contract may be annulled where the marriage was induced by the fraudulent representation of the wife that the husband was responsible for her pregnancy, when in fact the pregnancy was by another man. Yanoff v. Yanoff, 237 Mich. 383, 211 N.W. 735;Gard v. Gard, 204 Mich. 255, 169 N.W. 908, 11 A.L.R. 923. In the instant case the testimony presents a question of fact as to whether or not defendant induced plaintiff to marry her by false and fraudulent representations. In June, 1943, she informed plaintiff that she was pregnant as a result of their sexual relations in April, and in reliance upon this representation plaintiff married her. He testified in part:

‘I came home at this time (August, 1943) particularly because Miss Martin (defendant) had told me that she was pregnant and that the child she was going to have was mine. * * * I got this word by letter she wrote. * * *

‘After I arrived back in Michigan I had a talk with Frances Martin. * * * She said that she was going to have a baby and she said definitely that it was mine. * * * She said she had already made the necessary arrangements; she had the information on how to get married, when, where and how. * * * I married Frances Martin on my furlough in August, 1943, because she was pregnant and going to have a child and she claimed it was mine. * * *

‘Our trouble is due to the fact that the child was born in less than nine months after April, 1943, and it is not my child. * * *

‘Q. On April 13th when you related you have procured and gave a diamond ring to the then Frances Martin, had you known then, at that time that she was several months pregnant by another man, would you have given her that ring and become engaged to her? A. No, sir.’

In Yanoff v. Yanoff, supra, we held that in an action for annulment of marriage, neither the husband nor wife could testify as to their antenuptial sexual relations, and that proof of such relations could only be made by other evidence. In the present case there was testimony other than that of the parties which clearly established that plaintiff was out of the State of Michigan and did not see defendant between September, 1942, and April, 1943. The record shows that the child born October 8, 1943, was a full-term, nine-months baby. Therefore, it could not have been conceived when the parties had sexual relations in April of that year. Defendant's representation that plaintiff was the father of her child was clearly false. In affirming the annulment of a marriage on the ground of the wife's false representation of pregnancy by the husband, in Yanoff v. Yanoff, supra, 237 Mich. at pages 386, 387, 211 N.W. at page 736, we said:

‘In the Gard case (Gard v. Gard, supra) this court decided that...