Yanoff v. Yanoff

• Decision Date: 04 January 1927
• Docket Number: No. 55.,55.
• Citation: 237 Mich. 383,211 N.W. 735
• Parties: YANOFF v. YANOFF.
• Court: Michigan Supreme Court

237 Mich. 383

211 N.W. 735

YANOFF

v.YANOFF.

No. 55.

Supreme Court of Michigan.

Jan. 4, 1927.

Appeal from Circuit Court, Wayne County in Chancery; De Witt H. Merriam, Judge.

Suit by Harry A. Yanoff against Ethel Yanoff. Decree for plaintiff, and defendant appeals. Affirmed.

Argued before the Entire Bench.Louis Starfield Cohane and Mrs. Regene Freund Cohane, both of Detroit, for appellant.

Henry A. Behrendt, of Detroit, for appellee.

WIEST, J.

Harry Yanoff filed a bill to annul his marriage with Ethel Yanoff on the ground of fraud in inducing him to consent thereto by falsely representing pregnancy occasioned by him. Ethel Yanoff countered with a bill for divorce. The causes were consolidated and upon the hearing the marriage was annulled. Ethel Yanoff appealed.

We will consider the issues under the bill for annulment for, if the decree is affirmed, there will be no bonds of matrimony to be dissolved by divorce. The parties were married in the city of Detroit by the judge of probate February 2, 1924. At that time plaintiff was 24 years of age and defendant 20. The marriage ceremony was performed by the judge of probate, under power of a statute (3 Comp. Laws 1915, § 11387) intended to protect the reputation of females pregnant with child, by way of marriage, with the date thereof kept secret. The marriage was in fact on February 2, 1924, but was certified in a sort of nunc pro tunc spirit as of August 1, 1923. This was done to fulfill the spirit of the statute by a date sufficiently in the past to provide leeway of time for a coming event then casting its shadow before. In other words, Ethel was then pregnant with child, and it was intended to have the marriage certificate dated back for enough to cover a full period of gestation at the advent of the baby. Some poor calculating was made, for the baby arrived 9 days after the marriage, was a full-term child, and three months ahead of the time so fixed for its appearance. Under the time schedule the parties agreed upon, the baby was not due until about May 1, 1924. The only object in antedating the marriage certificate was to make it appear that the baby was conceived in wedlock. The parties were fully cognizant of such purpose. Each was represented by an attorney. The essential date was canvassed, agreed to, and placed in the certificate. Such date coincides with the testimony of Anna Goldberg, that she introduced plaintiff to defendant in August, 1923, and also lends support to the claim of plaintiff that he was not a roomer at the home of defendant's mother until in September, 1923, as shown by his check for rent.

At the birth of the baby plaintiff left defendant. If plaintiff first made the acquaintance of defendant in August, 1923, then he is not the father of a full-term child born February 11, 1924. That baby was conceived some time in the month of May, 1923. Just before the marriage defendant was examined by a physician and she seeks to explain the date in the certificate of marriage by his opinion that she was five or six months advanced in pregnancy. In the circuit both parties gave testimony. The objection was there made that neither party could testify to antenuptial access or nonaccess. The learned circuit judge refused to rest the decree solely upon the testimony of the parties relative to antenuptial access, but did not exclude such testimony, and it is fair to assume gave the same some consideration. It is insisted here, by counsel for defendant, that the child having been born in wedlock, the plaintiff could not testify to nonaccess at the time it must have been conceived. In support of this he cites Rabeke v. Baer, 115 Mich. 328, 73 N. W. 242,69 Am. St. Rep. 567;People v. Case, 171 Mich. 282, 137 N. W. 55;Kotzke v. Kotzke's Estate, 205 Mich. 184, 171 N. W. 442;Brown v. Long Manufacturing Co., 213 Mich. 221, 182 N. W. 124;King v. Peninsular Cement Co., 216 Mich. 335, 185 N. W. 858.

Counsel for plaintiff claims that right to so testify in case of antenuptial coition and pregnancy is permitted by the opinion of this court in Gard v. Gard, 204 Mich. 255, 169 N. W. 908, 11 A. L. R. 923. In the Gard Case this court decided that antenuptial sexual intercourse does not bar a husband from having annulment of the marriage, if the marriage was induced by the fraudulent representation that he was responsible for the pregnancy, when in fact the pregnancy was by another man. But this court in that case did not decide, and was not called upon to decide, the question of the admissibility of testimony by a husband and wife relative to antenuptial access or nonaccess at the time of conception. That question we will now decide, although in principle it has been covered by the decisions of this court in the cases cited by defendant's counsel.

Marriage in the eye of the law is a civil contract entered into by consent of the parties. 3 Comp. Laws 1915, § 11363; People v. Pizzura, 211 Mich. 71, 178 N. W. 235, 10 A. L. R. 405. While the law recognizes a status from marital cohabitation, affecting the parties, progeny, and society, attaches conditions it will enforce, entails consequences not to be lightly viewed, permits the contracting parties to take each other for better or for worse, and leaves them to bear the consequences of ill-advised judgment and want of consideration, it no longer raises an irrebuttable presumption, in bar of relief by annulment of a marriage procured by the intentional fraud of saddling upon a selected victim a child carried in the schemer's womb and begotton by another. Marriage contracts may be annulled by judicial pronouncement for fraud perpetrated by one of the parties thereto on the other. Such fraud, however, must be of a nature wholly subversive of the true essence of the relation, affect the free conduct of the wronged party, and be clearly established.

In Gatto v. Gatto, 79 N. H. 177, 106 A. 493, it was well said:

‘But it is sometimes argued...