Young v. Colorado Nat. Bank of Denver

• Decision Date: 02 October 1961
• Docket Number: No. 19315,19315
• Citation: 148 Colo. 104,365 P.2d 701
• Parties: Bernice A. YOUNG, also known as Bernice A. Ostling, Plaintiff in Error, v. COLORADO NATIONAL BANK OF DENVER, as Administrator of the Estate of Hope W. Young, Deceased, Defendant in Error.
• Court: Colorado Supreme Court

Page 701

365 P.2d 701

148 Colo. 104

Bernice A. YOUNG, also known as Bernice A. Ostling, Plaintiff in Error, v. COLORADO NATIONAL BANK OF DENVER, as Administrator of the Estate of Hope W. Young, Deceased, Defendant in Error.

No. 19315.

Supreme Court of Colorado, En Banc.

Oct. 2, 1961.

Vincent Cristiano, Robert Bugdanowitz, Robert T. Kingsley, Denver, for plaintiff in error.

Sheldon & Nordmark, Denver, for defendant in error.

FRANTZ, Justice.

An action to annul the marriage of the parties was founded on three counts. It was instituted by Hope W. Young through his conservator, the Colorado National Bank of Denver, against Bernice A. Young, also known as Bernice A. Ostling. A decree of annulment eventuated and became the subject of attack by writ of error in this court. While the case pended here, Mr. Young died. Substitution of party ensued.

To make our determination of the controversy more easily understandable, we will refer to the plaintiff as Mr. Young and to the defendant as Mrs. Young in the ensuing discussion of fact and law.

It was alleged in count one of the complaint that Mr. Young was eighty-six years of age, was adjudicated a mental incompetent on January 6, 1959, and that the Bank became his conservator; that the marriage license and certificate of marriage of the parties on July 23, 1958 were filed for record; and that Mr. Young was 'mentally incompetent' to contract the marriage.

The allegations of the second and third counts were made upon information and belief. The substance of the second count is that no marriage ceremony was actually performed with the knowledge or participation of Mr. Young, and that, therefore, Mrs. Young was not his wife. The third count is based on the use of 'guile, persuasion, undue influence or duress' to induce the marriage 'as a jest, or dare or otherwise,' and that Mr. Young did not intend to contract the marriage.

Admissions and denials and affirmative allegations were so framed in the answer of Mrs. Young that the issue of whether she was the lawful wife of Mr. Young was squarely put in contention.

Ten days after the answer was filed, Mr. Young requested 'that the issues in the above captioned proceedings be tried to a jury.' The case proceeded to trial. At the conclusion of Mr. Young's case in chief, argument developed over whether the jury was serving only in an advisory capacity. From the tenor of the discussion, it would appear that at some prior stage of the proceedings the question had been raised, possibly examined, but not resolved. After the presentation of all the evidence, the trial court decided that the nature of the case permitted use of an advisory jury, and the proceedings thereafter progressed consistent with such view.

Sometime during the presentation of evidence in support of the defense, Mr. Young moved the court to permit him 'to withdraw Plaintiff's Second Cause of Action from consideration in said case.' His motion was granted. At the conclusion of all the evidence, the trial court granted Mrs. Young's motion to dismiss the third count of the complaint. The case thus was submitted to the jury on the sole question of the mental competency of Mr. Young to marry Mrs. Young.

Reversal of the 'decree in annulment' is sought on three grounds: (1) alleged error in determining that the jury was an adviser rather than a finder of the facts; (2) alleged errors in the admission and exclusion of evidence in the course of the trial; and (3) alleged errors in the giving of certain instructions and in the refusal to give certain others tendered by Mrs. Young.

Reduced to its simplest terms, Mr. Young's reply to Mrs. Young's contentions concerning reversal is that the jury served in an advisory capacity only, and that errors, if any, regarding the reception or rejection of evidence and in the giving or refusing to give certain instructions, are harmless. Particularly is this true, it is urged, because the trial court ultimately determined the controversy, and in so doing, resorted to evidence out of the sum of disputed evidence sustaining the decree.

A trial of eighteen days duration, in which thirty witnesses testified for Mr. Young, some on his case in chief and in rebuttal, and twenty-three testified for Mrs. Young, makes it difficult to narrate as a whole the facts in such manner as will bring them in proper perspective to the many errors alleged to have occurred in the trial of the case. It is deemed best to set forth the particular facts as they relate to the particular legal problem posed by the error asserted.

Did the trial court properly determine that the jury would act in an advisory capacity? There are two problems wrapped up in this question. The first involves the nature of a suit for the annulment of a marriage. The second is created by the underlying circumstances leading to the submission of the case to the jury for advice.

Mr. Young contends that a suit for the annulment of a marriage is an equitable proceeding in which the jury can serve only in an advisory capacity. That the suit is statutory and hence triable by a jury in its traditional role is maintained with equal fervor by Mrs. Young.

Courts are not in accord concerning the nature of an action to annul a marriage. Differences spring from the historical beginnings of the action. Some courts hold that to seek an annulment is to invoke the equity powers of the court. Other courts have concluded that actions for annulment and divorce are sui generis and that neither at law nor in equity were the remedies available. A number of courts take jurisdiction without the authority of a statute where the basis for annulment is one upon which equity awards relief in respect of contracts generally, such as fraud, error, duress, mental incapacity, or want of consent.

Originally, authority to grant divorces and annul marriages in England was vested solely in the ecclesiastical courts. This authority terminated around 1870, during the reign of Victoria, at which time a special court was created to hear and decide all divorces and annulments of marriage. Ecclesiastical courts and their authority never became a part of American common law. See D. v. D., 2 Terry 263, 41 Del. 263, 20 A.2d 139; Eisenberg v. Eisenberg, 105 Pa.Super. 142, 160 A. 228, 229; Urbach v. Urbach, 52 Wyo. 207, 73 P.2d 953, 113 A.L.R. 889, for historical discussions of this phase of the law.

To fill the void legislatures of the several states enacted laws regarding divorce and annulment, and thus created statutory rights and remedies in these areas. In these states divorce and annulment are deemed statutory actions. Mitchell v. Mitchell, 136 Me. 406, 11 A.2d 898; Rumping v. Rumping, 36 Mont. 39, 91 P. 1057, 12 L.R.A.,N.S., 1197, 12 Ann.Cas. 1090. See Githens v. Githens, 78 Colo. 102, 239 P. 1023, 43 A.L.R. 547.

This court has spoken on the subject in the case of Stebbins v. Anthony, 5 Colo. 348. In considering the argument advanced, that since ecclesiastical courts and their authority never were a part of our law and chancery courts did not have jurisdiction to act in the premises, the latter courts must act upon statutory authority, the court said:

'This doctrine may be conceded only in cases where the grounds or causes alleged may be purely canonical. Our chancery courts would not be authorized to grant divorces for canonical defects or impediments, as impotency, for example, unless it was also made a ground of divorce by statute. But where the grounds for which a separation may be decreed are fixed by statute, as in the present instance, the litigation is necessarily of equitable cognizance.

'The authority of the equity tribunals has also been recognized in cases of marriage void on grounds of fraud, duress, and lunacy, in the absence of statutory provisions by reason of the inherent jurisdiction of equity over these subjects.'

Forty-five years later in Githens v. Githens, supra, without mentioning Stebbins v. Anthony, Justice Campbell stated [78 Colo. 102, 239 P. 1024]:

'At the common law, as adopted by us, courts of law and equity in England did not have jurisdiction in divorce cases. The ecclesiastical courts alone had such power.' (Emphasis supplied.)

Justice Campbell further stated that '[n]o decree of divorce is maintainable except upon one or more of the statutory grounds.' That statutes provide the dimensions for actions for divorce and annulment is more than intimated further in Johnson v. Johnson, 22 Colo. 20, 43 P. 130, 55 Am.St.Rep. 112, and Simmons v. Simmons, 107 Colo. 78, 108 P.2d 871. 'The marriage relation is so sacred in character that it is indissoluble except in conformity with legislative requirements and the solemn decree of a court. It cannot be annulled by contract, or at the pleasure of the parties.' (Emphasis suplied.) Popham v. Duncan, 87 Colo. 149, 285 P. 757, 758, 70 A.L.R. 824; Otte v. Pierce, 118 Colo. 123, 194 P.2d 331, 4 A.L.R.2d 536.

By virtue of C.R.S. '53, 135-1-1, the common law of England prior to 1607 was adopted so far as it is applicable and is of a general nature and has not been altered by legislation. To complicate the law, Walton v. Walton, 86 Colo. 1, 278 P. 780, enunciates the doctrine that an action for divorce is not a purely statutory proceeding, and that all courts, in entertaining divorce matters, do so under their equity powers.

Out of this rather confused and confusing state of the law we would bring clarity. Harmony of decision we believe will be achieved if we recognize that courts act 'under their equity powers' in performing acts typical of courts vested with equity jurisdiction. Thus, the severance of marital ties, the rescission of the marriage contract, (akin to rescission of contracts generally), the entry of custodial orders regarding children, the application of equitable principles in divorce and annulment actions, and so forth, are or have aspects of the conventional activities of a court of equity. Creating a statutory right...