Ysern v. Horter

• Decision Date: 07 September 1922
• Docket Number: No. 45/626.,45/626.
• Citation: 118 A. 774
• Parties: YSERN v. HORTER.
• Court: New Jersey Court of Chancery

118 A. 774

YSERN

v. HORTER.

No. 45/626.

Court of Chancery of New Jersey.

Sept. 7, 1922.

Suit by Inez D. Ysern, an infant, by Agnes S. Ysern, her next friend, against George Horter. On petition for divorce. Permission granted petitioner to file application on notice for further hearing to be filed within stated time, and, if not so filed, order in accordance with opinion.

Wm. M. Rysdyk, of Jersey City, for petitioner.

STEVENSON, Advisory Master. My conclusion upon the application on behalf of the petitioner for an absolute decree, made subsequent to the entry of the decree nisi on January 7, 1920. is that the proofs as they stand show "sufficient cause" to the court why the decree nisi should not be made absolute, and that, if no further proofs are taken, the decree nisi should be vacated, and the petition dismissed.

The facts which constitute the "sufficient cause" above referred to are set forth in the sworn petition for an absolute decree presented to the court by the petitioner. Only some of these facts need be repeated here. This application at the suggestion of the court was made by petition because of the complicated situation created by ithe two marriages entered into, or attempted to be entered into, by the petitioner after the commencement of this suit, all of which matters were unknown to the special master who heard the case ex parte, and were brought to the notice of the court by the solicitor of the petitioner in performance of a duty to the court and to the state which he recognized and fully discharged.

The case in brief, without reciting the facts at length, is as follows:

The suit for nullity was conducted to a finish, and the marriage between the petitioner and Horter was adjudged voidable upon the suit of the petitioner on the ground of fraud; the marriage not having been consummated or ratified. Ysern v. Horter, 91 N. J. Eq. 189, 110 Atl. 31. Down to the entry of the decree nisi on January 7, 1920, neither the solicitor for the petitioner, the special master who heard the case ex parte, nor the Vice Chancellor to whom the master's report and advisory opinion were referred for final disposition had any notice of the petitioner's marital transactions between the time of the commencement of the suit and the time of the decision of the cause by the Vice Chancellor and the entry of the decree nisi. In fact, it was disclosed to the court, just in time to prevent the entry of the absolute decree as a matter of course, that on March 19, 1919, about 3 1/2 months after the commencement of this suit, the petitioner had undertaken to enter into a ceremonial marriage in the state of New York with one Waldo I. Ewers. The petitioner and Ewers cohabited in New Jersey and in California, where they passed as man and wife, for different periods until about November, 1919, when they finally separated.

On April 18, 1920, Horter induced the petitioner to enter into a regular ceremonial marriage by the rector of St. Nicholas Roman Catholic church in Passaic, to whom they exhibited the record from the register of vital statistics of Rutherford, N. J., of their prior marriage by a Protestant minister, stating that they desired to be married according to their own faith. The Roman Catholic priest thereupon married the couple according to the ritual of his church, requiring no license because of the certificate of the former marriage, and thereafter the couple cohabited for some weeks or months. The fact of this ceremonial marriage is proved by the ex parte affidavit of the rector of St. Nicholas Roman Catholic Church offered in evidence on behalf of the petitioner. There is nothing on the face of this affidavit which In any way Intimates that the couple who were married were not acting voluntarily uninfluenced by fraud or coercion.

It will be observed that the attempted marriage of the petitioner and Ewers was made while this suit was pending and before the master's report was made. The fact of the marriage to Ewers is proved not only by the sworn petition of the petitioner, but also by an exemplified copy of the record of the marriage and official papers connected therewith in the public office in the city and county of New York where such records are kept. This record was offered in evidence on behalf of the petitioner.

1. The marriage between the petitioner and Ewers was and is absolutely void at the common law. No decree or even attempted disaffirmance by the petitioner was necessary to establish the invalidity of this marriage ab initio, nor could the parties in any way ratify or confirm the marriage. The authorities are in accord that a so-called voidable marriage—that is to say, a marriage which one of the parties during the lifetime of both has the option by a decree to have declared void ab initio—is, until such decree is made, a valid marriage rendering each party incapable of marrying a third party, and any attempted marriage to a third party founds an indictment for bigamy. State v. Yoder, 113 Minn. 503, 130 N. W. 10, L. R. A. 1916C, 686 et seq., and notes; Schouler, Dom. Rel. p. 24; 1 Bish. M. D. & S. § 259; 2 Nels. D. & S. § 569.

Whether in case of a so-called voidable marriage the spouse who attempts to marry a third party is indictable or punishable for bigamy, if the validity of the second marriage is first brought in question after a decree annulling the first marriage, we need not Inquire, if there is room for such inquiry. In the instant case the so-called marriage of the petitioner with Ewers was entered into before any decree annulling her first marriage with Horter had been made, or could he made, and no ratification or confirmation of her marriage with Ewers was at any time made by her, nor was such confirmation or ratification at any time possible, because no absolute decree annulling the petitioner's first marriage with Horter as yet has been made.

2. The bigamous marriage of the petitioner with Ewers does not affect her right to a decree annulling her first marriage...