Zutavern v. Zutavern

• Decision Date: 29 February 1952
• Docket Number: No. 33111,33111
• Parties: ZUTAVERN v. ZUTAVERN.
• Court: Nebraska Supreme Court

Page 254

52 N.W.2d 254

155 Neb. 395

ZUTAVERN v. ZUTAVERN.

No. 33111.

Supreme Court of Nebraska.

Feb. 29, 1952.

Syllabus by the Court.

1. Marriage is a civil contract which, if procured by fraud, may, under certain conditions, be set aside.

2. Fraud sufficient to vitiate a marriage must go to the essence of the marriage relation.

3. The fraud that vitiates a marriage contract does not lend itself to definitive

statement automatically resolving every case.

4. The equitable doctrine of clean hands applies only to had conduct in the very transaction in litigation. If a party is not guilty of inequitable conduct toward the other person concerned in that transaction, his hands are as clean as a court can require.

5. If a man is induced to marry a woman who he knows or believes to be pregnant, believing and relying upon false statements made to him by her that he is the father of the child with which she is pregnant, when unknown to him her condition was caused by another, the marriage may be annulled for the fraud, if it has not been ratified with knowledge thereof, and the fact that the husband had sustained sexual intercourse with his wife before they were married will not bar the husband from resorting to and having the benefit of the remedy of annulment of the marriage.

6. In an action in which the legitimacy of a child born in wedlock is in issue, the testimony of the husband and wife is incompetent on the question of access, and neither the husband nor wife should be permitted to testify to collateral facts from which an inference of access or nonaccess might be drawn.

7. A litigant may not have the benefit of condonation unless it is properly pleaded.

8. In an action by the husband to annul a marriage, the wife is entitled to alimony pendente lite and counsel fees, and the fact that the husband proceeds by cross-petition instead of an original suit does not affect the rule.

John S. Samson, Omaha, for appellant.

James R. Kelly, Merle M. Runyan, Broken Bow, for appellee.

Heard before SIMMONS, C. J., and MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

This case was brought by appellant to secure a divorce from appellee. He, by cross-action, asked that the marriage of the parties be annulled.

Appellant alleged residence in Douglas County and marriage with appellee on September 3, 1950; that appellee had been guilty of extreme cruelty towards her; and that she became the mother of a child on January 26, 1951. Appellee admitted the residence of appellant, the marriage of the parties, the birth of the child as alleged by appellant, and that he had sexual intercourse with her commencing in July 1950. Appellee traversed the other claims of appellant and specifically denied that he was the father of the child. He alleged that appellant on about August 25, 1950, falsely informed him that she was pregnant; that he was the cause of her condition; that she implored appellee to marry her; that he believed, relied, and acted upon the information given by her, and solely because thereof consented to and entered into marriage with her; that she was pregnant then and at the time of the marriage as the result of her sexual indulgences with a male other than appellee long prior to his association with her; and that he had not lived or cohabited with her after he obtained knowledge of the fraud by which his consent to the marriage was obtained. Appellee asked that the marriage be adjudged void and that he be declared not to be the father of the child. Appellant replied that appellee was estopped from denying paternity of the child born to her after the marriage of the parties because of his illicit relations with her before the marriage.

The district court found that the consent of appellee to the marriage was obtained by the fraud of appellant as alleged by appellee; denied appellant a divorce; and rendered a decree of annulment of the marriage. This appeal is a challenge of the correctness of the findings and decree.

This case presents no dispute as to any fact material to its disposition. The record advises that appellant reached the age of 18 years on August 17, 1950, and appellee was 18 years of age September 1, 1950. They attended the fourth grade in public school in Dunning. It is shown that they did not have any association after that until July 23, 1950, or for a period of more than 8 years before that date. They met and were together during the afternoon and evening of July 23, 1950, and on the evening of July 25, 1950. These meetings were uneventful, but commencing with July 26, 1950, according to appellant, or on July 29, 1950, as stated by appellee, and continuing through August 19, 1950, they had frequent and unrestrained acts of incontinence. Their sexual indulgences were nightly on and after July 26 to August 8, 1950. Appellant missed her menstrual period at the end of July. She was going to her home in Alliance on August 8, and shortly before that date she told appellee that she felt that he had got her pregnant. They discussed that possibility and the matter of their getting married. After she arrived home she consulted a doctor. Appellee visited her at Alliance on August 12, she told him that the doctor had said that she was pregnant, and she then advised appellee that he was the cause of her condition. She made this claim to him on several occasions before September 3, 1950. This was the reason he consented to and did marry her on that date.

Appellant, at the suggestion of appellee and his mother, sought and procured the advice of another doctor on September 30, 1950. She told appellee on the evening of that day or the morning of the following day that the physician advised her that she would be delivered of a child in February 1951. Appellee became convinced at that time from the information she furnished him that the condition of appellant was the result of her improper relations with a person other than appellee, and he so informed her. He asked and demanded that she leave the home where they were living. This she did and they have since been separated. She gave birth to a child of normal full period growth that exhibited no symptoms or evidence of premature delivery on January 26, 1951, exactly six calendar months after she aside she first indulged in sexual intimacy with appellee.

Appellant contends that appellee, who married her upon her solicitation after he had sexual acts with her, cannot maintain proceedings for annulment of their marriage, although he was induced to marry her because he was deceived by deliberate false representations, on her part, that she was with child by him and he believed, relied, and acted upon the truth of her statements until he had convincing evidence that her condition was the result of her incontinence long prior to the time she submitted to his embraces.

It is a mandate of the Legislature of this state that marriage be considered a civil contract; that consent thereto by competent parties is essential; and in case consent of one of the parties to the marriage is obtained by fraud, and there has been no voluntary cohabitation of the parties after discovery of the fraud, the marriage shall be voidable at the instance of the one upon whom the fraud was inflicted. Sections 42-101 and 42-118, R.S.1943. It is obvious that a marriage contract induced by fraud may, under some circumstances, be voidable and annulled at the instance of the victim of the imposition. What amounts to a fraudulent contract, as these terms are used in the statute to express a recognized condition justifying the annulment of a marriage, has not been often considered or extensively discussed in decisions of this court. The fraud that vitiates a marriage contract does not lend itself to definitive statement automatically resolving every case. It is not every kind and degree of fraud that affords cause for setting aside the contract. The law differentiates between fraud in the essentials of the marriage relation and deceptive arts to which some persons resort with a view to an advantageous marriage by placing their accomplishments, character, and circumstances in a too optimatic view. While these constitute a species of fraud, they do not afford a basis for destruction of the marriage. However, if there is a deception as to some fact whose existence or non-existence may affect in some certain way the very essence of the marriage relation, resulting in a lawful marriage which practically operates as a fraud upon the deceived spouse, and the existence or non-existence of the fact thus concealed or misrepresented must operate as between the parties to the marriage to prevent some essential purpose thereof and result in a practical destruction of that relation, there exists such fraud as the law contemplates and such as renders the marriage contract subject to annulment.

In Hudson v. Hudson, 151 Neb. 210, 36 N.W.2d 851, 853, this court said: 'Marriage is a civil contract which, if procured by fraud, may, under certain conditions, be set aside.' Robertson v. Roth, 163 Minn. 501, 204 N.W. 329, 330, 39 A.L.R. 1342, considered this subject and stated the rule as follows: 'In order to constitute such fraud there must be something that destroys the consent which blots out all semblance of contract--or it must impose, at the time of the marriage, upon the one wronged, burdens and obstacles wholly unexpected and of such character that they tend to the destruction of domestic happiness and promote humiliation disclosing a situation intolerable to society and detrimental to the marriage relation.' See, also, Brown v. Scott, 140 Md. 258, 117 A. 114, 22 A.L.R. 810; Marshall v. Marshall, 212 Cal. 736, 300 P. 816, 75 A.L.R. 661; Hanson v. Hanson, 287 Mass. 154, 191 N.E. 673, 93 A.L.R. 701; Lyman v. Lyman, 90 Conn. 399, 97 A. 312, L.R.A.1916E 643; 35 Am.Jur., Marriage, § 87, p. 235.

In consonance with the principle stated above, there is much agreement that...