Arndt v. Arndt , 336 Ill. App. 65 ( 1948 )

Mr. Justice Niemeyer

delivered the opinion of the court.

Our judgments in the consolidated appeals of plaintiff from a decree dismissing for want of equity his complaint for the annulment of his marriage to defendant and from a subsequent order directing him to pay $150 for attorney’s fees and expense money in defending the first appeal (331 Ill. App. 85), were reversed by the Supreme Court (399 Ill. 490) with directions to consider the merits of the first appeal and to set aside the order allowing appellee suit money. Pursuant to these directions we file this opinion as to the merits of the appeal from the decree, and hereby reverse the order allowing the appellee suit money.

We state only the facts believed necessary to a consideration of the matter now before us. The plaintiff charged that the marriage ceremony of January 18, 1944, had been induced by the fraudulent representation of defendant that the plaintiff was the father of the child with which defendant was pregnant. Defendant answering, admitted the representation charged in the complaint, denied that it was false and affirmed that the plaintiff was the father of her child. The parties agree that they had illicit relations before the marriage, and that they did not live and cohabit together after the ceremony. After trial the court entered a decree reciting that he had heard the witnesses represented in support of the respective positions of the parties and finding that the marriage was a good and legal marriage and that plaintiff was the father of defendant’s child, and dismissing the complaint for want of equity. Plaintiff filed an amended petition asking that the decree be vacated and set aside in order that alleged newly discovered evidence might be introduced or, in the alternative, that a new decree be entered expressly refraining from adjudicating any question as to the paternity of defendant’s child. After hearing on this petition the court vacated the decree and, without hearing any further testimony so far as the record shows, entered a second decree identical with the first, except that in lieu of the finding that plaintiff was the father of defendant’s child there was inserted a paragraph reciting that the plaintiff contends that the child born February 27, 1944, is not his child, and that defendant contends that said child is the child of the parties to the suit, “but this court does not make any finding with respect to the paternity of said child.”

Plaintiff’s position on appeal is, as stated in his petition to vacate the decree, and not denied by defendant, “that at the first hearing of evidence in this cause the chancellor ruled that it would make no difference whether plaintiff was or was not the father of the child born to the defendant in as much as under the law of Illinois plaintiff was not entitled to an annulment even if he established that he were in fact not the father of defendant’s child”; that “the decree of dismissal contains language showing that the chancellor expressly declined to pass upon the paternity of the child, ’ ’ and that “it is this refusal by the chancellor to pass upon the issue of paternity which plaintiff claims is reversible error.” The fact that this refusal was pursuant to plaintiff’s alternative prayer for relief in his amended petition, is no longer in the case, the Supreme Court having overruled our position on that question.

The first question is: Does the record before us preserve for review the court’s alleged failure or refusal to determine the paternity of the child? In determining whether there was error in failing or refusing to pass on that question we are not concerned with the weight of the evidence as to the paternity of the child. In Goodrich v. Sprague, 376 Ill. 80, 86, where the court failed to pass upon a motion for a new trial filed with a motion for judgment notwithstanding the verdict, the court said, “ ... matters not ruled upon by the inferior court are not subject to the consideration of the Appellate Court unless the lower court’s failure to rule is made the subject of an assignment of error, in which case the propriety of such failure is the question presented to the Appellate Court and not the merits of the matter iipon which the trial court refuses to act.” (Italics ours.) It was there held that the Appellate Court was justified in reversing the judgment entered notwithstanding the verdict and that it erred in passing upon and denying the alternative motion for a new trial and entering judgment ; that it should have remanded the cause to the trial court to pass on the alternative motion for a new trial. Other cases to the same effect are Armour v. Pennsylvania R. Co., 353 Ill. 575; Ottawa, O. & F.R. Valley R. Co. v. McMath, 91 Ill. 104; Read v. Cummings, 324 Ill. App. 607, and Zwierzycki v. Metropolitan Life Ins. Co., 316 Ill. App. 345.

The weight of the evidence not being before us, a report of proceedings containing the evidence produced on the trial is not necessary. It is only necessary that the failure of the court to pass upon the paternity of the child be shown in the record. Rulings of a court at a trial are properly shown by a report of proceedings in the form of.a complete stenographer’s report or a condensed statement, or, in lieu thereof, a written stipulation of the facts material to the controversy, either of which must be certified by the trial court to be correct. (Supreme Court Rule 36 (1) (b) (c) (d).) These rulings cannot be shown, as plaintiff insists, by undenied averments of the parties, such as the statement quoted above from plaintiff’s petition to vacate the decree. However, under sec. 74(2) of the Civil Practice Act [Ill. Rev. Stat. 1947, ch. 110, par, 198, subpar. (2); Jones Ill. Stats. Ann. 104.074, sub-par. (2)] abolishing all distinction between the common-law record, bill of exceptions and a certificate of evidence for the purpose of determining what is properly before the reviewing court, the matters ruled on by the trial court may be shown in the common-law record. Warner v. Burke, 302 Ill. App. 85. It appears from the complaint and answer, and from the decree, that the paternity of the child was an issue in the case. It further appears from the decree that the court heard the witnesses presented in support of the respective positions of the parties and that the court “does not make any finding with respect to the paternity of said child. ’ ’ It therefore sufficiently appears from the common-law record that the paternity of the child was an issue in the cause; that the court heard testimony on the issue and did not ultimately make any finding thereon. This preserves plaintiff’s point for review.

The complaint charges that plaintiff, “believing defendant and relying upon her representations that he was the father of her unborn child,” married defendant. As it is silent as to any investigation by plaintiff as to the truth or falsity of her representations, we assume on this appeal that no investigation was made.

The second question presented is, whether false representations as to the paternity of the child which defendant is carrying are grounds for annulment of a marriage at the suit of the plaintiff, who had had illicit relations with defendant and accepted and believed her statement without investigation as to its truth or falsity. There are only four Illinois cases in which similar representations, made under like circumstances, were in issue before a reviewing court or discussed by it: Lyon v. Lyon, 230 Ill. 366 (1907); Hull v. Hull, 191 Ill. App. 307 (1915); Helfrick v. Helfrick, 246 Ill. App. 294 (1927); and Short v. Short, 265 Ill. App. 133 (1932). In the Lyon case, annulment of the marriage was sought on the ground of false representations that defendant had been entirely cured of her epilepsy and had had no attacks thereof for more than eight years. In discussing the case of Di Lorenzo v. Di Lorenzo, 174 N. Y. 467, the court said, that the representations relied upon by the plaintiff in that case for annulment of his marriage “is similar in kind to that of a pregnant woman who induces a man with whom she has had illicit intercourse to marry her by the false representation that he is the father of her child. But such representation, under such circumstances, does not constitute fraud for which the marriage will be annulled. . . .” In the Hull case the wife sought annulment of the marriage because of false representations of her husband before marriage as to his not having had intercourse with other women. In denying the relief sought, the court discussed the reasons given by courts holding marriages voidable when a woman conceals from her intended husband, with whom she has not had illicit relations, her pregnancy by another man. These statements relating to the question before us are plainly obiter dicta. People v. Callopy, 358 Ill. 11, 19; McAdams v. McAdams, 267 Ill. App. 124. In Helfrick v. Helfrick, 246 Ill. App. 294, the issue was squarely presented and it was held that such misrepresentation was not ground for annulment. Five years later the same court in Short v. Short, 265 Ill. App. 133, ignored its former opinion and held that a cross-bill filed in a separate maintenance action should have been sustained as to allegations of duress and coercion, “as well as the allegation of fraudulent representations that the child was the child of plaintiff in error,” citing Gard v. Gard, 204 Mich. 255 (1918), and Jackson v. Ruby, 120 Me. 391, 115 Atl. 90 (1921), also found in 19 A. L. R. 77, where in a note to the case (p. 80) the editors say: “The reported case (Jackson v. Ruby, ante, 77) is the first one upon the subject which has been reported since the publication of the former annotation. It is shown in the former note that while the tendency of the earlier cases was to refuse relief in such cases, the later ones show a very strong tendency in the opposite direction, and, in the absence of special circumstances, grant the relief. The Maine court now adds the weight of its authority to that side of the controversy.” Confirming this view as to the trend of the later decisions is the statement in 35 Am. Jur., Marriage, sec. 139, that “Later cases have generally granted relief by way of annulment of a marriage entered into by a man because of the fraudulent representations by a woman that the child with which she is pregnant is his.” Lyman v. Lyman, 90 Conn. 399 (1916), and Winner v. Winner, 171 Wis. 413 (1920), are in the later trend.

Massachusetts clings to its earlier decisions. Foss v. Foss, 94 Mass. (12 Allen) 26 (1866), and Crehore v. Crehore, 97 Mass. 330 (1867), cited by our Supreme Court in the Lyon case, supra, are probably the most discussed cases on the subject. In the Foss case, on facts essentially identical with those before us the relief was denied, not because “adequate cause for the decree of nullity is not set forth in the libel,” but because the libellant had not made any investigation as to the truth or falsity of the alleged misrepresentations, the court saying:

“He took no steps to ascertain the truth of her statements concerning the paternity of the child, but, relying solely on her assurance on that subject, he entered into the contract of marriage. . . . Whatever may have been the motives which led him to forbear all inquiry, it is a sufficient answer to his claim to be relieved from his contract that the deceit, if any, which was practiced upon him was submitted to voluntarily and wilfully. . . .”

The following year, in the Grehore case, the court in a six line opinion, silent as to the duty of investigation, if any, cited the Foss case and denied relief. The Crehore decision was construed in Arno v. Arno, 265 Mass. 282 (1928), as denying relief under any circumstances. The court said:

“ ... careful examination in an attempt to get at the truth was made by the libellant. He has not been slack in his effort to understand the situation. He has been grossly deceived by deliberate false representations, and there is nothing to indicate that he would have married had he not relied upon what was told to him and those he called to his assistance.

Nevertheless we think the decision in Crehore v. Crehore, supra, which has not, apparently been questioned here since 1867, is controlling. We are aware that Foss v. Foss, supra, has been questioned elsewhere ; Gard v. Gard, 204 Mich. 255; Lyman v. Lyman, 90 Conn. 399; and that a different rule obtains in some other States. Winner v. Winner, 171 Wis. 413. Jackson v. Ruby, 120 Maine, 391. Wallace v. Wallace, 137 Iowa 37. See 18 L. R. A. 375, and L. R. A. 1916 E, 650. But we are not impelled, thereby, to overrule the decision in Crehore v. Crehore, and to depart from a hard but salutary rule.”

In a case reported in the same volume (Jekshewitz v. Groswald, 265 Mass. 413), the court held that a relation of trust and confidence exists between parties contemplating marriage, and that the deceived party might rely upon the representations of the defrauding party as to the ceremony necessary to a valid marriage. If this be true as to a matter of common information accessible to all, it must apply with far greater reason to representations of a matter so exclusively in the knowledge of the defrauding party as the paternity of her child. It seems clear that in Massachusetts, Foss v. Foss, supra, is no longer authority on the question before us. Massachusetts has always taken an extreme position on annulment of marriages because of fraud. In Hanson v. Hanson, 287 Mass. 154, the court said that their decisions were more strict than the authorities in some other jurisdictions. Illustrative of this strictness is the decision in Vondal v. Vondal, 175 Mass. 383 (1900), where concealment of syphilis by the wife was held not to be ground for annulment, the court holding that the wife could, notwithstanding, bear children, even though the children would probably be tainted with it. It is difficult to understand how public policy would subject an unborn child to syphilis —until recently regarded as incurable — in order to uphold or perpetuate a contract or status based on fraud. As said in Bielby v. Bielby, 333 Ill. 478, 483, 484: “Fraud sufficient to vitiate a marriage must go to the essence of the marriage relation.” That the alleged misrepresentation before us does go to the essence of the marriage is convincingly stated in Winner v. Winner, supra (417, 418), the court saying: “On the.other hand, the concealment by the woman of the paternity of her child is a fault so grievous that there is no excuse or palliation for it. By the fraud she foists upon her husband a spurious offspring which he must acknowledge as his knowing it not to be. He must nurture and maintain it and invest it with all the rights of legitimate children, including that of inheritance. Such a fraud is vital and goes to the essentials of the marriage relation. . . . The marriage contract implies that the woman is in present condition to bear her husband children, at least so far as she knows. In such a case as we have she knows she cannot till the spurious issue is born. It has been held that a spouse infected before marriage with a venereal disease commits such a fraud upon the other who is not aware of it as to warrant an annulment of the marriage. . . . The carrying and concealment of a spurious issue must be considered at least an equal fraud.”

This view is supported by the greater weight of authority, even where relief is denied. When relief is denied it is usually for reasons, stated in varying terms, involving the equitable doctrine of clean hands and the duty of plaintiff to investigate as to the truth or falsity of the representations. As to the doctrine of clean hands, our Supreme Court in Carpenters’ Union v. Citizens’ Committee to Enforce Landis Award, 383 Ill. 225, 250, said:

“The rule does not go so far as to prohibit a court of equity from giving its aid to a bad or a faithless man or a criminal. The dirt upon his hands must be his bad conduct in the transaction complained of. If he is not guilty of inequitable conduct toward the defendant in that transaction his hands are as clean as the court can require.”

In the case before us the transaction complained of is not the illicit intercourse between the parties but the alleged illicit intercourse between defendant and another, resulting in her pregnancy and the concealment of that fact from plaintiff by falsely representing that he was the father of the child. It cannot be contended, from the pleadings in this case or the record before us, that plaintiff conspired, aided or acquiesced in the illicit intercourse with a third party resulting in the conception of the child. He is, therefore, innocent in respect to the transaction complained of. Winner v. Winner, supra, Gard v. Gard, supra, and Lyman v. Lyman, supra.

The general rule is that “. . . one who has intentionally deceived the other to his prejudice is not to be heard to say, in defense of the charge of fraud, that the innocent party ought not to have trusted him or was guilty of negligence in so doing.” 23 Am. Jur., Fraud and Deceit, sec. 146, page 948, citing Kehl v. Abram, 210 Ill. 218. Other Illinois cases supporting the text are Morel v. Masalski, 333 Ill. 41, 46; Hess v. Weicker, 308 Ill. 270, 274, and Hoffner v. Reinberg, 296 Ill. App. 13,18. This is especially true where there is a relation of trust and confidence as between parties contemplating marriage. (Jekshewitz v. Groswald, supra), and where knowledge as to the truth or falsity of the alleged misrepresentation is peculiarly within the possession of the defrauding party.

The later eases, granting relief from representations as to the paternity of defendant’s child, take very strong positions against any duty of the plaintiff to make an investigation. In Winner v. Winner, supra, the court discussed the holding in Foss v. Foss, supra, as to the duty to investigate, and said:

“Besides, what inquiry could a decent, honorable man make under such circumstances % The Massachusetts court suggests three lines of conduct: first, inquiry in the neighborhood where the woman lives; second, a medical examination; or third, waiting till the birth of the child to ascertain the fact of paternity. We respectfully suggest that neither line of conduct befits an honorable man and would not be resorted to by the average man. To do so would be at once to besmirch the reputation of the woman he intended to marry. He would conclusively prove his unbelief in her veracity; he would show to others that he had no faith in her chastity and would blacken her reputation as to that in the eyes of all to whom inquiries were directed; and, if he awaited the birth of the child, he might bastardize his own offspring and bring added disgrace to himself and wife. No right-minded man guilty of having wronged a woman or sharing a wrong with her would so act. He would do as plaintiff did in this case — marry her. That is the only honorable reparation possible — the only method of legitimatizing the offspring which he believes to be his and of saving the honor of the woman he has promised to marry. The act of marriage in such a case is not the result of negligent credulity, but of honorable motives to repair as far as possible wrongs inflicted or shared by him.”

In Jackson v. Ruby, supra, the position of the court is stated more tersely, in the following words: “Nor can we subscribe to the doctrine that it is ever the duty of a man to subject the woman he intends to marry to the unspeakable humiliation of an inquisition like that prescribed by the court in Foss v. Foss.” See also Lyman v. Lyman, supra. The statement in the quotations from textbooks in the Lyon case, supra, that on grounds of public policy fraudulent representations of one party as to birth, social position, fortune, good health and temperament, cannot vitiate the marriage contract, and that as to these “caveat emptor is the harsh but necessary maxim of the law,” and that the law “makes no provision for relief of a blind credulity, however it may have been produced, ’ ’ have .no application to fraud which goes to the essence of the marriage relation, and is ground for relief. Nor does the interest of the State in the preservation of the marriage relation extend to marriages based on fraud going to the essence of the marriage relation. As stated in Lyman v. Lyman, supra, “Certainly neither society nor the State representing it can have an interest favorable to the successful perpetration of a fraud, or to the perpetuation of the normal consequences of one like this which do not end with the marriage tie, but involve matters of presumptive paternity, the obligations which go with paternity, and the right of succession to property.”

By the greater weight of the modern, and, in our judgment, better reasoned cases, we believe the plaintiff entitled to annulment of his marriage on proof of the representations charged, even though he made no attempt to ascertain the truth or falsity of the alleged misrepresentations. It was therefore essential to a proper determination of the case that the court determine the paternity of the child born to defendant. We are not concerned with the necessity or propriety of preserving the court’s conclusion thereon in the decree or in any other manner. We do hold it necessary that the court consider the evidence relating to the paternity of the child together with all other evidence in the case, and, if upon such consideration he find that plaintiff is not the father of the child, grant the relief prayed, and deny it if the evidence fails to prove the charge.

The decree dismissing plaintiff’s complaint is reversed and the cause remanded with directions to determine the paternity of the child and enter such decree as the court deems proper. If the further hearing is had before the judge who heard the cause originally, the decree may in his discretion be upon the evidence already heard by him, with or without any further evidence. Smith v. Smith, 222 Mass. 102, 108.

Reversed and remanded with directions.

Tuohy, J., concurs.