Citation Numbers: 147 A. 781, 105 N.J. Eq. 315
Judges: WALKER, CHANCELLOR.
Filed Date: 11/9/1929
Status: Precedential
Modified Date: 4/15/2017
On July 3d 1929, the petitioner filed her petition herein, setting up that she was lawfully joined in the bonds of matrimony to the defendant on February 12th, 1929; that she became acquainted with him a few months before their marriage; that he thereafter sought her company unknown to her parents; that he was assiduous in his attentions, made violent love to her, and she confessed to him a youthful indiscretion committed with some other man; that finally defendant requested petitioner to marry him, and when she refused he then threatened to tell her parents of the youthful indiscretion which she had confessed to him, and he told her that she must marry him immediately, otherwise he would expose her to her parents; that the threats and menaces of defendant so wrought upon the mind of petitioner that she consented under the duress and fraud of defendant, as aforesaid; that defendant represented himself to her as *Page 316 a man of good moral character, whereas, after said marriage, petitioner learned that the character of defendant was not good, and, in fact, it was dissolute and immoral, and further learned that he had been living as man and wife with other married women almost to the time they went through their ceremony of marriage; that petitioner at that time made false answers to the questions of the officiating magistrate as to her age, and did give formal consent to the marriage with defendant under the fear, threats and menaces of defendant, as aforesaid; that petitioner and defendant separated immediately after the marriage, she going to the home of her parents, but finally, upon the fear and threats of exposure, and coercion by defendant, consented to live with him as his wife; that petitioner, upon assuming cohabitation with the defendant, was in constant fear and coercion of the threats by him to expose her to her parents and was rendered so miserable, nervous and debilitated that after a period of three weeks she left the defendant and has not since cohabited with him, and that the marriage between petitioner and defendant has not been consummated with bodily knowledge. Such are the allegations in her petition. And they fall short of being proved; in fact, the proof in every essential particular, is quite the other way, as will hereafter appear, by proper construction, at least. The petitioner goes on further to allege the residence of both parties in this state, and prays that the pretended marriage between them may be declared null and void for the causes aforesaid, and that she may have other and further relief.
The master in his report found that petitioner, a girl of apparent refinement, brought up in a refined home and a fashionable private school, at the age of nineteen met the defendant, and at their second or third meeting, and in the home of a young married couple, a conversation was entered into discussing previous experiences. Petitioner (indiscreetly, though apparently quite innocently) mentioned the fact that at the age of fifteen she had had an experience, in other words, had been taken advantage of by a young man much older than herself, and that she would rather die *Page 317 than have her parents learn of this (the clear inference being that she was sexually embraced on that occasion). A short time thereafter petitioner was invited by defendant to go on a ride with him and the mentioned married couple, for one day, and when in Greenwich, Connecticut, the place of the marriage, defendant informed petitioner that she must marry him on that day or he would tell her parents of the experience suffered by her at the age of fifteen. According to petitioner's testimony, through fear that defendant would tell her parents she entered into the ceremony while terribly upset, crying and not knowing what it was all about. Immediately upon the performance of the ceremony petitioner returned to the home of her parents and defendant returned to his mother's home. From the date of the marriage to May 1st, 1929, defendant threatened petitioner that he would tell her parents of the incident in question unless she cohabited with him, and on the date last mentioned, to prevent the carrying out of said threat, she informed her parents that she was married, and went to live with defendant at the home of his mother.
Now, be it remembered that the parties were married on February 12th, and this was on May 1st. She was with her parents upwards of two months after relating her remarkable experience, and should have told them what she had stated voluntarily to three persons — comparative strangers. How could she expect the secret to be kept? It probably had been retailed to some person or persons by that time. It was her duty to confide in her parents and seek their protection from this asserted libertine, instead of flying to his arms.
Petitioner says that she was treated so cruelly at the house of defendant's mother that she could not endure living with him, even though he daily threatened to inform her parents of the incident mentioned, if she should leave him. On or about May 20th, 1929, she did leave him, and defendant the next day informed her father. She was willing at last that the exposure should take place rather than to live longer with him to suppress it; and this emphasizes the fact that she *Page 318 should have informed her parents in the first place, and sought their protection then, instead of waiting.
The master reported that the consent of the petitioner to enter into the ceremony of marriage, and later to enter into matrimonial relations with him, was extorted by duress; that the element of consent to the making of the matrimonial contract was lacking, and that the duress under which the invalid contract was made was still operative at the time and all through the subsequent cohabitation. He also further reported that he found that the case was clearly controlled by Avakian v. Avakian,
In my judgment, the Avakian Case does not apply. It was there held by Vice-Chancellor Pitney that the evidence showed that a marriage contract between an Armenian girl fourteen years of age and another Armenian fifty-five years of age, and devoid of physical or other attractions, solemnized in a strange country, where the girl was without friends or money, was procured through duress of the man practised on the girl, who was entrusted by her father to his care to bring her to the United States, but who, in England, compelled her to marry him. She was immature and entirely within his control — a stranger in a strange land. The case of Sebright may seem to be an authority for annulling this marriage, but the doctrine of duress as established in this state does not embrace the case sub judice. *Page 319
This young woman was nineteen years old at the time of her marriage, and she ratified it, even if it were voidable, by going to live with defendant. She says it was by reason of like threats and coercion, but this I am not prepared to believe.
In Capasso v. Colonna,
Another thing: The defendant called the petitioner on the telephone and asked her to take a ride with him. She did so in the car of the Armstrongs, the married couple to whom, along with the defendant, she had formerly related her misadventure; and they too were on the ride. She says: "We were sitting in the back of the automobile and he said, `Let's get married,' to which she replied: `Positively not, I never heard of such a thing.' Whereupon he said: `Well, think this over, and if you don't marry me to-day I am going to tell your family everything I know about you.'" She says the Armstrongs did not hear this; that they then went into a building and were married. She disingenuously fails to state whether the Armstrongs went in also, and fails to tell why she did not appeal to them for protection instead of meekly submitting to this man's threats, assuming they were made. And more significant still is the fact that these Armstrongs *Page 320 were not called as witnesses. It looks as though the petitioner were endeavoring to impose a case upon the court.
Vice-Chancellor Stevenson, in Cox v. Cox, reported inBiddle's N.J. Div. Prac. (2d. ed.) 362, says that the complainant was beset by the mother of the defendant, the defendant himself and his sister, to forthwith marry the defendant without communicating with her parents. The girl was seventeen years of age and the mother of the defendant stood inloco parentis to her. The marriage was unconsummated, and the learned vice-chancellor further said that an unconsummated marriage which is infected by fraud of any kind whatsoever which would render a contract voidable, is voidable at the option of the injured party, if promptly disaffirmed before any change of status has occurred. This principle the learned vice-chancellor again affirms in the later case of Ysern v. Horter,
Speaking of duress under which to avoid a contract, the court of errors and appeals, in Koewing v. West Orange,
There may be extreme cruelty present in this case, but this is not an application to dissolve the marriage for that cause under the act of 1923, P.L. p. 494; nor is it a petition for a divorce from bed and board, Rudin v. Rudin,
The result reached is: That duress was not present, that the marriage of the parties was legal and binding, that the master's report should be overruled, and the petition dismissed. *Page 322