Citation Numbers: 10 Misc. 2d 367
Judges: Lapham, Off, Ref
Filed Date: 10/4/1957
Status: Precedential
Modified Date: 2/5/2022
This uncontested action for annulment was referred to me as Official Referee by order dated May 18, 1957, to hear, try and determine, and proof was taken May 29 following, with decision reserved.
This is one of the strangest cases that has come before me in a long experience with matrimonial matters. Plaintiff claims that on a Wednesday defendant asked her if she wanted to marry him and that, in answer to her inquiry “ whether or not he was just playing with” her, he replied: “ No, I am serious; I am not playing with you at all ’ ’, and reiterated this statement when her mother posed the same question. She testified she had known him for a long time and had gone with him to the movies " once in a while ’ They were married in her home by a Protestant minister the following Sunday. She was then 18 and he 22.
Angel Lopez did not leave the neighborhood or make any apparent effort to avoid his wife or her family. Nor did they seem particularly perturbed by what had taken place. Whether for some undisclosed reason the plaintiff had urged the marriage and he had not had the courage to refuse; or whether his moral and mental calibre is such that the ceremony had little significance to him, I cannot say. According to plaintiff’s version, he did not take advantage of his marital status, and they never had relations before or after the wedding. However, her story is so fantastic and so out of joint with that of her parents that I do not believe she was telling the whole truth.
The complaint alleges that “ Prior to the marriage the defendant represented to the plaintiff that he would live and cohabit with the plaintiff in the normal manner of husband and wife in an effort to have issue of the marriage, and to provide
Accepting for the moment as true the testimony attributing to defendant statements that he was “serious” about this marriage, I believe such an assertion might logically be interpreted as an affirmation of intent to live up to the duties and responsibilities inherent in the marriage contract, that these untutored people would have been justified in considering it a promise to cohabit with, and support plaintiff, and that it was sufficient to bring the proof within the orbit of the allegation.
But the court is faced by the disturbing quality of the evidence. Not only is it a purely family affair, with no disinterested witness in substantiation, but the variances and discrepancies in the testimony of plaintiff and her parents are so pronounced as to shatter confidence in her truthfulness. The burden is on the plaintiff to sustain her claim of fraud by credible evidence. She is young and apparently industrious and the court would feel disposed to release her from this unfortunate union had she presented a forthright and reliable basis for such action. As Mr. Justice Booksteiw said: “ Plaintiff’s plight enlists the sympathetic consideration of the court. The court cannot grant annulments solely because of sympathy with the victim of an unfortunate marriage. The power of the court can be exercised only in those cases in which the statute
For the foregoing reasons the relief prayed for is denied and the complaint is dismissed, unless within 30 days from the filing of this decision an application is granted permitting the introduction of further proof. Attention of plaintiff’s counsel is directed to the Referee’s decision in Richardson v. Richardson (200 Misc. 778).