Opinion
Rehearing Denied Sept. 27, 1930
Hearing Granted by Supreme Court Oct. 27, 1930.
Appeal from Superior Court, Santa Clara County; J.R. Welch, Judge.
Action by Maria Figoni against John Figoni, to annul marriage and to partition property. Judgment for plaintiff, and defendant appeals.
Affirmed in part, and reversed in part.
COUNSEL
Waldo F. Postel, of San Francisco, for appellant.
R.V. Bressani and C.C. Coolidge, both of San Jose, for respondent.
OPINION
PER CURIAM.
This is an appeal by defendant from the judgment of the trial court. The nature of the action and the judgment entered will appear hereinafter.
Plaintiff is the niece of the defendant, the latter being a brother of the full blood of plaintiff’s father. These parties, uncle and niece, went through a ceremony of marriage, in this state, on July 22, 1919, and immediately thereafter did cohabit together as man and wife and continued to so cohabit and live together for a period of time covering approximately six or seven years. To this union were born two children.
The present action was filed by the niece as plaintiff. In her complaint she alleged the foregoing facts and alleged further her fitness as custodian of the children and the further fact that during the period of consortium her uncle and herself had acquired certain property, real and personal. In the prayer of the complaint she asked a decree of the court annulling the marriage. Further, she prayed for the custody of the children and an order requiring defendant to pay a certain amount for the support and maintenance of the said children and for a further decree partitioning and awarding the real property equally between the parties and for such other and further relief as to the court may seem meet and proper.
To the complaint defendant entered a demurrer on the ground that no cause of action was stated. It was his contention in the court below and he as strenuously here contends that the demurrer should have been sustained. His argument is to the effect that the facts alleged showed that the claimed marriage was incestuous and void, and that the court could only so declare. That the court could not annul the claimed marriage inasmuch as such an action would be annulling a nullity. We find no merit in this contention. The complaint set forth the facts, which, if true, would demand some action on the part of the court. True, the action demanded would be as set forth in Civil Code, § 80. This section provides as follows: "Either party to an incestuous or void marriage may proceed, by action in the superior court, to have the same so declared."
The plaintiff in her complaint, having alleged the incestuous marriage, stated a cause of action, and it was not necessary that she specifically plead the Code section. Appellant contends that, because she asked a decree annulling the marriage, her action was based exclusively under section 82 of the same Code, which latter section sets forth the causes for annullment of marriage, and that, as incestuous marriages are not the subject of a strict annullment under the last-cited section, therefore no cause of action appeared in the complaint. The argument is not convincing. Conceding, purely for the present occasion, that no cause of action was stated which would permit of a strict annullment, nevertheless, the complaint would have been sufficient as against a general demurrer if it had contained a statement of the facts, as it did, and asked for general relief such as to the court would seem meet. We find that such was done in the complaint before us. Citation is unnecessary to the point that the prayer for relief is no part of the cause of action. Under the prayer for general relief the full power of the court might be exercised. Indeed, the contention of appellant seems to be mostly a play upon words. While it may be true that the term "annulment" in its strict legal sense has application only to those cases mentioned in section 82, Civil Code, and conceding that it is likewise true that a void and incestuous marriage is not the subject of annullment, nevertheless, the net result of an annullment is to declare the annulled marriage void, and the effect of declaring a marriage void under section 80 of the Civil Code is, generally speaking, to annul the claimed marriage. Finally, it may be noted, that where, as here, answer is made and issue joined, wherein both parties admit the fact of the incestuous marriage, and trial proceeds to a judgment declaring the marriage void, it would be an idle act for an appellate court to send the parties back for a retrial merely because the plaintiff by the misuse of a term asked to have the marriage annulled rather than asking that it be declared void.
In the case of Schneider v. Schneider, 183 Cal. 335-342, 191 P. 533, 11 A.L.R. 1386, the action was for a divorce. At the trial it developed that one of the parties had been previously married and had entered upon the second marriage while the former spouse was living and undivorced. The trial court did not go further into a determination of the status of the parties, but proceeded to settle the property rights. In the opinion we find this significant language applicable to the case at bar: "The circumstance that the court failed to settle their legal status, as it might well have done, is no ground for reversing that part of its judgment dealing with such property rights."
Without further discussion, we are convinced that no reversible error is shown in the court’s ruling on the demurrer. Defendant, in his answer, after admitting the fact of the incestuous marriage and the birth of the children, denied the allegations concerning the nature and quantity of property owned by the parties or by himself. Denied the fitness of plaintiff as a custodian of the children, and denied his alleged earning capacity. By way of separate defense he alleged specific acts of so-called adultery committed by plaintiff. At the conclusion of the trial the court directed the entry of an order declaring the marriage void, awarding the custody of the children to the defendant, and further directing that the real estate involved be held in trust for the children during their minority and thereafter to be divided equally between the said children, leaving the details of the trust to be determined at a later date. Some few months thereafter the trial court vacated the order theretofore made and set aside the submission of the case. Thereafter, almost a year from the conclusion of the taking of testimony, the trial court made its findings of fact and conclusions of law therefrom. The incestuous character of the marriage was found, as well as the cohabitation and birth of children. It was found that neither of the parties knew the marriage to be incestuous up to the date of separation; that the wife was a fit and proper person to have the custody of the children and that the real property described was accumulated by the joint efforts of the parties while they were living together. The judgment and decree following declare the marriage void, awarded the custody of the children to the plaintiff, awarded the real property in equal shares to plaintiff and defendant and reserved for future determination the question of support and maintenance of the children to be disposed of upon motion of either party.
It is now the contention of the appellant, passing, for the moment, his ever-present argument of no cause of action stated, that, if the court did have the power and duty to declare the alleged marriage void, the jurisdiction of the court was exhausted upon such declaration being made. In other words, when the trial court declared the marriage to be void, as it was obliged to do under the record, it had reached the summit of its power and was without jurisdiction to proceed to adjudge the custody of the children or provide for their maintenance and was likewise powerless to make any order with reference to the property rights of the parties. We cannot accept this theory in its entirety, though there is undeniably some merit to the contention.
The discussion may be properly divided into two heads. First, we may take up the question of the court’s power, under the pleadings and the facts developed, with reference to the children. The main question before the court was as to the status of the parties. It was manifest and admitted that, whatever the legal or moral relationship might have been, its physical characteristics were pseudo marital. Quite naturally and as a part of this relationship followed the birth of children. It would be logically impossible to separate the children from the relationship. The two are so closely connected that the question of the custody and support of the children was positively and necessarily before the court for determination. The welfare of children and their proper maintenance has been for centuries a matter of peculiar solicitude to all courts of equity and we hold that under the circumstances here shown a court might be considered remiss where it would simply dismiss the incestuous parents without cognizance of the children and their welfare.
Appellant, in anticipation of this conclusion, then argues that, conceding the power of the court to make appropriate orders as to the custody and welfare of the children, nevertheless, that the court abused the discretion with which it was vested when it ordered the custody to the plaintiff. We are not prone to go too deeply into this for the reason that in this class of cases the discretion of the trial court is practically limitless and exclusive. The defendant is in no position to assume to expound morals and very likely the trial court, with all parties before it, chose the lesser of two evils. The children were in the present custody of the plaintiff’s father, who was a brother of defendant; there was some showing or suggestion of defendant contemplating a return to his mother country, and, all in all, there are necessarily many minor and sometimes persuading features in these cases that cannot be made to appear in a cold record. The court reserved control of the children, necessarily, and likewise left open the question of their support and maintenance.
Without further discussion, up to this point we affirm the orders and judgment of the trial court in the proceeding. Lastly, we have the question of the power of the court, in an action such as this, to make any order of division of the property. We find authority lacking and can approach the subject by way of comparison and analogy only. It is beyond dispute that property adjustments follow inevitably from a broken or dissolved marriage. The courts have gone a step beyond this, and our state, in common with many other jurisdictions, has attempted to follow the property division or apportionment rule in cases of annullment. The authorities are collected and commented upon in the case of Coats v. Coats, 160 Cal. 671, 118 P. 441, 444, 36 L.R.A(N.S.) 844. That was an action, after a decree of annullment, for a division of the property which had been accumulated by the parties after marriage. It was held that a woman, who in good faith had entered into a marriage which was subsequently annulled at the instance of the other party upon the ground of her physical incapacity to enter into the marriage state, was entitled to participate in the property which had been accumulated by the efforts of both parties during the existence of the abortive marriage.
The court says: "In the absence of fraud or other ground affecting the right to claim relief, there can be no good reason for saying that either party should, by reason of the annullment, be vested with title to all of the property acquired during the existence of the supposed marriage."
In the same case it is further said: "This marriage was not void in the extreme sense. *** The defendant had the right to attack it, and to have it annulled, but, in the absence of such attack, it was good as against everybody."
In the case of Schneider v. Schneider, 183 Cal. 335, 191 P. 533, 534, 11 A.L.R. 1386, it is said: "Under the authorities it is clear that a void marriage confers no rights upon either of the parties to it in respect to the property of the other such as would be conferred by a valid marriage; but in the case before us the question for determination is, Conceding that the marriage was void, what right, if any, has the plaintiff in the property acquired by the joint efforts of herself and the defendant during their cohabitation entered upon innocently upon the faith of their admittedly void marriage?" The court answers the query by holding the innocent wife entitled to share in the property.
Many other cases could be cited bearing out the general idea announced in the cited cases. However, through them all runs the idea of simple justice wherein appears some element of good faith and honest intent. The relationship between the parties here has no such attributes. In this state, and it may be said throughout America, the marriage of an uncle and his niece of the full blood is not only contrary to law, classed as a felony, but is repugnant to every sound idea of morality and decency. It is a marriage prohibited by positive law. Section 59, Civ.Code. A violation of this law is made a felony and severely punished. Pen.Code, § 285. And the reason is not found alone in good morals. Experience has demonstrated the harm to the entire body politic that would result from interrelated issue. It is within the ordinary knowledge of every student that children born of such marriages are deficient in every way. Morons, idiots, physical weaklings, and potential criminals comprise the crop to be expected, and so, aside from the abstract morals of the case, there is such a potential economic effect that the strong arm of the law has placed upon such union its drastic ban. In Estate of Gregorson, 160 Cal. 21-25, 116 P. 60, 62, L.R.A.1916C, 697, Ann.Cas.1912D, 1124, it is said: "A marriage prohibited as incestuous or illegal and declared to be ‘void’ or ‘void from the beginning’ is a legal nullity, and its invalidity may be asserted or shown in any proceeding in which the fact of marriage may be material."
Section 59, Civil Code, makes marriages of the class herein involved void from the beginning. In Macchi v. La Rocca, 54 Cal.App. 98, 201 P. 143, the court was dealing with a case, where, in the absence of any marriage at all, the question here under discussion was not involved. It may be true that, where two persons, whatever their relationship may be, by their joint efforts, acquire property, the law will require some manner of accounting and a division of the gains, and perhaps no minute inquiry would be made concerning their private morals. But where the right to a property division or allotment is founded exclusively upon the existence of a willful transgression of both the written and the moral law, it would appear that the law is being used to perform strange antics if it could be so warped and twisted as to bring about its own undoing.
If the parties to the present action have conflicting property rights, it is a question not related to or a part of the void marriage herein discussed. The property rights of the parties can neither arise out of nor be created by an incestuous union. A determination of the individual interests in the property claimed must await some appropriate action. It detracts nothing from the foregoing that the trial court found that neither party knew that the attempted marriage was incestuous or illegal or void until the date of separation, some six years afterwards. The obvious answer must be that they both knew of the relationship existing between them. With that knowledge, it is immaterial what they might have known as to the law.
The doctrine of the cited cases wherein division of property was made might be applied even to a case of an incestuous marriage, where it appeared certain that the parties did not know of the relationship by reason of separation of the families and dissimilarity of name or through some other compelling reason that would manifest their innocence. Such is not the case here. We are mindful of the maxim to the effect that when equity attaches it will make final and complete disposition of the entire case in all of its phases. But there are limitations in the application of this doctrine. Surely it would not be contended that the court in this proceeding would have the power to imprison either party for a violation of the law which so clearly appeared, without invoking the aid of different process. And it is our opinion that an attempted division of the property, as here, was as remote from the issues before the court.
In view of the foregoing, it is our conclusion that the judgment appealed from be affirmed in so far as it declares the marriage void, and likewise to the extent that provision is made for the custody and maintenance of the children, both provisions being properly before the court for determination.
That portion of the judgment awarding the property described therein in equal shares to the parties is reversed.