Opinion
01-21-1902
KNOTT v. KNOTT.
Louis H. Grunauer, for petitioner. John F. Marion, for defendant.
Petition by Lena Knott against John J. Knott. Motion for alimony pendente lite. Denied.
Louis H. Grunauer, for petitioner.
John F. Marion, for defendant.
STEVENSON, V. C. This is an application for temporary alimony and counsel fees, made by a woman in a suit which she has brought against a man to have a marriage in due form celebrated between them decreed to be void. The petitioner alleges that at the time of such marriage the defendant was married to another woman, whom she names, but that she had no knowledge of that fact, as the defendant represented himself to be a single man. The petitioner, learning of the prior marriage, ceased to live with the defendant The petitioner has an infant child by the defendant, and is liable to have another, and is unable to support either herself or her children. The defendant, resisting the motion for alimony, presents his own and a large number of other affidavits. He admits his formal marriage to the petitioner, and also admits and swears positively to his prior marriage with another woman between whom and himself no divorce has been obtained, and he declares that this woman is now his legal wife. All the affidavits on both sides support and prove the fundamental proposition of the petitioner's suit, viz., that the marriage between herself and the defendant was void ab initio. The defendant's affidavits, however, meet with great force all the charges which the petitioner brings against him to the effect that he practiced any fraud upon her in representing himself as a single man, or otherwise inducing her to marry him. These proofs, on the contrary, go to show that the petitioner and her mother had full knowledge of all the facts affecting the defendant's incompetency to contract marriage with the petitioner, and that the petitioner, notwithstanding her knowledge of these facts, requested the defendant to marry her, representing that, inasmuch as the defendant's wife had remarried, he was in a position to marry again. The question whether the petitioner was deceived by the defendant or not is the only issue presented to the court upon this motion for alimony. It is unnecessary, for the purposes of this application, to consider thisissue. In a suit for a divorce, or for a judicial determination that a marriage was void, alimony can be allowed to the woman only in case it appears that by the final decree the woman may be declared to be the wife of the man. When the application for alimony is made, the court must see that there is some probability that a lawful marriage will be proved at the final hearing. In the case of Freeman v. Freeman, 49 N. J. Eq. 102, 23 Atl. 113, a man sued a woman to have their formal marriage annulled on the ground that the woman at the time was the wife of another man. The defendant admitted her prior marriage, but set up that such prior marriage was void because the man with whom she had undertaken to contract it was already married. The defendant brought no legal evidence whatever of the disability of her former partner to contract marriage with her, and even showed the court that her efforts to procure evidence of such prior marriage had been fruitless. Vice Chancellor Van Fleet held that the woman was not entitled to temporary alimony, distinguishing the case from Vandegrift v. Vandegrift, 30 N. J. Eq. 76, which was a similar case excepting that the defendant (the woman), by her own affidavit and the affidavits of others, positively denied that her former husband was alive at the time of the marriage in question. In the Vandegrift Case the court declined to adjudicate in advance upon ex parte affidavits in regard to the marriage in dispute, and alimony and the suit money were allowed. It has been questioned whether or not a woman who commences suit to have her marriage decreed to be void ab initio, and so asserts in her pleadings, should in any case be allowed temporary alimony. If, in this case, the defendant undertook to sustain the validity of the marriage which the petitioner insists is void, a very different question would be presented, because the circumstances might be such as to justify the suit of the woman, and yet make it apparent that as the result of the suit she might be decreed to be the wife of the man. In many cases where the man opposes the suit of the woman to annul their marriage, and sets up that she is his lawful wife, justice might require that on the motion for temporary alimony the defendant, the man, should be treated as the husband of the complainant, according to his own insistment. But when at the time of the application for temporary alimony it is clear that any marriage between the parties was void ab initio, and neither party to the motion claims otherwise, there seems to be no possible foundation for any order for alimony. Alimony, as has often been said, is allowed to a wife. It can only be allowed when at the time it is applied for the man from whom it is sought must, for the time being, be presumed to be under the obligations of a husband toward the woman to whose support and maintenance it is to be applied. It has been argued that, where the wife attacks the marriage as void, she has a right to alimony apparently without regard to whether the husband contests her claim or not. 2 Bish. Mar. & Div. §§ 926, 927. The reason for this view seems to be that presumably the man, by the pretended marriage, has become possessed of the woman's property, thus leaving her without support. It might be sufficient to point out that in New Jersey there is no such transfer of property from the wife to the husband upon marriage as is above referred to. But if in fact the man, by means of the pretended marriage and the relations of confidence thereby created, has fraudulently possessed himself of the woman's estate, for all such cases the law provides abundant remedies. The defrauded woman can bring an action of tort against the man, and recover damages for the injuries caused by the fraud which he practiced upon her. Blossom v. Barrett, 37 N. Y. 434, 97 Am. Dec. 747; Cooper v. Cooper, 147 Mass. 370, 17 N. E. 892, 9 Am. St. Rep. 721, per Allen, J., page 372, 147 Mass., page 894, 17 N. E., and page 721, 9 Am. St. Rep. Actions at law and suits in equity may be brought by the woman for the recovery of her property, and according to some authorities for compensation for services which she rendered to the man while she supposed that she was his wife. 2 Nels. Div. & Sep. § 1023, and cases cited. If the petitioner's claim of fraud in this present suit is well founded, she can pursue her various remedies above indicated without waiting to have the fact that her attempted marriage with the defendant was void judicially established in her present suit. Where the woman does not stand before the court even as the possible wife of the man, it would be a perversion of the function of a divorce suit or a suit to annul a marriage to allow her alimony pending such suit. How far a lawful marriage must be proved in order to justify the allowance of alimony pendente lite has been much discussed. We need not enter upon this question. When the woman applying for temporary alimony and the man opposing such application both admit that the formal marriage which they undertook to enter into with each other was void ab initio, and that fact is established by the proofs, no order for alimony should be made.