Opinion
March 28, 1950.
Appeal from Supreme Court in New York County, O'BRIEN, J.
Millard E. Theodore for appellant-respondent.
William H. Yaeger for respondent-appellant.
The plaintiff husband brought this action for annulment on the ground that the defendant at the time of the marriage was the wife of another then living. The defendant counterclaimed for (1) a separation, and (2) money loaned. The trial court dismissed the husband's suit for annulment and awarded a judgment of separation in favor of the defendant wife. The claim for money loaned, however, was decided in the husband's favor.
The parties were married on August 19, 1941, in the city of New York. On July 2, 1941, an interlocutory decree of annulment had been entered in favor of the defendant wife against her former husband in an action to dissolve the marriage on the ground that she was under the age of legal consent at the time of the earlier marriage. (See Domestic Relations Law, § 7.) On October 2, 1941, the interlocutory decree annulling the defendant's marriage to her first husband became final.
The trial court in this case found that the plaintiff husband urged the defendant to marry him and represented to her that she was free to enter into marriage; that the marriage was contracted by the defendant in reliance on the plaintiff's representations; that the plaintiff had full knowledge of the fact that the wife's interlocutory decree in the annulment suit against her earlier spouse had not become final at the time of the marriage; and that the parties cohabited after the wife's interlocutory judgment annulling her former marriage had become final. It was also found that the evidence established the plaintiff's bad faith and inequitable conduct, and that he did not come into court with clean hands. The plaintiff was held to be estopped by reason of his conduct from questioning the validity of the marriage of the parties. The trial court also found that the evidence was sufficient to establish the plaintiff's abandonment of the defendant wife.
On the plaintiff's appeal, the judgment dismissing the complaint and awarding a separation to the defendant on her counterclaim should be affirmed. The findings of fact in support of this determination are amply sustained by the proof. On the law I think that this case is controlled by our recent decision in Villafana v. Villafana ( 275 App. Div. 810), where it was held by a divided court that the doctrine of clean hands and estoppel would apply to prevent a husband in the situation of the present plaintiff from obtaining a judgment declaring the nullity of a marriage that was void under section 6 Dom. Rel. of the Domestic Relations Law. Although I have not altered the views expressed in my dissenting opinion in that case, I feel obliged to follow the Villafana decision and regard it as a precedent establishing a principle of law that operates to defeat the plaintiff's right to an annulment in this action.
If it were not for the holding in the Villafana case ( supra), it is clear that the plaintiff would be entitled to a decree of annulment in his favor. The defendant's first marriage contracted when under the age of legal consent was merely voidable and continued as a subsisting marriage until avoided (Domestic Relations Law, § 7). The fact that the parties were married after the entry of an interlocutory judgment annulling the defendant's earlier marriage in no way affects the situation and does not alter the rule or its application that a marriage is void where one of the spouses has a husband or wife living (Domestic Relations Law, § 6). The interlocutory decree contemplated a final judgment as essential to accomplish the annulment. (See Matter of Crandall, 196 N.Y. 127, 130; Pettit v. Pettit, 105 App. Div. 312, and Gehm v. United States, 83 F. Supp. 1003.) The marriage of the parties was void ab initio and acquired no validity by subsequent cohabitation after the interlocutory decree had become final in the defendant's action against her former husband ( McCullen v. McCullen, 162 App. Div. 599; Earle v. Earle, 141 App. Div. 611).
However, since we are holding that the present marriage may not be annulled at the suit of the plaintiff, I think that the State's interest in the status of the parties and the security of the wife to prevent her from becoming a public charge, if she should be or become impecunious, require us to recognize the right of the wife to a decree of separation with provision for support, where, as here, she establishes an abandonment by the husband. (See Krause v. Krause, 282 N.Y. 355.)
On the defendant's appeal from the dismissal of her counterclaim for money loaned, the determination of the trial court should also be affirmed. This phase of the case involved only factual issues properly resolved in favor of the plaintiff.
For the foregoing reasons, the judgment appealed from should be affirmed in all respects.
Although in agreement with the reasoning of the dissenting opinion by CALLAHAN, J., in Villafana v. Villafana ( 275 App. Div. 810) I am constrained by the decision in that case to vote to affirm the dismissal of the complaint in this action for annulment of marriage. The Villafana case, however, appears to go no farther than holding that affirmative equitable relief will be denied to a husband who has aided and counseled a woman in obtaining a divorce from a previous husband, which was known to him to be invalid at the time when she married him. Notwithstanding that the marriage is void, the Villafana case holds that he cannot obtain an affirmative declaration from a court of equity that it is void under the familiar maxim that he does not come into equity with clean hands. That is a different thing from holding that he is estopped to deny the validity of the marriage in opposing affirmative relief that is sought by her on the basis of its validity. This distinction is mentioned in Fischer v. Fischer ( 254 N.Y. 463, 466) where, citing Kaufman v. Kaufman ( 177 App. Div. 162) but without approving it, the Court of Appeals said that it was distinguishable in any event in that "Here defendant does not come into court with demand for affirmative relief. He merely alleges plaintiff's marriage with Dolinsky, denies plaintiff's allegation concerning his own marriage with her and puts her to her proof to show that such allegation is correct. In every action for separation the primary fact to be proved is an existing marriage between the parties. ( Jones v. Jones, 108 N.Y. 415.)" It was decided in the Fischer case ( supra) that the plaintiff wife was not entitled to a judgment of separation, regardless of whether the defendant therein had assisted her in obtaining her invalid Reno divorce.
In the instant case defendant wife has obtained judgment against plaintiff for separation on her counterclaim. A necessary condition to maintaining a cause of action for separation is that there shall have been a valid marriage, whereas the marriage between these parties is, without dispute, absolutely void. The judgment appealed from should be modified by dismissing defendant's counterclaims and, as so modified, should be affirmed.
Concededly, defendant married plaintiff, a second spouse, before the interlocutory decree annulling her prior marriage to another man had become final; accordingly, her marriage to plaintiff was absolutely void ab initio under section 6 Dom. Rel. of the Domestic Relations Law ( McCullen v. McCullen, 162 App. Div. 599; Pettit v. Pettit, 105 App. Div. 312; Karpuk v. Karpuk, 177 Misc. 729; Cross v. Cross, 177 Misc. 347). Estoppel against plaintiff could not validate the marriage ( Villafana v. Villafana, 275 App. Div. 810 [dissenting opinion in which I concurred]; Caldwell v. Caldwell, 298 N.Y. 146) and it is not validated merely because the parties continue to cohabit as man and wife after the decree of annulment became final (cf. first cases cited, supra).
Plaintiff should be granted an annulment and, as defendant is unable to prove a valid marriage to plaintiff, a fact essential to support her counterclaim for separation, that counterclaim should have been dismissed.
Accordingly, I dissent in part and vote to modify the judgment appealed from by granting plaintiff an annulment, denying defendant a separation and affirming only the dismissal of defendant's second counterclaim relating to moneys allegedly loaned plaintiff by defendant.
SHIENTAG, J., concurs with CALLAHAN, J.; COHN, J., concurs in result and votes to affirm; VAN VOORHIS, J., concurs in part, in opinion; DORE, J., dissents in part, in opinion.
Judgment, in all respects, affirmed. Settle order on notice.