Summary
holding that although appellee committed fraud upon appellant, the marriage was consummated and fraud alone is not sufficient to grant annulment
Summary of this case from Adler v. AdlerOpinion
April 4, 1952.
Appeal from the Circuit Court, Dade County, William A. Herin, J.
Byron Zahner, Miami, for appellant.
No appearance for appellee.
In this case the appellant filed a suit in the Circuit Court of Dade County seeking an annulment of a marriage and prayed in the alternative for a divorce.
The facts are that appellant married the appellee in July, 1947. At the time she was not aware that the appellee had a criminal record and did not learn about it for several months. He had been convicted of the crime of rape and was on parole. He was picked up in November, 1947, by detectives in New York for violating his parole and that was the first knowledge she had of his past criminal record. He was picked up in New York under a charge of armed robbery. She was greatly shocked by the knowledge that her husband had this criminal record and by his arrest and she suffered intensely, both mentally and physically. She was greatly upset and lost weight and was very much humiliated. She met her husband in 1945 or 1946 but did not know anything about his criminal record and he concealed that from her until the time of his arrest in New York. She lived with her husband from July, 1947, until November of the same year in a small apartment and had sexual intercourse with him during that period of time.
A Special Master was appointed to take the testimony and report his findings of fact and recommendations to the Court. This he did and recommended that the prayer for annulment be denied and that the alternative prayer for divorce be granted. Exceptions were filed to the Master's Report which were overruled by the Circuit Judge. The Circuit Judge confirmed the Master's Report in all respects and entered a decree granting an absolute divorce to the appellant. From that decree she has appealed.
There can be no question that the appellee perpetrated a fraud upon the appellant; but fraud of the nature revealed here is not sufficient, standing alone, to authorize the annulment of a marriage. The undisputed facts in the case show that the marriage was consummated by living together for several months and by having sexual intercourse during that period of time.
The decree appealed from is affirmed on the authority of Cooper v. Cooper, 120 Fla. 607, 163 So. 35, and Rubenstein v. Rubenstein, Fla., 46 So.2d 602.
SEBRING, C.J., and CHAPMAN and ROBERTS, JJ., concur.