Sleicher v. Sleicher , 251 N.Y. 366 ( 1929 )

This is a motion made by the defendant, formerly the husband of the plaintiff, for a judgment on the pleadings, in an action brought by the plaintiff to recover unpaid installments of alimony, directed to be paid to her by a final decree in an action for divorce.

For the purpose of the motion the following facts, asserted in the pleadings, may be regarded as true: The parties to the action were married in the State of New York on the 27th day of July, 1908. On the 2d day of April, 1923, they separated by mutual consent and have ever since lived apart. At the time of the separation they entered into an agreement, in writing, whereby the defendant engaged himself to pay to the plaintiff the sum of $400 monthly until June, 1924, and thereafter the sum of $350 monthly. It was agreed that, if the plaintiff should procure a divorce in any action subsequently brought, the contract provisions for monthly payments to the plaintiff, "to continue so long as she remained unmarried," should be incorporated in the decree which might be granted. On the 26th day of October, 1923, the plaintiff obtained a decree of absolute divorce in a court of competent jurisdiction in the State of Nevada. The decree provided that the defendant should thereafter pay alimony to the plaintiff in monthly installments as provided in the agreement between the parties. On the 16th day of August, 1924, a ceremonial marriage between the plaintiff and Howard E. Hannum was performed. On the 17th day of August, 1927, this marriage was annulled, at the suit of this plaintiff, by a judgment of the Supreme Court of this State. The grounds of the annulment were that Howard E. Hannum had fraudulently concealed from the plaintiff that "he was insane prior to, up to and including the time of said marriage." Alimony had been paid by the defendant to the plaintiff until August, 1924. Since August 16th, 1924, the day of the plaintiff's marriage to Hannum, no installment of alimony has been paid. Upon these facts arises the question: Did the defendant pay alimony to the plaintiff "so long as she remained unmarried?"

A marriage may be annulled on the ground that it was induced by fraud, where one party, having knowledge that he was afflicted with a venereal disease, had concealed the fact from the other party. (Svenson v. Svenson, 178 N.Y. 54.) That it may be annulled for the fraudulent concealment by one party of the fact that he has been a sufferer from epilepsy has been held. (Lapides v. Lapides, 224 App. Div. 257.) We conceive that the fraudulent concealment of a serious disorder, which is mental rather than physical, may likewise constitute an adequate ground for annulment. A person afflicted with insane delusions may be guilty of an intentional and deliberate homicide. (People v.Ferraro, 161 N.Y. 365.) Equally well must there be instances where an insane person is capable of committing a fraud. We must assume that, in annulling the marriage between the plaintiff and Howard E. Hannum, the Supreme Court of this State had before it such an instance. As the court may have acted with jurisdiction, in determining that the marriage was induced by the fraudulent concealment, by Hannum, of the fact that he was then insane, its decree of annulment is not now open to collateral attack. The case of Hoadley v. Hoadley (244 N.Y. 424) can afford no comfort to the defendant. It was there held that an annulment on the ground of insanity could not be granted at the suit of the spouse who is sane; not that the sane party to a marriage would be denied annulment for a fraud committed by the insane party which induced the marriage.

Although the marriage between the plaintiff and Hannum originally may have been voidable, rather than void, it became, when the decree of annulment was pronounced, absolutely void from its very inception. (Collins v. Collins, 71 N.Y. 269; Price v. Price, 124 N.Y. 589; Jones v. Brinsmade,183 N.Y. 258; Matter of Moncrief, 235 N.Y. 390.) In Jones v.Brinsmade (supra) it was held that, pending the determination of an action for an annulment, brought by a wife against her husband, no alimony might be granted to the wife. The theory of the decision was that the wife was seeking a decree which, if granted, would relate back to extinguish, from the very inception of the marriage, every duty of maintenance owed to her by the putative husband; that the wife could not consistently claim alimony while pressing for a decree the granting of which would negative the existence of an obligation of support. Judge CULLEN, in writing the opinion of the court, quoted with approval from Bishop on Marriage and Divorce, section 118, as follows: "The doctrine may have a limit under the operation of a statute, but it appears to be universal under the unwritten law, that, when a voidable marriage has been set aside by a decree of nullity, the parties are regarded as having never been married." In Matter ofMoncrief (supra) it was held that, under chapter 531 of the Laws of 1895, which provided that all children born out of wedlock, whose parents subsequently married, should be deemed legitimate, such a child was not saved from illegitimacy by a voidable marriage between its parents which was subsequently annulled. In retrospect, Howard E. Hannum, after the annulment of the marriage, was never obligated to furnish support to the plaintiff, for the two had never been married. If, in regard to procuring support from Hannum, the plaintiff may be deemed to have remained unmarried, it must clearly follow that, in respect to obtaining alimony from her former husband, under a decree providing for its payment by him "so long as she remained unmarried," she must likewise be regarded as a woman who had "remained unmarried." For these reasons, upon the assumption that the facts set up in the pleadings are true, the defendant is obligated to pay to the plaintiff the installments of alimony which have fallen due between August 16th, 1924, and the present day.

POUND, CRANE, LEHMAN and HUBBS, JJ., concur with CARDOZO, Ch. J.; KELLOGG, J., concurs in result in separate opinion in which O'BRIEN, J., concurs.

Judgment accordingly.