Opinion
Argued February 6th, 1947.
Decided April 24th, 1947.
1. Petitioner's motion that defendant be forced to elect between her counter-claim of annulment because of non-age at the time of the marriage ceremony and non-ratification of the marriage thereafter, and her counter-claim of divorce on the ground of extreme cruelty, was well made. However, he is willing in this case to submit to a determination of the issues upon their merits, treating the question of pleading as academic.
2. The evidence falls far short of proving extreme cruelty by the petitioner.
3. The burden was on the counter-claimant that no acts of sexual intercourse took place after she became 18. She lived in her husband's home for one month thereafter. While the evidence is conflicting as to any such acts having taken place, the strong presumption is that they did. Circumstances other than the occurrence of sexual relations also support the conclusion of ratification and confirmation of the marriage after reaching the age of 18.
4. Desertion by defendant, held proved.
5. Ever since the parties separated, the child of the marriage has lived in this state with petitioner's sister. Counter-claimant now seeks its custody and proposes to take it to New York State. Held, under the circumstances and the public policy expressed in our statutes, the custody should not be changed, but counter-claimant will be given reasonable rights of visitation.
On appeal from a decree of the Court of Chancery, in which court the following opinion was filed:
"The petitioner, Andrew W. Merwin, filed a petition in this cause of action for divorce against the defendant, Virginia M. Merwin, on the ground of desertion. Defendant has counter-claimed upon two causes of action. She prays for an annulment of the marriage on the ground that she was under the age of 18 when the ceremony was performed and has not ratified or confirmed the marriage after arriving at that age. She also prays for a divorce on the ground of extreme cruelty. These alleged causes of action are, of course, inconsistent with each other. They are not pleaded in the alternative. At the hearing the petitionr moved to force the counter-claimant to elect. The motion was held over and the parties proceeded to take testimony on the merits.
"It seems to me that the motion was well made but, as I understand the petitioner's present position, he is content to consider the question of pleading as academic and to submit to a determination of the issues upon their merits.
"Taking up first the issues presented by the counter-claim, the evidence falls far short of establishing a case of extreme cruelty. The counter-claimant deliberately provoked her husband by staying away from the home over night and refusing to make any explanation to him. She claims that as a result of it he struck her. This he denies and I believe him. The defendant-counter-claimant left the petitioner's home and went to live with her mother in the State of New York. The petitioner's employment was in New Jersey and while he did at one time agree to live with his wife in New York, he changed his mind as he had a right to do and she refused to rejoin him in New Jersey.
"With respect to the counter-claimant's cause of action for nullity on the ground of non-age, the evidence, in my judgment, shows a ratification and confirmation of the marriage by her after she arrived at the age of consent. The burden was strongly on her to show that no acts of sexual intercourse took place after she arrived at the age of 18. She lived in the home of her husband for about one month after that date. While the evidence is conflicting as to whether any sexual relations took place, nevertheless in view of the strong presumption that they did, I think it must be so held. Moreover, the evidence shows a ratification and confirmation of the marriage by circumstances other than the occurrence of sexual relations. She continued to remain in the home of her husband after she arrived at the age of 18, in all outward respects as his wife, accepting his support and living under his roof. Then, too, by her counter-claim, in so far as she prayed for a divorce, she took a position inconsistent with her claim that the marriage had not been ratified. This pleading in itself, it seems to me, amounts to such ratification as the statute contemplates.
"The petitioner appears to have made all reasonable efforts to get his wife to return, under the circumstances of the case. I think he has proved the allegations of the petition and will advise a decree of divorce on his prayer on the ground of desertion.
"Ever since the parties separated, the child of the marriage has been living in New Jersey with a sister of the petitioner. The counter-claimant now seeks its custody, proposing to take it to the State of New York. I do not think that, under the circumstances and in view of the public policy expressed by the statutes of this state, the custody should be changed. The counter-claimant will be given reasonable rights of visitation.
"A decree will be advised in accordance with the above conclusions and providing for a dismissal of the counter-claim. Any application for allowances will be heard when the decree is presented for settlement, unless counsel can agree between themselves with respect thereto."
Mr. Richard J. Mackey, for the appellant.
Mr. Matthew F. Melko, for the respondent.
The decree under review will be affirmed, for the reasons expressed in the opinion filed in the Court of Chancery.
For affirmance — THE CHIEF-JUSTICE, BODINE, DONGES, COLIE, WACHENFELD, EASTWOOD, WELLS, DILL, FREUND, McLEAN, JJ. 10.
For affirmance on the result — HEHER, RAFFERTY, JJ. 2.
For modification — McGEEHAN, J. 1.