In Johnson v. Johnson (295 N.Y. 477, 480, 481) Judge FULD, in interpreting section 1140-a of the Civil Practice Act, the precursor of section 236 Dom. Rel. of the Domestic Relations Law, pointed out that the Legislature "sought to remedy * * * the unhappy plight of the innocent wife" who hesitated to have her marriage annulled "at the cost of relinquishing all claim to support" or where the marriage is voided because of the wife's insanity or for any of the other causes where the wife is statutorily at fault.Summary of this case from Bruno v. Bruno
Argued June 3, 1946
Decided July 23, 1946
Appeal from the Supreme Court, Appellate Division, Second Department, WALSH, J.
Gilbert J. Fortgang and Milton Solomon for plaintiff, appellant and respondent. Michael D. Lieberman for defendant, respondent and appellant.
The Appellate Division, modifying the judgment of the trial court, has dismissed plaintiff wife's complaint for a separation, granted defendant husband judgment on his counterclaim for annulment, and affirmed an award of $100 a week for the support of plaintiff and the child of the parties.
The weight of the evidence clearly establishes that plaintiff's prior marriage was still in existence, her first husband still living at the time of her marriage to defendant. Accordingly, the separation was properly denied, the annulment properly granted.
There remains one question upon which this court has not previously passed — is the wife in such a situation as the present entitled to permanent alimony under section 1140-a of the Civil Practice Act. Provision for support of the minor child of the parties is not here in issue, as defendant expressly requests such provision to be made; indeed, under section 1140 of the Act, the court "must give such direction [therefor] * * * as justice requires."
Section 1140-a of the Civil Practice Act provides: " Maintenance and support of wife in action for annulment of marriage or to declare the nullity of a void marriage. When an action is brought to annul a marriage or to declare the nullity of a void marriage, the court may give such direction for support of the wife by the husband as justice requires. Such direction may be made in the final judgment in such action, or by one or more orders from time to time before final judgment. Upon the application of either the husband or the wife, upon notice to be given as the court shall direct, the court may annul or modify such direction, or in case no such direction shall have been made, in a judgment hereafter given, may amend it by inserting such direction. This section shall apply to any action brought by either the husband or the wife or by any other person in the lifetime of both parties to the marriage."
Upon its face, the statute clearly applies to the case at bar. Defendant, however, relying upon the language of the report of the Law Revision Commission (1940 Report of N.Y. Law Revision Commission, p. 237 [Legis. Doc. 1940]), contends that the Legislature intended the statute to apply only against a bigamist husband. This contention strikes us as both unsound and unreasonable.
True enough, the prime evil which the commission sought to remedy was the unhappy plight of the innocent wife married to a bigamist husband; under the law as it then existed, she could terminate this undesirable and illegal relationship only at the cost of relinquishing all claim to support, while the offending husband could, at his pleasure, avail himself of the invalidity of a marriage — void because of his own misdeed — and slough off the financial responsibilities which he had voluntarily assumed. Nevertheless, the commission obviously did not desire to restrict the application of the statute to that situation alone, for the very language employed — "When an action is brought to annul a marriage or to declare the nullity of a void marriage" — demonstrates unequivocally an intent to embrace all the situations in which the Domestic Relations Law (§§ 5, 6, 7) declares a marriage to be void or voidable. Necessarily, then, the statute covers invalidity for a host of reasons besides bigamy — for instance, nonage, fraud, incapacity, insanity, incest.
Moreover, the statute is not, by its terms, limited to cases where the wife is the innocent party; such a limitation would certainly be most unreasonable and unjust, for example, in the case where the marriage is voided because of the wife's insanity. (Cf. Bancroft v. Bancroft, 288 N.Y. 323.) To escape such a result, the draftsmen and the Legislature eschewed the rigidity of a mandatory "direction for support" subject to an ironclad limitation. Instead, they left it to the court's own discretion in all cases, granting the court power to "give such direction * * * as justice requires."
Phrased in general fashion, the provision is sufficiently broad to cover such a case as the present, and direction for support of the wife on the record before us cannot be said to have been an abuse of discretion.
The judgment should be affirmed, without costs.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND and THACHER, JJ., concur; DYE, J., taking no part.