Wednesday, February 25, 2009

Alternatives to Divorce: Annulment

The interest in annulments continue, so I decided to take a look at Indiana case law. There is not much.

The most recent being In the Matter of the ESTATE OF Mark R. HOLT, 870 N.E.2d 511 (Ind.App. 2007). Brother petitions court to determine on grounds that remarriage of dead brother and former wife was void due to decedent's mental incompetency. Some points to consider:

Indiana Code Section 31-11-8-4 provides: “A marriage is void if either party to the marriage was mentally incompetent when the marriage was solemnized.” Accordingly, if a party is of unsound mind when the ceremony was performed, the marriage can be declared void. Baglan, 4 N.E.2d at 55. The burden rests upon the challenger to prove that a party was incapable of understanding the nature of the marriage contract. Id. “The presumption in favor of the validity of a marriage consummated according to the forms of law is one of the strongest known.” Bruns v. Cope, 182 Ind. 289, 105 N.E. 471, 473 (1914), overruled in part on other grounds by Nat'l City Bank of Evansville v. Bledsoe, 237 Ind. 130, 144 N.E.2d 710 (1957).
Several lay witnesses testified concerning Mark's apparent state of mind and actions on his wedding day. Porter County Clerk Dale Brewer, who completed the marriage license application and performed the wedding ceremony, testified that she “followed basic procedures” and perceived “no red flags.” (Tr. 98.) She testified further that she specifically asked Mark if he “wanted to get married.” (Tr. 115.) In her opinion, Mark had no problems answering the application questions and responded promptly and appropriately. Mark's friend Darin Milbrandt testified that Mark exhibited no problems at the wedding. He was “in good spirits” and “didn't need assistance.” (Tr. 142.) Mark's stepson testified that Mark joked and laughed, talked about fishing, and specifically inquired about his step-granddaughter. Curtis and Donna Claussen, who briefly visited with Mark after the wedding, described a conversation in which Mark asked about Curtis's work and correctly identified his employer. Curtis opined that Mark was “not confused or incoherent” and expressed his wish to get out on his boat. (Tr. 168.) Irene Claussen also testified that Mark was engaging in normal conversation and was “not confused or incoherent.” (Tr. 129.)
  • Richard essentially argues that the testimony of each of the foregoing witnesses should be discarded as incredible because they are related to or friendly with Cindy and they are not expert witnesses. He cites no authority for the proposition that laypersons may offer no evidence of another person's mental competency. He also would discard the testimony of expert witness Dr. Robert Granacher because his opinion of competency rests in part upon the laypersons' reports. Richard merely requests that we reweigh the evidence, find each of Cindy's witnesses lacking in credibility, and credit only the testimony of his expert witness who opined that Mark's seizures were likely preceded by undiagnosed seizure activity. However, we do not engage in this reweighing process, but rather must determine whether the evidence unerringly points to a conclusion other than that reached by the trial court. See LTL Truck Service, LLC v. Safeguard, Inc., 817 N.E.2d 664, 667 (Ind.Ct.App.2004)
  • Then we have DeMoss v. DeMoss, 135 Ind.App. 548, 195 N.E.2d 496 (1964) where one of the parties was too young to marry without parental consent.
    The complaint here indicates that appellee was a male seventeen years of age at the time of marriage, and also at the time of the filing of this action, and could not have ratified the marriage. The marriage was therefore voidable and subject of being declared void upon his application.
    Then we go back 1919 and CHRISTLIEB v. CHRISTLIEB, 71 Ind.App. 682, 125 N.E. 486. By the way, this case remains good law in Indiana even with its age. This case actually has some interesting points, some of legal interest and also of more historical interest. Here are the facts as plead:
    The material averments of the first paragraph of complaint, hereinafter termed the complaint, are as follows: That on August 29, 1916, appellee entered into a certain marriage ceremony and pretended marriage with appellant at Centerville, in the state of Michigan; that said marriage was illegal and void for the following reasons: That appellee was at the time but 16 years of age, and that the pretended marriage was without the consent of her parents, who were at the time residents of Lagrange county, Ind.; that prior to said marriage appellant had falsely and fraudulently represented to appellee that he had never been married, had no children, and was a man of good character in the community where he had lived; that appellee, being ignorant as to the truth of such representation, believed the same to be true, and, relying thereon, entered into the marriage contract; that said representations were false, and known by appellant to be false at the time made, and were made for the purpose of deceiving appellee and inducing her to enter into said marriage; that appellant had been married and was the father of three children; that in 1914 appellant was divorced from his former wife; that the custody of two of said children was awarded to appellant, and he is now under order of court to support the same; that appellant is a drinking man who spends his earnings in riotous living and debauchery, and that he is dishonest; that the parties “have never lived or cohabited together as husband and wife.” Prayer that the marriage be declared void.

    It will be observed that the complaint is not based upon section 5 of the Acts of 1905 (Acts 1905, p. 215; section 8367 Burns 1914), regulating marriages, or upon any other statute, but proceeds upon the theory of actual fraud in procuring the marriage contract. The law is well established that a marriage procured by fraud is voidable at the suit of the injured party, and that courts having the jurisdiction of courts of equity, under their general powers to annul fraudulent contracts, also have jurisdiction to annul a marriage on account of fraud (Henneger v. Lomas, 145 Ind. 287, 44 N. E. 462, 32 L. R. A. 848); but what would constitute such fraud as to authorize the annulment of a marriage has not been determined by the courts of appeal of this state.
    Nowadays this sort of fraud is included in the annulment statute. How does the Court of Appeals decide the case?
    The allegations of the complaint which refer to appellant's fraudulent representations as to his personal character and his former marriage are not, however, the only averments going to the charge of fraud. It is also alleged that appellee was but 16 years of age; and, although appellant's age is not given, it may nevertheless be inferred from the facts set forth in the complaint that he was much older. The mere fact that appellee was but 16 years old at the time, and was married without the consent of her parents, would not, under the statute requiring parental consent to the marriage of a girl of that age (section 8371, Burns 1914), render the marriage void, even if the marriage had taken place in Indiana. Franklin v. Lee, 30 Ind. App. 31, 62 N. E. 78. Nevertheless, when taken in connection with the other allegations of the complaint, the statement that she was only 16 years of age is an important allegation in support of the charge of fraud....

    Another averment of the complaint, and perhaps the most important, is that the parties “have not lived or cohabited together as husband and wife.” Where a marriage has not been consummated, the reason for the rule above stated, and therefore the rule itself, do not apply. No unborn children “will cry out from the mother's womb demanding that they may not be bastardized, lose a father, and know only a disgraced >mother.” In the case under consideration the public can be in no way interested in affirming the marriage. On the contrary, public policy would seem to require an annulment of the marriage. If the marriage is declared valid, it will be in name only, preventing the parties from marrying again. We are therefore constrained to hold that the allegations of the complaint, when taken together, state a cause of action for fraud, and authorize the annulment of the marriage....
    So with all the talk of fraud, what we have in is the same case as DeMoss.

    Let me speculate a bit about the long gaps between these appellate court cases. First, annulment requires meeting and proving certain things which makes its use rather limited and rather rare. Then, too, I think what annulment cases do get filed, do not give rise to issues for appeal.

    Ask yourself this question about DeMoss: what potential bride (or her family, who probably paid for the appeal) would appeal the annulment of her marriage? I suspect more of a social stigma attached in 1964.

    I think Moore v. Moore. 81 Ind.App. 169, 135 N.E. 362, 363 (1922) supports my thinking that annulment lost its luster when fault was removed from the divorce statute.
    The issue presented in this cause by the first paragraph of cross-complaint was as to the right of appellant to have his marriage to appellee nullified. The issue presented by the second paragraph of cross-complaint was as to the right of appellant to an absolute divorce from appellee. No other issue was presented. The court found upon each of these issues against appellant, that he was not entitled to have the marriage declared null and void, and that he was not entitled to an absolute divorce....
    Under the current statute, the husband (who was the appellant) would have had his divorce although not the annulment.

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