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Carroll v. Demartini

Decided: April 17, 1952.

ELIZABETH CARROLL, OTHERWISE ELIZABETH DEMARTINI, PLAINTIFF,
v.
PAUL DEMARTINI, DEFENDANT



Pindar, A.m.

Pindar

The complaint filed July 30, 1951, demands in a first count a judgment annulling plaintiff's purported civil marriage to defendant on July 16, 1945, at Hoboken, New Jersey. The gravamen of the action is that on the marriage date she was 17 years and five months old and did not in any wise confirm the marital relationship after arriving at her eighteenth birthday. R.S. 2:50-1(e), now N.J.S. 2 A:34-1(e). She was born February 17, 1928. Plaintiff also demands support for and custody of a female child born of the marriage on June 11, 1946, and for counsel fee and costs.

The second count demands the return or value of a certain engagement ring in defendant's possession. However, that claim has been settled and discontinued.

In his answer defendant denies the cause for nullity and sets forth separate defenses in substance as: (1) the parties

were lawfully married (by a religious ceremony) according to the laws of New York State on August 19, 1945. (Plaintiff was then 17 years and six months old); (2) ratification, and (3) plaintiff's laches for unreasonably delaying enforcement of her existing right (about five and a half years after arriving at the statutory age of 18). Also, by way of counterclaim, defendant demands a judgment of dissolution on the ground of simple desertion as of on or about November 22, 1945, R.S. 2:50-2(b), now N.J.S. 2 A:34-2(b), and for reasonable visitation with said child.

By her answer to the counterclaim plaintiff denies the charged desertion and avers that she absented herself to disaffirm the marriage.

Jurisdiction for the complaint at the time action was instituted rested on defendant's bona fide residence in New Jersey at the commencement of the suit, R.S. 2:50-9(a), and for the counterclaim defendant's bona fide residence in this State more than two years next preceding the commencement of the suit. R.S. 2:50-10(a).

It will be noticed that the foregoing resume of the contra-issues presents some perplexity as to the several causes. Thus, detailed reference to the proofs as well as the respective contentions of counsel is necessary.

As appears from the record, the marriage on July 16, 1945 (New Jersey) was not consummated, and not until after the marriage on August 19, 1945 (New York) did consummation occur. Thereafter there was continual cohabitation until plaintiff separated herself from defendant on November 22, 1945, when she was two months and 25 days under the age of 18 years. There was no subsequent resumption. Plaintiff returned to her parents' home in New York City where she still resides with the child. Defendant has continued his residence in New Jersey. It further appears that on August 5, 1946 (7 months after reaching 18 years), plaintiff filed a complaint for support in the Juvenile and Domestic Relations Court of the County of Hudson (Exhibit P-1). Defendant asserts that application, its prosecution, and the

award under it, being for plaintiff and child, was an act in confirmation of the marriage. But, plaintiff contends the allowance was for the child. In any event, although support was granted, there was no formal order. Also, it further appears that plaintiff has been since the date of separation disposed against reconciliation and resumption. That situation, defendant submits, is corroborated by the circumstance of plaintiff's complaint for voidance of any marital relationship. It should be stated that plaintiff's non-age on the dates of both marriages, the occurring consummation, her separation, and the lack of marital relations after her eighteenth birthday, including complete absence of resumed cohabitation thereafter upon her disposition not to do so, are all items of undisputed factual proof.

The statutory provisions of both states for nullity on the issue of non-age is conceded. The pertinent ...


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