Goldmann, Freund and Schettino. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiff sued for annulment on the ground that at the time of his ceremonial marriage to defendant she was married to another man who was then living and undivorced from her. Defendant counterclaimed for separate maintenance for herself and the two children of the marriage. Defendant appeals from a judgment granting annulment and dismissing her counterclaim.
The parties were ceremonially married in New Jersey on June 24, 1945 and have resided here ever since. They cohabited and held themselves out as man and wife from the date of the marriage until February 10, 1952, when they separated. The two children of the marriage have been in the defendant's custody ever since.
Defendant had in 1935 married one Byrne, by whom she had three children. Byrne eventually sued her for divorce on the ground of adultery and secured a decree nisi on April 25, 1945, the final decree being entered on July 26, 1945. Thus, plaintiff and defendant married after the decree nisi ,
but one month and two days before the entry of the final decree dissolving defendant's prior marriage to Byrne.
The parties first met in the spring of 1944, at which time defendant was known as and went by the name of Eleanor Edgye. She was so introduced to plaintiff. The parties first discussed marriage in the early spring of 1945. In May 1945 they and their respective mothers appeared before a Catholic priest in Newark, at which time defendant informed the priest that she was single and had never been married. Later, in applying for a marriage license, she expressly stated over her signature and under oath that she was single, but left blank the question as to whether she had ever been divorced.
In September 1951, more than six years after the marriage, defendant informed plaintiff she had been married before and divorced, but refused to tell him the name of her first husband or give him any further information about the divorce. After unsuccessfully insisting that she do so, he separated from her on February 10, 1952. Plaintiff had inquired among defendant's relatives and obtained the name of "Burns" as that of her first husband. He then engaged an attorney to inquire into her past marital history. The inquiry produced no further information. Plaintiff subsequently obtained the correct name of the first husband and gave it to his attorney who, on further search of the records, obtained proof of defendant's prior marriage and of the subsequent entry of the decree nisi and the final decree in the Byrne divorce proceedings. The attorney gave this information to plaintiff sometime during January or February 1953.
The trial court found as a fact that defendant had, before her marriage, held herself out as a single woman who had never been married, and that plaintiff believed her representations. The court also found that the first definite information plaintiff had of the fact that defendant's prior marriage had not yet been finally dissolved when the parties married on June 24, 1945, was when his attorney gave him the results of his investigation early in 1953.
Defendant testified that before her marriage to plaintiff she informed him of her earlier marriage and the three children resulting from that union, and the plaintiff had said it didn't matter. She further testified she told plaintiff there was a divorce proceeding pending which had been instituted by her first husband; that she couldn't get married "until there was other papers I guess served on me" -- until she was divorced; and that plaintiff's response had been that it made no difference. She stated that upon receiving the decree nisi through the mails she exhibited it to plaintiff; she thought the decree nisi was a final dissolution of her prior marriage, and plaintiff "must have thought the same thing." Defendant admitted that in May 1945 she had told the priest she was single and had never been married, and that she had made the same statement in the marriage license application, but explained that these representations, while false, were made at plaintiff's request because he didn't want his family to know she had been married. The trial judge flatly stated he did not believe defendant's testimony. On the contrary, he found from the proofs that defendant had in fact concealed her prior marriage from plaintiff, that plaintiff never learned of the marriage until sometime in 1951, and never learned until a year or so after he left defendant on February 10, 1952 that she had a husband living when he married her.
Defendant argues that the findings of fact by the trial court were contrary to the weight of the evidence. We do not agree. On a review of a cause involving issues of fact not determined by the verdict of a jury, we are enjoined to give due regard to the opportunity of the trial court to judge the credibility of witnesses. R.R. 1:5-3(a), 2:5. In a matrimonial action as strongly contested as this one was, we must readily acknowledge the superior advantage of the trial court in judging of credibility. Where the findings of a trial court are supported by competent, reasonably credible evidence, they will not be disturbed. Pratico v. Rhodes , 32 N.J. Super. 178, 185-6 (App. Div. 1954). Such is the case here. Our independent review of the entire record does not
persuade us that the trial court's findings of fact were contrary to the weight of the evidence.
The trial court concluded as a matter of law that: (1) the ceremonial marriage between the parties was and is void; (2) there was not and could not be a common law marriage, notwithstanding the fact that they went through a ceremonial marriage, resided together as husband and wife for some years, and children were born of the marriage, because L. 1939, c. 227 (N.J.S.A. 37:1-10) abolished common law marriages in this State; (3) under R.S. 9:15-2 the infant children of the marriage are legitimate even though the ceremonial marriage of the parents be annulled; (4) it cannot be said under the proofs that plaintiff is estopped by his conduct or that relief should be denied him because he comes into equity with unclean hands; and (5) giving due weight to the provisions of N.J.S. 2 A:34-1, a judgment of nullity would not be against the best interests of the children of the marriage. By judgment nisi entered May 27, 1954, defendant's counterclaim was dismissed and the pretended marriage between the parties declared a nullity; the judgment of nullity was held not to be against the interests of the children of the marriage since R.S. 9:15-2 declared them legitimate notwithstanding the annulment of the marriage; custody of the children was awarded to defendant, and plaintiff directed to pay defendant $15 a week for the support and maintenance of each of them. This appeal ensued.
Defendant first argues that the trial court's application of the provisions of L. 1939, c. 227 (N.J.S.A. 37:1-10) to the facts in this case was erroneous. Prior to the enactment of 1939, R.S. 37:1-10 read as follows:
"Nothing in this chapter shall be deemed or taken to render any common law or other marriage, otherwise lawful, invalid by reason of the failure to take out a [marriage] license as herein provided."
Before the passage of L. 1939, c. 227 a valid marriage could be contracted per verba de praesenti without a ceremony and without a license. Atlantic City R.R. Co. v. Goodin , 62 N.J.L. 394
(E. & A. 1898); Jackson v. Jackson , 94 N.J. Eq. 233 (E. & A. 1922); Conkling v. Conkling , 117 N.J. Eq. 218 (E. & A. 1934), 10 N.J. Practice (Herr, Marriage, ...