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B. v. S.

Decided: February 23, 1968.

B., PLAINTIFF,
v.
S., DEFENDANT



Horn, J.s.c.

Horn

Plaintiff seeks judgment annulling his marriage to defendant on the ground that she fraudulently procured same by misrepresenting that he had caused her pregnancy.

Though defendant entered her appearance in the action and was present at the hearing with counsel, neither plaintiff nor any of his witnesses were cross-examined. Defendant presented no evidence although given the opportunity to do so.

The parties (both Caucasian) were married September 11, 1965, at which time plaintiff was 20 and defendant 18. They had been acquainted since 1960, when he was 16 and she was 14. Plaintiff was a resident of Atlantic County and defendant a summer visitor at her grandparents' home there. Their friendship developed with the passage of time, so that they visited each other during the winter months after 1961. By early 1965 they agreed to be married after defendant concluded her college education.

During the summer months of 1965 defendant secured employment as a waitress in a restaurant in Atlantic City. During this time plaintiff had intercourse with her infrequently. Late in August of that year she told him that she was pregnant. After a medical test had definitely established her pregnancy they discussed this fact with their parents. They were married September 11, 1965.

Before the marriage, although plaintiff had been given no reason to suspect anything to the contrary, he asked defendant if there was a possibility that her pregnancy was caused by any one else. She assured him that she had not had sexual intercourse with any person other than plaintiff.

Following the marriage ceremony the parties lived compatibly, first in an apartment and later in a house which plaintiff purchased in his own name with the intention of causing title to be placed in their joint names after defendant attained her majority.

On April 6, 1966, defendant was delivered of a female child at a local hospital. As the child grew older it took on

a distinct negroid physiognomy. When plaintiff expressed surprise at the child's color shortly after her birth, defendant explained to him that her maternal ancestors were fairly dark-complexioned.

As time passed and the child's features became more distinct, plaintiff thought that it might have suffered some internal disorder causing this appearance. Consequently, he consulted the family doctor. The physician then informed him that the child was a Negro.

On further questioning, defendant told plaintiff that during the summer of 1965 she had been raped by a Negro when she was returning from work one evening; that she did not report this to the police because she thought it would result in publicity, and that she did not tell plaintiff because she was fearful it might change his affection for her.

Finally, as the result of an independent investigation plaintiff learned -- and when she was confronted defendant admitted -- that she had not told the truth. It became evident that defendant had voluntarily engaged in sexual intercourse with a negro ...


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