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Costello v. Porzelt

Decided: October 1, 1971.

DOLORES COSTELLO, OTHERWISE DOLORES PORZELT, PLAINTIFF,
v.
WAYNE A. PORZELT, DEFENDANT



Young, J.c.c. (temporarily assigned).

Young

This is a suit for annulment of a marriage on the grounds that concealment of heroin addiction is a premarital fraud which goes to the essentials of the marital relation. The suit is brought under the general equity jurisdiction of the Superior Court. There does not appear to be case law in New Jersey dispositive of the issues presented.

Defendant Wayne A. Porzelt did not answer or enter an appearance and proofs were taken ex parte on August 16, 1971. The proofs satisfactorily establish that following a courtship of less than a month, plaintiff Dolores Costello, a 25-year old hitherto unmarried woman, married defendant, age 24, on February 26, 1971. Shortly thereafter plaintiff noticed strange behavior in her husband and discovered objects missing from the apartment, including sterling silverware, an expensive bedspread and an electric can opener. Prolonged absences from the apartment were explained as job-hunting, but upon investigation plaintiff learned that her husband had been at the home of a friend. Upon further investigation she found a hypodermic needle and a package of heroin behind the light in the medicine cabinet in the bathroom.

Upon retiring one night plaintiff observed needle marks on defendant's arms. He admitted his addiction, confessing that he had taken the household articles aforementioned and sold them for drugs. Plaintiff testified that she had no marital relations with her husband after that encounter early in April, her husband departing the apartment on April 11 and not having been heard from since that date. The wife testified that her suggestions that he seek treatment were rebuffed by her husband.

Plaintiff testified that if she had known that her husband was addicted to heroin at the time of the marriage she would not have entered into the union.

Corroboration was provided by plaintiff's mother, who testified to the personal property missing from her daughter's

apartment and the nonratification upon discovery of the addiction.

Another witness was Kenneth Calabrese, detective of the Jersey City Police Department assigned to the Narcotics Squad. This witness produced defendant's arrest record, on the basis of which he testified that defendant was a narcotic addict as of the date of his marriage to plaintiff. At the time of the hearing defendant was a fugitive.

There is inherent jurisdiction in a court of equity to annul fraudulent contracts, including a contract of marriage. Lindquist v. Lindquist , 130 N.J. Eq. 11 (E. & A. 1941); T. v. M. , 100 N.J. Super. 530 (Ch. Div. 1968). The fraud may consist of an affirmative false representation or the withholding of the truth when it should be disclosed. Gruber v. Gruber , 98 N.J. Eq. 1 (Ch. 1925); Turney v. Avery , 92 N.J. Eq. 473 (Ch. 1921). Putting it another way, the suppression of truth is equivalent to the expression of falsehood.

New Jersey courts have adhered to the distinction between consummated and unconsummated marriages, granting judicial annulment in the latter when infected by fraud of any kind whatsoever that would render a contract voidable, but demanding that the fraud go to the very essence of the marriage relationship when consummation is established. The leading case is Ysern v. Horter , 91 N.J. Eq. 189 (Ch. 1920), recognized and applied in Akrep v. Akrep , 1 N.J. 268, 270 (1949); Brown v. Brown , 34 N.J. Super. 261, 265 (Ch. Div. 1954).

The issues framed by the proofs in the present case are:

1. Does the physical and mental impact of addiction to narcotics (heroin) go to the essentials ...


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