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District Court of Appeal, Second District, Division 3, California.

Ena Dorothy LANGLEY, Plaintiff and Appellant, v. Spencer SCHUMACKER, Defendant and Respondent.

Civ. 20701.

Decided: May 13, 1955

Maurice Rose, Bellflower, for appellant. Crawford & Baker, Los Angeles, for respondent.

Plaintiff appeals from a judgment entered after demurrer sustained to her second amended complaint without leave to amend. She sues for damages for fraud, alleging that defendant married her while entertaining a concealed intent not to consummate the marriage. This is a fraud which goes to the essence of the relationship and affords ground for annulment. Maslow v. Maslow, 117 Cal.App.2d 237, 241, 255 P.2d 65.

The parties were married on April 17, 1953 and separated on May 2, 1953. Plaintiff then sued for divorce on the ground of cruelty. Defendant cross-complained for annulment or divorce alleging inter alia that plaintiff had another husband at the time she married him, also charging concealed sterility on her part. At some time prior to January 6, 1954 plaintiff changed attorneys and a stipulation was then made to the effect that plaintiff might add to her complaint a cause of action for annulment, and that same be deemed denied. The opening brief says that defendant had already agreed to dismiss his cross-complaint and that this was later done. Pursuant to the stipulation plaintiff filed an amended complaint charging fraud in that defendant secretly intended not to consummate the marriage and that he never did do so; she prayed for an annulment. On January 29, 1954 the court granted plaintiff's prayer for annulment. Notice of entry of judgment was served upon defendant's attorneys on the same day. About ten days after the expiration of time for any appeal, on April 9, 1954, this damage action was filed. Though there is no affirmative showing to that effect the record exudes a faint aroma of an annulment by consent.

Counsel for the respective parties agree that in this state one spouse may not during the marriage relationship sue the other for a personal tort. Both sides cite Peters v. Peters, 156 Cal. 32, 103 P. 219, 23 L.R.A., N.S., 699; Cubbison v. Cubbison, 73 Cal.App.2d 437, 166 P.2d 387; Paulus v. Bauder, 106 Cal.App.2d 589, 235 P.2d 422, and Watson v. Watson, 39 Cal.2d 305, 246 P.2d 19.1 These cases do so hold and they go further. The action cannot be maintained after a divorce has been had, Peters v. Peters, supra, 156 Cal. at page 34, 103 P. 219; this is true even though the tort was committed after separation, Cubbison v. Cubbison, supra, or during the interlocutory period of a divorce action. Paulus v. Bauder, supra, 106 Cal.App.2d at page 590–591, 235 P.2d 422; Watson v. Watson, supra, 39 Cal.2d at page 306, 246 P.2d 19. In the Peters case the court says, 156 Cal. at page 36, 103 P. at page 221: ‘In the language of the Supreme Court of Maine in Abbott v. Abbott [67 Me. 304] supra, the relation of marriage, while it continues, ‘so to speak, acts as a perpetually operating discharge of all wrongs between man and wife, committed by one upon the other.’ The only remedies for such wrongs, afforded by our law, as it stands, are to be found in the Penal Code and in the action for divorce or maintenance, with the additional portion of the community property which may be given to the wronged party where cruelty is the cause for which divorce is adjudged.' This language suggests the further established rule which is thus stated in 41 C.J.S., Husband and Wife, § 396, p. 880: ‘At common law neither spouse may maintain an action against the other for a tort committed before marriage. As the rule is usually stated, at common law marriage extinguishes the right of action for a personal tort committed by one spouse against the other before marriage, as, for example, where the woman who sustains the injury subsequently marries the tort-feasor, even though they were living apart at the time the action was commenced.’ Numerous cases to this effect are collected in 160 A.L.R. at page 192. Once purged by marriage such ante-nuptial torts are not revived by termination of coverture. 41 C.J.S., Husband and Wife, § 396c, p. 886; 30 C.J. § 319, p. 715.

Counsel for appellant argues that these authorities are inapplicable here because we deal with an annulment, saying ‘While a voidable marriage is valid unless and until annulled, the decree of annulment wipes out the marriage from the beginning, and is in effect an adjudication that no valid marriage between the parties ever existed.’ This is the crux of the case.

It is important in this connection to keep in mind the difference between void and voidable marriages, and the fact that we here deal with one which was voidable, not void. A marriage which is void needs no decree of annulment to establish the fact; it is open to attack at all times and in all places. 16 Cal.Jur.2d § 323, p. 629. But a voidable marriage is valid until annulled. ‘In the absence of a decree of annulment, it is valid, not only against the world, but also as between the parties. Coats v. Coats [160 Cal. 671], 118 P. 441 [36 L.R.A., N.S., 844]. A merely voidable marriage ‘must be treated as valid for all civil purposes until annulled by judicial decree.’ State ex rel. Scott v. Lowell, 78 Minn. 166, 80 N.W. 877, 46 L.R.A. 440, 79 Am.St.Rep. 358; Willits v. Willits, 76 Neb. 228, 107 N.W. 379, 5 L.R.A.,N.S., 767. It would appear to necessarily follow that, so far as the annulment proceedings are concerned, it must continue to be accepted as a valid marriage until the decree of annulment therein has become final.' Dunphy v. Dunphy, 161 Cal. 87, 89, 118 P. 445, 446. ‘In such cases the marriage is to be regarded as perfectly valid until the ground for the annulment is established.’ Tayian v. Tayian, 64 Cal.App. 632, 636, 222 P. 377, 379. This truth is exemplified by the rule that temporary alimony and suit money may be awarded in such an action. Dunphy v. Dunphy, supra, 161 Cal. at page 90, 118 P. 445; 16 Cal.Jur.2d § 337, p. 640. In the Dunphy case it was held proper to allow a defendant wife moneys to enable her to prosecute an appeal from a judgment annulling her marriage on the ground of plaintiff's mental incapacity.2 Property acquired during a voidable marriage is treated and apportioned as if it were community property. Turknette v. Turknette, 100 Cal.App.2d 271, 274, 223 P.2d 495; Coats v. Coats, 160 Cal. 671, 678, 118 P. 441, 36 L.R.A.,N.S., 844. Other applications of the concept of validity until annulment are found in Re Estate of Gregorson, 160 Cal. 21, 116 P. 60, L.R.A.1916, 697; In re Estate of Harrington, 140 Cal. 244, 248, 73 P. 1000; Linebaugh v. Linebaugh, 137 Cal. 26, 69 P. 616. The general rule is stated in 55 C.J.S., Marriage, § 35, p. 876: ‘Unless and until its invalidity is thus established, a voidable marriage is fully valid for all civil purposes * * *.’ See also 38 C.J. § 9, p. 1281; 35 Am.Jur. § 57, p. 220. Appellant's opening brief says: ‘Although the marriage of the Plaintiff to the Defendant was voidable, she was his legal wife so long as the marriage was not annulled by judicial decree. Until after the entry of such annulment decree, while Plaintiff was still Defendant's legal wife, she could not recover damages from Defendant for his tort * * *.’

It follows logically from the above-cited cases that annulment of a voidable marriage does not undo transactions or change the complexion of events occurring during its existence. If an assult committed during a valid marriage gives rise to no cause of action, the same rule should apply to a like event committed during the continuance of a conditionally valid one, commonly called voidable; the injured party to a voidable union has an election to waive the fraud and affirm and validate the marriage. And, as shown above, until an election to repudiate has been followed through to decree of annulment the marriage is valid for all civil purposes.

In the present instance the fraud lay in a secret intent not to consummate the union. But fraud without damage is not actionable. If defendant had changed his mind immediately after the ceremony and had then consummated the marriage no cause of action could have arisen, either for annulment or for damages.

It is only because of acts done or omitted after the marriage ceremony that any grievance, any damage to plaintiff, could arise and that would be during the time that the marriage was valid. There seems to be no sound distinction between the effect of divorce and annulment of a voidable union in the respect now under discussion. Pertinent authorities are few in number and they are conflicting. Before discussing them it is well to dispose of a generality appearing in the books, one inclined to mislead at bar.

It is thus stated in an annotation at page 531 of 62 A.L.R.: ‘The general rule appears to be that a woman has a right of action against a man with whom she has cohabited, on the ground of fraud in representing that they were lawfully married, when in fact either there has been no marriage at all, or the marriage was void because of his incapacity to marry.’ Similar statements are found in 38 C.J. § 142, p. 1362; Restatement of Law of Torts, § 555, p. 133; 35 Am.Jur. § 242, p. 343. The language seems broad enough to encompass an action for fraudulently inducing a voidable marriage as well as a bigamous (void) one. But examination of the cases cited in 62 American Law Reports, 38 Corpus Juris and 35 American Jurisprudence discloses that, with the exception of certain ones hereinafter specifically mentioned, each of the cited cases involved a situation in which there was no marriage at all or one which was void in the absolute sense, usually because one of the parties had a living spouse. A cause of action for damages lies in such cases as there is no marriage, no need for a decree of annulment, and no room for application of the rule of the Peters and similar cases, supra.

Cases which deal specifically with the effect of an annulment of a voidable marriage are Cohen v. Kahn, 263 App.Div. 728, 30 N.Y.S.2d 875; Henneger v. Lomas, 145 Ind. 287, 44 N.E. 462, 32 L.R.A. 848; Callow v. Thomas, 322 Mass. 550, 78 N.E.2d 637, 2 A.L.R.2d 632, annotated in 2 A.L.R.2d 637.3

In Callow v. Thomas, supra, the marriage was annulled for defendant's fraud through concealment of a contagious disease, the court adjudging the marriage to be ‘null and void.’ Before that time, while the parties were living together, plaintiff had been injured through negligence of defendant in operating an automobile in which both were riding. After the annulment plaintiff sued defendant for her personal injuries. The court stated the problem thus, 78 N.E.2d at page 638: ‘The question for decision is whether a wife after the marriage has been annulled can maintain an action against her former husband for a tort committed during coverture. The question is one of first impression in this Commonwealth.’ Then said: ‘That no cause of action arises in favor of either husband or wife for a tort committed by the other during coverture is too well settled to require citation of authority. Recovery is denied in such a case not merely because of the disability of one spouse to sue the other during coverture, but for the more fundamental reason that because of the marital relationship no cause of action ever came into existence. That this is so is revealed by the fact that it has uniformly been held that even after divorce no action can be maintained by either spouse for a tort committed by the other during coverture.’ At page 639: ‘In general it may be said that an annulment is to be distinguished from a divorce in that it is not a dissolution of the marriage but is a judicial declaration that no marriage has ever existed. In other words, the decree of annulment makes the marriage void ab initio. * * *

‘But the doctrine that such a decree makes the marriage void ab initio has not always been applied unqualifiedly. See Sleicher v. Sleicher, 251 N.Y. 366, 369, 167 N.E. 501, 502.’ After discussing certain English cases to the effect that ‘* * * such transactions as have been concluded and such things as have been done during the period of the supposed marriage * * * cannot be undone or reopened after the marriage has been declared null and void’, the court said, at page 640: ‘We are of opinion that the exception recognized in these cases is sound and that the present case falls within it. At the time of the accident the parties were husband and wife for all intents and purposes. Had no proceedings been brought to annul the marriage, this status would have endured until the marriage was terminated by death or divorce. In order words, the marriage here was voidable and not void and was valid until it was set aside by the decree of nullity. 1 Bish.Mar.Div. & Sep. §§ 258, 259, 271, 281; Anders v. Anders, 224 Mass. 438, 441, 113 N.E. 203, L.R.A.1916E, 1273; Sleicher v. Sleicher, 251 N.Y. 366, 369, 167 N.E. 501, 502.’ Also: ‘While it doubtless is true that a decree of nullity ordinarily has the effect of making a marriage, even one which is voidable, void ab initio, this is a legal fiction which ought not to be pressed too far. To say that for all purposes the marriage never existed is unrealistic. Logic must yield to realities. Public policy requires that there must be some limits to the retroactive effects of a decree of annulment. It was said by Cardozo, C. J., in American Surety Co. [of New York] v. Conner, 251 N.Y. 1, 9, 166 N.E. 783, 786, 65 A.L.R. 244, ‘The decree of annulment destroyed the marriage from the beginning as a source of rights and duties * * * but it could not obliterate the past and make events unreal.’ The better rule, we think, is that in the case of a voidable marriage transactions which have been concluded and things which have been done during the period of the supposed marriage ought not to be undone or reopened after the decree of annulment. Applying that principle here, the plaintiff is not entitled to recover. On the day after the accident if the plaintiff had brought suit against the defendant it could not have been maintained, for the marriage at that time had not been declared invalid. The situation was unaffected by the subsequent becree of annulment.'

Opposed to this ruling is Cohen v. Kahn, supra, 30 N.Y.S.2d 875.4 The wife there sued for damages for false representations as to defendant's health, which induced the marriage. The husband's challenge to the sufficiency of the complaint was overruled, the court saying: ‘Appellant contends that section 57 of the Domestic Relations Law, Consol.Laws, ch. 14, and section 37–a of the General Construction Law, Consol.Laws, ch. 22, do not give plaintiff a right to maintain the action. Her right to maintain this action arises from the fact that she is not and never was legally a married woman; therefore, she is not suing her husband and does not need the aid of either statute in order to maintain the action which she is legally entitled to maintain.’ At page 876. There is no further discussion and no recognition of the rule that the “doctrine of relation is a fiction of law adopted by the courts solely for the purposes of justice.' * * * The courts have shaped and restrained it in adaptation to its purpose.' Sleicher v. Sleicher, 251 N.Y. 366, 167 N.E. 501, 502.

Henneger v. Lomas, supra, 145 Ind. 287, 44 N.E. 462, 467, holds that an action for seduction will lie against the husband after the marriage has been annulled for his fraud. After concluding that the wife was ‘* * * entitled to bring an action against appellee, and have the same [the marriage] declared void by judicial decree’ the court disposed of our question in this brief remark: ‘After such decree had been rendered, she had the right to sue appellee for her seduction, the same as if she had never been married to him.’ The court relied upon Bishop v. Redmond, 83 Ind. 157, 160; but its reasoning is no more extended or enlightening than that of the Henneger case. The Supreme Court of the United States aptly observed in Sutton v. Leib, 342 U.S. 402, 410, 72 S.Ct. 398, 403, 96 L.Ed. 448, 456: ‘It is frequently said, as a legal fiction, that annulment makes the annulled marriage ceremony as though it had never occurred. That fiction is variously treated in different jurisdiction.’ This truth is illustrated by the cases just reviewed. We find the reasoning of Callow v. Thomas, supra, 322 Mass. 550, 78 N.E.2d 637, more convincing and we hold that no cause of action for damages arose at or after the event of marriage in this case; also that the subsequent annulment of this voidable marriage did not give birth to a cause of action which did not previously exist.

No other points raised in opposition to plaintiff's right to recover require discussion.

Judgment affirmed.


1.  These cases represent the weight of authority. See Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180; 27 Am.Jur. § 589, p. 191; 41 C.J.S., Husband and Wife, § 396, p. 877; Annotation, 89 A.L.R. 118; Annotation, 160 A.L.R. 1406.

2.  Two cases cited contra by appellant involved void marriages and hence are inapposite. They are Parmann v. Parmann, 56 Cal.App.2d 67, 132 P.2d 851; In re Cook, 42 Cal.App.2d 1, 108 P.2d 46; Millar v. Millar, 175 Cal. 797, 810, 167 P. 394, L.R.A.1918B, 415 does not support appellant's position.

3.  Alexander v. Kuykendall, 192 Va. 8, 63 S.E.2d 746, 749, discusses but does not actually decide the point, for the record did not disclose whether the marriage was void or voidable.

4.  This case is followed in Amsterdam v. Amsterdam, Sup., 56 N.Y.S.2d 19, 22; Saunders v. Saunders, Sup., 63 N.Y.S.2d 880, 882; Lee v. Lee, 184 Misc. 686, 57 N.Y.S.2d 97; Risikoff v. Risikoff, Sup., 120 N.Y.S.2d 776, 778.

ASHBURN, Justice pro tem.

SHINN, P. J., and VALLÉE, J., concur.