N.B. v. A.A. (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff (husband) filed a complaint for annulment in the Probate and Family Court. A judge granted an annulment and judgment entered for the husband. The defendant (wife) now appeals, contending that (1) the judge abused his discretion in failing to find that the husband was estopped to deny the existence of the marriage; (2) the judge erred in annulling the marriage where the impediment to the marriage had been removed during the marriage; and (3) the judge abused his discretion in denying the wife's motion for relief from judgment. We affirm.

Background. We summarize the facts as found by the trial judge.² The wife married her first husband in 1998. In 2002, the wife and the husband in the present case participated in a religious marriage ceremony officiated by a purported Imam. However, no marriage license issued, and the parties never entered into a legal marriage contract in accordance with Massachusetts law. Moreover, prior to the 2002 ceremony, the wife had not told the husband that she was still married to another man. To the contrary, she told the husband that she was divorced from her first husband.

In 2005, unbeknownst to the husband and approximately three and one-half years after the religious ceremony, the wife traveled to Ohio and obtained a decree of annulment of marriage to her first husband. The husband and the wife stopped living together in or around November 2006. The husband did not learn of her other marriage, the annulment of that marriage, or her misrepresentations until 2010.

In 2010, the husband filed the complaint for annulment. Approximately six months later, the wife filed a separate action for divorce. The divorce and annulment actions were consolidated for trial, which the wife did not attend. After trial, the judge found that the religious ceremony involving the husband and the wife “did not comply or comport with or otherwise satisfy the legal and/or statutory requirements for a valid legal marriage under the laws of the Commonwealth of Massachusetts.” He further found that the parties were “never legally married to one another as they failed to enter into a valid marriage contract with due legal ceremony.” Judgments entered on January 7, 2013, annulling the purported marriage and dismissing the wife's divorce action. In addition, judgment entered on November 21, 2014, in the husband's equity action filed in July 2013 against the wife for the assignment or division of property.

Discussion. The wife first argues that the judge erred or abused his discretion by failing to find that the husband was estopped to deny the existence of the marriage.³ The argument is unavailing. First, the wife did not appear at trial or introduce any evidence therein. Thus, the estoppel claim, raised for the first time on appeal, is deemed waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).⁴

Even assuming, arguendo, that the estoppel argument was not waived, the wife's reliance on Crease v. Crease, 34 Mass. App. Ct. 187 (1993), and Poor v. Poor, 381 Mass. 392 (1980), is misplaced. In Crease, the wife sought to divorce her previous husband and then married her new husband during the nisi period. Crease, supra at 188. As both the new husband and the wife knew that the “judgment of divorce was not absolute, and [the wife] was not free to marry,” we remanded that case to the trial court to determine whether estoppel applied. Id. In Poor, both the husband and the wife mistakenly believed that the wife's divorce from her former husband was valid, and the husband was estopped from denying the marriage. Poor, supra at 394-395, 397. Here, by contrast, the husband did not know at the time of the 2002 ceremony that the wife was still married to her former husband. Therefore, the equitable principles from Crease and Poor do not apply.

Next, the wife claims that the judge erred as a matter of law in entering a judgment annulling the parties' marriage where the impediment to the marriage had been removed during the marriage. This issue was not raised at trial, and is thus waived. See Carey, 446 Mass. at 285. Moreover, the argument ignores the judge's finding, supported by the record, that the ceremony involving the husband and the wife “did not comply or comport with or otherwise satisfy the legal and/or statutory requirements for a valid legal marriage” under Massachusetts law, and that the parties never entered into a valid marriage contract. As the marriage was void as a matter of law, the purported subsequent removal of the “impediment” was irrelevant to the judge's determination of the merits of the annulment complaint.

Finally, the judge did not abuse his discretion in denying the wife's motions for relief from judgment. The motions were not supported by any affidavit. Furthermore, the motion in the equity action was filed almost one year after the entry of judgment, and in the annulment action it was filed more than two years after the entry of judgment. In the context of this case, those motions were not “made within a reasonable time” as required under the rule. See Mass. R. Dom. Rel. P. 60 (b).

Judgments entered January 7, 2013, and November 21, 2014, affirmed.

Orders denying motions for relief from judgment affirmed.

FOOTNOTES

2.   None of the factual findings are challenged on appeal.

3.   We accept the judge's findings of fact unless clearly erroneous. See Cormier v. Carty, 381 Mass. 234, 236 (1980).

4.   We also note that the wife did not comply with Mass. R. A. P. 8 (b) (1), as amended, 430 Mass. 1603 (1999), or 8 (b) (3), as amended, 430 Mass. 1601 (1999), requiring that she order a transcript of the proceedings she seeks to challenge. See Doten v. Doten, 395 Mass. 135, 141 (1985) (“The judge made the required findings in this case, and, since the defendant has not ordered a transcript of the evidence, we must assume that those findings were adequately supported”).