Mohrmann v. Kob

51 N.E.2d 921, 291 N.Y. 181, 149 A.L.R. 1274, 1943 N.Y. LEXIS 1041

• Court: New York Court of Appeals
• Decided: November 18, 1943
• Status: Published

Opinions

Lewis, J.

This appeal presents for decision a question expressly reserved by the opinion in Kaplan v. Kaplan (256 N. Y. 366). May an action for absolute divorce be maintained by the committee of an insane husband against the latter’s wife?

The marriage of the plaintiff, Amy E. Mohrmann and William G-. Mohrmann, on February 16, 1916, was followed after a brief interval by a separation of the parties. On June 1,1916, while living apart, they entered into a separation agreement under which the husband agreed to pay his wife a fixed sum each month for her maintenance and support. The husband conformed with the agreement until a date in 1921, when the required monthly payments ceased. By the present action the plaintiff-wife seeks to recover a sum in excess of $5,000 alleged to be due from her husband under the agreement for her maintenance from December 1, 1921, to October 31, 1941. The separation agreement upon which the action is based provides in part that — “ If the party of the second part [the wife] shall commit any act which shall entitle party of the first part to a divorce under the Laws of the State of New York, then upon stick divorce being obtained the provisions herein shall be null and void.” (Emphasis supplied.)

The defendant’s answer, after admitting allegations in the complaint that on'July 16,1923, the plaintiff’s husband, William GL Mohrmann was adjudged to be an incompetent person, pleads a number of affirmative defenses and counterclaims. Upon this appeal we are concerned solely with the fourth affirmative defense and counterclaim which alleges in substance that between June 1,1916, and the commencement of this action the plaintiff lived in adultery with a man who, during such relationship, became the father of “ several ” children born to the plaintiff. In addition there are pleaded allegations appropriate to an action for absolute divorce. (Civ. Prac. Act, §§ 1147, 1150, 1153.)

At Special Term, where the defendants responded to a motion by the plaintiff to strike from the answer several defenses and counterclaims, the fourth affirmative defense and counterclaim was stricken. The Appellate Division agreed with Special Term that the allegations of the fourth affirmative defense and counterclaim are insufficient in law as a defense but ruled that such allegations are legally sufficient to plead a counterclaim and modified the order accordingly. Upon granting to the plaintiff and the defendants separate motions for leave to appeal the Appellate Division certified the following questions for our decision: For the defendants — “ In so far as the Fourth Affirmative Defense contained in defendants ’ answer is concerned, was the order properly made? ” For the plaintiff — “ In so far as the counterclaim is concerned, was the order properly made ? ’ ’

At the outset it should be noted that we are not dealing with the ordinary matrimonial action in which a defendant spouse interposes a counterclaim for divorce. (Civ. Prac. Act, § 1168.) Here the plaintiff’s action is for money alleged to be due since 1921 under a separation agreement made in 1916 when, we may assume, both parties were competent and a valid marriage existed. By the fourth affirmative defense and counterclaim the defendants have pleaded facts upon which demand is made in behalf of the incompetent husband for an absolute divorce from the plaintiff. However, the demand for relief, predicated upon allegations found in the fourth affirmative defense and counterclaim, is — “that the defendant incompetent and the plaintiff be divorced and that their marriage be dissolved, and that such decree be entered nunc pro tunc as of the 1st day of June, 1916.” The defendants thus invoke the judicial process in 1941 to abrogate a valid marriage nunc pro tunc, as of June 1, 1916, because of the misconduct by the plaintiff wife alleged to have occurred on or since the latter date.

The function of orders nunc pro tunc is to correct irregularities in the entry of judicial mandates or like procedural errors. (Merrick v. Merrick, 266 N. Y. 120,122; Guarantee Trust & Safe Deposit Co. v. Philadelphia, Reading & N. E. R. R. Co., 160 N. Y. 1, 7.) “ When a ruling has in fact been made but is improperly evidenced by a defective mandate, or by no mandate at all, an appropriate and suitable order or judgment which manifests the existence of a determination may subsequently be granted to take effect as of the.date of such determination.” (Merrick v. Merrick, supra, p. 122.) However, an order nunc pro tunc may not serve to record a fact, such as a divorce, as of a prior date when the fact did not then exist. “A court has no power to have a new order or ruling so entered, thus bringing into the record an element which did not previously exist. The facts must exist, and then if the record of them is imperfect or incomplete, it may be amended, but if the record shows the actual facts then no order can be properly made changing them so as to take the place of an act that was required to be previously performed. While a court may record an existing fact nunc pro tunc, it cannot record a fact as of a prior date when it did not then exist. ’ ’ (Guarantee Trust & Safe Deposit Co. v. Philadelphia, Reading & N. E. R. R. Co., supra, p. 7; Stock v. Mann, 255 N. Y. 100, 103.)

In the present case no decree of divorce had been granted in 1916. Presumably a valid marriage between the plaintiff and William Gr. Mohrmann then existed. Indeed the plaintiff alleges in her complaint and the answer admits that such marriage took place on February 16,1916, and 1 ‘ that the plaintiff and defendant William Gr. Mohrmann were at all times and still now (sic) are wife and husband.”

If we rule, as did the Appellate Division, that the counterclaim now asserted in the incompetent’s behalf is sufficient in law as a pleading and the demand for relief thereunder is granted to the defendants, such an adjudication by an order nunc pro tunc would lead to the dissolution as of June 1, 1916, of a marriage which, upon conceded facts then existing, was valid. An order nunc pro tunc may not be put to such use.

We agree with Special Term and the Appellate Division that the allegations in the fourth affirmative defense and counterclaim upon which the defendants now seek an absolute divorce in behalf of the incompetent are not sufficient in law to consti tute an affirmative defense to the plaintiff’s action. (Galusha v. Galusha, 116 N. Y. 635, 643-645 and see Randolph v. Field, 165 App. Div. 279, 283.) Such an affirmative defense by the defendants gains no support from the separation agreement, quoted in part above, which by its own terms becomes “ null and void ” only “ upon such divorce being obtained ”.

There remains the question whether the allegations in the fourth affirmative defense and counterclaim are sufficient in law to plead a counterclaim for absolute divorce — not effective nunc pro tunc as of June 1,1916, but as of the date of the judgment herein.

In Kaplan v. Kaplan (supra), where the ruling was that an action for separation may be brought by an insane person through her guardian ad litem, it was pointed out in the opinion (per Lehman, J., p. 370) that “ before the statutory action for an absolute divorce was created, actions for separation or limited divorce might be maintained in behalf of an incompetent. In such actions the relief which may be granted is based upon the continued existence of the marriage tie.” In the present case, however, the counterclaim seeks an absolute divorce involving the dissolution of a valid marriage which was concededly entered into upon the free consent of both parties.

Unlike the statutory situation in Massachusetts and Rhode Island (see Annotated Laws of Massachusetts, vol. 6, ch. 208, § 7, and Garnett v. Garnett, 114 Mass. 379, 380, 381; Cowan v. Cowan, 139 Mass. 377, 378, 379; Thayer v. Thayer, 9 R. I. 377), we find nothing in the statutes governing divorce in this jurisdiction (Civ. Prac. Act, art. 68) which by express statement or by reasonable inference may be construed to authorize the committee of an insane person to institute an action designed to abrogate the relationship thus created. The State has a vital interest in the preservation of the marriage status — an interest which the Legislature has guarded jealously by the enactment of those statutes which govern divorce. We think the'ruling of the Appellate Division in this case goes beyond the letter of those statutes, which are declaratory of the public policy of this State as it relates to divorce, and thus invades a field reserved exclusively for the legislative function.

We know that one of the chief factors to be considered in dealing with the inception of the marriage relation is the volition of the two parties involved. Of no less importance is volition where that relationship is dissolved. Adultery does not ipso facto dissolve a marriage. There is eminent authority for the statement that — “ Though the fact of adultery be made out, it does not follow, as a matter of course, that a divorce is to be awarded; for the remedy by divorce is purely a civil and private prosecution, under the control and at the volition of the party aggrieved, and he may bar himself of the remedy, in several ways, by his own act.” (2 Kent’s Commentaries [láth ed.] pp. 100, 101.)

It is a matter of choice by the innocent party who suffers the ignominy of unfaithfulness by a spouse, whether the judicial process will be set in motion to bring about a severance of the marriage tie because of such infidelity. That choice may depend upon a variety of circumstances peculiar to each case. We mention only two: the injured party may choose to give the errant spouse the benefit of condonation ■ — • which, significantly, remains in this State a statutory defense to an action for absolute divorce (Civ. Prac. Act, § 1153, subd. 2); or, because of religious affiliation or for other reasons which satisfy the demands of good conscience, the injured spouse may regard the bond of marriage as indissoluble. In any event the choice thus to be exercised is a right of election which is personal to the injured spouse. •

It has been suggested that the authority granted to the committee of the property of an incompetent person by section 1377 of the Civil Practice Act is broad enough in scope to include an action for divorce on behalf of the incompetent. We think that when the Legislature by section 1147 of the Civil Practice Act limited to “ a husband or wife ” the right to “ maintain an action against the other party to the marriage to procure a judgment divorcing the parties and dissolving the marriage by reason of the defendant’s adultery ”, the statutory restriction thus placed upon the right to bring such an action was not relaxed by the provisions of section 1377. The committee of the property.of an incompetent has the duty of protecting the property of his ward and for that purpose has been given by section 1377 a general power to maintain in his own name “ any action * * * which the person with respect to whom he is appointed might have maintained if the appointment had not been made.” A statute conferring upon the committee of the property of an incompetent a general power should not be con strued to include the right to choose for the incompetent whether or not to ask the courts to dissolve the marriage tie in order to free the incompetent from its incidental obligations. It is our view that when the Legislature by section 1377 authorized the committee of the property of an incompetent person to bring “ any action or special proceeding ” in behalf of the incompetent, the use of the word “ any ” did not include an action for divorce which the Legislature has always treated separately and completely. (Civ. Prac. Act, art. 68; Erkenbrach v. Erkenbrach, 96 N. Y. 456, 463; Johnson v. Johnson, 206 N. Y. 561, 565; Waddey v. Waddey, 290 N. Y. 251, 253.)

An analogous situation, which also involves a personal right in which the element of volition is implicit, is the right of election granted to a surviving husband or wife to take an intestate share of the estate of a deceased spouse contrary to the terms of the decedent’s will. (Decedent Estate Law, § 18.) The right to such an election was granted by the Legislature (L. 1929, ch. 229) at a time when section 1377 of the Civil Practice Act was effective. If the Legislature had intended the scope of section 1377 to be as broad as has been suggested during our consideration of the present case there would have been no necessity to make special statutory provision by which the right of election in behalf of an incompetent might be exercised. That the Legislature did not so regard the scope of section 1377 is fairly to be inferred from the fact that when it was intended to grant in behalf of an incompetent spouse the right to make such an election the lawmakers, by express language, directed that ‘ ‘ the election as herein provided * * * may be made in behalf of an incompetent when authorized by the supreme court. ’ ’ (Decedent Estate Law, § 18, subd. 6.) With reference to the authority of a committee of the property of an incompetent person under section 1377 of the Civil Practice Act, to institute in behalf of an incompetent an action for the annulment of a marriage, see Walter v. Walter (217 N. Y. 439, 441-443).

In the present case, where the aggrieved spouse is an insane husband bereft of the ability to make intelligently the choice whether or not to seek a dissolution of his marriage, the fact is pressed upon us that unless a cause of action for divorce may be pleaded in his behalf by his committee, the plaintiff wife may subject him to grave injustice. The argument carries strong appeal but is more properly to be addressed to the Legislature. Until that body has enacted a statute which expressly or by clear implication authorizes a committee of an insane person to make that choice, the courts may not assume to grant that power. (See Mainser v. Avril, 108 Misc. 230, 232; Gould v. Gould, 141 Misc. 766, 768, 769; Matter of Babushkin [Hirsch], 176 Misc. 911, 912, 913; Stevens v. Stevens, 266 Mich. 446, 449; Birdzell v. Birdzell, 33 Kan. 433, 435, 436; Worthy v. Worthy, 36 Ga. 45, 46, 47; Mohler v. Shank’s Estate, 93 Iowa 273, 277-280; Dillion v. Dillion, 274 S. W. [Tex.] 217, 218-220; Higginbotham v. Higginbotham, 146 S. W. 2d 856 [Mo.] ; 2 Bishop on Marriage, Divorce and Separation [1891 ed.], §§ 523-525; 27 C. J. S., Divorce, § 89; 17 Am. Juris, pp. 290, 291, § 272; 70 A. L. R 964; 9 R C. L., Divorce and Separation, § 204.) We have not overlooked decisions to the contrary in foreign jurisdictions: Campbell v. Campbell, 5 So. 2d 401 (Ala.); Baker v. Baker, 5 Prob. Div. 142, 152, L. R. 1879-1880, Prob. Div. 142; affd. 6 Prob. Div. 12, L. R. 1881, Prob. Div. 12 (England).

A suggestion has also been made that the rights of the incompetent husband may be better protected by the interposition in his behalf of a partial defense in which are pleaded facts, including the husband’s incompetency, which have brought about a condition which it is said defeats the expressed intention of the parties that the separation agreement shall become null and > void upon the commission by the wife of an act of adultery which the husband successfully asserts as a ground for divorce. The validity of such a partial defense is not a subject which we may consider upon this appeal wherein the limits of our inquiry are fixed by questions certified by the Appellate Division. “ The questions which are certified limit the power of this court on review to answer such questions and no others.” (Bowlby v. McQuail, 240 N. Y. 684, 687. And see Grannan v. Westchester Racing Ass’n, 153 N. Y. 449, 459; Matter of McDonald, 211 N. Y. 272, 276.)

The order of the Appellate Division should be reversed and that of the Special Term affirmed, without costs. The question certified on the defendant’s appeal is answered in the affirmative. The question certified on the plaintiff’s appeal is answered in the negative.