Parks v. Parks

418 S.W.2d 726, 1967 Ky. LEXIS 224

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: September 22, 1967
• Status: Published

Opinions

CULLEN, Commissioner.

In this action John Parks sought annulment of his marriage to Rhea Mynatt Parks. The relief was denied and John has appealed.

Our statute, KRS 402.030, authorizes a court having equity jurisdiction to “declare void any marriage obtained by * * * fraud.” John alleged fraud in that Rhea falsely represented to him that she was pregnant. His undisputed testimony was that as a college student he became a boarder in the home of Rhea’s mother; at Rhea’s invitation he spent a weekend with her at Myrtle Beach, where they commenced having sexual relations on a basis of mutual desire; thereafter for a period of almost a year they engaged in sexual intercourse at frequent intervals at Rhea’s home; she then asserted she was pregnant and threatened him with expulsion from college and with punitive civil and criminal action if he would not marry her. John married her and after they had lived together for only a week he discovered that she was not pregnant and she then admitted that she never had any reasonable cause to believe she was pregnant, that she had represented she was pregnant for the sole purpose of inducing John to marry her. John thereupon left Rhea.

As shown by the annotation in 15 A.L.R. 2d at pages 726 to 728, and by the text in 4 Am.Jur.2d, Annulment of Marriage, sec. 41, pp. 467, 468, a number of states have held that a false representation of pregnancy upon which the husband was induced to marry is not a ground for annulment. The circuit court in the instant case adopted that view. The reasoning of the cases taking that view seems to involve a mixture of two concepts, one being that since premarital sexual intercourse is illegal the man who engages in it, being in pari delicto, may not complain to the courts of any misconduct of the woman growing out of it, and the other being that any single man who engages in sexual intercourse with a single woman owes a social obligation to marry her.

We are not convinced that the reasoning of those cases is sound. Since the claimed social obligation to marry arising from mutually voluntary sexual intercourse is nowhere considered a basis for any affirmative legal relief, we do not see how or why it should furnish a justification for fraud. As concerns the pari de-licto theory we do not believe that the pari delicto doctrine contemplates that the fact that two persons have engaged in an illegal act will forever preclude each from obtaining any equitable relief from fraud of the other simply because the fraud was made possible by reason of the illegal act. The courts should weigh the substance of the right asserted by the plaintiff against the transgression claimed to foreclose it. 27 Am.Jur.2d, Equity, sec. 141, p. 677.

The Supreme Court of Wisconsin has approved the granting of annulment in circumstances such as here presented. See Masters v. Masters, 13 Wis.2d 332, 108 N.W.2d 674. In accord is New York. See, Di Lorenzo v. Di Lorenzo, 174 N.Y. 467, 67 N.E. 63, 63 L.R.A. 92. We concur in the following reasoning of the Wisconsin Court in the Masters case (108 N.W.2d at 677, 678):

“The argument that the parties stand in pari delicto was advanced by the defendant wife in Winner v. Winner, supra, and was rejected by this court. With respect to such contention the opinion pointed out that such intercourse constituted a mere misdemeanor. We are of the opinion that the punishment inflicted by denying an annulment in cases of this kind is out of all proportion to the offense committed. In so holding, we do not condone in the least the plaintiff’s infraction of the moral code. Furthermore, by refusing an annulment the plaintiff would not be punished for the illicit intercourse, but rather for his laudable conduct in seeking to rectify a wrong he believed would result unless he did marry the defendant. There may be aggravated situations in which the doctrine of in pari delicto ought to be applied, such as was present in Gondouin v. Gondouin, 1910, 14 Cal.App. 285, 111 P. 756, in which the man induced the woman to submit to intercourse by his promise to marry her. This is not such a case.

“Whether to apply the doctrine of in pari delicto poses a question of public policy. The lone justification which we can perceive for here invoking such doctrine is that it might act as a future deterrent to unmarried persons engaging in illicit intercourse. If the thought of the unpleasant consequences, which are likely to befall the male participant should pregnancy result, or the fear of a criminal prosecution for fornication, are insufficient to deter him, we doubt very much that the example which would be afforded by denying an annulment in the instant fact situation would be any more effective. On the other hand, to deny an annulment would reward the defendant for a palpable fraud and punish the plaintiff for being victimized thereby in an effort on his part to right a wrong, which he was induced by the fraud to think would result if he did not marry the defendant. When the competing policy factors are so weighed, the scales of justice tip in but one direction. Therefore, we refuse here to apply the principle of in pari delicto.”

The pleadings and proof in this case show a clear case of fraud, accompanied with some coercion. It is our opinion that in these circumstances the plaintiff is entitled to an annulment.

The judgment is reversed with directions for the entry of judgment in conformity with this opinion.

All concur except OSBORNE, J., who dissents.