Action by husband for annulment of his marriage to defendant on ground that she had a husband living at time marriage was contracted. The Superior Court, Sussex County, Herrmann, J., held that evidence of a Florida divorce decree which purported to dissolve defendant's prior marriage and was entered by default almost four months after plaintiff married defendant, was not sufficiently conclusive, alone, to overcome the potent presumption of validity of existing marriage between plaintiff and defendant.
[48 Del. 278] Daniel J. Layton, Jr., Georgetown, for plaintiff.
Everett F. Warrington, Georgetown, for defendant.
The plaintiff seeks annulment of his marriage to the defendant on the ground that she had a husband living at the time the marriage was contracted. See 13 Del.C. § 1551.
At the trial of the case, the plaintiff proved a ceremonial marriage between the parties on March 19, 1946, in Miami, Florida. He then offered in evidence a final decree of divorce, [48 Del. 279] granted on July 3, 1946 by the Circuit Court of Manatee County, Florida, by which Theodore William Correll, as plaintiff, was divorced from Elsie W. Correll. It is admitted that the defendant here was the defendant in the Florida action. The plaintiff offered no other evidence in support of the ground of his petition, contending that it is manifest from the face of the Florida divorce decree that the defendant had a husband living on March 19, 1946 when she married the plaintiff. The defendant contends that the plaintiff has failed to sustain the burden of proof imposed upon him in a case of this kind.
The Florida decree contained the following:
‘ This cause coming on to be heard on this day upon the Plaintiff's Bill of Complaint, the decree pro confesso which has been duly and regularly entered against the Defendant, and it appearing to the court and the court finding from the said Bill of Complaint and decree pro confesso that it has jurisdiction of the subject matter of and parties to this cause, that the relation of husband and wife now exists between the parties hereto, and that the defendant is guilty of willful, obstinate, and continued desertion of the plaintiff for a period of more than one year prior to the filing of the Bill of Complaint herein, and the court being advised in the premises, it is upon consideration,
‘ Ordered, adjudged and decreed that the marriage between the plaintiff, Theodore William Correll and Elsie W. Correll be and the same hereby is dissolved, and the said parties and each of them are hereby forever freed from the obligations arising therefrom.’
The plaintiff contends that the finding of the Florida Court, as to the husband-wife relationship of the parties to the Florida action, is not only proof adequate to support the petition here but, further, is proof binding upon this Court by virtue of 13 Del.C. § 1511.I am unable to agree.
[48 Del. 280] Delaware public policy forbids the annulment of a consummated marriage except upon the most convincing proof. Anonymous v. Anoymous, Del.Super. 85 A.2d 706. The law indulges a presumption in favor of the validity of an existing marriage when it is attacked upon the basis of a prior subsisting marriage. State v. Collins, 6 Boyce 260, 99 A. 87. The presumption of the validity of an existing marriage is the strongest of the several presumptions applicable in annulment actions. 3 Nelson, Divorce and Annulment, § 31.61. The strength of this presumption, and the special weight generally accorded to it in a case of this kind, is demonstrated by the oft-quoted statement of the Supreme Court of Idaho in Smith v. Smith, 32 Idaho 478, 185 P. 67, 69:
‘ The authorities all agree upon the following broadly stated rule: Where it is sought to invalidate a present existing marriage on the ground that one of the parties thereto was incapable of consummating a lawful marriage by reason of a former subsisting marriage, the proof of the latter, the burden of showing which is upon the party attacking the validity of the former, must be clear, convincing, and satisfactory. Or, in other words, an existing marriage being shown, the presumption of its validity is so strong that proof of a former subsisting ...