Behr v. Behr

⁴²⁴ Melvin, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court of Baltimore City dismissing the bill of complaint of the plaintiff (appellant) for the annulment of his marriage to the defendant (appellee) on the ground of fraud. The particular fraud alleged is that the defendant deliberately and deceitfully concealed from the plaintiff the fact that at the time of their marriage she was pregnant by another man. The answer of the defendant, by her guardian ad pitem, denies all the material allegations of the bill and avers that she and the plaintiff “cohabited” in June, 1941, and that her pregnancy was known to him all during his subsequent courtship, and that he is the father of the child which she bore on January 4, 1942. • At the taking of testimony the chancellor limited it to one issue, that of condonation, vel non.

He ruled that it is immaterial whether the husband or some other man is the father of the child, and rejectd the offers of testimony on this point when made on behalf of the plaintiff. The decree appealed from is, therefore, based solely on the chancellor’s decision as to condonation. The facts of the case on this issue are simple and clear. These parties were married on October 10, 1941, when he was over twenty-three years of age and she eighteen.

About ten days thereafter a photograph was taken of them standing together, which photograph was admitted without objection as an exhibit in these proceedings, and plainly shows the wife’s advanced state of pregnancy at that time. On November 14, 1941, they called at the office of Dr. Harry M. Moore at Glen Burnie, who told the husband that his wife “definitely showed a pregnancy of approximately four or five months’ duration,” and asked him “why he waited so long to get prenatal care for his wife.” She, in the presence of her husband, told the doctor that her last menstrual period was on June 3, 1941, and the latter then calculated the date of the expected birth to be March 10, 1942. The hus ⁴²⁵ band, himself, according to his own testimony, thereupon went to a hospital in Baltimore and made a deposit on a room for his wife for March, in accordance with a reservation previously made by Dr. Moore. He admits that the doctor did ask him why he had waited so long before bringing his wife to him and, also, that the date of expectancy was set for March 10, 1942.

He (the husband) said he knew that the average period of gestation is nine months, but claims that he and his wife both thought that the doctor had made a “mistake” in his calculations. He further admits, however, that he made no inquiry about this but left it for his wife to follow up, knowing that if she and the doctor were correct as to the March prognostication, the conception must have taken place in June, 1941, as she claimed. The child, born January 4, 1942, was professionally pronounced to be a “seven months baby.” Notwithstanding the husband’s knowledge of these facts, and specifically of his wife’s advanced pregnancy as of November 14, 1941, he continued to cohabit with her thereafter and by so doing condoned any pre-nuptial incontinence on her part. This condonation, in itself, leaves the husband without any standing in a court of equity and his suit for annulment of the marriage was properly dismissed on that ground.

There are other aspects of the case, however, which are proper to be considered on this appeal. In appellant’s brief it is stated that while the specific question of fraud as to a woman’s pregnancy at the time of her marriage has never arisen in this court, other forms of fraud have been held sufficient for repudiating a marriage and extended quotations are given from cases in support of this principle. However, in none of them do the facts point to condonation as the issue, nor to this particular species of alleged fraud as the basis for an annulment suit. Here, the court may assume to be true the husband’s allegation that at the time of his marriage the wife concealed from him the fact that she was then ⁴²⁶ pregnant, and also that he had not previously had intrcourse with her — thus stating a case for annulment for fraud — and yet find that this alleged fraud is removed as a basis of relief in the case because of his subsequent relations with his wife after knowing her condition.

This is the situation which prevails here. While marriage is a civil contract and not