In re Heilweil

Sherman, J. Petitioner brings this proceeding for the dissolution of his marriage under section 7-a of the Domestic Relations Law (added by Laws of 1922, chap. 279), upon the ground that his wife had absented herself for more than seven successive years without being known to him to be living during that time and that, all attempts to find her having proven unavailing, he believes her to be dead. Before the learned official referee to whom this matter was referred, the petitioner testified that after marriage in March, 1920, in New York city, the parties lived together at No. 108 West Sixty-ninth street, for about a year and a half, when on September 3, 1922, she left him and disappeared. When he returned home on that day, he found his trunk ransacked and his personal belongings taken, a note left by his wife stating: “ I am gone. No need to look for me.” The only communication thereafter received from her was inclosed in an envelope bearing the post-mark “ Detroit, Michigan, September 13,1922,” viz.: “ Just a line to let you know that I’m O. K. as I promised, but think it best that this should be the last. You may think that what I did seemed mean, but we were both unhappy and you will soon forget me, brace up, give yourself plenty of work, hope you feel better.” There is no issue of the marriage. Petitioner was manager of a restaurant in New York city at the time of the marriage. Respondent’s occupation had been the renting and exploiting of concessions at carnivals. After marriage, she took a position at this restaurant as hostess. She told petitioner that her father and mother were dead, and that she had an uncle living somewhere in Pennsylvania, but she had never disclosed her uncle’s address and had been reticent about her family.. About six days after her disappearance, petitioner discovered that she was at No. 249 West Fifty-second street, in New York city. Petitioner went to that address and showing a photograph of his wife to the landlady there learned that she had stayed there for a few days, living with another man. The record amply justifies the referee’s finding that “ petitioner has made diligent and frequent efforts to discover evidence of whether respondent is now alive or whether she has been known to be alive during the time since her disappearance, by making inquiries at her former place of residence and of mutual friends.” The learned official referee, however, concluded that petitioner was [612] not entitled to a final order dissolving his marriage because “ there is no Sufficient evidence, in view of the respondent’s deliberate desertion of her husband to warrant the conclusion that she is dead.” The decision below rests upon the erroneous view that the trier of the facts must be satisfied from the evidence that the departed spouse is dead before the order of dissolution of marriage may be granted. But the necessity of showing facts from which arise a presumption of death is not to be found in section 7-a of the Domestic Relations Law, which reads as follows: “ § 7-a. Dissolution of marriage on ground of absence. A party to a marriage may present to the Supreme Court a duly verified petition showing that the husband or wife of such party has absented himself or herself for five successive years then last past without being known to such party to be living during that time; that such party believes such husband or wife to be dead; and that a diligent search has been made to discover evidence showing that such husband or wife is living, and no such evidence has been found. The court shall thereupon by order require notice of the presentation and object of such petition to be published in the same manner as required for the publication of a summons in an action in the Supreme Court where service of such summons is made by publication; such notice shall be directed to the husband or wife who has so absented himself or herself and shall state the time and place of the hearing upon such petition, which time shall be not less than twenty days after the completion of the publication of such notice; and if the court, after the filing of proof of the proper publication of said notice and after a hearing and proof taken, is satisfied of the truth of all the allegations contained in the petition, it may make an order dissolving such marriage.” By- the enactment of this statute the Legislature provided a new method by which the marriage relation may be terminated upon proof of five years’ absence, without knowledge that the absent spouse be living, provided the petitioning husband in good faith believes her dead and a diligent search had been fruitless to discover that she was living. He may then enter into another marriage which would have validity. The statutes in existence at the enactment of the present statute must be considered. Former section 6 of the Domestic Relations Law provided that “ A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living, unless either: * * * (3) Such former husband or wife has absented himself or herself for five successive years then last past [613] without being known to be living during that time.” Subdivision 3 of that section was amended by chapter 279 of the Laws of 1922, to read as follows: “3. Such former marriage has been dissolved pursuant to section seven-a of this chapter.” Former section 7 of the Domestic Relations Law provided: “ A marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto: * * * 5. Has a husband or wife by a former marriage living, and such former husband or wife has absented himself or herself for five successive years then last past without being known to such party to be living during that time.” Subdivision 5 of that section was eliminated by section 2 of chapter 279 of the Laws of 1922. Part of its language is found in the present statute (section 7-a of the Domestic Relations Law). Petitioner would have had the right to remarry under the former sections of the Domestic Relations Law (§§ 6 and 7) if his wife had absented herself for five successive years without being known to him to be living. The marriage itself was voidable under section 7. The effect of the amendatory legislation is that the second marriage, when entered into after a dissolution by court order of the prior marriage, is valid. No longer does a marriage contracted by an individual whose spouse has been absent for five years without being known to him to be living become void only “ from the time its nullity is declared by a court of competent jurisdiction; ” the marriage is void ab initio if contracted without an order of dissolution previously obtained under section 7-a. The legislative aim apparently was to make the new union lasting rather than subject to being declared void, and the order is effective even if it should subsequently be shown that the deserting spouse was actually alive. If the Legislature had intended that the court should require evidence sufficient to warrant a finding or presumption of death before the dissolution procéeding could succeed, it would have said so. Section 341 of the Civil Practice Act permits such presumption to be drawn from an unexplained absence of seven years. No such language is found in the present statute or even in its predecessor, and the court may not read that requirement into the act. What is made of controlling importance is the good faith of the petitioner in bringing the proceeding and in believing that his wife was dead, together with proof of the exercise of proper diligence by him in an effort to locate her and find proof that she is alive. The jurisdictional facts being sufficiently shown, all that petitioner was required to do was to satisfy the court “ of the truth of all the allegations contained in the petition.” [614] Petitioner’s good faith cannot well be denied. Not he, but his wife, was the deserter. The element of desertion was considered an important fact in Frankish v. Frankish (206 App. Div. 301), where proceedings were brought under the present statute and relief was granted by this court. Proof of desertion, however, does not make the statute unavailable to the deserted spouse. It is a circumstance to be considered in passing on all the facts, including the good faith of petitioner, his honest belief in her death, and the sincerity of the efforts made to find her. As stated by the Appellate Division, Second Department, in Matter of Lane v. Lane (232 App. Div. 690), in reversing an order denying the petitioner’s application for an order of publication under section 7-a: “ The fact that continued absence of the missing spouse for five years last past was preceded by a voluntary desertion does not, as a matter of law, preclude a dissolution of the marriage.” Another case which points to the view that proof amounting to a finding of death is not a prerequisite to dissolution of marriage under section 7-a of the Domestic Relations Law, is Ruckert v. Lasher (209 App. Div. 672; affd., 240 N. Y. 578). There, plaintiff agreed "to sell to defendant certain real estate in Brooklyn, plaintiff describing himself in the contract as unmarried, having theretofore obtained an order dissolving his marriage with Emily S. Ruckert under section 7-a of the Domestic Relations Law; defendant refused to accept title, and the court held that he was justified in refusing to take title on the ground that the former wife’s dower in the premises sought to be conveyed was not barred by the order of dissolution. Apparently, petitioner’s good faith is, as above set forth, unquestioned. He searched for evidence of respondent at her former places of residence in New York city, questioned their mutual friends, inquired at various hotels, restaurants and amusement parks in Detroit, Mich., consulted the City Directory and invoked the aid of the police department in that city. He made inquiry at her former places of employment in New York city, at the branch post office at Sixty-ninth street and Amsterdam avenue in New York city, at the Health Department in all five boroughs in New York city, and at the morgue, and inserted many personal advertisements in the New York Times during November, 1929. It is not suggested that he should have done anything further to find her. All the provisions of the statute having been complied with and his belief in her death appearing to be sincere and honest, petitioner was entitled to the relief sought. “ The petition filed herein having contained the jurisdictional facts, and proof having been adduced which was uncontradicted and [615] apparently truthful sustaining those facts, it was the duty of the court to grant the relief prayed for.” (Frankish v. Frankish, supra, 306.) The order appealed from should be reversed and the relief prayed for granted. Finch, P. J., and Townley, J., concur; Meerell and O’Malley, JJ., dissent.