Appeal from the Circuit Court of Du Page county; the Hon. MEL
ABRAHAMSON, Judge, presiding. Decree affirmed.
PRESIDING JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
On December 24, 1953, Florence E. Long filed, in the office of the Circuit Court of Du Page county, a statement of her intention to file a complaint against her husband for divorce, and on March 1, 1954, her complaint was duly filed. In this complaint, after alleging her marriage to the defendant on November 1, 1952, and the birth of their son on March 21, 1953, she charged that the defendant wilfully deserted and abandoned her without any reasonable cause on November 1, 1952, and that his desertion had continued without interruption for the space of more than one year. Her complaint alleged that the defendant was an able-bodied, healthy man and prayed for a divorce, the care, custody and education of the minor child and that she be awarded attorney fees, together with support and maintenance for herself and child.
A summons was duly issued and a copy of the complaint was duly served on the defendant in Boulder, Colorado. The defendant did not appear and on June 2, 1954, a default was entered against him and on June 22, 1954, a hearing was had, resulting in a decree of divorce. This decree reserved the question of support.
Thereafter a petition for support of the minor child and for attorney fees was filed by the plaintiff and on July 22, 1954, the defendant entered his appearance and moved to vacate and set aside the default and the original decree. This motion was heard and sustained and on September 10, 1954, the order of default was set aside, the decree vacated and the defendant granted leave to answer the complaint. The defendant answered and filed a counterclaim, which was afterward amended. By his answer, the defendant admitted that he was a resident of Du Page county, alleged that he participated in a pretended or sham marriage ceremony with the plaintiff on November 1, 1952, and stated that he and the plaintiff agreed that they would never live together as husband and wife and averred that after the marriage ceremony they immediately separated. His answer denied the other allegations of the complaint.
The amended counterclaim recited that the counterclaimant was a minor and appeared by his father and next friend. He alleged that a pretended or sham marriage between him and counter-defendant was solemnized in Du Page county, Illinois, on November 1, 1952, and averred that at the time of the said pretended marriage, the counterclaimant had not arrived at the age of eighteen years, having been born on April 16, 1935. He further averred that the parties had never lived or cohabitated subsequent to the marriage and concluded that, therefore, the marriage had never been consummated. The prayer of the counterclaim was that the marriage be declared null and void.
The reply of Florence E. Long to this amended counterclaim admitted the marriage and averred that she had no opinion as to the date of her husband's birth, but called for strict proof and alleged that it appeared from the application for their marriage license, which was filed in the office of the County Clerk of Du Page county on October 31, 1952, that Michael J. Long, her husband, was born on April 16, 1934, at Chicago, Illinois, and that this fact appeared from the affidavit of Veronica Long, the mother of Michael J. Long. By her reply, she admitted that she and her husband never cohabited subsequent to the marriage, but denied that the counterclaimant was entitled to any relief and asked that the counterclaim be dismissed.
Upon a hearing, the chancellor entered a decree, which, after making the jurisdictional findings, found that the equities were with the plaintiff and that she had established all the material allegations of her complaint and that the defendant had deserted the plaintiff without any reasonable cause, as alleged. The decree also found that as a result of the marriage, Frank Long was born on March 21, 1953; that the plaintiff was a fit and proper person to have the care, custody, control and education of said child and that she was entitled to reasonable allowance for his care and maintenance and that the defendant was sufficiently able to pay the same. The decree dismissed the counterclaim for want of equity, dissolved the marriage, as prayed in the original complaint, awarded the sole care, custody and control of the minor to the plaintiff and directed the defendant to pay the plaintiff $20 per week for the support and maintenance of said minor child, together with $100 attorney fees within ninety days from the entry of the decree. To reverse this decree, in so far as it dismissed the counterclaim of defendant for annulment, Michael J. Long, the counterclaimant, appeals.
It is insisted by counsel for appellant that the evidence in this record discloses that at the time of appellant's marriage, he was seventeen years of age and therefore could not enter into a binding marriage contract: that he never lived with appellee either before or after he attained eighteen years of age and therefore the chancellor erred in dismissing his counterclaim.
Counsel for appellee insist that whether appellant was or was not eighteen years of age at the time of the marriage was a question of fact which the trial court resolved against appellant's contention; that both parties recognized the validity of this marriage at the time and long after the ceremony was performed and appellant, by his conduct is estopped from questioning its validity.
Under the provisions of our statute male persons of the age of twenty-one years and upwards and female persons of the age of eighteen years and upwards may contract and be joined in marriage: that a male person of eighteen years of age and upwards may also contract a legal marriage if the parent of such person shall appear before the county clerk in the county where such minor person resides and shall make affidavit that he or she is the parent of such minor and give consent to the marriage. Such parent shall, when giving consent to such marriage, make an affidavit as to the date and place of birth, and place of residence of such minor and shall submit such proof of such minor's age as the county clerk may deem necessary to comply with the purposes of this act, provided, further that this act shall not repeal any act or portion of an act entitled "An Act Concerning Bastardy." (Ill. Rev. Stat. 1951, chap. 89, sec. 3.)
The record in this case shows that on November 1, 1952, the parties hereto applied to the county clerk of Du Page county for a marriage license. In this application, to which appellant subscribed his name, he swore, before the county clerk of Du Page county, that he was born on April 15, 1934, and was eighteen years of age at the time he made his application. Upon the hearing in the trial court a certified copy of appellant's birth certificate was offered and admitted in evidence, and this birth certificate indicated that appellant was born on April 15, 1935. On the reverse side of the application of the parties for this marriage license is the affidavit of Veronica Long to which she subscribed her name and to which she was sworn by the county clerk. This affidavit recited that affiant was the mother of appellant; that she gave her consent to his marriage with appellee; and that appellant was born on April 15, 1934.
Upon this application a marriage license was duly issued, and the parties to this proceeding were married at the home of appellee in the early evening of November 1, 1952. The wedding was attended by the respective mothers of the parties. Following the ceremony, appellant left with his mother and, after taking his mother to her home, returned to the home of appellee, and in response to her counsel's question, "Did you go out with him that night?" appellee replied, "That's right." She further testified that later that evening appellant brought her back to the home of her parents and after the night of November 1, 1952, she had not seen her husband and had never lived with him.
In Matthes v. Matthes, 198 Ill. App. 515, an amended complaint was filed on November 6, 1913, by Herbert Matthes to annul his marriage alleged to have been contracted when he was under eighteen years of age. His complaint further alleged that he did not enter into said marriage voluntarily but was compelled to do so by force and duress. The answer of the defendant neither admitted nor denied plaintiff's age as alleged but stated that on information and belief plaintiff was older than eighteen years at the time the marriage ceremony was performed on March 20, 1913; that immediately thereafter the parties began living together as husband and wife and continued to do so until about May 23, 1913, and that thereafter a child was born. Upon a hearing the trial court dismissed the complaint for want of equity.
In affirming the decree of the Superior Court, the Appellate Court said (p. 523): ". . . When our Legislature designated who may contract marriage, it was their intention to raise the age of discretion or consent from fourteen and twelve years, as established by the common law, to that of eighteen and sixteen years respectively; therefore, if a marriage is performed between people under such age, it may be annulled by either party before arriving at the age of consent. Necessarily, if after arriving at the age of consent, the parties should continue the marriage relation, then they must be considered to have ratified same and the marriage thereby becomes valid and binding." Further on the court quoted from Phelan v. Hyland, 197 Ill. 395, 397, and Calvert v. Carpenter, 96 Ill. 63, 67, and said (p. 525): "The chancellor found for the defendant. He saw and heard the witnesses testify and was in a more advantageous position than we now are to determine where the ...