Figoni v. Figoni

SHENK, J.

This is an action to have it declared that the marriage between the parties is void, for the custody and support of minor children and for a division of property acquired during the marriage relation.

The plaintiff is the niece of the defendant, the latter being a brother of the full blood of the plaintiff’s father. The parties participated in a ceremony of intermarriage at Redwood City on July 22, 1919. To this union were born two children, a daughter aged seven years and a son aged five years at the time the present action was commenced in February, 1927.

The court found that neither party knew at the time of said purported marriage, nor at any time thereafter until their separation on July 3, 1926, that the marriage was incestuous or in conflict with the laws of the state

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that the

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plaintiff mother is a fit and proper person to have the custody and control of the children and that the parties, subsequent to said marriage, accumulated by their joint efforts, and while they were living together as husband and wife, certain real property situated in the city of Palo Alto. On conclusions of law from the facts found the court entered judgment declaring said marriage null and void, awarded the custody of the children to the plaintiff, divided said real property equally between the parties and reserved the question of the support and maintenance of the children for further consideration upon motion of either party.

On this appeal from the judgment the defendant contends first, that the complaint fails to state a cause of action in this, that it purports to have been filed under section 82 of the Civil Code providing for the annulment of marriages when the action should have been brought, so it is claimed, under section 80 of the same code providing that “either party to an incestuous or void marriage may proceed, by action in the superior court, to have the same so declared”. There is no merit in the contention. The complaint alleged the facts, including that of the incestuous marriage, which, if true, called for some action on the part of the court. Although the complaint prayed for an annulment of the marriage it also prayed for general relief. The court treated the action as one brought under section 80 and “declared the marriage wholly null and void from the beginning”. No prejudice whatsoever was suffered by the defendant because of the alleged technical misuse of the terms “annul” and “annulment”. In fact, the commonly accepted meaning of those terms is to declare void or render invalid.