1. Petitioner's motion that defendant be forced to elect between her counter-claim of annulment because of non-age at the time of the marriage ceremony and non-ratification of the marriage thereafter, and her counter-claim of divorce on the ground of extreme cruelty, was well made. However, he is willing in this case to submit to a determination of the issues upon their merits, treating the question of pleading as academic.
2. The evidence falls far short of proving extreme cruelty by the petitioner.
3. The burden was on the counter-claimant that no acts of sexual intercourse took place after she became 18. She lived in her husband's home for one month thereafter. While the evidence is conflicting as to any such acts having taken place, the strong presumption is that they did. Circumstances other than the occurrence of sexual relations also support the conclusion of ratification and confirmation of the marriage after reaching the age of 18.
4. Desertion by defendant, held proved.
5. Ever since the parties separated, the child of the marriage has lived in this state with petitioner's sister. Counter-claimant now seeks its custody and proposes to take it to New York State. Held, under the circumstances and the public policy expressed in our statutes, the custody should not be changed, but counter-claimant will be given reasonable rights of visitation.
PER CURIAM.
The decree under review will be affirmed, for the reasons expressed in the opinion filed in the Court of Chancery.
For affirmance — THE CHIEF-JUSTICE, BODINE, DONGES, COLIE, WACHENFELD, EASTWOOD, WELLS, DILL, FREUND, McLEAN, JJ. 10.
For affirmance on the result — HEHER, RAFFERTY, JJ. 2.
For modification — McGEEHAN, J. 1.