*1 Raphael J. Catalano, Maria et al. v. Catalano Catalano) Fred Administrator (Estate J., King, Murphy, C. Shea, Js. Baldwin, Mellitz February 9 April 20, 1961 decided Argued *2 D. Leo whom were Bernard Gaffney, V. with DiLoreto, and Frank Gaffney J. for the plaintiffs. Dixon, with C. whom were Ferdinand
Ralph Raymond Green, B. for the D’Esopo defendant. The to the Supe J. plaintiff appealed
Murphy, rior from for Court the action of the Probate Court the district of Hartford in her denying application a for for widow’s allowance from the estate support of Fred Catalano. The have parties stipulated to the facts, and the has reserved Superior Court the matter for the court.1 advice this
The material facts are Catalano, these: Fred widower and citizen of was on this married December 8, 1951, Italy niece, to the his plaintiff, an Italian subject. Such prohibited of the Italian by Civil but since the Code, obtained for the mar- legal dispensation from the Italian riage it was authorities, valid Fred returned to Italy. The country. plaintiff remained in Italy until when she Fred joined came to they Hartford, they lived until husband and wife his death in A son was born to the The couple. claims to plaintiff surviving spouse and, decedent as such, entitled to an allowance for under the support pro- visions 45-250 of the General Statutes.
The determination of the question propounded question upon which advice is desired is: “Was Maria surviving spouse Catalano the of Fred Catalano under the laws the State of Connecticut as of the date of his death on October qualified support and as such was she to receive under Section Statutes, 45-250 of the General Revision of 1958?” inter and judicial the interrelation upon
depends
53-223.2
46-6 and
statutes,
46-1,
of three
§§
pretation
uncle and
Legislation prohibiting
Assem
by
enacted
the General
niece was originally
Incestu
of “An Act to prevent
1702 as
bly
part
74; see
1702-1733,
Statutes,
p.
ous Marriages.”
It
Section “An con- act title, Acts of 1913 under Public of by Citizens the Celebration of Marriage cerning The first sec- Countries.” Foreign Connecticut in 46-6 sentence tion of is now first § 197 chapter 46-6 2. is footnote The portion § printed in the footnote has no application not printed is now 53-223 to the facts of this case. What § man No shall 46-1. marry. “See. kindred who shall not sister, granddaughter, marry grandmother, daughter, mother, Ms marry no woman aunt, stepdaughter, or shall niece, stepmother step- nephew, son, brother, uncle, grandfather, grandson, father, her any and, man or woman marries within stepson; if father or marriage shall void.” aforesaid, be degrees such “Sec. 46-6. ARE IN VALID. MARRIAGES FOREIGN COUNTRIES WHEN of this or both are citizens marriages one All where conformity country with the law of foreign in a celebrated capac- party legal provided each would have valid, country, be shall . .” marriage in this state. . ity to contract such marry or Every man and woman who “See. 53-223. incest. degrees Mndred of the other, being within carnally know each not imprisoned in the State Prison 46-1, shall in section specified years.” than ten more in a as an originally form, different adopted, integral part act 1702. punishment those within the kindred who prohibited degrees married knew each other therein carnally specified. Statutes, 1702-1733, p.
It is the a marriage rule that generally accepted where ceremony valid is is valid performed Davis, Davis everywhere. v. Conn. A. are, 574. There however, certain exceptions rule,
to that one which as invalid including regards incestuous closely between so marriages persons related their contrary strong public policy the domicil valid though celebrated. Restatement, Conflict of Laws (b).
That exception may be terms of a expressed or by statute necessary Pennegar implication.
State, 87 Tenn.
247,
Murphy v. Murphy, 249 Mass. 552, 144 555, N.E.
394.
To determine whether the instant is contrary ease to the public policy this it only necessary to consider be- marriages uncle tween and niece have been interdicted and declared void continuously since and 1702 that ever then since it has been crime for such kindred to
292 know each other. At carnally either marry 1951, time penalty plaintiff’s to be, for incest and it has continued was, imprison more than ten for not ment the state prison 52-223. General Statutes 1949, 8551; Rev. years. clearly reflects relatively high This penalty com of this cannot state. We strong public policy stat intent of our and disregard import pletely The in judicial law and utory legislation. engage though and Fred plaintiff Catalano, not in Con under its was valid Italy laws, valid it policy necticut contravened the public because Johnson, Johnson v. 57 Wash. this state. Watkins, Osoinach v. Ala. 106 P. 500; Brown, State St. 577; 102, 108, Ohio So. A.L.R. plaintiff N.E. 747; note, sur 45-250 qualify therefore cannot of Fred Catalano. viving spouse “No.” the question propounded We answer King C. J., Shea, Baldwin, concurred. Js., here We are (dissenting). dealing J.
Mellitz,
of a woman who was
status
with
who,
at the
her domicil and
validly married
place
entirely
innocent
discloses,
far as the record
so
laws of
Mrs.
to evade the
Connecticut.
intent
Italy
domiciliary
resident
Catalano
her
from America and married
her uncle came
when
to America soon
he returned
Italy. Although
Italy
to reside in
she continued
marriage,
after
to America
before she came
years
five
for almost
she
Connecticut, took
her residence
up
any-
There is no suggestion
to a son.
birth
*5
gave
at the
of the marriage
in
record that
time
the
the
to America,
parties
to come
intended
she
had
intention
in
to live
coining
Connecticut,
or that
the
entered into in
for
Italy
purpose
the laws of
If
evading
Connecticut.
a marriage
status
from a valid
resulting
marriage,
such as the one
is to
here,
destroyed,
issue
bastardized, and the relations of the
branded
parties
as illicit,
it should follow
from an
only
en-
explicit
actment of the legislature,
clear
giving
expression
to a
public policy
compels such harsh con-
sequences
ensue from a
into
entered
the circumstances disclosed here.
The cases cited in the majority opinion which deal
with the
we
question
have here are all cases where
went to a
state to
foreign
evade the law
of the domicil and the
celebrated in the
state was
foreign
refused
recognition
the place
of their domicil when they returned to live there
after the
marriage.
significance of this element
emphasized
in the
holdings
Washington
cases. The majority
Johnson v. John
cites
son, 89, 90, 106
Wash.
P. 500, to
its view,
support
Pierce,
Pierce but
ground Johnson marriage was clear case of evasion of laws. Pierce Washington case, the woman was found to be innocent of an intent evade Washington statute which prohibited di vorced from persons contracting within a certain time. The marriage, celebrated a foreign state, accorded recognition,
face of provision the statute that marriages contracted in violation of it, “whether contracted within or without state, [the] shall be void.” Wash.
Sess. Laws c. 94, 1. The positive inhibition of the statute was held to apply only to domicili arles of the court “If declaring (p. 625):
294 into is entered one who has in marriage by good
faith to another not for the jurisdiction, removed mere to the rigor evade purpose marriage of local to a domicile, but establish law, held v. Pennegar should be valid.” marriage State, 258, 305, 87 Tenn. 10 244, S.W. Ten true doctrine in
declares recognized is to nessee against according validity marriages who into another domiciled inhabitants have gone to a their by state celebrate forbidden 249 own state. Not did v. Murphy Murphy, only Mass. N.E. the celebration 552, 394, involve 554, 144 in in Massa Rhode Island of prohibited Act, chusetts but Evasion Marriage the Uniform in in the in effect Massachusetts and quoted in declared such void expressly opinion, c. Massachusetts. Mass. Acts 360, § amended, (1921). Mass. Gen. c. Laws, §10 in Watkins, Osoinach Ala. So. in Georgia, celebrated marriage, volved there in Alabama and returned who were domiciled after immediately marriage. to live marriages 46-1, prohibiting The provisions § apply of consanguinity, specified degrees within Connecticut to celebrated only marriages by the pro- are not extraterritorial given operation first sentence of 46-6, quoted 46-6. visions enacted was originally the majority opinion, It Acts of 1913. of the Public chapter 1 of invalidate or declare void not purport does in con- celebrated foreign marriages Connecticut is a It of the laws Connecticut. travention and declares valid statute validating in a foreign celebrated of Connecticut a citizen country, law with the conformity country legal would have capacity each party provided contract Connecticut. Capacity, the sense in the employed statute, defined in *7 Beale, of Conflict Laws 121.6, § as follows: “By to capacity enter into a is meant a marriage quality which legally prevents the in person question marrying anyone; it does not refer to some quality which the prevents particular marriage question, though the person may marry someone A else. of
typical is example capacity or nonage, a having A living spouse. typical of a example quality which the prevents particular marriage, the though per son has to capacity marry, is consanguinity.” That it is in this capacity sense which is meant in the first sentence of 46-6 finds confirmation in the fact under other that, portions of the a statute, valid of a foreign marriage Connecticut citizen requires, in addition to certain specified formalities, only that the parties have the qualities which entitle them to obtain a marriage license Connecticut.3 The of presentation the license certificate to the n officiatingclergyman operates to him give authority to celebrate the in the country. foreign in these Nothing provisions of the statute requires 3“See. 46-6. . . All marriages . when parties one both are state, citizens of foreign country, celebrated presence in the the ambassador or country minister to that from the United or in presence States of a consular officer of the United States country, place accredited to such at a jurisdic within his consular by any tion, clergyman ordained or licensed engaged in the work ministry any state of the United foreign States or in country, valid, provided shall be a license certificate, such as is by required laws of this shall have been obtained from the registrar of vital statistics the town in this state to which one or parties Tooth of the to such belong; registrar and such authorized to act such matter. presented Such license certificate clergyman operate to such shall as a for by license the celebration foreign him such in such country, provisions and the. n thelaws of this state shall apply to such a certificate, except license the return thereof registrar. shall be to made such . . persons have to be married under them
capacity particular in this to contract the requirement § 46-5, state. There is no prerequisite licenses, that, deals with obtaining relationship to license, to parties to be married should each other of registrar. If, there- made known or disclosed comply requirements with fore, pursuant a mar- thereto, a license 46-5 and obtain country foreign riage in a conform- celebrated recognized ity provisions 46-6 will be with the as valid. incorrectly majority gives § 46-6 *8 provisions Mar- of Uniform
the effect of the the riage never was 480, 9 U.L.A. which Act, Evasion approved in adopted in The act was this state. by of commissioners national conference 1912 provided: The first section on uniform state laws. intending residing person continue “If prohibited who is disabled or in this state to reside marriage this contracting of the laws from country and go state or into another state shall marriage prohibited declared there contract marriage by shall such laws void of purposes state with in this all null and void for be marriage prohibited though such same effect its act, The into in this state.” had been entered (1912), entirety, adopted Massa- in Vermont was (1915), (1914), (1913), Illinois Louisiana chusetts (1915). National Con- Handbook of and Wisconsin Laws, on Uniform State Commissioners ference adopted in p. (1943). first section was The “Marriage Taintor, See other states. eleven The 629. 607, L. Rev. 9 Vand. Laws,” Conflict aware, presumed to have been legislature must be yet it provisions act, uniform in 1913, did not that act. adopt it Instead, enacted 46-6. The of 46-6 language no bears resemblance to the of the uniform language 46-6 act, cannot effect given that a declaring marriage contracted and which foreign country would be if void entered into Connecticut shall have no force in this state.
I do not share the view that public policy this state requires warrants the result reached by the The majority. same kind of Burk, Fensterwald involved 129 Md.
A. writ of error dismissed, 248 U.S.
S. Ct. L. Ed. and the Maryland in a residents foreign jurisdiction was accorded Maryland recognition. statute pro- hibiting uncle and niece dates from Id., 138. The notes that opinion such a is not incestuous according to the gener- ally accepted Christendom. Beale ex- presses the view that such a is not so offensive the courts of the domicil will refuse if create status the contract was made at a place the marriage was valid. 2 Beale, Con- flict of Laws Matter May, also, 132.2. So, *9 305 N.Y. N.E.2d New York courts accorded to a recognition of uncle foreign marriage niece, the face of the of such a prohibition by the marriage laws New York, the court de- claring (p. 491) statute although applicable made a between uncle marriage and niece incestu- ous void, not by statute did terms express a regulate solemnized in another where and the legal, statute’s could not scope by judicial be extended construc- See Stevenson v. tion. Gray, Ky. 210. terms whatever “capacity,” the provi- may §of it to the
sions
be
relates
46-6,
conceived,
capacity
parties to
into the contract of
enter
marriage.
marriage,
the relation between
After
resting
longer
status,
became a
no
the Catalanos
merely
54, 55,
Allen,
Allen v.
73 Conn.
on contract.
generis.
A contract of
sui