213 Conn. 637 | Conn. | 1990
This is an appeal from the trial court’s denial of the plaintiffs and the defendant’s motion to open the 1984 judgment of annulment of their 1983 marriage in Connecticut. We transferred this case from the Appellate Court to this court pursuant to Practice Book § 4023. We find no error.
The factual background that generates the issue to be decided is the following. The parties, David Singh (husband) and Seoranie Singh (wife), were married on January 13,1983, in Hartford. In their complaint, seeking an annulment, they alleged that their 1983 marriage was entered into “upon the mistaken belief by both parties that they were not related,” but “they [had
Thereafter, in November, 1988, both parties filed a motion to open the judgment. That motion alleged that, although the judgment found that they were uncle and niece and, therefore, not legally qualified to marry, in fact, since the wife’s mother is the husband’s half sister, the wife is the husband’s half niece and not his niece. The parties also maintained that they sought the annulment only because of the advice of counsel that their marriage was, “without question,” incestuous and void under our statutory scheme. See General Statutes §§ 46b-21,
The trial court, Kline, J., denied the motion to open the judgment of annulment. In doing so, it found that the wife was the daughter of her husband’s half sister and that this half sister and the husband were descended from a common mother but different fathers. It noted that while there were some Connecticut cases
The issue to be decided is whether a marriage between persons related to one another as half uncle and half niece is incestuous under our statutory scheme and, therefore, void. See General Statutes §§ 46b-21, 53a-191. The parties maintain that such a marriage is not incestuous under our statutory law. The attorney general, who appeared as an amicus curiae, argued to the contrary. The determination of this question involves the interrelation and judicial interpretation of two statutes, §§ 46b-21 and 53a-191. This case, unlike State v. Skinner, 132 Conn. 163, 43 A.2d 76 (1945), or State v. Moore, 158 Conn. 461, 262 A.2d 166 (1969), to which counsel have referred, does not come before us on appeal from a conviction of the crime of incest.
Historically, marriage between certain relatives “has been disfavored by all nations during all ages.” F. Keezer, Marriage and Divorce (3d Ed. 1923) § 170; 1 C. Vernier, American Family Laws (1931) § 37; 1 H. Clark, Law of Domestic Relations in the United States (2d Ed. 1987) § 2.9; see Gould v. Gould, 78 Conn. 242, 244, 61 A. 604 (1905). Although incest was punished by the ecclesiastical courts in England, it was not an indictable offense at common law and punishment was left entirely to the ecclesiastical courts. See Peoples. Baker, supra; Cecil v. Commonwealth, 140 Ky. 717, 719, 131 S.W. 781 (1910); State v. Jarvis, 20 Or. 437, 439, 26 P. 302 (1891); 4 Blackstone Com. 4. “The ecclesiastical courts followed the interdiction of Levitical law which prohibited marriages between persons more closely related than fourth cousins unless a dispensation was procured from the Church of Rome; no distinction was made between persons related by affinity or consanguinity.” People v. Baker, supra, 49; see Butler v. Gastrill, Gilbert’s Rep. 156, 156-57, 25 Eng. Rep. 110 (1721); State v. Tucker, 174 Ind. 715, 718-19, 93 N.E. 3 (1910). In 1540, during the reign of Henry VIII, a statute was passed regulating the degrees of relationship within which marriage was illegal. See 32 Henry 8, c. 38. That statute limited the prohibitions against marriage to relatives closer than first cousins, and although the ecclesiastical courts approved of the statute, the courts continued to make no distinction between relatives by consanguinity or affinity. People
The initial departure of the American jurisdictions from the English law was to declare incest a crime. The crime of incest is purely statutory, and most states have a statute making it a crime. The statutes delineating incestuous relationships departed from the ecclesiastical law in two respects. The majority of states extended the criminal prohibitions to first cousins and beyond while other states imposed criminal penalties only where the relationship was that of consanguinity. People v. Baker, supra; F. Keezer, supra, §§ 171 and 172, pp. 220-22. As will be seen, Connecticut’s incest statute followed the former course. While these statutes may vary in detail, they generally define incest as marriage or sexual intercourse between persons too closely related in consanguinity or affinity to be entitled to marry legally. See 72 A.L.R.2d 706.
In Connecticut, incest has been a crime since the incest statute was enacted in 1702 as part of “An Act to prevent Incestuous Marriages.” General Statutes (1702-1733), p. 74; see Catalano v. Catalano, 148 Conn. 288, 290, 170 A.2d 726 (1961); Gould v. Gould, supra, 246. The 1702 act
Initially, the parties claim that the trial court erred by adhering to a line of cases dating from the interpretations of the incest statute during the reign of Henry VIII
It is clear that § 46b-21 does not contain any language that expressly distinguishes between relatives of the whole blood and the half blood. It is also clear that although § 46b-21 is a civil statute, its interrelationship with § 53a-191, the criminal statute prohibiting incest, is such that both statutes may fairly be said to be in pari materia and so § 46b-21 is to be construed in this case in harmony with the law of which it forms a part. See Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 575,
In our analysis, it is proper to explore further the state of the law as it was at the time that our incest statute was enacted in 1702. The fundamental case explicating the ecclesiastical law as it was deemed at the time was Butler v. Gastrill, supra. That case, which was decided in 1722, said: “And when we consider who are prohibited to marry by the Levitical Law,
There has been no substantive change since that time in our incest statute insofar as the degree of consanguinity within which marriage is proscribed. That is not without significance. Indeed, implicating the issue before us, in 1961, we said: “It has been the declared public policy of this state continuously since 1702 to prohibit marriages of uncle and niece and declare them void.” Catalano v. Catalano, supra, 290. Our decisional law under the incest statute has been sparse. In Catalano, we held invalid a marriage between an uncle and a niece under our statutory scheme although the marriage was valid in Italy where it was performed. In that case, we noted that the “generally accepted rule” was that a marriage valid where the ceremony was performed was valid everywhere. Id., 291. We pointed out, however, that there were certain exceptions to the rule, including one which regarded as invalid incestuous marriages between persons so closely related that their marriage was contrary to the strong public policy of the domicil. Id. In that context, we said: “That exception may be expressed in the terms of a statute or by necessary implication.” Id.
Besides Catalano, two other cases merit discussion. In State v. Skinner, 132 Conn. 163, 43 A.2d 76 (1945), we held that the relationship of brother and half sister was comprehended within the degrees of relationship forbidding marriage under the incest statute. In that case, we rejected the defendant brother’s claim that the relationship of half sister did not come within the statutory prohibition. Id., 165. In doing so, we pointed out that the defendant “admitted in his brief that all the cases which [his counsel] have found are to the con
In State v. Moore, 158 Conn. 461, 464, 262 A.2d 166 (1969), the defendant had been found guilty of incest
The parties stress that Moore is very supportive of their position. We do not agree for several reasons. First, the fact pattern in Moore was different from that in both Skinner and Catalano, as in the latter two cases, unlike Moore, a blood relationship was involved. Second, in Moore, we referred to Skinner, noting that, in Skinner, we not only pointed out that the relationship .in that case “is embraced within the meaning of the statute” but also that in that relationship there was the element of consanguinity. State v. Moore, supra. In Moore, the element of consanguinity was absent but that of affinity was present. Moreover, in Moore, we did not qualify our holding in Skinner but acknowledged its viability. Finally, in Moore, we were not called upon to decide whether the statute proscribed marriage between two persons where each was a relative of the half blood although Skinner, fairly read, was a step in that direction.
Nor do we overlook, in reaching our conclusion, those cases that the parties urge us to rely upon in reaching “a more modern approach” to the construction of our incest statute. This approach, they claim, is one which
The parties place the greatest stress on People v. Baker, supra. A close reading of that case demonstrates that it is clearly inapposite. That case was an incest prosecution against Baker who had had sexual relations with his niece who was related to him by the half blood; that is, her mother was the defendant’s half sister. The trial court found him guilty of incest. His principal claim on appeal was that the prohibition in California Penal Code § 285
The Baker court addressed the earlier case of People v. Womack, supra. Womack posed the question whether an admitted act of sexual intercourse between the defendant Womack and the fourteen year old daughter of his half sister was incestuous under the same statutory scheme that existed in Baker. The California Court of Appeals had affirmed Womack’s conviction of incest. In doing so, it construed the statutory scheme to include the defendant and the victim
Finally, the parties refer us to State v. Bartley, supra, but that Missouri incest decision hardly buttresses their claim. The defendant Bartley, who had been convicted in the trial court, was a half brother of the mother of the young woman with whom he had had sexual intercourse, the relationship being that of uncle and niece of the half blood. The Missouri statute defining incest provided in part: “Persons within the following degrees of consanguinity, to wit: Parents and children, including grandparents and grandchildren of every degree, brothers and sisters of the half as well as of the whole blood, uncles and nieces, aunts and nephews, who shall intermarry, or who shall commit adultery or fornication . . . shall be adjudged guilty of incest. . . . ” (Emphasis added.) Id., 61. In reversing the conviction, the Missouri Supreme Court adopted a strict construction of the statute against the state saying, inter alia, that “[n]o one is to be made subject to such statutes by implication” and “[wjhere one class of persons is
In addition, the parties suggest that holding marriages between uncles and nieces of the half blood valid will place more emphasis on the rights of criminal defendants and the importance of preserving bona fide marriages against the undue extension of statutory categories. At the outset, we should point out that in this appeal there are no claims that the statutory scheme involved is unconstitutional. Moreover, this appeal does not come to us as a criminal matter. We are, therefore, disinclined to give any opinion, without any factual predicate, what effect upholding the parties’ “more emphasis on the rights of criminal defendants” claim; because to do so would amount to an advisory opinion. Also, on that branch of their claim, we point out here, as we did in Lomas & Nettleton Co. v. Waterbury, 122 Conn. 228, 234, 188 A. 433 (1936), that “[l]aw suits are not determined by a consideration of philosophy in the abstract, but by the application of legal principles to the facts of a particular case.”
Connecticut has its statutory scheme in place to implement its policy of delineating the relationships between persons under our jurisdiction who may properly enter into marriage. It has been for many years and still remains the declared public policy of the state. See Catalano v. Catalano, supra. The degrees of relationship within which marriages are prohibited are not, from what we have already said, words of art. Fairly read, the prohibition against intermarriage of those
There is no error.
In this opinion the other justices concurred.
General Statutes § 46b-21 provides: “(Formerly See. 46-1.) kindred WHO MAY NOT MARRY. No man may marry his mother, grandmother, daughter, granddaughter, sister, aunt, niece, stepmother or stepdaughter, and no woman may marry her father, grandfather, son, grandson, brother, uncle, nephew, stepfather or stepson. Any marriage within these degrees is void.”
General Statutes § 53a-191 provides: “incest: class d felony, (a) A person is guilty of incest when such person marries a person whom such person knows to be related to such person within any of the degrees of kindred specified in section 46b-21.
“(b) Incest is a class D felony.”
Despite this second marriage, the parties went on to contend in their motion to open that they would still face a “painful two year separation” unless the annulment judgment was opened. The reasons they advanced to support this latter claim of the two year delay was, they claim, due to certain amendments in November, 1986, to the Immigration and Nationality Act. The wife was a citizen of Guyana when she remarried her husband. She had been cited by the immigration authorities for exclusion as an “overstay” and was therefore precluded from applying for an “adjustment status” to permanent residency based on that marriage. Consequently, she will have to return to Guyana and cannot initiate an “adjustment status” application until she has completed two years of residence outside the United States. They emphasize in their motion that “their relationship has nothing in common with so-called ‘green card marriages.’ ”
A “green card” is a document which evidences an alien’s permanent residence status in the United States. See United States v. Carpentier, 689 F.2d 21, 23 n.5 (2d Cir. 1982).
In this context, the trial court specifically referred to State v. Skinner, 132 Conn. 163, 43 A.2d 76 (1945), Catalano v. Catalano, 148 Conn. 288, 170 A.2d 726 (1961), and State v. Moore, 158 Conn. 461, 262 A.2d 166 (1969). It also referred to an opinion of the attorney general concerning the validity of a marriage between an uncle and his half niece under General Statutes (1930 Rev.) § 51-48, the precursor of the present statute, General Statutes § 46b-21. See 19 Opin. Atty. Gen. 281 (1935).
Counsel have also stressed our decision in Catalano v. Catalano, 148 Conn. 288, 170 A.2d 726 (1961), which was an appeal from a probate decree, that required our interpretation of three statutes, i.e., the precursors of General Statutes §§ 46b-21 and 53a-191, as well as General Statutes § 46-6 (“when marriages in foreign countries are valid,” now General Statutes § 46b-28).
“The Acts and Laws of His Majesty’s Colony of Connecticut in New England, Revision of 1702” contains: “An Act to prevent Incestuous Marriages” and provides in part: “That no man shall marry any woman within the degrees hereafter named in this Act, That is to say, No man shall marry
The legislature, however, has had the statute before it in recent years. In 1978, it changed the third word of General Statutes § 46b-21 from “shall” to “may” after the words “No man” as well as after the words “no woman.” Public Acts 1978, No. 78-230, § 3. At the same time, it amended the second sentence to provide: “Any marriage within these degrees is void” instead of “and, if any man or woman marries within the degrees aforesaid, said marriage shall be void.”
Henry VIII (1491-1547) reigned as King of England from 1509 to 1547.
Here, the parties refer us to three cases: People v. Baker, 69 Cal. 2d 44, 442 P.2d 675, 69 Cal. Rptr. 595 (1968); People v. Womack, 167 Cal. App. 2d 130, 334 P.2d 309 (1959); and State v. Bartley, 304 Mo. 58, 263 S.W. 95 (1924). Bach of these cases is inapposite as we point out later in this opinion.
“A fair interpretation” of the statute of 32 Hen. 8, c. 38 has been said to forbid marriage outside the Levitical degrees. 1 J. Bishop, Marriage, Divorce and Separation (1891) § 737; see 1 J. Schouler, Husband and Wife (1882) § 15. The Levitical degrees are those degrees of kindred between a man and a woman which bar their marriage to each other as those degrees are set forth in the eighteenth chapter of Leviticus. Black’s Law Dictionary (5th Ed.); Ballentine’s Law Dictionary (1969).
Long ago, albeit in a different context (the construction of a statute as to who would take in the event of a “lapsed” devise or legacy under a will) the only issue was whether the word “brother” or “sister” as used in that statute included half brothers. Seery v. Fitzpatrick, 79 Conn. 562, 65 A. 964 (1907). In Seery, we said: “In England it has long been settled that whenever the word ‘brother’ or ‘sister’ is used in a statute without limitation [as in the statute in Seery], it includes half-brothers or half-sisters respectively.” Id., 563.
General Statutes § 53-223, at the time of State v. Moore, 158 Conn. 461, 262 A.2d 166 (1969), provided: “Every man and woman who marry or carnally know each other, being within any of the degrees of kindred specified in section 46-1, shall be imprisoned in the State Prison not more than 10 years.”
California Penal Code § 285, which was enacted in 1872 and amended only in 1921, provided at the time of People v. Baker, 69 Cal. 2d 44, 442 P.2d 675, 69 Cal. Rptr. 595 (1968), as follows: “Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit fornication or adultery with each other, are punishable by imprisonment in the state prison not less than one year nor more than fifty years.”
As to that, the court in People v. Baker, 69 Cal. 2d 44, 47, 442 P.2d 675, 69 Cal. Rptr. 595 (1968), said: “More commonly, the statute condemns various relationships without specifying the ‘wholeness’ of the blood as to any of them. In all reported decisions construing such a statute, the courts have extended its bans to uncles and nieces of the half blood by reasoning that ‘uncle’ in ordinary usage of the word includes a person of the half blood, and/or that under other statutes, relatives of the half blood are given the same legal status as those of the whole blood. . . . Either rationale is inapposite where the statute, as is true of Civil Code section 59, specifically deals with some half blood relations and not with others.” (Citations omitted.)
The fact that the General Assembly has expressly provided in 1987 that “[relatives of the half blood shall take the same share under [General Statutes § 45-276, entitled ‘Distribution when there are no children or representatives of them’] is not in conflict with this conclusion. The 1987 statute, Public Acts 1987, No. 87-239, entitled “An Act Concerning Discrimination Between Relatives of the Whole and Half Blood,” was enacted for a limited purpose. It did purport to affect the affairs of relatives in only a limited manner — to prevent discrimination between relatives of whole and half blood under our inheritance law where there are no children or representatives of them. That purpose does not implicate the issue we decide on this appeal.