Catalano v. Catalano

• Decision Date: 20 April 1961
• Citation: 170 A.2d 726,148 Conn. 288
• Court: Connecticut Supreme Court
• Parties: Maria CATALANO et al. v. Raphael J. CATALANO, Administrator (ESTATE of Fred CATALANO). Supreme Court of Errors of Connecticut

Page 726

170 A.2d 726

148 Conn. 288

Maria CATALANO et al. v. Raphael J. CATALANO, Administrator (ESTATE of Fred CATALANO).

Supreme Court of Errors of Connecticut.

April 20, 1961.

Leo V. Gaffney, New Britain, with whom were Bernard D. Gaffney and Frank J. DiLoreto, New Britain, for plaintiffs.

Ralph C. Dixon, Hartford, with whom were Ferdinand D'Esopo and Raymond B. Green, Hartford, for defendant.

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

MURPHY, Justice.

The plaintiff appealed to the Superior Court from the action of the Probate Court for the district of Hartford in denying her application for a widow's allowance for support from the estate of Fred Catalano. The parties have stipulated as to the facts, and the Superior Court has reserved the matter for the advice of this court. ¹

The material facts are these: Fred Catalano, a widower and citizen of this state, was married on December 8, 1951, in Italy to the plaintiff, his niece, an Italian subject. Such a marriage was prohibited by § 87 of the Italian Civil Code, but since the parties obtained a legal dispensation for the marriage from the Italian authorities, it was valid in Italy. Fred returned to this country. The plaintiff remained in Italy until 1956, when she joined Fred and they came to Hartford, where they lived as husband and wife until his death in 1958. A son was born to the couple. The plaintiff claims to be the surviving spouse of the decedent and, as such, entitled to an allowance for support under the provisions of § 45-250 of the General Statutes.

The determination of the question propounded depends upon the interrelation and judicial interpretation of three statutes, §§ 46-1, 46-6 and 53-223. ² Legislation prohibiting the marriage of uncle and niece was originally enacted by the General Assembly in 1702 as part of 'An Act to prevent Incestuous Marriages.' Statutes, 1702-1733, p. 74; see Gould v. Gould, 78 Conn. 242, 246, 61 A. 604, 2 L.R.A.,N.S., 531. It provided that no man should marry any woman within the degrees of kindred specified, including that of uncle and niece, and that any such marriage was null and void. In the Revision of 1875, the language now appearing in § 46-1 was adopted. Rev.1875, p. 185, § 1. It has been the declared public policy of this state continuously since 1702 to prohibit marriages of uncle and niece and declare them void.

Section 46-6 was enacted as chapter 197 of the Public Acts of 1913 under the title, 'An act concerning the Celebration of Marriage by Citizens of Connecticut in Foreign Countries.' The first section of chapter 197 is now the first sentence in § 46-6 and is printed in footnote 2. The portion of § 46-6 not printed in the footnote has no application to the facts of this case. What is now § 53-223 was originally adopted, in a different form, as an integral part of the act of 1702. The punishment of those within the prohibited degrees of kindred who married or carnally knew each other was therein specified. Statutes, 1702-1733, p. 74.

It is the generally accepted rule that a marriage valid where the ceremony is performed is valid everywhere. Davis v. Davis, 119 Conn. 194, 197, 175 A. 574. There are, however, certain exceptions to that rule, including one which regards as invalid incestuous marriages between persons so closely related that their marriage is contrary to the strong public policy of the domicil though valid where celebrated. Restatement, Conflict of Laws § 132(b). That exception may be expressed in the terms of a statute or by necessary implication. Pennegar v. State, 87 Tenn. 244, 247, 10 S.W. 305, 2 L.R.A. 703. Section 46-6 only validates foreign marriages which could have been legally entered into in this state at the time they were contracted. As § 46-1 created an impediment to the union of uncle and niece in this state, the plaintiff and her uncle lacked the legal capacity which § 46-6 makes a prerequisite to the validity, in this state, of such a marriage as theirs. A state has the authority to declare what marriages of its citizens shall be recognized as valid, regardless of the fact that the marriages may have been entered into in foreign jurisdictions where they were valid. Murphy v. Murphy, 249 Mass. 552, 555, 144 N.E. 394.

To determine whether the marriage in the instant case is contrary to the public policy of this state, it is only necessary to consider that marriages between uncle and niece have been interdicted and declared void continuously since 1702 and that ever since then it has been a crime for such kindred to either marry or carnally know each other. At the time of the plaintiff's marriage in 1951, the penalty for incest was, and it has continued to be, imprisonment in the state prison for not more than ten years. Rev.1949, § 8551; General Statutes § 52-223. This relatively high penalty clearly reflects the strong public policy of this state. We cannot completely disregard the import and intent of our statutory law and engage in judicial legislation. The marriage of the plaintiff and Fred Catalano, though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of this state. Johnson v. Johnson, 57 Wash. 89, 90, 106 P. 500, 26 L.R.A.,N.S., 179; Osoinach v. Watkins, 235 Ala. 564, 569, 180 So. 577, 117 A.L.R. 179; State v. Brown, 47 Ohio St. 102, 108, 23 N.E. 747; note, 117 A.L.R. 186, 199. The plaintiff therefore cannot qualify under § 45-250 as the surviving spouse of Fred Catalano.

We answer the question propounded 'No.'

In this opinion BALDWIN, C. J., and KING and SHEA, JJ., concurred.

MELLITZ, Justice (dissenting).

We are dealing here with the marriage status of a woman who was validly married at the place of her domicil and who, so far as the record discloses, was entirely innocent of any intent to evade the laws of Connecticut. Mrs. Catalano was a resident and domiciliary of Italy when her uncle came from America and married her in Italy. Although he returned to America soon after the marriage, she continued to reside in Italy for almost five years before she came to America and took up her residence in Connecticut, where she gave birth to a son. There is no suggestion anywhere in the record that at the time of the marriage she intended to come to America, that the parties had any intention of coming to live in Connecticut, or that the marriage was entered into in Italy for the purpose of evading the laws of Connecticut. If a marriage status resulting from a valid marriage, such as the one here, is to be destroyed, the issue bastardized, and the relations of the parties branded as illicit, it should follow only from an explicit enactment of the legislature, giving clear expression to a public policy which compels such harsh consequences to ensue from a marriage entered into under the circumstances disclosed here.

The cases cited in the majority opinion which deal with the question we have here are all cases where the parties went to a foreign state to evade the law of the domicil and the marriage celebrated in the foreign state was refused recognition in the place of their domicil when they returned to live there after the marriage. The significance of this element is emphasized in the holdings in the Washington cases. The majority opinion cites Johnson v. Johnson, 57 Wash. 89, 90, 106 P. 500, to support its view, but in Pierce v. Pierce, 58 Wash. 622, 624, 109 P. 45, the Johnson case is specifically distinguished on the ground that the Johnson marriage was a clear case of evasion of Washington laws. In the Pierce case, the woman was found to be innocent of an intent to evade a Washington statute which prohibited divorced persons from contracting marriage within a certain time. The marriage, celebrated in a foreign state, was accorded recognition, and this in the face of a provision in the statute that marriages contracted in violation of it, 'whether contracted within or without [the] state, shall be void.' Wash.Sess.Laws 1893, c. 94, § 1. The positive inhibition of the statute was held to apply only to domiciliaries of the state, the court declaring (58 Wash. at page 625, 109 P. at page 46): 'If the marriage is entered into by one who has in good faith removed to another jurisdiction, not for the mere purpose of the marriage or to evade the rigor of the local law, but to establish a domicile, the marriage should be held valid.' In Pennegar v. State, 87 Tenn. 244, 258, 10 S.W. 305, the opinion declares that the true doctrine recognized in Tennessee is against according validity to marriages of domiciled inhabitants who have gone into another state to celebrate a marriage forbidden by their own state. Not only did Murphy v. Murphy, 249 Mass. 552, 554, 144 N.E. 394, involve the celebration in Rhode Island of a marriage prohibited in Massachusetts but the Uniform Marriage Evasion Act, in effect in Massachusetts and quoted in the opinion, expressly declared such a marriage void in Massachusetts. Mass.Acts 1913, c. 360, § 1, as amended, Mass.Gen.Laws, c. 207, § 10 (1921). Osoinach v. Watkins, 235 Ala. 564, 180 So. 577, 117 A.L.R. 179, involved a marriage, celebrated in Georgia, of parties who were domiciled in Alabama and returned there to live immediately after the marriage.

The provisions of § 46-1, prohibiting marriages within specified degrees of consanguinity, apply only to marriages celebrated in Connecticut and are not given extraterritorial operation by the provisions of § 46-6. The first sentence of § 46-6, quoted in the majority opinion, was originally enacted as § 1 of chapter 197 of the Public Acts of 1913. It does not purport to invalidate or declare void in Connecticut foreign marriages celebrated in contravention of the laws of Connecticut. It is a validating statute and declares valid the marriage of a citizen of Connecticut celebrated in a foreign country in conformity with the law of that country, provided each party would have legal capacity to ...