Custer v. Bonadies, 178366

• Decision Date: 29 January 1974
• Docket Number: No. 178366,178366
• Citation: Custer v. Bonadies, 30 Conn.Supp. 385, 318 A.2d 639 (Conn. Super. 1974)
• Court: Connecticut Superior Court
• Parties: Margo CUSTER et al. v. Nicholas BONADIES, Registrar of Voters for the City of Hartford, et al.

Page 639

318 A.2d 639

30 Conn.Supp. 385

Margo CUSTER et al. v. Nicholas BONADIES, Registrar of Voters for the City of Hartford, et al.

No. 178366.

Superior Court of Connecticut, Hartford County.

Jan. 29, 1974.

Judith Mears, New Haven, for plaintiffs.

Richard M. Cosgrove, Asst. Corporation Counsel, Hartford, for named defendant.

Edmund J. Eshenfelder, New London, for defendants Callahan and others.

STAPLETON, Judge.

This is an action of mandamus by two married women to compel their local registrars of voters to permit them to register to vote in their maiden names. In the first count the plaintiff Margo Custer alleges that although she was married in 1970 she has never assumed the surname of her husband but has continued without interruption to use her birth name, Margo Custer, in her professional and personal affairs. She further alleges that she has met all of the statutory qualifications for electors of the city of Hartford and the state of Connecticut, but that the defendant registrar of voters of Hartford refused to accept her application for registration in her own name and conditioned her right to register and vote upon her use of her husband's surname-a name which she had never used and did not plan to use in the future. She argues that such a condition upon her right to vote is neither required nor permitted by Connecticut law and that it singles out married women for discriminatory treatment in violation of their fourteenth amendment rights to equal protection of the laws.

In the second count the plaintiff Jane Holdsworth makes essentially the same allegations against the registrars of voters of the city of New London. She also alleges that the New London registrars refused to permit her to register to vote in her own, i.e. maiden, name in reliance upon an opinion of the attorney general, Robert Killian, that a married woman could register only in her husband's surname.

The case was tried to the court. There was no serious dispute as to the facts, and the court finds them essentially as alleged in the complaint. A number of legal issues are presented. They may be briefly summarized as follows: (1) Upon marriage, is a woman required to assume her husband's surname as a matter of law? (2) Does Connecticut law preclude a married woman from registering to vote under her maiden name, even though she has consistently used it as her own before and since her marriage? (3) If so, does such a limitation upon the right to vote constitute an invidious discrimination against women in violation of their fourteenth amendment rights to equal protection of the laws? (4) Is mandamus an appropriate remedy in this case?

I

It is a well-established principle of common law that a person is free to adopt and use any name that he or she sees fit if it is not done for any fraudulent purpose and does not infringe upon the rights of others. 57 Am.Jur.2d, Name, §§ 1, 10. Connecticut has adopted this rule, which operates independently of any court order and even though there is a statutory procedure for effecting a change of name. Don v. Don, 142 Conn. 309, 312, 114 A.2d 203. In some of the treatises it is also stated to be a common-law principle and 'immemorial custom' that upon marriage a woman, ipso facto, abandons her maiden name and assumes her husband's surname. 57 Am.Jur.2d, Name, § 9. There are a number of cases which support this proposition, many of them dating back to before the turn of the century. See, for example, Bacon v. Boston Elevated Ry. Co., 256 Mass. 30, 32, 152 N.E. 35 (1926); Kelle v. Crab Orchard Rural Fire Protection District, 164 Neb. 593, 598, 83 N.W.2d 51 (1957); Chapman v. Phoenix National Bank, 85 N.Y. 437, 450 (1881); Freeman v. Hawkins, 77 Tex. 498, 500, 14 S.W. 364 (1890).

It is claimed by the plaintiffs that this practice is the result of social custom and that there is no legal compulsion on a married woman to adopt her husband's name. This claim would appear to be true under the common law of England and Canada. 12 Halsbury, Laws of England (3d Ed). p. 410; W. K. Power, The Law and Practice Relating to Divorce and Other Matrimonial Causes in Canada (2d Ed.) pp. 357-58; Re Dalgleish Estate, (1956) 18 W.W.R. (n.s.) 519, (1956) 4 D.L.R.2d 111. The rule is thus stated in 19 Halsbury's Laws of England (3d Ed.), p. 829: 'When a woman on her marriage assumes, as she usually does in England, the surname of her husband in substitution for her father's name, it may be said that she acquires a new name by repute. The change of name is in fact, rather than in law, a consequence of the marriage.'

This approach, that a woman voluntarily adopts her husband's surname by social custom but is under no legal compulsion to do so, is also supported by some of the more recent American cases. Stuart v. Board of Supervisors of Elections, 266 Md. 440, 295 A.2d 223 (1972); State ex rel. Krupa v. Green, 114 Ohio App. 497, 177 N.E.2d 616 (1961).

This issue is one of first impression insofar as our Connecticut courts are concerned.

It has been generally stated that while Connecticut has not formally adopted English common law, it has been made our own by 'practical adoption,' unless modified by legislation, and with such exceptions as diversity of circumstances and customs requires. Bassett v. City Bank & Trust Co., 115 Conn. 393, 398, 161 A. 852.

There is nothing in the English common-law rule unsuited to the customs and conditions of American society-particularly at this time in our history. The rule that requires a woman to assume her husband's surname upon marriage made some sense in an age where a married woman could not contract, hold property or sue or be sued except through her husband. '(H)usband and wife are one, (and) the one is the husband.' United States v. Yazell, 382 U.S. 341, 361, 86 S.Ct. 500, 511, 15 L.Ed.2d 404 (dissenting opinion). But such restrictions on the legal rights of married women do not exist today in Connecticut. ¹ We live in the age of the women's rights movement, when federal law prohibits discrimination in employment on account of sex, ² when the equal rights amendment has passed the Congress (March 22, 1972) and the Connecticut legislature (March 15, 1973), when women march in the streets to demand equal status before the law, and when some women go to court for the right to vote in their 'own' names. It hardly seems the time for the Connecticut courts to accept an outdated rule of common law requiring married women to adopt their spouse's surnames contrary to our English common-law heritage and to engraft that rule as an exception to the recognized right of a person to assume any name that he or she wishes to use.

It is doubtless true that the vast majority of women will continue to follow the social custom of our times and adopt their husbands' surnames. That fact, however, provides no basis for a rule of law which would mandate it despite personal, professional or business reasons which would motivate individual women to do otherwise. Some hear a different drummer and step to the music which they hear, however measured or far away. There is nothing in the common law of Connecticut which forbids it. The court therefore concludes that the common-law right of a person to the use of a name, a right enunciated by our Supreme Court in Don v. Don, 142 Conn. 309, 114 A.2d 203; applies to the surname of a married woman.

II

A

The defendants claim that the legislature has changed this rule and adopted the principle, at least by implication, that upon marriage a woman assumes her husband's surname as a matter of law. In support of this contention the defendants cite two sections of the General Statutes:

'Sec. 47-13. Conveyance by married woman of property acquired before marriage. Any married woman who conveys property acquired prior to her marriage shall state in the instrument of conveyance the name under which she acquired such property, and the town clerk shall index the record of such instrument in the name under which such property was acquired and in the name under which it was transferred.'

'Sec. 46-21. Alimony and change of name. The superior court may assign to any woman divorced by such court a part of the estate of her husband and, in addition thereto or in lieu thereof, may order alimony to be paid from the husband's income, may change her name and may order alimony pendente lite to be paid to the wife in any complaint or cross-bill for divorce pending in said court. . . . (italics supplied).' ³

The defendants claim that the clear implication of these statutes is that a woman's name automatically changes upon marriage. Otherwise, they argue, there would be no need for the italicized provision authorizing a change of name for a woman after divorce, and this would be counter to the presumption that the General Assembly had a purpose for every sentence, clause or phrase in a statute. State v. Springer, 149 Conn. 244, 248, 178 A.2d 525. These arguments, however, fail to recognize the distinction here between a generally prevailing social custom and a mandate of law. No one denies that the overwhelming percentage of women assume their husbands' surnames upon marriage. The legislature recognized this and took it into account in legislation dealing with the indexing of the land records and in authorizing a change of name in a divorce decree. There is nothing in these statutes, however, which transforms a recognized social custom into a rule of law.

B

The first sentence of § 9-20 of the General Statutes, dealing with the admission of electors, provides that each person who applies for admission shall 'state under oath his name, residence, birthplace, date of birth, whether he is a United States citizen, how long he has continuously resided in the town in which he so applies, whether his privileges as an elector are forfeited by reason of conviction of crime, whether he has previously been admitted as a elector in any town in this state, whether single,...