Fattibene v. Fattibene
| Decision Date | 14 April 1981 |
| Citation | 183 Conn. 433,441 A.2d 3 |
| Parties | Mary V. FATTIBENE v. Arthur T. FATTIBENE. |
| Court | Connecticut Supreme Court |
John F. Kavanewsky, Norwalk, with whom, on the brief, was Thomas F. Maxwell, Jr., Norwalk, for appellee (plaintiff).
Before BOGDANSKI, PETERS, ARMENTANO, SHEA and WRIGHT, JJ.
The plaintiff married the defendant in Washington, D. C. on May 30, 1953, and commenced this dissolution action in April, 1976, alleging that irreconcilable differences between them had irretrievably broken down their marriage. The defendant alleged by way of an affirmative defense that the marriage was invalid because the plaintiff was not legally divorced from her prior living husband at the time of her marriage to him. In addition to this defense, the defendant counterclaimed alleging intolerable habitual intemperance, fraud in the inducement of the marriage, and irretrievable breakdown of the marriage.
After a contested hearing before a state referee, the court found that the marriage was a valid one, and that it had broken down irretrievably; it rendered a decree dissolving the marriage. The court ordered (1) that the marital real property be sold within eighteen months and the proceeds transferred to the plaintiff; (2) that the household furniture, furnishings, appliances and all other articles of personal property be divided equally; (3) that all of the remaining real and personal assets, excluding the plaintiff's automobile, become the property of the defendant; (4) that the arrears on the pendente lite order, in the amount of $6700, be paid to the plaintiff within six months; (5) that pending the sale of the residential real property, the defendant pay the mortgage and tax installments and utility bills; (6) that a counsel fee of $3000 be paid to the plaintiff; (7) that periodic alimony of $70 a week be awarded to the plaintiff; (8) that lump sum alimony of $10,000 be paid to the plaintiff within one year; and (9) that certain stock in the Babson & Wilcox Company be transferred to the defendant. Subsequent to this order, the court awarded an additional counsel fee of $1000 to the plaintiff to cover the cost of this appeal.
The defendant has appealed claiming that the court erred (1) in finding that the parties' marriage was valid; (2) in awarding periodic alimony; and (3) in awarding counsel fees. The defendant has not appealed or contested the division and assignment of real and personal property mandated by the court.
Prior to her marriage to the defendant, the plaintiff had previously married James T. Williams. In a decree dated June 6, 1952, the United States District Court for the District of Columbia awarded the plaintiff an absolute divorce from Williams. On appeal, the defendant claims the decree dissolving The rule is the same in both Connecticut and the District of Columbia; the defendant has no standing to attack collaterally an earlier divorce decree to which he was a stranger and in which he had no legally protected interest which would have been affected by the decree itself at the time it was rendered. See Tippin v. Tippin, 148 Conn. 1, 6, 166 A.2d 448 (1960); Tyler v. Aspinwall, 73 Conn. 493, 47 A. 755 (1901); Murphy v. Murphy, 34 Conn.Sup. 251, 386 A.2d 274 (1978); Cocco v. Cocco, 23 Conn.Sup. 275, 181 A.2d 266 (1962); see also In re Hanson's Estate, 210 F.Supp. 377, 383-84, (D.D.C.1962); affirmed, sub nom. Saunders v. Hanson, 327 F.2d 889 (D.C.Cir.1963), cert. denied, 379 U.S. 820, 85 S.Ct. 41, 13 L.Ed.2d 31 (1964); Brown v. United States, 196 F.2d 777 (U.S.App.D.C.1952).
the marriage was invalid, therefore making his marriage to the plaintiff void. The first issue is not whether the marriage between the parties is void because of an invalid divorce decree, but rather, whether the divorce decree can be collaterally attacked by the defendant.
Since there is no claim that the defendant had any interest at all in the decree divorcing the plaintiff from Williams at the time it was rendered, the rule precludes us from considering in this appeal the validity of the divorce decree.
During the course of the trial, the defendant sought to admit into evidence a certified copy of the complaint filed in the United States District Court for the District of Columbia by which his wife had initiated the action to divorce her former husband, Williams. Because the defendant lacked the standing to attack the divorce decree that resulted from that complaint, any error involved in that ruling would be harmless. Furthermore, we need not decide this claim on its merits as the plaintiff has failed to follow the rules of procedure set out in Practice Book § 3060F(c)(3). See State v. Johnson, --- Conn. ---, ---, 438 A.2d 851 (1981), and citations therein.
In the counterclaim to the complaint, the defendant sought an annulment of the marriage based on the plaintiff's fraudulent nondisclosure at the time of the marriage of her prior marital status and of the previous birth of a child. Although there is evidence in the record to the contrary, the defendant alleges that he did not learn of the nondisclosed facts until the commencement of this action, over twenty-five years after the wedding ceremony, and never condoned the plaintiff's fraud or cohabitated with her after discovering it. The trial court decided that a valid marriage existed between the parties and dissolved it, rather than declare it null and void. The defendant claims on appeal that the trial court erred.
The Superior Court has authority to annul a marriage performed in another state if the marriage would have been invalid in that state or violates a strong public policy of this state. Since the parties married in Washington, D. C., we must look to the law of that jurisdiction. See General Statutes § 46-32(b) 1 (now § 46b-40(b) ); Catalano v. Catalano, 148 Conn. 288, 291, 170 A.2d 726 (1961); Schibi v. Schibi, 136 Conn. 196, 198, 69 A.2d 831 (1949); Davis v. Davis, 119 Conn. 194, 197-98, 175 A.2d 574 (1934); Delaney v. Delaney, 35 Conn.Sup. 230, 232-33, 405 A.2d 91 (1979).
Section 16-903 of the District of Columbia Code provides that a "decree annulling the marriage as illegal and void may be rendered on any of the grounds specified by sections 30-101 2 and 30-103 as invalidating a marriage." Section 30-103 provides in part: "The following marriages in said District shall be illegal, and shall be void from the time when their nullity shall be declared "(F)raud in its procurement will vitiate the contract upon which marriage is based as well as any other contract, and will justify its annulment by the courts." (Citations omitted.) Lenoir v. Lenoir, 24 App.D.C. 160, 162 (1904). The rule to determine whether fraud in a case is sufficient to justify an annulment is set out in Reynolds v. Reynolds, 85 Mass. (3 Allen) 605 (1862). See Zoglio v. Zoglio, supra; Williamson v. Williamson, 34 App.D.C. 536, 538-39 (1910); Lenoir v. Lenoir, supra, 163; Clark, Domestic Relations § 2.17, pp. 103-106. The Reynolds case established the doctrine of essentials which requires the misrepresentations claimed by the party seeking an annulment to be related to the sexual obligations of the marriage, that is, the ability or willingness to have sexual relations and the ability to bear children. See Reynolds v. Reynolds, supra; Clark, loc. cit.; Kingsley, "Fraud as a Ground for Annulment of a Marriage," 18 So.Cal.L.Rev. 213, 214 (1945).
by decree, namely: ... Second. Any marriage the consent to which of either party has been procured by force or fraud." 3 A marriage falling within § 30-103 is not void ab initia but voidable. Martin v. Martin, 240 A.2d 363, 365 (D.C.App.1968); Duley v. Duley, 151 A.2d 255, 257 (D.C.Mun.App., 1959). The burden is on the one claiming the fraud to prove its existence by clear and convincing proof. Zoglio v. Zoglio, 157 A.2d 627, 629 (D.C.Mun.App., 1960); see Davis v. Davis, supra, 119 Conn. 203-204, 175 A.2d 574
This rule is followed in the reported decisions of the District of Columbia. In the following cases the court granted an annulment based on fraud: Stone v. Stone, 136 F.2d 761 (U.S.App.D.C.1943) (); Zoglio v. Zoglio, supra (); Kaufman v. Kaufman, 164 F.2d 519 (U.S.App.D.C.1947) (). On the other hand, the claimed fraud did not justify an annulment in the following cases: Williamson v. Williamson, supra (); Burroughs v. Burroughs, 4 F.2d 936 (U.S.App.D.C.1925) ().
There is no evidence in the appeal before us that the nondisclosures by the plaintiff interfered with the sexual relations of the parties or prevented the birth of children. On the contrary, two children were born of this marriage. The nondisclosures were more similar to a Williamson v. Williamson, supra, 539; Clark, op. cit., pp. 113-14.
Although we are unable to find any District of Columbia case in point, two Connecticut cases are factually similar. In Gordon v. Gordon, 11 Conn.Sup. 302 (1942), the husband had failed to disclose to his wife his prior criminal record and the existence of four minor children whom he was boarding out. In Fournier v. Fournier, 14 Conn.Sup. 171 (1946), the claimed fraud rested on the wife's nondisclosure of a prior marriage to a man whom she never divorced but as to whom she had a good faith belief, never proven false, that he was dead. In both c...
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