Mazzolini v. Mazzolini, 35516

• Citation: 155 N.E.2d 206,168 Ohio St. 357
• Decision Date: 24 December 1958
• Docket Number: No. 35516,35516
• Parties: , 7 O.O.2d 123 MAZZOLINI, Appellant, v. MAZZOLINI, Appellee.
• Court: United States State Supreme Court of Ohio

Page 357

168 Ohio St. 357

155 N.E.2d 206, 7 O.O.2d 123

MAZZOLINI, Appellant, v. MAZZOLINI, Appellee.

No. 35516.

Supreme Court of Ohio.

Dec. 24, 1958.

Syllabus by the Court

1. Generally, the validity of a marriage is determined by the lex loci contractus; if the marriage is valid where solemnized, it is valid elsewhere; if it is invalid there, it is invalid everywhere.

2. A marriage in Massachusetts between an adult female resident of that state and an adult male resident of another state, first cousins by blood, is not prohibited by the laws of Massachusetts and is valid there, but by a statute of that state a marriage shall not be contracted there by a resident of another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and any marriage contracted in Massachusetts in violation of such provision is null and void.

3. Although a marriage in Ohio between first cousins is not approved by law, it is not expressly prohibited and made void by any statutory enactment, and, where first cousins by blood, one a resident of Massachusetts and the other a resident of Ohio, are lawfully married in Massachusetts and remove to Ohio to live, such marriage is not void in Ohio, and an action by the Ohio resident instituted in Ohio to annul the marriage on the ground that it is void ab initio can not be maintained.

Edward Mazzolini, plaintiff in the trial court and appellant here, a widower and a long-time resident of Ohio, and Josephine Mazzolini, a single woman and a longtime resident of Massachusetts, first cousins by blood, were ostensibly married ceremonially in the Roman Catholic Church in Massachusetts in December 1955 with the permission of the Roman Catholic Archdiocese of Boston. They then moved to Edward's home in Ohio to live. Both were mature persons, he being 58 and she 51. Both were at all times cognizant of their blood relationship and disclosed it to the church and civil authorities. The marriage proved unsuccessful, and ultimately Josephine returned to Massachusetts.

Before Josephine's return, Edward brought suit in the Court of Common Pleas of Cuyahoga County asking for an annulment of the marriage on the ground that it is void ab initio, which suit was dismissed.

An appeal on questions of law and fact was then perfected to the Court of Appeals where Edward was again unsuccessful. That court found in its judgment entry 'that under the laws of the Commonwealth of Massachusetts the marriage of the parties herein is founded upon a 'fraudulent contract,' and the divorce laws of the state of Ohio [Section 3105.01 (F), Revised Code] provide an exclusive remedy for the dissolution of such a marriage.'

The allowance of the motion to require the Court of Appeals to certify the record brings the cause here for review.

Roudebush, Adrion, Brown, Corlett & Ulrich, Cleveland, for appellant.

Martin F. Franey and Thomas L. Osborne, Cleveland, for appellee.

ZIMMERMAN, Judge.

The policy of the law is to sustain marriages, where they are not incestuous, polygamous, shocking to good morals, unalterably opposed to a well defined public policy, or prohibited.

'It is well settled that the validity of a marriage must be determined from the lex loci contractus. If valid where solemnized, it is valid elsewhere; if invalid there, it is invalid everywhere.' McDowell v. Sapp, 39 Ohio St. 558, 560; 55 C.J.S. Marriage § 4, p. 811; 35 American Jurisprudence, 284, Section 168.

The marriage in the instant case took place in Massachusetts where a union between first cousins is not unlawful. Sections 1 and 2, Chapter 207, General Laws of Massachusetts. Nevertheless, Section 11, Chapter 207 of the General Laws of Massachusetts, provides:

'No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void.' (Emphasis supplied.)

It is, therefore, apparent that we are squarely confronted with the question of whether a marriage between first cousins is void in Ohio.

At common law, first-cousin marriages are valid (1 Broom & Hadley, Commentaries on the Laws of England, 345 at 350), and under a former Ohio statute they were not prohibited. 29 Ohio Laws, p. 429. And common-law marriages are recognized in this state. However, by statute in some states a marriage between first cousins is declared in express language to be void ab initio and is so treated by the courts in those jurisdictions. 55 C.J.S. Marriage § 16, pp. 830, 831; Ex parte Bowen, Ky., 247 S.W.2d 379.

In Ohio, Section 3101.01, Revised Code, recites in part:

'Male persons of the age of eighteen years, and female persons of the age of sixteen years, not nearer of kin than second cousins, and not having a husband or wife living, may be joined in marriage.' This section, of course, contemplates ceremonial marriages.

It will thus be seen that first-cousin marriages in this state are not made void by explicit provision to that effect. Moreover, by Section 2905.07, Revised Code, sexual relations between cousins are not incestuous. Compare State v. Brown, 47 Ohio St. 102, 23 N.E. 747, 21 Am.St.Rep. 790.

As far as we can ascertain, this court has never squarely passed on the matter of whether a marriage in Ohio between first cousins is void. But since the statutes of Ohio do not expressly declare that a first-cousin marriage is void ab initio and since sexual relations between cousins, which would certainly include first cousins, are not incestuous, we are persuaded to adopt, in the instant case, the position, represented by the trend of the more modern cases and in accord with the general rule, 'that a marriage between persons of a class that the statute simply says shall not marry * * * is not void, in the absence of a declaration in the statute that such marriage is void.' In re Estate of Hollingsworth, 145 Wash. 509, 514, 261 P. 403, 404. Or, as it is more succinctly stated in the first paragraph of the syllabus of State v. Yoder, 113 Minn. 503, 130 N.W. 10, L.R.A.1916C, 688: 'A marriage contract is a nullity ab initio only where expressly so declared by statute. In such a case it is absolutely void, requiring no judicial decree for its dissolution.'

See, also, Patey v. Peaslee, 99 N.H. 335, 111 A.2d 194, 47 A.L.R.2d 1388, and the annotation following the A.L.R.2d report of such case; 55 C.J.S. Marriage § 35, p. 877. Compare Courtright v. Scrimger, 53 Ohio St. 685, 44 N.E. 1134, O.S.U. 388, 34...