Catalano v. Catalano

170 A.2d 726, 148 Conn. 288, 1961 Conn. LEXIS 177

• Court: Supreme Court of Connecticut
• Decided: April 20, 1961
• Status: Published

Opinions

Murphy, J.

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of three statutes, §§ 46-1, 46-6 and 53-223.² Legislation prohibiting the marriage of uncle and niece was originally enacted by the General Assembly in 1702 as part of “An Act to prevent Incestuous Marriages.”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. 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. 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 ease 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; Osoinach v. Watkins, 235 Ala. 564, 569, 180 So. 577; 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., King and Shea, Js., concurred.

1 The question upon which advice is desired is: “Was Maria Catalano the surviving spouse of Fred Catalano under the laws of the State of Connecticut as of the date of his death on October 11, 1958, and as such was she qualified to receive support under Section 45-250 of the General Statutes, Revision of 1958?”

2 “See. 46-1. kindred who shall not marry. No man shall marry Ms mother, grandmother, daughter, granddaughter, sister, aunt, niece, stepmother or stepdaughter, and no woman shall marry her father, grandfather, son, grandson, brother, uncle, nephew, stepfather or stepson; and, if any man or woman marries within the degrees aforesaid, such marriage shall be void.”

“Sec. 46-6. WHEN MARRIAGES IN FOREIGN COUNTRIES ARE VALID. All marriages where one or both parties are citizens of this state, celebrated in a foreign country in conformity with the law of that country, shall be valid, provided each party would have legal capacity to contract such marriage in this state. . . .”

“See. 53-223. incest. Every man and woman who marry or carnally know each other, being within any of the degrees of Mndred specified in section 46-1, shall be imprisoned in the State Prison not more than ten years.”