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CATALANO v. CATALANO
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Supreme Court of Connecticut
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Docket Number available at www.versuslaw.com
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Citation Number available at www.versuslaw.com
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April 20, 1961.
MARIA CATALANO ET AL.
v.
RAPHAEL J. CATALANO, ADMINISTRATOR (ESTATE OF FRED CATALANO)
Leo V. Gaffney, with whom were Bernard D. Gaffney and Frank J. DiLoreto, for the plaintiffs. Ralph C. Dixon, with whom were Ferdinand D'Esopo and Raymond B. Green, for the defendant.
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.*fn1
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
| [148 Conn. 290]
depends upon the interrelation and judicial
interpretation of three statutes, 46-1, 46-6 and
53-223.*fn2 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of uncle and niece was originally enacted by the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
[148 Conn. 291]
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
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
[148 Conn. 292]
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 Wn. 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.
Opinion Footnotes
*fn1 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?"
*fn2 "Sec. 46-1. KINDRED WHO SHALL NOT MARRY. No
man shall marry his 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. . . ."
"Sec. 53-223. INCEST. Every man and woman who
marry or carnally know each other, being within
any of the degrees of kindred specified in section
46-1, shall be imprisoned in the State Prison not
more than ten years."
*fn3 "sec. 46-6. . . . All marriages when
one or both parties are citizens of this state,
celebrated in a foreign country, in the presence
of the ambassador or minister to that country from
the United States or in the presence of a consular
officer of the United States accredited to such
country, at a place within his consular jurisdiction,
by any ordained or licensed clergyman engaged
in the work of the ministry in any state of
the United States or in any foreign country,
shall be valid, provided a license certificate,
such as is required by the laws of this state,
shall have been obtained from the registrar of
vital statistics of the town in this state to
which one or both of the parties to such marriage
belong; and such registrar is authorized to act in
such matter. Such license certificate presented to
such clergyman shall operate as a license for the
celebration by him of such marriage in such
foreign country, and the provisions of the laws
of this state shall apply to such a license
certificate, except that the return thereof
shall be made to such registrar. . . ."
Page 299
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