Opinion
No. FA 03 0285473
May 17, 2005
MEMORANDUM OF DECISION
I. Procedural Background
An uncontested final judgment of legal separation was entered by the court, Tanzer, J., in this case on January 12, 2004. The financial terms of the agreement of the parties were incorporated into the judgment of the court, which included, inter alia, a lump sum payment of alimony to the plaintiff in the amount of $60,000. The parties had no children and represented themselves, pro se, at the hearing before the court.
The plaintiff thereafter hired legal counsel and filed a motion to open and set aside judgment on October 15, 2004, citing Billington v. Billington, 200 Conn. 212, 222, 595 A.2d 1377 (1991), and alleging fraudulent misrepresentation of income and intimidation. In support of this motion, the plaintiff's attorney issued a subpoena duces tecum dated October 22, 2004. On November 5, 2004, prior to a scheduled hearing on the plaintiff's motion, the defendant retained counsel and filed a motion to quash the subpoena, as well as an objection to the motion to open judgment and a motion to vacate the judgment of legal separation in which the defendant claimed that the marriage of the parties was legally invalid.
By agreement of the parties, the court was asked to decide the question of whether the marriage of the parties was void or voidable under Connecticut law. This memorandum of decision is limited to that question.
As a corollary matter, at the hearing on February 14, 2005, the court requested briefs on the question of whether there were any special or public acts validating or curing the alleged defect in the legal status of the parties. Neither the court nor the parties found any such validating act.
II. Facts
The parties agree on the facts surrounding their marriage. They disagree, however, as to how the law applies to those facts. The parties participated in a marriage ceremony performed on the French Polynesian island of Bora-Bora on August 25, 1999. After the ceremony, they lived here in Connecticut under the belief that they were lawfully joined as man and wife. On January 12, 2004, a judgment of separation was ordered by the court.
Although the complaint states that the parties were married on August 23, 1999, the date of the parties' marriage, according to the marriage certificate was August 25, 1999.
The marriage ceremony was performed at the Sofitel Marara Coralia Hotel on Bora-Bora. The certificate of marriage indicates that the parties "have exchanged their formal vows of marriage" and "have declared that they wish to live together for the future for many years of happiness." The certificate indicates that the marriage was "celebrated on the Island of Bora-Bora on August 25, 1999."
The defendant includes in his objection to the plaintiff's motion to open judgment a copy of the purported "certificate of marriage" issued by the hotel. The defendant however, has failed to authenticate this document. See Wright v. Infinity Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV 02 0820231 (December 4, 2003, Booth, J.) ("Uncertified copies of documents to which no affidavit exists attesting to their authenticity do not constitute proof or documentary evidence.").
This court has not been asked to determine the validity of the marriage under the law of French Polynesia. Instead, the court is now asked to declare the marriage either void or voidable under Connecticut law because the parties have agreed, post-judgment, that they did not comply with the substantive provisions of French Polynesian marriage law at the time of the marriage ceremony.
III. Discussion
There are no Connecticut cases directly analogous with the case before the court. Nonetheless, there is some statutory and case law suggesting that Connecticut courts would not, for the purpose of granting a divorce, recognize a marriage entered into in a foreign country which is invalid under the law of that country. Other Connecticut case law suggests that a marriage that does not meet the substantive requirements of the law of the jurisdiction in which it was entered is voidable, but not void ab initio.
The court acknowledges that the cases cited involve dissolutions, and that this case involves a legal separation. However, the court sees no reasonable distinction between these two separate kinds of final judgments for the purpose of this decision.
Connecticut courts will recognize marriages entered into in foreign nations provided that such marriages comply with the requirements set forth in General Statutes § 42b-28. See Davis v. Davis, 119 Conn. 194, 197, 175 A. 574 (1934) (It is the generally accepted rule that a marriage valid where the ceremony is performed is valid everywhere). Section 46b-28 provides "[a]ll marriages in which one or both parties are citizens of this state, celebrated in a foreign country, shall be valid, provided: (1) Each party would have legal capacity to contract such marriage in this state and the marriage is celebrated in conformity with the law of that country; or (2) the marriage is celebrated, 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."
As a general matter, "[m]arital status arises not from the simple declarations of persons nor from the undisputed claims of litigants . . . Connecticut does not recognize common-law marriages . . . A marriage ceremony, especially if apparently legally performed, gives rise to a presumptively valid status of marriage which persists unless and until it is overthrown by evidence in an appropriate judicial proceeding . . . Our statute has been construed to require the marriage contract to be entered into before authorized persons and with certain formalities which the state has prescribed . . . While the statute (46b-22) in terms makes void only a marriage celebrated by an unauthorized person, the provision carries the necessary implication that no valid marriage is created when there is no celebration at all but merely an exchange of promises, or cohabitation under such circumstances as would constitute a common-law marriage." (Citations omitted; internal quotation marks omitted.) Ross v. Ross, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 97 0162587 (August 10, 1998, Tierney, J.), ( 22 Conn. L. Rptr. 637, 638).
Although Connecticut does not recognize common-law marriages, some courts have recognized marriages entered into in Connecticut that have not complied with the necessary statutory requirements where the parties believed they were married and acted as such. Carabetta v. Carabetta, 182 Conn. 344, 350, 438 A.2d 109 (1980). In Carabetta the court addressed the issue of whether, under Connecticut law, despite solemnization according to an appropriate religious ceremony, a marriage is void where there has been noncompliance with the statutory requirement of a marriage license. The court noted that public policy is strongly opposed to regarding an attempted marriage, entered into in good faith, believed by one or both parties to be legal, and followed by cohabitation, to be void. Id., 346-47 (citing Hames v. Hames, 163 Conn. 588, 599, 316 A.2d 379 (1972)). The court further explained that "[i]n the absence of express language in the governing statute declaring a marriage void for failure to observe statutory requirement . . . such a marriage, though imperfect, is dissoluble rather than void." Id., 349. The court concluded that "the legislature's failure expressly to characterize as void a marriage properly celebrated without a license means that such a marriage is not invalid." See also Hames v. Hames, supra, 163 Conn. 599 (interpreting statutes not to make void a marriage consummated after the issuance of a license but deficient for want of due solemnization.)
An action for divorce and an action for annulment differ fundamentally. "The former is based upon a valid marriage and a cause for terminating it which arises subsequently . . . The latter proceeds upon the theory that the marriage is void ab initio." (Citation omitted; internal quotation marks omitted.) Mazzei v. Cantales, 142 Conn. 173, 178, 112 A.2d 205 (1955).
Although not directly on point, the validity of foreign dissolutions under Connecticut law is instructive in this case. In Baker v. Baker, 39 Conn.Sup. 66, 468 A.2d 944 (1983), the court addressed the question of whether recognition should be given to a Mexican divorce decree, which is valid in Mexico, where the jurisdictional prerequisites (i.e. domicile) for attaining a Connecticut divorce were not met, but where the subsequent conduct of the parties indicated their acceptance of the Mexican decree as valid. The court held that recognition should be given to the validity of the Mexican divorce decree and that therefore, it was without jurisdiction to hear the plaintiff's dissolution action. In reaching this conclusion, the court reasoned that "although the majority of states refuse to recognize the validity of a foreign divorce decree when their own jurisdictional requirements with respect to domicile are absent . . . most courts, when the equities mandate, will give practical effect to the foreign decree." Id., 71. The court noted that the plaintiff was not divorced from her husband in an ex parte proceeding, rather, she journeyed to Mexico to obtain a divorce and her husband was represented at the proceeding. It further noted that only when the plaintiff's second marriage proved unsuccessful did she assert the invalidity of the Mexican divorce decree — in short, she sought to utilize a technicality regarding the Mexican divorce decree in order to invalidate her second marriage.
Thus, in these types of cases, courts typically take into account equitable considerations, such as the length of the marriage and whether there are issues of the marriage. See Carabetta v. Carabetta, 182 Conn. 344, 350, 438 A.2d 109 (1980); Baker v. Baker, 39 Conn.Sup. 66, 468 A.2d 944 (1983). Where, however, the marriage occurs in a foreign jurisdiction, Carabetta is not controlling. State v. Nosik, 44 Conn.App. 294, 300-01, 689 A.2d 489 (1997). "It is well established that the validity of a marriage is determined by the law of the jurisdiction where the ceremony was performed." Id., 301.
For example, in Brennauer v. Brennauer, Superior Court, judicial district of New London at Norwich, Docket No. FA 02 0124680 (November 14, 2002, Austin, J.), the parties were married in Lithuania. Evidence was presented at trial which indicated that the marriage was valid in Lithuania, and the court granted a divorce. For an alternative result, see Lane v. Albanese, Superior Court, judicial district of Hartford, Docket No. FA 04 4002128 (March 18, 2005, Prestley, J.) ( 39 Conn. L. Rptr. 3).
Neither case law nor § 42b-28 suggests that courts are under any obligation to recognize a marriage which is not valid in the country in which it was obtained or which was not celebrated in the presence of the U.S. ambassador or minister to that country or a U.S. consular officer accredited to such country at a place within his consular jurisdiction.
In the present case, the parties agree that their marriage did not comply with the laws of Bora-Bora. However, they have a valid judgment of legal separation here in the state of Connecticut. This judgment is founded upon facts agreed to by the parties to this action when they appeared before the court on January 12, 2004 and, while under oath, swore to the truth of the fact that they were married in Bora-Bora on August 25, 1999. The parties now desire a review of the legal validity of this agreed-upon fact, post-judgment, and a declaration as to whether they were ever married as a matter of law.
The court declines to rule on the issue presented by the parties for the following reasons. First, absent fraud or misrepresentation, final judgments should be protected from collateral attack, not only for reasons of judicial economy, but also for the benefit of parties who rely upon final judgments for continuity in their legal affairs. This is especially the case where, as here, the time period for appeals and motions to reopen has passed. Second, neither the court nor the parties have found a controlling law or precedent to guide the court in its decision, and therefore the decision of this court would be one of first impression. Absent a compelling reason to do so, the court declines to render such a decision, especially when to do so would involve vacating a final judgment, discussed infra.
Although this case does not involve the litigation of a fact established in another case, as in cases of collateral estoppel, the underlying principle of finality applies. "The fundamental principles, underlying the doctrine of collateral estoppel are well established. The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality . . . Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit . . . Issue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment." (Citations omitted; internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 57-58, 808 A.2d 1107 (2002). "In other words, [the doctrine of] collateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim . . . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered . . . If an issue has been determined, but the judgment is not dependent upon the determination of th[at] issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta." (Internal quotation marks omitted.) Id., at 58 n. 17.
The legal separation was ordered by the court on January 12, 2004. The motions presently before the court were filed over ten months later.
III. Conclusion
In light of the foregoing, the parties are estopped by the previous judgment entered in this case, where the fact of the marriage was both agreed upon by the parties and relied upon by the court in its final judgment.
BY THE COURT
Mark H. Taylor, Judge