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No.

05-09-01170-CV
(Consolidated with No. 05-09-01208-CV)

In the
Court of Appeals for the
Fifth District of Texas

In the Matter of the Marriage of J.B. and H.B.,

On Interlocutory Appeal from the 302nd Judicial District Court,


Dallas County, Texas, the Honorable Tena Callahan, Presiding

APPELLEE J.B.’S BRIEF

Peter A. Schulte James J. Scheske


Texas Bar No. 24044677 Texas Bar No. 17745443
Schulte & Apgar, PLLC Akin Gump Strauss Hauer & Feld LLP
4131 N. Central Expressway 300 West Sixth Street, Suite 2100
Suite 680 Austin, Texas 78701
Dallas, Texas 75204 (512) 499-6200 (telephone)
(214) 521-2200 (telephone) (512) 499 6290 (facsimile)
(214) 739-3234 (facsimile)
J. Carl Cecere
Texas Bar No. 24050397
Akin Gump Strauss Hauer & Feld LLP
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201-4675
(214) 969-2800 (telephone)
(214) 969-4343 (facsimile)

ATTORNEYS FOR APPELLEE J.B.

ORAL ARGUMENT REQUESTED


TABLE OF CONTENTS

TABLE OF AUTHORITIES..............................................................................................iii

STATEMENT ON ORAL ARGUMENT ........................................................................... x

STATEMENT OF FACTS.................................................................................................. 1

SUMMARY OF THE ARGUMENT.................................................................................. 3

ARGUMENT....................................................................................................................... 6

I. Regardless Of The Constitutionality Of The Texas Family Code And Texas


Constitution’s Same-Sex Marriage Provisions, The Trial Court Has
Jurisdiction To Decide This Divorce Proceeding. ................................................... 6

A. Upon de novo review, this Court need not address constitutional


issues to uphold the trial court’s subject matter jurisdiction......................... 6

B. J.B. has statutory standing because the Texas Family Code does not
limit divorce to parties of marriages formed in Texas only. ......................... 7

C. The trial court’s exercise of subject matter jurisdiction over this


divorce does not impermissibly “recognize” or “give effect to” a
same-sex marriage in violation of Texas Constitution article I,
section 32 and Texas Family Code § 6.204. ............................................... 11

1. Granting a divorce does not impermissibly “recognize” a


same-sex marriage in violation of Texas Constitution article I,
section 32.......................................................................................... 12

2. Granting a divorce does not impermissibly “give effect to” a


same-sex marriage in violation of Texas Family Code
§ 6.204.............................................................................................. 13

II. In The Alternative, Texas’ Statutory And Constitutional Provisions Are


Unconstitutional To The Extent They Would Deprive J.B. Of A Divorce............ 17

A. Baker v. Nelson does not control this case. ................................................. 17

B. Depriving J.B. of access to a divorce violates Equal Protection................. 22

1. The trial court was entitled to reach the issue of whether


Texas Constitution article I, section 32 and Texas Family
Code § 6.204 violate Equal Protection............................................. 22

i
2. Any law that would prevent the trial court from exercising
jurisdiction would be inconsistent with the Fourteenth
Amendment’s guarantee of Equal Protection . ................................ 23

(a) Strict scrutiny should apply in this case................................ 23

(b) The OAG’s divorce regime discriminates against


lawfully-married same-sex couples by depriving them
of divorce on terms equal to those enjoyed by
opposite-sex couples. ............................................................ 27

(i) A voidance proceeding is not an adequate


substitute for divorce.................................................. 28

(ii) Denying same-sex couples access to divorce


stigmatizes them. ........................................................ 33

(c) The OAG has not asserted a legitimate state interest


that would allow it to deprive lawfully-married couples
of a divorce............................................................................ 35

C. Depriving J.B. of a divorce also violates Due Process and his right to
travel. ........................................................................................................... 39

1. Due Process. ..................................................................................... 39

2. Right to travel................................................................................... 41

D. The trial court did not invalidate the Defense of Marriage Act sub
silentio. ........................................................................................................ 43

III. The Amended Order And Findings Of Fact And Conclusions Of Law Are
Timely And Proper. ................................................................................................ 45

CONCLUSION AND PRAYER....................................................................................... 47

CERTIFICATE OF SERVICE.......................................................................................... 48

APPENDIX ....................................................................................................................... 49

ii
TABLE OF AUTHORITIES

TEXAS CASES

Braddock v. Taylor,
592 S.W.2d 40 (Tex. Civ. App.—Beaumont 1979, writ ref’d n.r.e.) ...................... 8, 12

Bruni v. State,
669 S.W.2d 829 (Tex. App.—Austin 1984, no writ)................................................... 29

Cardwell v. Cardwell,
195 S.W.3d 856 (Tex. App.—Dallas 2006, no pet.).................................................... 31

Chandler v. Chandler,
991 S.W.2d 367 (Tex. App.—El Paso 1999, pet. denied) ........................................... 29

County of Maverick v. Ruiz,


897 S.W.2d 843 (Tex. App.—San Antonio 1995, no writ) ......................................... 13

Dallas Area Rapid Transit v. Monroe Shop Partners, Ltd,


293 S.W.3d 839 (Tex. App.—Dallas 2009, pet. denied)............................................... 6

Davey v. Shaw,
225 S.W.3d 843 (Tex. App.—Dallas 2007, no pet.).............................................. 45, 46

Durr v. Newman,
537 S.W.2d 323 (Tex. Civ. App.—El Paso 1976, writ ref’d n.r.e.) ........................ 8, 12

Esparza v. Esparza,
382 S.W.2d 162 (Tex. Civ. App.—Corpus Christi 1964, no writ) .............................. 29

Estates of Elkins v. County of Dallas,


146 S.W.3d 826 (Tex. App.—Dallas 2004, no pet.)...................................................... 7

Faglie v. Williams,
569 S.W.2d 557 (Tex. Civ. App.—Austin 1978, writ ref’d n.r.e.).............................. 29

Houston Chronicle Publ’g Co. v. City of Houston,


531 S.W.2d 177 (Tex. Civ. App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.) ....... 23

IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp.,


938 S.W.2d 440 (Tex. 1997).................................................................................. 45, 46

In re C.M.D.,
287 S.W.3d 510 (Tex. App.—Houston [14th Dist.] 2009, no pet.)............................. 23

iii
In re Doe 2,
19 S.W.3d 278 (Tex. 2000).................................................................................... 22, 23

In re Estate of Bendtsen,
No. 05-08-00122-CV, 2008 WL 1886778 (Tex. App.—Dallas Apr. 30, 2008,
no pet.) ......................................................................................................................... 46

In re Marriage of Sanger,
No. 06-99-00039-CV, 1999 WL 742607 (Tex. App.—Texarkana Sept. 24,
1999, no pet.) ............................................................................................................... 30

Littleton v. Prange,
9 S.W.3d 223 (Tex. App.—San Antonio 1999, pet. denied) ........................... 10, 11, 42

McCauley v. Consol. Underwriters,


304 S.W.2d 265 (Tex. 1957)........................................................................................ 46

Mireles v. Mireles, No. 01-08-00499-CV, 2009 WL 884815 (Tex. App.—Houston


[1st Dist.] Apr. 2, 2009, pet. denied) ........................................................................... 11

Morrison v. Morrison,
713 S.W.2d 377 (Tex. App.—Dallas 1986, writ dism’d) ............................................ 45

Naylor v. Daly,
No. D-1-FM-09-000050, 126th Dist. Ct., Travis County, Tex.................................... 11

Richards v. League of United Latin Am. Citizens,


868 S.W.2d 306 (Tex. 1993)........................................................................................ 24

Villegas v. Griffin Indus.,


975 S.W.2d 745 (Tex. App.—Corpus Christi 1998, pet. denied)................................ 33

Wells Fargo Bank Texas, N.A. v. Barton,


100 S.W.3d 455 (Tex. App.—San Antonio 2003, no pet.)............................................ 6

FEDERAL CASES

Att’y Gen. of N.Y. v. Soto-Lopez,


476 U.S. 898 (1986)..................................................................................................... 43

Baker v. Nelson,
409 U.S. 810 (1972).............................................................................................. passim

Boddie v. Connecticut,
401 U.S. 371 (1971)................................................................................... 19, 24, 25, 40

iv
Bowen v. Guilliard,
483 U.S. 587 (1987)............................................................................................... 25, 26

Boy Scouts of Am. v. Dale,


530 U.S. 640 (2000)..................................................................................................... 40

City of Cleburne, Tex. v. Cleburne Living Ctr.,


473 U.S. 432 (1985)............................................................................................... 27, 37

Cleveland Bd. of Educ. v. LaFleur,


414 U.S. 632 (1974)..................................................................................................... 40

Dep’t of Agric. v. Moreno,


413 U.S. 528 (1973)..................................................................................................... 39

Ford Motor Co. v. Tex. Dep’t of Transp.,


264 F.3d 493 (5th Cir. 2001) ....................................................................................... 35

Fusari v. Steinberg,
419 U.S. 379 (1975) (Burger, C.J., concurring) .......................................................... 18

Hicks v. Miranda,
422 U.S. 332 (1975)..................................................................................................... 20

In re Optical Techs., Inc.,


425 F.3d 1294 (11th Cir. 2005) ................................................................................... 46

Johnson v. Johnson,
385 F.3d 503 (5th Cir. 2004) ....................................................................................... 20

Ketchum v. City of W. Memphis,


974 F.2d 81 (8th Cir. 1992) ......................................................................................... 43

Lawrence v. Texas,
539 U.S. 558 (2003).............................................................................................. passim

Loving v. Virginia,
388 U.S. 1 (1967).................................................................................................. passim

M.L.B. v. S.L.J.,
519 U.S. 102 (1996)............................................................................................... 24, 40

Mandel v. Bradley,
432 U.S. 173 (1977)..................................................................................................... 18

v
Maseda v. Honda Motor Co.,
861 F.2d 1248 (11th Cir. 1988) ................................................................................... 32

Mass. Board of Ret. v. Murgia,


427 U.S. 307 (1976)..................................................................................................... 25

Mikesa v. City of Galveston,


451 F.3d 376 (5th Cir. 2006) ....................................................................................... 35

Planned Parenthood v. Casey,


505 U.S. 833 (1992)..................................................................................................... 24

Prince v. Massachusetts,
321 U.S. 158 (1944)............................................................................................... 24, 40

Reno v. Florez,
507 U.S. 292 (1993)..................................................................................................... 40

Roberts v. U.S. Jaycees,


468 U.S. 609 (1984)..................................................................................................... 40

Romer v. Evans,
517 U.S. 620 (1996).............................................................................................. passim

Saenz v. Roe,
526 U.S. 489 (1999)..................................................................................................... 44

Shapiro v. Thompson,
394 U.S. 618 (1969)..................................................................................................... 44

Skinner v. Oklahoma,
316 U.S. 535 (1942)............................................................................................... 37, 38

Thomas v. Wash. Gas Light Co.,


448 U.S. 261 (1980)..................................................................................................... 32

Townsend v. Swank,
404 U.S. 282 (1971)..................................................................................................... 44

Travelers Indem. Co. v. Bailey,


--- U.S. ---, 129 S. Ct. 2195 (2009).............................................................................. 46

Williams v. Illinois,
399 U.S. 235 (1970)..................................................................................................... 35

vi
Williams v. North Carolina,
325 U.S. 226 (1945)..................................................................................................... 19

Zablocki v. Redhail,
434 U.S. 374 (1978)............................................................................................... 25, 40

OTHER STATES’ CASES

Ashley v. Ashley,
51 So. 2d 239 (Ala. 1951) ...................................................................................... 13, 16

Beth R. v. Donna M.,


853 N.Y.S.2d 501 (N.Y. Sup. Ct. 2008) .................................................................... 8, 9

Chambers v. Ormiston,
935 A.2d 956 (R.I. 2007) ............................................................................................... 9

C.M. v. C.C.,
867 N.Y.S.2d 884 (N.Y. Sup. Ct. 2008) .................................................................... 8, 9

Farrell v. Farrell,
181 N.W. 12 (Iowa 1921) ............................................................................................ 32

Hilton v. Snyder,
108 P. 698 (Utah 1910) .......................................................................................... 13, 16

Hunter v. Hunter,
43 P. 756 (Cal. 1896) ............................................................................................. 15, 16

In re Rowe’s Estate,
141 P.2d 832 (Or. 1943)......................................................................................... 14, 16

In re Van Bever,
101 P.2d 790 (Ariz. 1940)............................................................................................ 32

Oborn v. State,
126 N.W. 737 (Wis. 1927)..................................................................................... 14, 16

O’Darling v. O’Darling,
188 P.3d 137 (Okla. 2008) ....................................................................................... 9, 10

Payne v. Payne,
214 P.2d 495 (Colo. 1950) ............................................................................................. 8

Prashad v. Copeland,
685 S.E.2d 199 (Va. Ct. App. 2009)............................................................................ 44

vii
Rediker v. Rediker,
221 P.2d 1 (Cal. 1950) ........................................................................................... 13, 16

Rosengarten v. Downes,
802 A.2d 170 (Conn. App. Ct. 2002)....................................................................... 9, 10

TEXAS CONSTITUTIONAL PROVISIONS AND STATUTES

TEX. CONST. article I, § 32 ......................................................................................... passim

TEX. FAM. CODE § 4.007 ................................................................................................... 29

TEX. FAM. CODE § 6.001 ............................................................................................... 7, 10

TEX. FAM. CODE §§ 6.201-6.206....................................................................................... 32

TEX. FAM. CODE § 6.204 ............................................................................................ passim

TEX. FAM. CODE § 6.301 ................................................................................................... 33

TEX. FAM. CODE § 6.307 ............................................................................................. 26, 27

TEX. FAM. CODE §§ 7.001-7.002....................................................................................... 29

TEX. FAM. CODE §§ 7.003-7.006....................................................................................... 29

TEX. GOVT. CODE § 24.601 ................................................................................................. 9

TEXAS RULES

TEX. R. APP. P. 26.1(b) ...................................................................................................... 45

TEX. R. APP. P. 28.1(c) ...................................................................................................... 45

FEDERAL STATUTES AND CONSTITUTIONAL PROVISIONS

U.S. CONST. art. IV, § 1............................................................................................... 43, 44

U.S. CONST. art. IV, § 2............................................................................................... 41, 44

U.S. CONST. amend. I ........................................................................................................ 39

U.S. CONST. amend. XIV, § 1 ........................................................................... 1, 18, 22, 41

10 U.S.C. § 654 ................................................................................................................. 24

28 U.S.C. § 1738C............................................................................................................. 43

viii
OTHER STATES’ STATUTES

MASS. GEN. LAWS ANN. Chapter 208, § 5 (2009) ............................................................ 33

SECONDARY AUTHORITIES

BLACK’S LAW DICTIONARY (9th ed. 2009)................................................................. 12, 14

Carlos A. Ball, Privacy, Property, and Public Sex, 18 COLUM. J. GENDER & L. 1
(2008) ........................................................................................................................... 26

Celena R. Mayo, The Road Not Taken: Able v. United States, Equal Protection,
Due Deference, and Rational Basis Review, 16 N.Y. L. SCH. J. HUM. RTS. 407
(1999) ........................................................................................................................... 27

Christopher R. Leslie, Creating Criminals: The Injuries Inflicted by “Unenforced”


Sodomy Laws, 35 HARV. C.R.-C.L. L. REV. 103 (2000).............................................. 25

Polis Becomes Third Openly Gay Member of Congress, VICTORY, Jan. 6, 2009,
http://www.victoryfund.org/newes/view/url:polis_becomes_third_openly_gay_
member_of_congress (last visited Feb. 3, 2010) ......................................................... 26

E. Gary Spitko, A Biologic Argument for Gay Essentialism-Determinism:


Implications for Equal Protection and Substantive Due Process, 18 U. HAW. L.
REV. 571 (1996) ........................................................................................................... 26

Lynn D. Wardle, Global Perspective on Procreation and Parentage by Assisted


Reproduction, 35 CAP. U. L. REV. 413 (2006)............................................................. 26

RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 11 (Intro. Note) (1971) .................... 15

RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 283 (1971) ................................... 8, 12

ix
STATEMENT ON ORAL ARGUMENT

Oral argument would significantly aid the Court in the disposition of this

interlocutory appeal, given that the legal issues here are novel and are of great importance

to Texas citizens. No Texas court has considered whether a same-sex couple lawfully

married in another state has a constitutional right to obtain a divorce in Texas. And no

court—in Texas or elsewhere—has ever addressed whether a state’s refusal to allow a

lawfully-married same-sex couple to divorce violates the couple’s constitutional rights at

issue in this case. As demonstrated by the pending Perry v. Schwarzenegger trial over

the constitutionality of California’s Proposition 8, the rights of same-sex couples present

highly contentious legal issues of great importance to the public. Because of the

significance and novelty of this case, oral argument should be granted.

x
No. 05-09-01170-CV
(Consolidated with No. 05-09-01208-CV)

In the
Court of Appeals for the
Fifth District of Texas

In the Matter of the Marriage of J.B. and H.B.,

On Interlocutory Appeal from the 302nd Judicial District Court,


Dallas County, Texas, the Honorable Tena Callahan, Presiding

APPELLEE J.B.’S BRIEF

TO THE HONORABLE COURT OF APPEALS FOR THE FIFTH DISTRICT OF


TEXAS:

Appellee J.B. files this brief in response to the Office of the Attorney General’s

(“OAG”) interlocutory appeal from the trial court’s October 1, 2009 order striking the

OAG’s intervention and denying the OAG’s plea to the jurisdiction, as amended on

December 7, 2009, and would respectfully show this Court as follows:


STATEMENT OF FACTS

J.B. and H.B. entered into a same-sex marriage in Massachusetts on September 22,

2006. 1 CR 8. Neither the parties nor the OAG dispute the validity and legality of that

marriage under Massachusetts law. In 2008, the couple moved to Dallas County, Texas.

1 CR 5, 32. On January 21, 2009, J.B. filed an uncontested petition for divorce in the

302nd District Court in Dallas County. 1 CR 5-6.

The OAG filed a petition in intervention purportedly “to defend the

constitutionality of Texas and federal law” in the divorce proceeding, even though neither

party to the divorce challenged the constitutionality of any Texas or federal law. 1 CR

13. Shortly thereafter, the OAG filed a plea to the jurisdiction, asserting that the trial

court lacked subject matter jurisdiction to decide the case. 1 CR 22. J.B. and amicus

opposed the OAG’s plea to the jurisdiction—which is the sole object of the OAG’s

intervention. 1 CR 32; see also In re State of Texas, No. 05-09-01208-CV, J.B.’s Supp.

Mand. Record at Tab A (filed 10/26/09).

On October 1, 2009, the trial court entered an order striking the OAG’s

intervention and denying the plea to the jurisdiction (the “Order”). 1 CR 82. The trial

court determined that it had jurisdiction to consider J.B.’s suit for divorce because both

article I, section 32 of the Texas Constitution and Texas Family Code § 6.204 violate the

Equal Protection Clause of the Fourteenth Amendment to the United States Constitution

to the extent they would deprive the court of the power “to divorce parties who have

legally married in another jurisdiction and who otherwise meet the residency and other

prerequisites required to file for a divorce in Dallas County, Texas.” 1 CR 82.

1
The OAG immediately filed a notice of interlocutory appeal from the denial of its

plea to the jurisdiction. 1 CR 85. The OAG also filed a conditional petition for writ of

mandamus to the extent the Order struck the intervention (from which the OAG cannot

immediately appeal) rather than denied the OAG’s plea to the jurisdiction. See In re

State of Texas, No. 05-09-01208-CV, Pet. for Writ of Mand. at 2 (filed 10/14/09). J.B.

opposed the mandamus on grounds that the trial court did not abuse its discretion in

striking the OAG’s unprecedented petition in intervention, among other grounds. See id.,

J.B.’s Resp. at 1-2 (filed 10/26/09). On October 28, 2009, this Court consolidated the

mandamus proceeding with this interlocutory appeal. See In re State of Texas, No. 05-

09-01208-CV, Order (dated 10/28/09).

J.B. timely requested findings of fact and conclusions of law on October 20, 2009.

See OAG’s Appendix at Tab 5.1 On December 7, 2009, the trial court entered findings of

fact and conclusions of law and an amended order (the “Amended Order”), which

explains that application of Texas Family Code § 6.204 violates rights of J.B. in addition

to those cited in the Order. 1 Supp. CR 19-20; 2 Supp. CR 27-34. The Amended Order

also removes language that Texas Constitution article I, section 32 is unconstitutional

under the Equal Protection Clause. See 1 Supp. CR 19-20.

1
J.B. has requested the district clerk to include J.B.’s request for findings of fact and conclusions of law
in the appellate record. 2 Supp. CR 41 (Jan. 27, 2010 request letter); see also Feb. 5, 2010 request letter
(filed with this Court). J.B. will provide the Court with the record cite once the supplemental record
containing J.B.’s request for findings of fact and conclusions of law is filed.

2
SUMMARY OF THE ARGUMENT

This is an interlocutory appeal concerning whether the trial court has subject

matter jurisdiction to grant a divorce to a same-sex couple residing in Texas who had

previously (and legally) married in Massachusetts. Despite the OAG’s efforts to cast the

trial court’s orders as an activist change in Texas law, the trial court’s rulings do not

overturn Texas’ constitutional and statutory prohibitions on same-sex marriage. Indeed,

neither party to this divorce proceeding initially challenged the constitutionality of any

law—it was not until the OAG sought to intervene and purportedly “defend Texas law”

that any constitutional issues arose. The married couple here simply wants a divorce, just

like any other couple who was legally married out-of-state, relocated to Texas, and, when

their relationship ended, availed themselves of our courts to obtain a divorce.

Under Texas Family Code § 6.204 and Texas Constitution article I, section 32, a

same-sex couple may not legally marry in Texas. But these provisions do not preclude a

Texas court from granting a divorce to a same-sex couple legally married in another

state. To maintain a divorce suit, the parties merely must have a valid “marriage,”

which—by the plain language of the Texas Family Code—is not restricted to a

“marriage” formed only in Texas. These jurisdictional provisions in the Family Code

apply to any valid marriage, no matter where it was formed. Likewise, the Texas

Constitution’s definition of “[m]arriage in this state” as “the union of one man and one

woman” plainly speaks only to marriage “in this state” and does not address the standing

of Texas residents, who were married in another state, to seek a divorce, or the

jurisdiction of Texas courts to hear their petitions for divorce.

3
Further, Texas universally looks to the laws of the state in which the couple was

married to ascertain the validity of that marriage for the limited purpose of granting a

divorce. In doing so, Texas does not “recognize” those other states’ policies as its own.

Thus, the trial court’s order here does not change how Texas courts determine whether a

petitioner and respondent are entitled to a divorce.

Nor does Texas “give effect” to any marriage formed in another state by granting a

divorce, because the validity of the marriage under the laws where it was formed is

merely noted, not adjudicated, in a divorce proceeding. Indeed, under well-settled rules

concerning the conclusiveness of judgments, a divorce decree is no evidence as to non-

parties that the couple had ever been validly married. In sum, this Court need not hold

that Texas’ same-sex marriage policy is unconstitutional to affirm the trial court’s

exercise of subject matter jurisdiction in this case, despite the OAG’s unfounded, and

wholly politically motivated, arguments to the contrary.

Nevertheless, reading Texas Family Code § 6.204 and Texas Constitution article I,

section 32 as broadly as the OAG urges is prohibited by the United States Constitution.

Depriving J.B. of his fundamental right to divorce, when that right is given to all

opposite-sex married couples, would violate Equal Protection by discriminating against

J.B. based on his sexual orientation. The OAG cannot advance even a legitimate state

interest—much less the compelling one demanded here—why Texas should deny divorce

to same-sex couples. The supposed interests the OAG does offer—like the purported

“precedent” it advances in Baker v. Nelson—might have some application in a case in

which a party actually challenges a state’s refusal to allow same-sex marriage. But these

4
interests and arguments have absolutely no currency when applied to a state’s decision to

deny same-sex couples the right to divorce.

Moreover, the alternative to divorce that the OAG offers—a “suit to void a

marriage”—is entirely inadequate. It is instead a “special disability” imposed upon

same-sex couples, separate from all other lawfully married couples, that is invidious in

motive, stigmatizing in effect, and unduly complicated in administration.

The broad application of Texas law the OAG urges also infringes upon other

constitutional rights. Individuals possess a fundamental Due Process right to divorce,

which is infringed whenever they are denied access to divorce proceedings. That denial

might come in the form of a complete ban on divorce, or through the provision of a

substitute so deficient as to provide no meaningful means to terminate the marriage, such

as the voidance proceeding the OAG urges.

Additionally, because Texas has never allowed same-sex marriage, efforts to

prevent same-sex couples from obtaining a divorce fall disproportionately on couples

who lived, and were married, in other states. Texas’ efforts to deprive these same-sex

couples of divorce unduly discourage them from setting up residence in Texas, thereby

infringing on the constitutional right to travel.

For all these reasons, the trial court has subject matter jurisdiction in this divorce

proceeding, and its denial of the OAG’s plea to the jurisdiction should be affirmed.

5
ARGUMENT

I. Regardless Of The Constitutionality Of The Texas Family Code And Texas


Constitution’s Same-Sex Marriage Provisions, The Trial Court Has
Jurisdiction To Decide This Divorce Proceeding.

A. Upon de novo review, this Court need not address constitutional issues
to uphold the trial court’s subject matter jurisdiction.

The trial court has subject matter jurisdiction to decide this divorce proceeding and

thus did not err in denying the OAG’s plea to the jurisdiction.2 The trial court’s Order

states that Texas Family Code § 6.204 and Texas Constitution article I, section 32 are

unconstitutional to the extent they would deprive the court of jurisdiction to hear J.B.’s

divorce. However, this Court need not address the constitutionality of Texas’ same-sex

marriage policy in its de novo review of whether the trial court has jurisdiction.

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of

subject matter jurisdiction. Dallas Area Rapid Transit v. Monroe Shop Partners, Ltd.,

293 S.W.3d 839, 840 (Tex. App.—Dallas 2009, pet. denied). Whether a court has subject

matter jurisdiction is a question of law reviewed de novo. Id. When reviewing error

under a de novo standard, the appellate court conducts an independent analysis of the

2
J.B. opposes the OAG’s interlocutory appeal from the trial court’s denial of the OAG’s plea to the
jurisdiction in the alternative to and without waiving J.B.’s opposition to the OAG’s conditional petition
for writ of mandamus. As explained in J.B.’s mandamus opposition, the OAG has no justiciable interest
in and is not a proper party to this divorce suit, and the trial court did not abuse its discretion in striking
the OAG’s unprecedented petition in intervention sua sponte. See In re State of Texas, No. 05-09-01208-
CV, Real Party in Interest J.B.’s Resp. to Pet. for Writ of Mand. at 1-2 (filed 10/26/09). But because this
Court consolidated this interlocutory appeal and the mandamus proceeding, J.B. responds to the OAG’s
arguments on interlocutory appeal concerning the plea to the jurisdiction. It remains J.B.’s position, as
expressed in his mandamus opposition, that the Court need not reach the issues on interlocutory appeal
because the trial court did not abuse its discretion in striking the OAG’s intervention. See Wells Fargo
Bank Texas, N.A. v. Barton, 100 S.W.3d 455, 458 (Tex. App.—San Antonio 2003, no pet.). This brief is
filed specifically subject to J.B.’s mandamus opposition.

6
record to arrive at its own legal conclusions, does not defer to the trial court’s

conclusions, and may substitute its conclusions for those made by the trial court. Estates

of Elkins v. County of Dallas, 146 S.W.3d 826, 828 (Tex. App.—Dallas 2004, no pet.).

Thus, even though the trial court concluded that it had jurisdiction only if it determined

that the Texas Constitution and Family Code provisions concerning same-sex marriage

are unconstitutional, this Court does not need to address constitutional issues to hold that

the trial court has subject matter jurisdiction to grant a divorce.

B. J.B. has statutory standing because the Texas Family Code does not
limit divorce to parties of marriages formed in Texas only.

Texas Family Code § 6.001 provides that a trial court may grant a divorce “[o]n

the petition of either party to a marriage.” TEX. FAM. CODE § 6.001. The OAG asserts

that J.B. lacks statutory standing to invoke the trial court’s jurisdiction over divorce

because J.B. is not “married” under Texas law. Neither the plain language of Section

6.001 nor case law supports the OAG’s contention.

Section 6.001 does not state that only a “party to a marriage formed in Texas” has

standing to petition for divorce. The statute addresses “marriage,” without qualification.

And here, the OAG does not dispute that J.B. was legally married under Massachusetts

law. Thus, under the statute’s plain, unambiguous language, J.B. has standing to petition

for a divorce. Likewise, the Texas Constitution’s definition of “[m]arriage in this state

[as] the union of one man and one woman” speaks only to marriage “in this state” and

does not address the ability of Texas residents, who were legally married in another state,

to seek a divorce in Texas. See TEX. CONST. art. I, § 32(a).

7
Indeed, long-standing precedent disapproves of the overly-broad reading of the

Texas Constitution’s definition of “marriage” the OAG urges. Texas courts have a long

history, based on principles of comity, of looking to the law of the state in which the

marriage was celebrated—the “place of celebration”—to ascertain whether a marriage

was lawfully entered for the purpose of hearing a divorce. See, e.g., Braddock v. Taylor,

592 S.W.2d 40, 42 (Tex. Civ. App.—Beaumont 1979, writ ref’d n.r.e.); Durr v. Newman,

537 S.W.2d 323, 326 (Tex. Civ. App.—El Paso 1976, writ ref’d n.r.e.); see also

RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 283 (1971). And under these conflicts

of law principles, a marriage valid under the laws where it was formed is valid in all other

jurisdictions, even though the marriage may have been voidable or even void if formed in

those other jurisdictions. See, e.g., Payne v. Payne, 214 P.2d 495, 498 (Colo. 1950) (in

suit for annulment, court looked to Texas law, where marriage was formed, concerning

marriage’s validity even though marriage would have been invalid under Colorado law).

Indeed, other courts have held that a same-sex marriage legally entered under the

laws of another state constitutes a “marriage” for the limited purpose of conferring

jurisdiction to hear a petition for divorce, even where that marriage would be prohibited

or invalid under the laws of the forum state. See, e.g., Beth R. v. Donna M., 853

N.Y.S.2d 501, 506 (N.Y. Sup. Ct. 2008); see also C.M. v. C.C., 867 N.Y.S.2d 884, 889

(N.Y. Sup. Ct. 2008). In Beth R., a lesbian couple was legally married in Canada. One

spouse sought a divorce in New York. The respondent moved to dismiss on grounds that

the marriage was void under New York law, arguing that because New York law does not

permit same-sex marriage, there can be no cause for divorce. The court rejected

8
respondent’s argument, and upheld petitioner’s right to divorce based on comity. Beth

R., 853 N.Y.S.2d at 504-06; see also C.M., 867 N.Y.S.2d at 889 (New York court had

jurisdiction over divorce proceedings of same-sex couple legally married in

Massachusetts based on doctrine of comity and full faith and credit principles).

The cases the OAG cites for the proposition that the divorce court need not look to

the law of the state where the marriage was formed to ascertain the marriage’s validity

are distinguishable. See OAG’s Opening Br. at 20-21 (citing Chambers v. Ormiston, 935

A.2d 956 (R.I. 2007); O’Darling v. O’Darling, 188 P.3d 137 (Okla. 2008); Rosengarten

v. Downes, 802 A.2d 170 (Conn. App. Ct. 2002)). First, Chambers is distinguishable

because the Rhode Island Family Court is a court of limited statutory jurisdiction that

could only exercise the powers granted by the legislature, which did not include the

power to divorce a same-sex couple. See C.M., 867 N.Y.2d at 888 (distinguishing

Chambers and stating that “[t]he Chambers court concluded that the concepts of . . .

comity were not applicable because the Family Court as a court of limited jurisdiction

could only exercise the powers granted to it by the legislature”). That court cannot apply

the comity principles invoked in the place of celebration test. See id. By contrast, Texas

Family Courts (like the New York Supreme Court in C.M., see id.) are courts of general

jurisdiction that can apply comity principles. See TEX. GOV’T CODE § 24.601 (“A family

district court has the jurisdiction and power provided for district courts . . . . Its

jurisdiction is concurrent with that of other district courts”). Second, O’Darling is

distinguishable because the Oklahoma Supreme Court did not address whether an

Oklahoma trial court had jurisdiction under comity principles to grant a divorce to a

9
same-sex couple legally married in Canada, but rather remanded the case to the trial court

“to conduct a hearing . . . allowing Petitioner to argue if there exists facts that would

entitle her to relief.” O’Darling, 188 P.3d at 140. This left open the possibility that

petitioner could show her right to divorce on remand. Finally, Rosengarten also is

distinguishable because it involved a same-sex civil union formed in Vermont, where

same-sex civil unions are lawful, not a same-sex marriage, which was not legal under

Vermont law. See Rosengarten, 802 A.2d at 175. The court held that the civil union did

not fit within Connecticut’s jurisdictional definition of “marriage” because it was not a

valid marriage under Vermont or Connecticut law. Id. at 177. Thus, the place of

celebration test—which applies to marriage—would be inapplicable and, indeed, was not

addressed in the opinion.3

Further, the OAG’s other cases offer no support for the proposition that only

parties to a Texas marriage, not a marriage formed in another state, have standing to

obtain a divorce in Texas. Littleton v. Prange, for example, is not even a divorce suit. 9

S.W.3d 223, 225 (Tex. App.—San Antonio 1999, pet. denied). There, the surviving

spouse of a same-sex marriage entered in Kentucky sought to bring a medical malpractice

suit in Texas arising from his spouse’s death. The court determined that plaintiff lacked

standing to bring the suit because the marriage in question was invalid and thus plaintiff

was not a “surviving spouse.” Id. at 231. Importantly, the marriage in question was

3
Chambers, O’Darling, and Rosengarten are further distinguishable because none dealt with an Equal
Protection challenge to the denial of divorce proceedings to a legally married same-sex couple. See
Argument Section II.B. infra.

10
formed in Kentucky, where same-sex marriage was not permitted. See id. at 225. Thus,

the court did not address whether plaintiff would have had standing had the parties been

legally married out-of-state, which is the issue here. As a result, Littleton is entirely

inapposite. Likewise, Mireles v. Mireles is distinguishable because it concerns a

marriage formed in Texas and a collateral attack on a divorce decree that had already

been entered. No. 01-08-00499-CV, 2009 WL 884815 (Tex. App.—Houston [1st Dist.]

Apr. 2, 2009, pet. denied) (mem. op.). The OAG’s reference to the newly-filed Naylor v.

Daly case also is inapposite. No. D-1-FM-09-000050, 126th Dist. Ct., Travis County,

Tex. There has been no adjudication there of the petitioner’s ability to obtain a divorce

rather than seek voidance of a same-sex marriage. In short, none of these cases support

the OAG’s argument and none are binding authority.

In this case, the place of celebration—which governs the existence of the marriage

for purposes of granting a Texas divorce—is Massachusetts. A same-sex marriage is

undisputedly legal in Massachusetts. Therefore, J.B. is a “party to a marriage” under

Texas Family Code § 6.001 and has standing to seek a divorce in a Texas court.

C. The trial court’s exercise of subject matter jurisdiction over this


divorce does not impermissibly “recognize” or “give effect to” a same-
sex marriage in violation of Texas Constitution article I, section 32 and
Texas Family Code § 6.204.

The OAG also argues that the trial court cannot, consistent with Texas

Constitution article I, section 32 and Texas Family Code § 6.204, exercise subject matter

jurisdiction over this divorce because doing so would impermissibly “recognize” or “give

effect to” a same-sex marriage. As explained below, a Texas trial court need not

11
“recognize” an out-of-state marriage to grant a divorce, because the validity of the

marriage is merely noted, not adjudicated, in a divorce proceeding. Moreover, a divorce

decree does not establish the previous validity of a marriage against non-parties and thus

cannot be said to “give effect to” a same-sex marriage formed in another jurisdiction.

1. Granting a divorce does not impermissibly “recognize” a same-sex


marriage in violation of Texas Constitution article I, section 32.

Article I, section 32 of the Texas Constitution—which provides that “[t]his state or

a political subdivision of this state may not create or recognize any legal status identical

or similar to marriage”—is not implicated in this proceeding, as the trial court correctly

concluded. 2 Supp. CR 29. Dissolving a marriage formed in another state does not

require that Texas affirm or approve of the marriage, or subjugate its own policies to

those of another state. In granting a divorce, Texas courts do not determine the validity

of a marriage by reference to either Texas law or Texas public policy. Rather, Texas

courts, as a matter of comity, apply the “place of celebration” test discussed above,

utilizing the law of the place where the marriage was formed to determine the validity of

the marriage. See Braddock, 592 S.W.2d at 42; Durr, 537 S.W.2d at 326; see also

RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 283. In applying the laws of other

states, Texas is not “recognizing” the legal status of the marriage as a matter of Texas

law. By merely noting the existence of a marriage legally formed under the laws of

another state for the limited purpose of hearing a petition for divorce, a Texas court does

not indicate that the marriage was authorized in any way under Texas law. See BLACK’S

LAW DICTIONARY 1385 (9th ed. 2009) (“recognition” is the “authoriz[ation]” of an act).

12
Any broader interpretation of the term “recognize” would violate the well-known

principle that courts must give a statute the meaning that gives rise to the fewest, least

complicated questions and that upholds the constitutionality of a statute. County of

Maverick v. Ruiz, 897 S.W.2d 843, 846 (Tex. App.—San Antonio 1995, no writ). Not

only does the OAG’s broad interpretation of “recognize” support the proposition that

article I, section 32 is unconstitutional as applied to same-sex divorce, it might even

prohibit a “suit to declare marriage void,” because such a suit necessarily requires the

court to “recognize” the prior relationship according to the definition advanced by the

OAG. See infra Argument Section II.B.2(b)(i). This Court should reject such an overly-

broad interpretation of the Texas Constitution.

2. Granting a divorce does not impermissibly “give effect to” a same-


sex marriage in violation of Texas Family Code § 6.204.

A divorce decree cannot be said to “give effect to” a same-sex marriage legally

formed in another state in violation of Texas Family Code § 6.204, because it does not

establish the previous validity of a marriage against those who are not parties to the

divorce. As a general matter, to non-parties a divorce is no evidence that the couple had

ever been validly married. E.g., Rediker v. Rediker, 221 P.2d 1, 4 (Cal. 1950) (divorce

decree “does not establish the previous validity of their marriage against third persons”);

see also Ashley v. Ashley, 51 So. 2d 239, 243 (Ala. 1951) (in estate case, plaintiff was

estopped from attacking the validity of decedent’s marriage based on a divorce decree;

the decree was no evidence of the “legal status of the [decedent’s] marriage before

divorce”); Hilton v. Snyder, 108 P. 698, 700-01 (Utah 1910) (in an action to recover

13
dower, judgments in other cases that parties were validly married were no evidence that

the parties were validly married for purpose of instant case).4

This is because a divorce is an “in rem” action, which “involv[es] or determin[es]

the status of a thing.” BLACK’S LAW DICTIONARY 864 (9th ed. 2009). The subject

matter adjudicated in a divorce is the status of the parties after the divorce. An “in rem”

judgment, such as a divorce, is res judicata and conclusive as to the parties and non-

parties. But the facts upon which the “in rem” judgment is predicated are not res judicata

to non-parties to the divorce. See, e.g., In re Rowe’s Estate, 141 P.2d 832, 836 (Or. 1943)

(“‘While the decree in a divorce suit . . . binds the whole world as to the status of the

parties, . . . [it is] not conclusive for or against any third person in reference to the facts

which it necessarily affirms or denies. . . . As between strangers or between parties and

strangers, a decree of divorce does not establish the previous validity of the marriage . .

.’”) (quoting 2 FREEMAN ON JUDGMENTS § 910 (5th ed. 1925)).

Thus, a divorce decree does not determine the validity of the marriage before the

divorce. It establishes the singleness of the parties after the divorce. See Oborn v. State,

126 N.W. 737, 744 (Wis. 1927) (divorce “merely established the status of the parties

toward each other as judicially separated. . . . The action and the result, dissolving any

existing marital relations between the parties, did not, as to the public generally, establish

such relations to be such as the parties claimed for them. So far as the action was ‘in

4
These tend to be older cases as the issues in many of them—e.g., illegitimate children, dower, and other
related issues—were litigated more in the past than today. The cases’ vintage, however, does not affect
their validity.

14
rem’ the ‘res’ was the condition of subsequent singleness as to each other, not valid prior

existence of marital relations.”).

For example, in Hunter v. Hunter, the California Supreme Court directly

addressed whether a divorce decree established the validity of a purported marriage. 43

P. 756 (Cal. 1896). There, X married husband A. Then, X married husband B. Later, X

brought divorce proceedings against husband A, alleging that she was the wife of

husband B. Divorce was granted. Subsequently, husband B sought an annulment on

grounds that his wife X was already married when she married him. B contended that his

wife’s divorce decree from A was conclusive evidence of a valid pre-existing marriage to

A. The Court disagreed, holding that while the divorce decree was conclusive that X

“was no longer the wife” of A, the decree “was an adjudication of nothing else”—it did

not determine that A and X had ever been lawfully married. Id. at 757.

It follows that by granting a divorce to a same-sex couple legally married in

another state, a Texas court gives no “effect” to the same-sex marriage in violation of

Texas Family Code § 6.204, because the decree does not establish the existence of the

prior marriage as to non-parties.5 A divorce decree constitutes no evidence that the

5
To the extent a divorce decree is evidence of a prior marriage as to the parties to the divorce (as opposed
to non-parties), this also does not violate Section 6.204. Nor does the general presumption in divorce
cases that the parties have a valid marriage offend Texas’ same-sex marriage prohibitions. Dissolving a
marriage formed in another state does not require that Texas affirm or approve of that other state’s
policies, subjugate its own policies, or “give effect” to another state’s policies as Texas’ policies. In
granting a divorce, Texas courts do not determine the marriage’s validity by reference to either Texas law
or Texas public policy. See, e.g., RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 11 (Intro. Note) (“A
person’s status remains the same during his travels from state to state. . . . [T]he incidents that arise from
a status are likely to vary since they depend upon the law governing the particular incident. Thus,
whether two persons are validly married is determined, wherever they may be, by the law governing the
marriage. . . . Whether . . . they can lawfully cohabit . . . is determined by the local law of the state.”).

15
parties were ever validly married. E.g., Ashley, 51 So. 2d at 243; Rediker, 221 P.2d at 4;

In re Rowe’s Estate, 141 P.2d at 836; Oborn, 126 N.W. at 744; Hilton, 108 P. at 701;

Hunter, 43 P. at 757. Thus, there is no danger that Texas’ policy against same-sex

marriage will be jeopardized by granting a divorce to a couple who was legally married

in another state.

Further, if granting a divorce is “giv[ing] effect to” a “right or claim to any legal

protection, benefit or responsibility asserted as a result of a marriage between persons of

the same sex” prohibited by Texas Family Code § 6.204, then a voidance proceeding—

the remedy advocated by the OAG—would also constitute “giv[ing] effect to” a

prohibitive “right or claim . . . as a result of” a same-sex marriage. According to the

OAG, parties to a suit to declare a marriage void “can request and obtain many additional

elements of relief,” including temporary restraining orders, name changes, and divisions

of property. OAG’s Opening Br. at 10-11. But the OAG does not contend that

proceedings to void a marriage do anything to “give effect to” that marriage in violation

of the Family Code. See id. at 8-11. The OAG cannot have it both ways. If a divorce

“gives effect to” a legal, out-of-state same-sex marriage, then so does a voidance

proceeding, which would also be prohibited under the OAG’s strained interpretation of

the statute.

In sum, even though the trial court determined that it had jurisdiction only because

it concluded that the Texas Constitution and Family Code provisions concerning same-

sex marriage are unconstitutional, this Court need not so hold in its independent, de novo

review of the trial court’s subject matter jurisdiction. Just as a voidance proceeding

16
would not “recognize” or “give effect to” a same-sex marriage, nor would a divorce

proceeding. Accordingly, the trial court has subject matter jurisdiction regardless of the

constitutionality of the Texas Constitution and Family Code’s same-sex marriage

provisions, and did not err in denying the OAG’s plea to the jurisdiction.

II. In The Alternative, Texas’ Statutory And Constitutional Provisions Are


Unconstitutional To The Extent They Would Deprive J.B. Of A Divorce.

In the alternative, this Court should affirm the trial court’s Order and Amended

Order because Texas’ statutory and constitutional provisions violate the United States

Constitution by depriving J.B. of his fundamental right to a divorce.

A. Baker v. Nelson does not control this case.

The OAG argues that the trial court should not have reached any of the

constitutional issues in this case because they were foreclosed by Baker v. Nelson, 409

U.S. 810 (1972). Baker concerned a petition for certiorari—filed nearly forty years

ago—that challenged a Minnesota county clerk’s refusal to issue a marriage license to a

same-sex couple. The Supreme Court dismissed the petition for lack of a substantial

federal question without an opinion. From this abbreviated and cursory decision, and

without any support in either the lower court holding or the Supreme Court’s summary

order (which was essentially non-existent), the OAG somehow derives an overly broad—

and extremely specific—holding, which prevents anyone from ever challenging “any

aspect of the traditional definition of marriage—including the various legal benefits of

marriage.” OAG’s Opening Br. at 15. However, Baker cannot bear the outsized

emphasis placed upon it by the OAG. To apply the holding in Baker as the OAG

17
suggests would not only violate the Supreme Court’s strict rules regarding the

precedential effect of such summary orders, but would also apply Baker in a manner

much broader than it can withstand.

A summary dismissal like that in Baker has an especially narrow precedential

effect. It is binding only “on the precise issues presented and necessarily decided” by the

Court. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam) (emphasis added).

And it controls only to the extent that the issues in a future case are exactly “the same” as

those raised in the previous one. Id. at 174-77. This standard is exacting, and prevents

the older case from having preclusive effect when even extremely minor differences in

the facts are present. See id. at 176 (issues presented were not “the same” between an

elected official’s challenge to an election statute and a previous election challenge that

had been summarily dismissed).

Further, summary dispositions are not to be understood as “breaking new ground,”

but rather should be interpreted narrowly, consistent with their very limited purpose—

“prevent[ing] lower courts from coming to opposite conclusions on the precise issues

presented and necessarily decided by those actions.” Id. at 176. “‘An unexplicated

summary affirmance settles the issues for the parties, and is not to be read as a

renunciation by this Court of doctrines previously announced in our opinions after full

argument.’” Id. (quoting Fusari v. Steinberg, 419 U.S. 379, 391-92 (1975) (Burger, C.J.,

concurring)). Moreover, such a summary disposition does not necessarily affirm a lower

court’s reasoning. Id. at 175.

18
Baker has no precedential effect in this case because the issues resolved in Baker

have no bearing here. In Baker, the petitioner argued that a state could not

constitutionally refuse to marry same-sex couples under either the Due Process or Equal

Protection clauses of the Fourteenth Amendment. See U.S. CONST. amend. XIV, § 1, cl.

3 & 4. But J.B.’s case does not present an argument for marital equality. On the

contrary, J.B. is demanding equality in divorce—an issue that raises different concerns

and interests stemming from an entirely independent set of constitutional rights.6 An

individual’s right to divorce has been found to be a fundamental liberty interest that exists

separately from the liberty interests in marriage. See Loving v. Virginia, 388 U.S. 1, 12

(1967) (noting that infringements on “the freedom to marry or not to marry” both are

subject to strict controls) (emphasis added); see also Boddie v. Connecticut, 401 U.S.

371, 383 (1971) (divorce is an “adjustment of a fundamental human relationship”);

Williams v. North Carolina, 325 U.S. 226, 230 (1945) (divorce “affects personal rights of

the deepest significance”).

The importance of the distinction between claiming a constitutional right to

marriage and a constitutional right to divorce cannot be overstated. Even if Baker did

stand for the broad proposition the OAG asserts, it does not extend to divorce. No matter
6
The constitutional issues in this case center around divorce, rather than marriage. However, as an
alternative basis to uphold the trial court’s jurisdiction, this Court could hold that all laws denying the
benefits of marriage—including the right to obtain a marriage—to same-sex couples violate the Equal
Protection Clause and are facially unconstitutional, because they impose a “special disability” on same-
sex couples simply because they are unpopular. The state’s interest in protecting “traditional” marriage is
not a legitimate state interest that is served by denying same-sex couples the right to marry, because the
state cannot show that extending the right of marriage to same-sex couples would threaten opposite-sex
couples in any way. Such an argument is not foreclosed by Baker, because of the doctrinal changes in the
law represented by Lawrence v. Texas and Romer v. Evans, discussed infra.

19
how vociferously Texas opposes same-sex marriage, it cannot prevent J.B. and H.B. from

getting married, because they are already lawfully married. Thus, even if Texas has a

legitimate interest in protecting “traditional marriage,” that policy is not applicable in

divorce because a marriage has already occurred.

Finally, any precedential effect of Baker is doubtful in light of the principle that

the U.S. Supreme Court’s summary dismissals are binding only to the extent they have

not been undermined by subsequent “doctrinal developments” in the Supreme Court’s

case law. Hicks v. Miranda, 422 U.S. 332, 344 (1975). Several doctrinal developments

have fatally undermined Baker’s precedential force. Baker came well before the line of

cases exemplified by Lawrence v. Texas and Romer v. Evans that recognize individuals’

rights to be free from unwarranted governmental intrusion and differential treatment

based on their sexual orientation. In Romer v. Evans, the Supreme Court invalidated a

Colorado constitutional amendment that prohibited state or local governments from

taking any action to protect gays and lesbians from discrimination. The Court held that

the measure “withdr[ew] from homosexuals, but no others, specific legal protection” and

“impose[d] a special disability upon those persons alone.” Romer v. Evans, 517 U.S.

620, 631 (1996) (emphasis added). After Romer, all laws that “disadvantage” gays and

lesbians and single them out for disfavored treatment are constitutionally suspect. See

Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004).

In Lawrence, the U.S. Supreme Court invalidated a Texas statute that criminalized

intimate conduct by same-sex couples under the Due Process Clause. The Court

recognized that “personal decisions relating to marriage, procreation, contraception,

20
family relationships, [and] child rearing” are protected from unwarranted intrusion by the

state, and “[p]ersons in a homosexual relationship may seek autonomy for these purposes,

just as heterosexual persons do.” Lawrence v. Texas, 539 U.S. 558, 574 (2003). Given

that Lawrence described a zone of autonomy beyond government intrusion for gay and

lesbians’ private intimate associations that would extend to “decisions relating to

marriage,” it obviously modified the state of the law such that Baker’s analysis is no

longer relevant.

The OAG argues that the Lawrence majority “refused to revisit” whether same-sex

couples could demand formal recognition of their relationships. However, this is both

untrue and irrelevant. The Court did not refuse to revisit the issue of same-sex marriage

in Lawrence. Instead, the Court simply stated that its holding did not explicitly determine

whether same-sex relationships had to be constitutionally recognized. The holding’s

limitation is sensible—as the case did not concern a claim for marital equality, any

holding explicitly granting such a right would be no more than dicta. It is beyond doubt

that what may have been an insubstantial Due Process claim before Lawrence became a

very substantial constitutional question after that opinion was issued.

As neither the parties nor the Court in Baker had even conceived of Equal

Protection or Due Process claims on the basis of sexual orientation—issues that had

never been decided before Romer and Lawrence—it is impossible to say that Baker has

precedential effect as a reflection of the current state of the law. The combination of

what the parties did not consider in Baker (namely, whether individuals have a

constitutional right to divorce when they have a lawful marriage), and what that decision

21
could not have fairly encompassed (the ability to successfully challenge laws that

discriminate on the basis of sexual orientation and gender), deprive Baker of any

precedential effect whatsoever in this case. Baker therefore did not preclude the trial

court from considering the constitutionality of both Texas Constitution article I, section

32 and Texas Family Code § 6.204.

B. Depriving J.B. of access to a divorce violates Equal Protection.

When the OAG’s heavy reliance on Baker is properly discounted, the OAG’s case

rests on little more than the bald assertion that divorce proceedings can be denied to all

same-sex couples, even those who were lawfully married, and that couples like J.B. and

H.B. must instead resort to a “suit to void a marriage”—a separate and, even as the OAG

admits, unequal means of dissolving marriages. The trial court properly concluded that

depriving lawfully-married same-sex couples of the right to divorce violates Equal

Protection, and thus, both Texas Constitution article I, section 32 and Texas Family Code

§ 6.204 cannot be constitutionally enforced to the extent they deprive the trial court of

jurisdiction to hear J.B.’s suit for divorce. See U.S. CONST. amend. XIV, § 1, cl. 4. The

OAG has not provided any reason why this ruling should not be upheld.

1. The trial court was entitled to reach the issue of whether Texas
Constitution article I, section 32 and Texas Family Code § 6.204
violate Equal Protection.

The OAG argues that the trial court erred in even entertaining the issue of whether

Texas’ same-sex marriage prohibitions violate Equal Protection. It is true that trial courts

generally are discouraged from declaring statutes unconstitutional sua sponte. See In re

Doe 2, 19 S.W.3d 278, 284 (Tex. 2000). However, a trial court has authority to consider

22
a statute’s constitutionality, even on its own, on matters of great public importance that

impact Texas’ citizens. In re C.M.D., 287 S.W.3d 510, 514 (Tex. App.—Houston [14th

Dist.] 2009, no pet.) (noting that the Texas Supreme Court chose not to impose an

absolute rule against reaching the constitutionality of a statute sua sponte in Doe 2);

Houston Chronicle Publ’g Co. v. City of Houston, 531 S.W.2d 177, 183 (Tex. Civ.

App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.) (cited by Doe 2, 19 S.W.3d at 284).

The constitutional issues here are of great importance—both to J.B., who would be

deprived his residential forum for dissolving his marriage if the statute is enforced, and to

the public in general. The trial court therefore properly considered whether that statute

was constitutional. It would have been derelict in its responsibility if it simply allowed

such serious and apparent constitutional flaws to go unexamined.

2. Any law that would prevent the trial court from exercising
jurisdiction would be inconsistent with the Fourteenth
Amendment’s guarantee of Equal Protection .

According to the OAG, only a “suit to void a marriage,” not a divorce, is available

to terminate a same-sex marriage in Texas. The OAG can offer nothing more than

caprice and base prejudice (and the obvious political expediency) to justify Texas’

legislative purpose to deny same-sex couples the right to divorce. Its defense of these

statutory and constitutional provisions falls far short of providing a legitimate—much

less compelling—justification for these laws.

(a) Strict scrutiny should apply in this case.

The OAG presumes that rational basis review should apply to the Equal Protection

inquiry, but makes absolutely no effort to show why this ought to be the case. The

23
freedom to marry a person of one’s choosing is a fundamental liberty interest protected

under the United States Constitution, as an aspect of a person’s individual autonomy in

important life decisions. Loving v. Virginia, 388 U.S. 1, 13 (1967); Richards v. League of

United Latin Am. Citizens, 868 S.W.2d 306, 314 (Tex. 1993); see also M.L.B. v. S.L.J.,

519 U.S. 102, 116 (1996) (“Choices about marriage” are “sheltered by the Fourteenth

Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”);

Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992); Prince v. Massachusetts, 321

U.S. 158, 166 (1944) (noting the existence of a “private realm of family life which the

state cannot enter”); see also 2 Supp. CR 30. Divorce, and the bundle of personal and

property rights that go with divorce, are also fundamental liberty interests that stem from

a person’s interest in individual autonomy. See Casey, 505 U.S. at 851 (“At the heart of

liberty is the right to define one’s own concept of existence, of meaning, of the universe,

and of the mystery of human life.”); see also Boddie v. Connecticut, 401 U.S. 371, 383

(1971) (divorce is “adjustment of a fundamental human relationship” and thus a

fundamental liberty interest); Loving, 388 U.S. at 12 (“freedom to marry or not to marry”

both are subject to strict controls when they are infringed) (emphasis added).

Moreover, the laws surrounding divorce, like marriage laws, have a unique impact

on the realm of private personal conduct that further justifies the imposition of strict

scrutiny to analyze any law that discriminates against persons in their ability to obtain a

divorce. As the Supreme Court has noted, unlike other contracts and agreements that can

be dissolved without state intervention, it is not possible for two consenting adults to

“divorce and mutually liberate themselves from the constraints of legal obligations that

24
go with marriage, and more fundamentally the prohibition against remarriage, without

invoking the State’s judicial machinery.” See Boddie, 401 U.S. at 376. The “judicial

machinery” of divorce is therefore of special concern to courts, because it can so readily

and invasively impact parties’ private social arrangements. See id.

Because the rights to marry and to divorce are both fundamental liberty interests,

and because the state has a unique monopoly on the means to divorce, classifications that

impose greater restrictions on certain lawfully married couples’ right to divorce over

others are subject to strict scrutiny. See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312

(1976) (“equal protection analysis requires strict scrutiny of a legislative classification . . .

when the classification impermissibly interferes with the exercise of a fundamental

right”); see also Zablocki v. Redhail, 434 U.S. 374, 383-88 (1978) (applying strict

scrutiny to an equal protection challenge for a statute alleged to interfere with the

fundamental right to marry).

Strict scrutiny is also justified under the Equal Protection Clause because Texas’

policy discriminates against individuals on the basis of sexual orientation, and gays and

lesbians bear the characteristics of a suspect or “quasi-suspect” class. First, gays and

lesbians have long been persecuted. Bowen v. Guilliard, 483 U.S. 587, 602 (1987).

“[F]or centuries there have been powerful voices to condemn homosexual conduct as

immoral.” Lawrence, 539 U.S. at 559. Sodomy laws were once virtually ubiquitous, and

were historically directed at, or exclusively enforced against, gays and lesbians. See, e.g.,

Christopher R. Leslie, Creating Criminals: The Injuries Inflicted by “Unenforced”

Sodomy Laws, 35 HARV. C.R.-C.L. L. REV. 103, 175 (2000) (“Although most sodomy

25
statutes are facially neutral, they are selectively enforced against gay men and interpreted

by courts and citizens as proscribing only same-sex conduct.”); see also Carlos A. Ball,

Privacy, Property, and Public Sex, 18 COLUM. J. GENDER & L. 1, 49 n.166 (2008)

(pointing to evidence that law enforcement officials target gay men for unequal

enforcement of solicitation and public lewdness laws). Even now, gays and lesbians

cannot openly serve in the military, 10 U.S.C. § 654, and cannot adopt in certain states.

Lynn D. Wardle, Global Perspective on Procreation and Parentage by Assisted

Reproduction, 35 CAP. U. L. REV. 413, 423 & n.51 (2006) (noting that Alabama,

Colorado, Florida, Mississippi, Nebraska, Oklahoma, Utah, and Wisconsin prohibit

adoption by same-sex couples). And in many states—including, of course, Texas—gays

and lesbians are not permitted to marry.

Second, gays and lesbians bear “obvious, immutable, or distinguishing

characteristics that define them as a discrete group.” Bowen, 483 U.S. at 602. Mounting

scientific evidence demonstrates that sexual orientation is an immutable characteristic of

the individual. See E. Gary Spitko, A Biologic Argument for Gay Essentialism-

Determinism: Implications for Equal Protection and Substantive Due Process, 18 U.

HAW. L. REV. 571, 576-84 (1996) (discussing genetic influences on sexual orientation).

Third, gays and lesbians comprise a substantial minority of persons, with little

political support, making access to the political process, which might normally be

expected to aid persecuted persons, unlikely. Bowen, 483 U.S. at 602; see also Polis

Becomes Third Openly Gay Member of Congress, VICTORY, Jan. 6, 2009,

http://www.victoryfund.org/newes/view/url:polis_becomes_third_openly_gay_member_o

26
f_congress (last visited Feb. 3, 2010) (explaining that Jared Polis joined Representatives

Barney Frank and Tammy Baldwin as the third openly gay member of the 111th

Congress); Celena R. Mayo, The Road Not Taken: Able v. United States, Equal

Protection, Due Deference, and Rational Basis Review, 16 N.Y. L. SCH. J. HUM. RTS.

407, 435 (1999) (in 1999, there were also only three openly gay members of Congress).

Finally, heightened scrutiny for laws against gays and lesbians is justified because

sexual orientation has absolutely no bearing on one’s ability to “perform or contribute to

society.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985).

Those who oppose gays and lesbians have repeatedly failed to demonstrate any

convincing reason for disadvantaging them, because none exists. See Lawrence, 539

U.S. at 577; Romer, 517 U.S. at 626-27.

The OAG has not shown that Texas has a compelling state interest in preventing

J.B. from obtaining a divorce, much less shown that Texas’ system is drawn as narrowly

as possible to prevent unduly discriminating against J.B. and other lawfully married

same-sex couples to further that compelling interest. In fact, as outlined below, the

OAG’s justification for denying J.B. a divorce fails even the far more deferential

“rational basis” scrutiny. It is apparent that Texas wishes to single out same-sex couples

and disadvantage them as much as possible, and the deprivation of divorce proceedings is

simply a function of this illegitimate state interest.

(b) The OAG’s divorce regime discriminates against lawfully-


married same-sex couples by depriving them of divorce on
terms equal to those enjoyed by opposite-sex couples.

In its attempt to exclude J.B. from having access to divorce proceedings, the OAG

27
suggests that J.B. must instead file a “suit to void a marriage” under Texas Family Code

§ 6.307. But “a suit to void a marriage”—if such a procedure is even available to same-

sex couples—is patently discriminatory because it does not provide anything close to an

adequate substitute for divorce, either in terms of its preclusive effect or the substantive

procedures available. This supposed remedy requires that lawfully-married same-sex

couples be treated separately and unequally from their opposite-sex counterparts. And it

will not provide J.B. the relief he seeks through divorce.

(i) A voidance proceeding is not an adequate substitute


for divorce.

There are at least three different ways in which a “suit to void a marriage” does

not provide same-sex couples an adequate substitute to a divorce proceeding and

therefore is discriminatory.

First, there is some question whether a suit to void a marriage is even available to

same-sex couples. Section 6.307 permits only a “party to a marriage made void” by the

Family Code to bring a suit to void a marriage. But the OAG argues that J.B. and H.B.

cannot get a divorce because they did not have a “marriage.” If the OAG is correct that

J.B. lacks standing to obtain a divorce, then how would J.B. have standing to bring a suit

to void a marriage? Even if J.B. sought to void his marriage, there is no guarantee that

the OAG would not try to intervene again and argue that the court lacked jurisdiction

because, according to the OAG, J.B. is not married in Texas.

Second, it is not possible to obtain the same relief in a voidance proceeding as in a

divorce. Premarital agreements are unenforceable in a suit to void a marriage. TEX.

28
FAM. CODE § 4.007. Retirement benefits, employee benefits, and insurance policies

cannot be distributed through a judgment on a suit to void a marriage. See TEX. FAM.

CODE §§ 7.003-7.005 (which apply only to decrees of “divorce or annulment”). The

court hearing a suit to void a marriage also cannot award spousal maintenance or enforce

agreements. See TEX. FAM. CODE §§ 7.006-7.007. Spouses do not enjoy the spousal

confidentiality privilege after a suit to declare a marriage void. See Bruni v. State, 669

S.W.2d 829, 833-37 (Tex. App.—Austin 1984, no writ).

Further—as even the OAG admits—a party to a void marriage, even a lawful one,

is not entitled to an award of community property in a suit to void a marriage. See

Chandler v. Chandler, 991 S.W.2d 367, 376 (Tex. App.—El Paso 1999, pet. denied).

And the court has no statutory power to order a “just and right” division of the marital

assets. See TEX. FAM. CODE §§ 7.001-7.002. In fact, as between them, parties to a void

marriage have no vested rights in property acquired during the marriage at all, and there

is no certain procedure or set of rules governing property division. As the OAG notes, it

is possible that property acquired during a void marriage may be distributed on uncertain

“equitable theories.” It is equally possible that property could be distributed as though

the marriage never existed, by awarding each spouse property “in proportion to the value

[each party’s] labor contributed to the acquisition of it.” See OAG’s Opening Br. at 10-

11 (citing Faglie v. Williams, 569 S.W.2d 557, 566 (Tex. Civ. App.—Austin 1978, writ

ref’d n.r.e.); Esparza v. Esparza, 382 S.W.2d 162, 168 (Tex. Civ. App.—Corpus Christi

1964, no writ)). The latter distribution rule, if followed, would lead to a demonstrably

unfair property division for a spouse to a void marriage who contributed to the marriage

29
through domestic service rather than economic activity. See In re Marriage of Sanger,

No. 06-99-00039-CV, 1999 WL 742607, at *4 n.5 (Tex. App.—Texarkana Sept. 24,

1999, no pet.) (noting that in a void marriage, “[t]here is no indication that anything

beyond financial contribution will be considered as direct contribution through labor to

the proceeds which were used to acquire the property. . . . [I]t would probably not be a

sufficient showing of a direct contribution to the property to merely demonstrate that one

party kept the home, while the other individual operated the successful business”). Thus,

a voidance proceeding is unequal and substandard to a divorce.

In fact, in addition to those disabilities that all members of void marriages suffer

in the voidance procedure, same-sex couples are singled out for a “special disability”

under Section 6.204, which places them at a unique disadvantage and makes the voidance

procedure even less acceptable as a means to dissolve their unions. See Romer, 517 U.S.

at 631. Unlike any of the other marriages made void under the Family Code, same-sex

marriages are not merely declared “void.” Instead, and in addition to declaring such

marriages “void,” Section 6.204(c) declares that “the state shall not give effect to” any

“right or claim to any legal protection, benefit, or responsibility asserted as a result of a

marriage between persons of the same sex.” TEX. FAM. CODE § 6.204(c). In language

that appears nowhere else in the Family Code, Texas thus declares that members of same-

sex unions cannot claim any legal protection, benefit, or responsibility on the basis of

their marriages. If this language is to be interpreted as broadly as the OAG suggests, it

might do more than merely prevent J.B. from obtaining a divorce. It might, in fact,

deprive same-sex couples of even those limited options that parties to void marriages can

30
claim under Texas law. And it is virtually certain that the Family Code (and the OAG)

would not permit members of same-sex marriages to qualify as a “putative spouse”—a

special doctrinal category created by Texas courts for spouses who married without

knowledge that their marriage was invalid, designed to mitigate the harsh effects of the

voidance procedure. Cardwell v. Cardwell, 195 S.W.3d 856, 858 (Tex. App.—Dallas

2006, no pet.). This special disability for parties to same-sex marriages imposed by

Section 6.204 further differentiates the rights of same-sex couples from their opposite-sex

counterparts and places them at a further disadvantage in attempting to end their

marriages.

Finally, while the OAG suggests that a judgment on a suit to declare a marriage

void would be given full faith and credit in other jurisdictions, it is not at all clear that

this is so. While the OAG maintains that “voidance is the long-established, time tested

vehicle” for terminating void marriages, the OAG has not presented any authority that a

Texas judgment voiding a marriage has ever been given full faith and credit in another

state. See OAG’s Opening Br. at 11. Instead, the OAG cites two cases suggesting

annulments are given full faith and credit. But an annulment judgment is far different

from a voidance decree. As the OAG itself suggests, an annulment terminates a voidable

marriage—one that has the full force and effect of law until a party decides to terminate

it. See id. at 8 (citing TEX. FAM. CODE §§ 6.102-6.111). Thus, the annulment decree

actually changes the status of the parties to the marriage from the period immediately

before the annulment. But a suit to void a marriage simply “decrees,” somewhat

circularly and tautologically, what Texas has already determined as a matter of law—that

31
a “marriage” the state considers void is, in fact, void. The decree has no legal effect other

than to express the state of affairs that already existed before the voidance proceeding.

Such legal nullities are not given full faith and credit. See, e.g., Maseda v. Honda Motor

Co., 861 F.2d 1248, 1256 (11th Cir. 1988).

There is an additional reason to doubt whether a voidance judgment in Texas will

have extraterritorial effect for a same-sex couple, in light of the special disabilities placed

on such couples under Section 6.204. Section 6.204(b) states that a same-sex marriage is

void only “in this state.” TEX. FAM. CODE § 6.204(b). The addition of the phrase “in this

state” is unique to same-sex couples, and does not appear in any of the other sections in

which different types of marriages are declared void. See TEX. FAM. CODE §§ 6.201-

6.206. Texas has thus decided, in a policy entirely unique to same-sex couples, that

same-sex marriages would not be void in any other state simply because they are void in

Texas, and Texas would not attempt to affect the existence, validity, or duration of same-

sex marriages in other states. This has clear implications for the extraterritorial effect of

any same-sex voidness decree. As same-sex marriages are only declared void “in this

state,” if J.B. followed the OAG’s advice, would he still be legally married in

Massachusetts? See Thomas v. Wash. Gas Light Co., 448 U.S. 261, 270 (1980) (a state

may limit the extraterritorial effect of its judgments in certain circumstances); In re Van

Bever, 101 P.2d 790, 792 (Ariz. 1940) (California disbarment judgment not given

extraterritorial effect in Arizona); Farrell v. Farrell, 181 N.W. 12, 15 (Iowa 1921)

(holding that Iowa’s statute prohibiting immediate remarriages had no extraterritorial

effect).

32
The impact of these inadequate procedures for dissolving same-sex marriages is

heightened by the fact that virtually every state, like Texas, restricts divorce proceedings

to those individuals who resided in that state for a substantial period of time. See, e.g.,

TEX. FAM. CODE § 6.301 (six months); MASS. GEN. LAWS ANN. ch. 208, § 5 (2009) (one

year). Thus, same-sex couples who find themselves dissatisfied with the procedure

provided by Texas cannot, as a practical matter, easily avail themselves of another

jurisdiction’s laws to obtain a divorce.

The OAG asserts that the inequity inherent between a voidance proceeding and a

divorce is mitigated by the fact that same-sex couples have “opportunities” through

“private contracts and other arrangements” to secure for themselves the rights that

opposite-sex couples have. See OAG’s Opening Br. at 11. This is demonstrably false. A

divorce cannot be obtained purely through private contract. A couple is married until a

court declares them no longer to be so or until death. Villegas v. Griffin Indus., 975

S.W.2d 745, 750 (Tex. App.—Corpus Christi 1998, pet. denied). A suit to void a

marriage simply is not an adequate substitute for divorce.

(ii) Denying same-sex couples access to divorce


stigmatizes them.

Texas’ policy on same-sex divorce is also objectionable because it uniquely

deprives same-sex couples of the basic acknowledgment that their marriages did, in fact

happen, and were lawful when formed. Same-sex couples are the only lawfully married

couples who are likely to be deprived of divorce proceedings under Texas law. All of the

other types of void marriages under the Family Code for which divorce is not available—

33
including incestuous and quasi-incestuous marriages (Sections 6.201 and 6.205),

bigamous marriages (Section 6.202), age-inappropriate marriages (Section 6.205), and

consanguineous marriages (Section 6.302)—have traditionally been considered void in

virtually every state. Thus, it was always extremely unlikely that a person in one of these

relationships could be lawfully married in one state only to have her marriage voided in

Texas. But when Texas amended the Family Code in 2003 to add Section 6.204, many

states permitted persons of the same sex to marry or enter into civil unions. Texas’

decision to declare these unions “void” therefore imposes a “special disability” on those

relationships, because the state treats these relationships as having never existed with the

full knowledge that they once did—and suggests that the couple’s lawful decision to wed,

in accordance with the procedures of the state in which they celebrated their marriage,

was actually a fraud.

Second, by declaring such relationships “void,” Texas deprives same-sex couples

of the dignity it affords opposite-sex couples by placing same-sex marriages in odious

company. All of the other types of marriage that the Family Code deems “void” are

criminal almost by their very nature. To place same-sex unions in the company of such

criminal unions is to suggest that homosexuality itself is criminal—or that it would be

criminal if the state were not constitutionally prohibited from declaring the underlying

conduct to be criminal. See Romer v. Evans, 517 U.S. 620, 632 (1996) (holding that a

state constitutional amendment that prohibited the state or any of its political subdivisions

from enacting laws designed to prevent discrimination against gays and lesbians was

unconstitutional); see also Lawrence v. Texas, 539 U.S. 558, 574 (2003) (declaring laws

34
against homosexual sodomy unconstitutional). The stigma that inevitably follows from

treating these marriages as void further demeans gays and lesbians, and deprives them of

the dignity that their lawful marriages deserve.

(c) The OAG has not asserted a legitimate state interest that
would allow it to deprive lawfully-married couples of a
divorce.

To sustain even rational basis scrutiny in an equal protection challenge, the OAG

must advance some rational basis to explain why it differentiates between similarly-

situated persons that furthers some legitimate state interest. See Mikesa v. City of

Galveston, 451 F.3d 376, 380 (5th Cir. 2006); Ford Motor Co. v. Tex. Dep’t of Transp.,

264 F.3d 493, 506 (5th Cir. 2001) (noting that in an equal protection challenge “a State

has the minimal burden of showing that the law has a rational basis”) (emphasis added).

Ultimately, the OAG fails to articulate any conceivable legitimate interest that the state

might have in depriving lawfully married same-sex couples of the right to obtain a

divorce on substantially equal terms as enjoyed by opposite-sex couples.

Tradition. First, the OAG argues that “[t]hroughout centuries of human history

and across diverse human civilizations, societies have recognized—and their

governments have given legal effect and enforcement to—the institution of marriage as

the union of one man and one woman.” OAG’s Opening Br. at 17. This invocation of

tradition does nothing to assist this Court in determining whether the lower court has

jurisdiction to grant J.B. a divorce. “[N]either the antiquity of a practice nor the fact of

steadfast legislative and judicial adherence to it through the centuries insulates it from

constitutional attack.” Williams v. Illinois, 399 U.S. 235, 239 (1970). Moreover, the

35
OAG fails to show how this supposed “tradition” is implicated in this proceeding in any

way. J.B. is not directly challenging Texas’ decision to define marriage in the state as

only the union of one man and one woman. J.B. simply suggests that Massachusetts is

entitled to define marriage differently to include his marriage, and that he should be

entitled to a divorce in Texas on equal terms with other lawfully-married persons. As

noted above, to grant J.B. a divorce, Texas is not forced to determine whether it would

allow J.B. to get a Texas marriage certificate. Nor is it forced to supplant its own

marriage policies for Massachusetts’s. Texas simply provides a forum for the

termination of the marriage, and when Texas observes the marriage’s existence as a

means of doing so, that observation is of no importance to anyone other than the parties.

The “traditional” definition of marriage in Texas is not under siege, either by the trial

court or J.B. himself, despite the OAG’s protests.

Procreation. Next, the OAG appeals to the “naturally procreative relationship

between a man and a woman” that it claims deserves “special societal support and

protection.” OAG’s Opening Br. at 17-18. The OAG argues that same-sex marriages are

not “similarly-situated” to opposite-sex marriages because of the naturally procreative

capacity possessed by opposite-sex couples. However, J.B. does not challenge the

constitutionality of allowing opposite-sex couples to marry. He challenges instead

Texas’ decision to deprive him of divorce rights that other couples have. As the U.S.

Supreme Court has made clear, the focus in even a “rational basis” Equal Protection

claim must be on whether the state was justified in depriving the disadvantaged group of

the rights enjoyed by the majority, not whether the majority was justified in the rights that

36
it had. See, e.g., Cleburne, 473 U.S. at 450. The OAG does not explain how voiding

same-sex couples’ marriages and depriving them of divorce promotes the procreative

aspect of traditional marriage. Moreover, the OAG does not explain, nor can it explain,

how encouraging procreation has anything to do with whether same-sex couples ought to

be entitled to divorce. There is no valid biological distinction between same-sex and

opposite-sex couples when it comes to divorce. A divorced couple—whether same- or

opposite-sex—are unlikely to beget children. For this reason, J.B., and members of

lawful same-sex marriages like him, are similarly situated to their opposite-sex

counterparts when it comes to a divorce. The procreative aspect of “traditional” marriage

does not provide a valid distinction between same-sex and opposite-sex couples.

Likewise, the OAG cannot claim that Texas’ refusal to grant same-sex couples a

divorce on the same terms as opposite-sex couples promotes proper child-rearing. If

anything, the interests of children cut against the OAG’s position. Same-sex couples

engage in the same child-rearing activities as opposite-sex couples. An orderly, logical,

and predictable path to divorce is more likely to make the entire process smoother and

more amicable for children of same-sex couples. The unsettled, confused, and drawn out

process that would inevitably result from Texas’ substantially unequal voidance process

can only harm children.

The fundamental nature of marriage. Quite paradoxically, the OAG argues that

Texas has a legitimate interest in regulating marriage and the rights and responsibilities

that flow from it, because they are “fundamental” to society. See OAG’s Opening Br. at

19-20. In support—besides Baker—the OAG cites two cases, Skinner v. Oklahoma, 316

37
U.S. 535 (1942) and Loving v. Virginia, 388 U.S. 1 (1967), that come to precisely the

opposite conclusion. In Skinner, the U.S. Supreme Court determined that a state system

that forcibly sterilized certain habitual offenders violated equal protection by depriving

inmates of the “right to have offspring.” And in Loving, the Court held that states could

not prohibit mixed-race couples from marrying. In both cases, the Court held that the

state had no legitimate interest in interfering with individual choices related to marriage

and procreation—even for those as disfavored by society as prison inmates—because the

right to marriage was a fundamental liberty interest belonging to the individual. When

the Court therefore referred to marriage as “fundamental,” it understood that the

particular union was of fundamental importance to the individual—and made any state

interference with that right constitutionally suspect. Loving and Skinner stand for the

proposition that the state cannot decide who a person should marry or whether they will

have offspring, because these decisions are protected from intrusion by the state. The

Court most assuredly did not say that the state had some special interest in regulating

marriage. In fact, the OAG’s reliance on Loving is particularly galling in this respect,

given that the advocates of miscegenation laws at issue in Loving raised the same appeals

to “tradition” and “protection of children” that advocates of discrimination on the basis of

sexual orientation—including the OAG here—now muster. Loving properly rejected

these offensive arguments. The OAG’s position should suffer a similar fate.

Allocation of resources. Finally, Texas’ apparent refusal to allow same-sex

couples to divorce has nothing to do with distribution of the state’s limited resources,

energy, or attention. Divorce requires no expenditure of state money beyond provision of

38
a forum for the dispute’s resolution. The OAG would provide a substantially identical

forum to divorce, at a substantially identical price, in a “suit to void a marriage,” so the

OAG did not come to its position as a cost-saving measure. Think of the extra resources

the state has spent in this proceeding just to prevent J.B. from obtaining a divorce.

None of the OAG’s justifications provides sufficient reason to deny same-sex

couples like J.B. and H.B. a divorce. Texas has therefore imposed a “special disability”

on same-sex couples, that is “inexplicable by anything but animus toward the class it

affects.” Romer, 517 U.S. at 632.7 Such state action will not survive even rational basis

review. Id. A bare “desire to harm a politically unpopular group cannot constitute a

legitimate governmental interest.” Id. at 634-35 (citing Dep’t of Agric. v. Moreno, 413

U.S. 528, 534 (1973)). Instead, such restrictions are the very definition of “arbitrary and

invidious discrimination.” Loving, 388 U.S. at 10. Because Texas’ laws are

unconstitutional, and therefore unenforceable, the trial court has jurisdiction to consider

J.B.’s divorce petition.

C. Depriving J.B. of a divorce also violates Due Process and his right to
travel.

1. Due Process.

The trial court correctly determined that individuals possess fundamental liberty

7
Enforcing the right of same-sex couples to obtain a divorce should raise no fears of a “slippery slope”
that would force Texas to grant divorce to other couples whose relationships it currently declares “void.”
For all of the relationships that Texas deems void other than same-sex relationships, denial of divorce
does not give rise to a violation of constitutional rights, because the state has compelling reasons to
regulate the conduct underlying such relationships, which falls within the state’s powers to protect
persons from fraud (in the case of bigamous marriages), the rights of children (for incestuous or age-
inappropriate marriages), or the public health (for consanguineous relationships).

39
interests in “the institutions of marriage and divorce, and the bundle of personal

relationships, property interests, and other burdens and benefits that go with them” that

are protected under the Due Process Clause.8 2 Supp. CR 31-32 (citing Cleveland Bd. of

Educ. v. LaFleur, 414 U.S. 632, 639 (1974); Loving, 388 U.S. at 12); U.S. CONST.

amend. XIV, § 1, cl. 3. See also M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (“Choices

about marriage” are “sheltered by the Fourteenth Amendment against the State’s

unwarranted usurpation, disregard, or disrespect.”); Prince v. Massachusetts, 321 U.S.

158, 166 (1944) (there is a “private realm of family life which the state cannot enter”).

Laws that interfere with the fundamental liberty interests implicated in divorce are

subject to strict scrutiny. Reno v. Florez, 507 U.S. 292, 301-02 (1993) (“[C]ertain

‘fundamental’ liberty interests” cannot be interfered with at all, “no matter what process

is provided, unless the infringement is narrowly tailored to serve a compelling state

interest.”); see also Lawrence, 539 U.S. at 565; M.L.B., 519 U.S. at 116; Boddie, 401

U.S. at 382-83 (holding that Connecticut’s system of filing fees, providing no waiver

process for those who could not afford to pay, impermissibly impacted fundamental right

to obtain a divorce).

8
The trial court also correctly held that Texas’ policy against same-sex divorce violated J.B.’s right to
intimate association under the First Amendment. 1 Supp. CR 19; 2 Supp. CR 32-33. See Boy Scouts of
Am. v. Dale, 530 U.S. 640, 648 (2000) (to force inclusion of a gay man as an assistant scoutmaster
violated the Boy Scouts of America’s First Amendment associational rights); Roberts v. U.S. Jaycees, 468
U.S. 609, 620 (1984); see also Zablocki v. Redhail, 434 U.S. 374, 382 (1978). The OAG argues that
J.B.’s association right is not infringed because Texas law does not prevent J.B. from associating with
other persons. But the uncertainty and difficulty involved in a suit to void a marriage are unjustifiable
infringements on J.B.’s right to obtain a divorce, effectively forcing his continued association with H.B.
in violation of the First Amendment.

40
The OAG provides no independent argument to challenge the trial court’s Due

Process holding; it simply reiterates its Equal Protection arguments. But just as those

arguments fail in the Equal Protection context, they also fail in the Due Process context.

J.B. has a fundamental right to obtain a divorce and enjoy all of the rights incident to a

divorce. The OAG’s position deprives J.B. of his fundamental right to obtain a divorce

by denying him the right to enjoy all of the rights—including a truly just and equitable

division of assets—that a person can legitimately expect to obtain in a divorce. For this

additional reason, it is unconstitutional to deny J.B. a divorce.

2. Right to travel.

The trial court correctly determined that Texas’ same-sex marriage prohibitions

unfairly inhibit the right to travel under the Privileges and Immunities Clause in Article

IV and the Privileges or Immunities Clause in the Fourteenth Amendment of the United

States Constitution. U.S. CONST. art. IV, § 2, amend. XIV, § 1, cl. 2; 1 Supp. CR 19; 2

Supp. CR 33. The OAG argues that the provisions do not violate the right to travel

because they do not “treat J.B. any differently just because he previously lived in

Massachusetts.” OAG’s Opening Br. at 23. But the trial court never suggested that

J.B.’s travel rights were infringed on the basis that he was from Massachusetts. Rather,

the trial court held that Texas’ divorce regime violates the right to travel because it

“severely and permanently infringes upon the right of lawfully married same-sex couples

to migrate to and set up residence in Texas.” 2 Supp. CR 33. Texas law infringes on this

right in a number of ways.

41
First, it penalizes migration of same-sex couples by completely depriving them of

access to divorce proceedings so long as they reside in Texas. Section 6.204 specifically

targets members of lawful same-sex marriages, by refusing to give any effect to a “right

or claim to any legal protection, benefit or responsibility asserted as a result of a marriage

between persons of the same sex . . . in this state or in any other jurisdiction.” TEX. FAM.

CODE § 6.204(c)(2). Section 6.204 thereby penalizes those same-sex couples who move

to Texas and then want a divorce.

In fact, Section 6.204 has a unique and singular impact on same-sex couples as

migrants to Texas. Even before Section 6.204 was passed, Texas residents were not

permitted to marry members of the same sex. Littleton v. Prange, 9 S.W.3d 223, 225

(Tex. App.—San Antonio 1999, pet. denied) (“Texas . . . does not permit marriages

between persons of the same sex.”). As a result, there was no then-existent class of

Texas same-sex married couples who would need to avail themselves of divorce

proceedings, and there was therefore no specific class of Texas residents that would be

impacted by prohibitions against same-sex divorce. Texas’ prohibition against same-sex

divorce, by its very design, will operate only when a couple lawfully married in another

state chooses to relocate to Texas. This prohibition therefore is a law that specifically

denigrates same-sex couples in their status as migrants and travelers, and quite pointedly

deprives them of rights, benefits, and protections that Texas affords its residents. This

gives rise to an inference that Section 6.204 was enacted with the specific purpose of

dissuading lawfully-married same-sex couples from migrating here, in violation of the

42
right to travel. Att’y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903, 906 (1986) (noting

that restrictions on the right to travel are subject to strict scrutiny).

But Section 6.204 impacts the right to travel in ways that go beyond merely

penalizing lawfully-married same-sex couples who happen to relocate to Texas. It also

burdens the right to migrate of lawfully-married same-sex couples who never even come

to Texas, by creating an atmosphere of hostility to their lawful unions designed to

dissuade them from relocating to Texas, in circumstances where they might otherwise

consider moving here. In fact, Section 6.204 might actually force Texas residents to

migrate elsewhere, by requiring lawfully-married same-sex couples to relocate

permanently to another state simply to get a divorce. The state infringes the right to

travel when it forces a party to travel. See Ketchum v. City of W. Memphis, 974 F.2d 81,

83 (8th Cir. 1992) (a man stated a cognizable right to travel claim when officers arrested

him and then transported him across a bridge to another state against his will).

For all these additional reasons, Texas’ statutes are not enforceable to the extent

they would prevent lawfully-married same-sex couples from obtaining a divorce.

D. The trial court did not invalidate the Defense of Marriage Act sub
silentio.

The OAG also alleges that the trial court’s order invalidates the Defense of

Marriage Act, 28 U.S.C. § 1738C (“DOMA”), sub silentio. See OAG’s Opening Br. at

23. But the order does nothing of the kind. As the OAG notes, DOMA was enacted

under Congress’s power under Article IV, Section 1 of the U.S. Constitution—the Full

Faith and Credit Clause. Under the Full Faith and Credit Clause, Congress is specifically

43
empowered to “by general laws prescribe the manner in which” the acts, records, and

proceedings in one state are to be enforced in another state “and the effect thereof.” U.S.

CONST. art. IV, § 1.

As it applies to the states, DOMA’s sole purpose is to grant states the freedom to

decide whether they will give full faith and credit to same-sex unions entered in other

states. Prashad v. Copeland, 685 S.E.2d 199, 207 n.6 (Va. Ct. App. 2009) (citing H.R.

Rep. No. 104-664). It purports to modify Article IV, Section 1’s otherwise applicable

command that each state must give effect to the “public acts, records, and judicial

proceedings” of all other states. DOMA depends entirely upon states to act for it to have

any effect whatsoever; it has no legislative effect on states on its own. And DOMA does

not force states to legislate on the subject of same-sex marriage or same-sex divorce.

This case does not challenge Texas’ constitutional and statutory provisions under the Full

Faith and Credit Clause. Because DOMA’s reach is limited to an exercise of Congress’s

power under the Full Faith and Credit Clause, DOMA simply is not implicated.

DOMA has no effect on the constitutional rights that actually are implicated in this

proceeding, those outlined in Article IV, Section 2, as well as the First and Fourteenth

Amendments. DOMA therefore has no special effect to save state legislation where that

legislation would otherwise explicitly violate an individual’s constitutional rights. Nor

could it. Congress is not empowered, under the Full Faith and Credit Clause or anywhere

else, to allow states to violate any of the provisions of the Bill of Rights—especially the

Equal Protection Clause. See Saenz v. Roe, 526 U.S. 489, 507-08 & n.21 (1999); see also

Townsend v. Swank, 404 U.S. 282, 291 (1971); Shapiro v. Thompson, 394 U.S. 618, 641

44
(1969), overruled on other grounds, Edelman v. Jordan, 415 U.S. 651 (1974). Because

Congress could not have authorized states to violate the Constitution, then the trial

court’s decision that Texas’ statutory and constitutional provisions are unconstitutional

does not impugn any aspect of DOMA.

III. The Amended Order And Findings Of Fact And Conclusions Of Law Are
Timely And Proper.

The trial court did not improperly issue findings of fact and conclusions of law in

violation of the automatic stay after the OAG filed its notice of interlocutory appeal.

Rule 26.1(b) states that a notice of interlocutory appeal must be filed within 20 days after

the order is signed, while Rule 28.1(c) gives the trial court 30 days to file findings of fact

and conclusions of law—which necessarily may fall after a notice of interlocutory appeal

is filed. TEX. R. APP. P. 26.1(b), 28.1(c). Moreover, case law holds that the trial court is

free to enter findings of fact and conclusions of law after the 30-day deadline if it

chooses. See Davey v. Shaw, 225 S.W.3d 843, 852 (Tex. App.—Dallas 2007, no pet.);

Morrison v. Morrison, 713 S.W.2d 377, 380 (Tex. App.—Dallas 1986, writ dism’d).

Further, the OAG’s arguments that the trial court erroneously entered findings of

fact and conclusions of law without an evidentiary hearing are unpersuasive. Neither IKB

Industries nor Estate of Bendtsen concerns whether a court is permitted to issue findings

of fact and conclusions of law without a hearing. Rather, both cases involve whether a

request for findings of fact and conclusions of law extends the time for perfecting an

appeal, which is not at issue here. IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938

45
S.W.2d 440, 441-43 (Tex. 1997); In re Estate of Bendtsen, No. 05-08-00122-CV, 2008

WL 1886778, at *1 (Tex. App.—Dallas Apr. 30, 2008, no pet.).

In any event, the OAG does not contend that it has suffered any harm from the

entry of the findings of fact and conclusions of law, whether a hearing was held or not.

See Davey, 225 S.W.3d at 852 (according due consideration to untimely findings of fact

and conclusions of law because the parties did not allege harm due to their untimeliness

and did not request an abatement of the appeal after their entry). Indeed, the OAG

addressed the Amended Order and the findings of fact and conclusions of law in its

Opening Brief and therefore cannot demonstrate any prejudice.

The Amended Order also is proper and timely, because a trial court always retains

power to interpret and clarify its orders. See, e.g., Travelers Indem. Co. v. Bailey, ---

U.S. ---, 129 S. Ct. 2195, 2205 (2009) (“Bankruptcy Court plainly had jurisdiction to

interpret and enforce its own prior orders.”); In re Optical Techs., Inc., 425 F.3d 1294,

1300 (11th Cir. 2005) (“court that issued an order is in the best position to interpret it”).

But even if the Amended Order (or the findings of fact and conclusions of law) is not

properly before this Court on appeal, the Court is not precluded from reaching any of the

issues addressed in this brief, the findings of fact and conclusions of law, or in the

Amended Order in the Court’s de novo review. Subject matter jurisdiction—which is the

heart of this dispute—involves fundamental error, which can be raised for the first time

on appeal and can never be waived. See McCauley v. Consol. Underwriters, 304 S.W.2d

265, 266 (Tex. 1957).

46
CONCLUSION AND PRAYER

For the foregoing reasons, J.B. respectfully requests that the Court affirm the trial

court’s denial of the OAG’s plea to the jurisdiction and grant J.B. any such other and

further relief deemed just and proper.

Respectfully submitted,

By: /s/
James J. Scheske (SBN 17745443)
Akin Gump Strauss Hauer & Feld LLP
300 West Sixth Street, Suite 2100
Austin, Texas 78701
(512) 499-6200 (telephone)
(512) 499 6290 (facsimile)
J. Carl Cecere (SBN 24050397)
Akin Gump Strauss Hauer & Feld LLP
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201-4675
(214) 969-2800 (telephone)
(214) 969-4343 (facsimile)
Peter A. Schulte (SBN 24044677)
Schulte & Apgar, PLLC
4131 N. Central Expressway, Suite 680
Dallas, Texas 75204
(214) 521-2200 (telephone)
(214) 739-3234 (facsimile)
ATTORNEYS FOR APPELLEE J.B.

47
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing Appellee
J.B.’s Brief was served upon counsel of record via email and certified U.S. mail, return
receipt requested, pursuant to the Texas Rules of Appellate Procedure on February 8,
2010.

Appellant

Greg Abbott
C. Andrew Weber
David Morales
James C. Ho
James D. Blacklock
Reed N. Smith
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548
Austin, TX 78711-2548
(512) 936-2872 (telephone)
(512) 474-2697 (facsimile)

H.B.
[address on file]

/s/
James J. Scheske

48
No. 05-09-01170-CV
(Consolidated with No. 05-09-01208-CV)

In the
Court of Appeals for the
Fifth District of Texas

In the Matter of the Marriage of J.B. and H.B.,

On Interlocutory Appeal from the 302nd Judicial District Court,


Dallas County, Texas, the Honorable Tena Callahan, Presiding

APPENDIX

1. TEX. FAM. CODE § 6.001 .................................................................................. Tab A

2. U.S. CONST. art. IV........................................................................................... Tab B

3. U.S. CONST. amend. I ....................................................................................... Tab C

4. U.S. CONST. amend. XIV ................................................................................. Tab D

5. Ashley v. Ashley, 51 So. 2d 239 (Ala. 1951) .................................................... Tab E

6. Beth R. v. Donna M., 853 N.Y.S.2d 501 (N.Y. Sup. Ct. 2008).........................Tab F

7. Chambers v. Ormiston, 935 A.2d 956 (R.I. 2007) ........................................... Tab G

8. C.M. v. C.C., 867 N.Y.S.2d 884 (N.Y. Sup. Ct. 2008) .................................... Tab H

9. Farrell v. Farrell, 181 N.W. 12 (Iowa 1921).....................................................Tab I

10. Hilton v. Snyder, 108 P. 698 (Utah 1910) ......................................................... Tab J

11. Hunter v. Hunter, 43 P. 756 (Cal. 1896) .......................................................... Tab K

12. In re Rowe’s Estate, 141 P.2d 832 (Or. 1943) ................................................. Tab L

13. In re Van Bever, 101 P.2d 790 (Ariz. 1940).................................................... Tab M

14. Oborn v. State, 126 N.W. 737 (Wis. 1927) ...................................................... Tab N

49
15. O’Darling v. O’Darling, 188 P.3d 137 (Okla. 2008)....................................... Tab O

16. Payne v. Payne, 214 P.2d 495 (Colo. 1950)......................................................Tab P

17. Prashad v. Copeland, 685 S.E.2d 199 (Va. Ct. App. 2009) ............................ Tab Q

18. Rediker v. Rediker, 221 P.2d 1 (Cal. 1950)...................................................... Tab R

19. Rosengarten v. Downes, 802 A.2d 170 (Conn. App. Ct. 2002) ........................Tab S

50
TAB A
V.T.C.A., Family Code § 6.001 Page 1

Effective:[See Text Amendments]

Vernon's Texas Statutes and Codes Annotated Currentness


Family Code (Refs & Annos)
Title 1. The Marriage Relationship (Refs & Annos)
Subtitle C. Dissolution of Marriage
Chapter 6. Suit for Dissolution of Marriage
Subchapter A. Grounds for Divorce and Defenses
§ 6.001. Insupportability

On the petition of either party to a marriage, the court may grant a divorce without regard to fault if the marriage has
become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital
relationship and prevents any reasonable expectation of reconciliation.

CREDIT(S)

Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.

HISTORICAL AND STATUTORY NOTES

2006 Main Volume

Section 4 of Acts 1997, 75th Leg., ch. 7, provides:

“The change in law made by this Act does not affect a proceeding under the Family Code pending on the effective
date [April 17, 1997] of this Act. A proceeding pending on the effective date of this Act is governed by the law in
effect at the time the proceeding was commenced, and the former law is continued in effect for that purpose.”

Prior Laws:

Acts 1969, 61st Leg., p. 2707, ch. 888, § 1.

V.T.C.A., Family Code § 3.01.

TEXAS ANNOTATED CODE SERIES REFERENCES

Grounds for Divorce and Defenses, Insupportability, Sampson & Tindall's Texas Family Code, Family §
6.001.

LAW REVIEW COMMENTARIES

Annual survey of Texas law: Divorce proceedings. Joseph W. McKnight, 35 Sw.L.J. 121 (1981).

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


TAB B
Page 1

United States Code Annotated Currentness


Constitution of the United States
Annotated
Article IV. States--Reciprocal Relationship Between States and with United States (Refs & Annos)
Section 1. Full Faith and Credit

Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings
of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records
and Proceedings shall be proved, and the Effect thereof.

Section 2, Clause 1. Privileges and Immunities

Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several
States.

Section 2, Clause 2. Extradition

A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in
another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be
removed to the State having Jurisdiction of the Crime.

Section 2, Clause 3. Fugitive Slaves

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Conse-
quence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on
Claim of the Party to whom such Service or Labour may be due.

Section 3, Clause 1. Admission of New States

Section 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or
erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States,
or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Section 3, Clause 2. Public Lands

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory
or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to
Prejudice any Claims of the United States, or of any particular State.

Section 4. Republican Government

Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and
shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the
Legislature cannot be convened) against domestic Violence.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


TAB C
U.S.C.A. Const. Amend. I-Full Text Page 1

United States Code Annotated Currentness


Constitution of the United States
Annotated
Amendment I. Freedom of Religion, Speech and Press; Peaceful Assemblage; Petition of Grievances (Refs
& Annos)
Amendment I. Freedom of Religion, Speech and Press; Peaceful Assemblage; Petition of Griev-
ances

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.

<This amendment is further displayed in three separate documents according to subject matter>

<see USCA Const Amend. I, Religion>

<see USCA Const Amend. I, Speech>

<see USCA Const Amend. I, Assemblage>

LAW REVIEW AND JOURNAL COMMENTARIES

ABA Rule 3.6 and California Rule 5-120: A flawed approach to the problem of trial publicity. Comment, 43
UCLA L.Rev. 1321 (1996).

Abortion counseling as vice activity: The free speech implications of Rust v. Sullivan and Planned Parent-
hood v. Casey. Christina E. Wells, 95 Colum.L.Rev. 1724 (1995).

Abortion protest: Lawless conspiracy or protected free speech? 72 Denv.U.L.Rev. 445 (1995).

Abraham Lincoln's First Amendment. Geoffrey R. Stone, 78 N.Y.U.L.Rev. 1 (2003).

Abridgements of free speech which discriminate on the basis of viewpoint: Finzer v. Barry. Comment, 61
St.John's L.Rev. 127 (1986).

Academic freedom in public colleges and universities: O say, does that star-spangled First Amendment ban-
ner yet wave? Richard H. Hiers, 40 Wayne L.Rev. 1 (1993).

Academic freedom privilege: An excessive solution to the problem of protecting confidentiality. Note, 51
U.Cin.L.Rev. 326 (1982).

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


TAB D
U.S.C.A. Const. Amend. XIV-Full Text Page 1

United States Code Annotated Currentness


Constitution of the United States
Annotated
Amendment XIV. Citizenship; Privileges and Immunities; Due Process; Equal Protection; Apportionment
of Representation; Disqualification of Officers; Public Debt; Enforcement (Refs & Annos)
AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND IMMUNITIES; DUE PROCESS;
EQUAL PROTECTION; APPOINTMENT OF REPRESENTATION; DISQUALIFICATION OF
OFFICERS; PUBLIC DEBT; ENFORCEMENT

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers,
counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any
election for the choice of electors for President and Vice President of the United States, Representatives in Congress,
the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male
inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged,
except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the pro-
portion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of
age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or
hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath,
as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an ex-
ecutive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insur-
rection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of
two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for pay-
ment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But nei-
ther the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or re-
bellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obliga-
tions and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

<Section 1 of this amendment is further displayed in separate documents according to subject matter,>

<see USCA Const Amend. XIV, § 1-Citizens>

<see USCA Const Amend. XIV, § 1-Privileges>

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


TAB E
51 So.2d 239 Page 1
255 Ala. 313, 51 So.2d 239
(Cite as: 255 Ala. 313, 51 So.2d 239)

such party is not concluded by decree of divorce as to


Supreme Court of Alabama. legal status of the marriage before divorce.
ASHLEY
v. [3] Divorce 134 172
ASHLEY et al.
6 Div. 35. 134 Divorce
134IV Proceedings
March 15, 1951. 134IV(N) Judgment or Decree
134k172 k. Conclusiveness of Adjudica-
Suit by Mary Lou Ashley, non compos mentis, by her tion. Most Cited Cases
guardian J. A. Ashley, against Grover C. Ashley, Under rule that divorce decree is conclusive of exis-
individually and as administrator of the estate of tence of legal marriage which was thereby dissolved
Lewis J. Ashley, deceased, and the United States as between divorced husband and wife and their priv-
Fidelity & Guaranty Company, as surety, brought ies, child of the marriage stands in shoes of his
under Code 1940, Tit. 13, § 145, to correct an alleged mother, and can rely on the estoppel in favor of his
error in the settlement of an estate. The Circuit Court, mother against her alleged husband and his privies in
Cullman County, Newton B. Powell, J., rendered a support of child's legitimacy.
decree denying relief and dismissing the bill, and the
complainant appealed. The Supreme Court, Foster, J., [4] Divorce 134 174
held that the complainant was estopped from attack-
ing the validity of decedent's marriage because of a 134 Divorce
divorce decree. 134IV Proceedings
134IV(N) Judgment or Decree
Decree affirmed. 134k174 k. Evidence of Fact of Divorce.
Most Cited Cases
West Headnotes In suit to correct alleged error in settlement of estate
on ground that distributee was not a legitimate child
[1] Divorce 134 172 because mother allegedly had been previously mar-
ried and not divorced at time of marriage to father,
generally, it would be necessary to introduce pro-
134 Divorce
ceedings in divorce between father and mother in
134IV Proceedings
addition to decree to entitle mother and those claim-
134IV(N) Judgment or Decree
ing through her to rely on the estoppel preventing
134k172 k. Conclusiveness of Adjudica-
father and his privies from denying validity of the
tion. Most Cited Cases
marriage.
As between divorced husband and wife and their
privies, divorce decree was conclusive of existence of
preexisting marriage which was thereby dissolved. [5] Appeal and Error 30 909(1)

[2] Divorce 134 172 30 Appeal and Error


30XVI Review
30XVI(G) Presumptions
134 Divorce
30k906 Facts or Evidence Not Shown by
134IV Proceedings
Record
134IV(N) Judgment or Decree
30k909 Particular Facts Necessary to
134k172 k. Conclusiveness of Adjudica-
Sustain Decision
tion. Most Cited Cases
30k909(1) k. In General. Most Cited
One not a party to divorce suit nor in privity with
Cases

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


51 So.2d 239 Page 2
255 Ala. 313, 51 So.2d 239
(Cite as: 255 Ala. 313, 51 So.2d 239)

In suit to correct alleged error in settlement of estate 253 Marriage


on ground that distributee was not a legitimate child 253k40 Presumptions
because mother allegedly had been previously mar- 253k40(1) k. In General. Most Cited Cases
ried and not divorced at time of marriage to father, Where wife separated from husband who thereafter
where decree of divorce between father and mother married again, and wife was subsequently married to
was an exhibit in the record and appeared to be regu- three other persons, presumption as to validity of all
lar, and divorce proceedings were not set out but no marriages after original separation was so strong that
objection was made to decree on that account, defi- it required very satisfactory evidence to overcome it.
ciency was not fatal, and appellate court would pre-
sume that proceedings conferred jurisdiction on the [10] Marriage 253 40(10)
divorce court.
253 Marriage
[6] Divorce 134 168 253k40 Presumptions
253k40(10) k. Rebuttal of Presumptions.
134 Divorce Most Cited Cases
134IV Proceedings Testimony of parties, not properly supported by evi-
134IV(N) Judgment or Decree dence as to divorce records in various jurisdictions in
134k168 k. Collateral Attack. Most Cited which decree could be rendered, is usually treated as
Cases insufficient to overcome presumption of validity of
Where no effort was successfully made or begun to subsequent marriages.
impeach divorce decree within 20 years from date,
decree was unimpeachable. [11] Wills 409 432

[7] Divorce 134 168 409 Wills


409V Probate or Contest of Will
134 Divorce 409V(R) Operation and Effect
134IV Proceedings 409k432 k. Conclusiveness and Effect of
134IV(N) Judgment or Decree Adjudication as to Validity of Instrument or Probate.
134k168 k. Collateral Attack. Most Cited Most Cited Cases
Cases Decedent's collateral relative who was not a party to
Fact that husband was non compos mentis at death will contest was not bound thereby.
and was demented when divorce decree was ren-
dered, and that his condition was not brought to at- [12] Descent and Distribution 124 71(3)
tention of court did not prevent decree from becom-
ing unimpeachable by prescription after 20 years.
124 Descent and Distribution
124III Rights and Liabilities of Heirs and Distrib-
[8] Divorce 134 168 utees
124III(A) Nature and Establishment of Rights
134 Divorce in General
134IV Proceedings 124k71 Establishment and Determination
134IV(N) Judgment or Decree of Heirship or Right to Share in Distribution
134k168 k. Collateral Attack. Most Cited 124k71(3) k. Parties and Pleading.
Cases Most Cited Cases
Where divorce decree had become unimpeachable Decedent's collateral relative who was not a party to
during lifetime of parties thereto it could not be im- proceedings in which various collateral kin sought
peached by anyone claiming in succession to their findings that distributee of estate was not decedent's
rights. lawful heir was not bound by such proceedings.

[9] Marriage 253 40(1) [13] Divorce 134 172

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


51 So.2d 239 Page 3
255 Ala. 313, 51 So.2d 239
(Cite as: 255 Ala. 313, 51 So.2d 239)

134 Divorce The complainant is a sister of Lewis J. Ashley and


134IV Proceedings was a non compos mentis, and was not a party to any
134IV(N) Judgment or Decree of the proceedings and had no notice of them. The
134k172 k. Conclusiveness of Adjudica- sole contention*316 made is that Grover C. Ashley
tion. Most Cited Cases was not a legitimate child of Lewis J. Ashley because
Where husband was himself estopped from denying Lewis and Myrtle, his parents, were not lawfully man
validity of marriage because of divorce decree, col- and wife at the time Grover was born of their union
lateral relative of husband was bound after his death for the reason Myrtle had previously been married
by the same estoppel notwithstanding relative was and not divorced, and that both she and her former
non compos mentis. husband are even now still living; and that Lewis had
*314**240 Jackson, Rives & Pettus, of Birmingham, no lawful descendants. The bill seeks to have Grover
for appellant. account for the funds of the estate which he received.

*315 Finis E. St. John, of Cullman, and Spain, Gil- Issue was joined on the only contested matter, and
lon, Grooms & Young and H. H. Grooms, all of Bir- the court found and decreed **241 that Grover was
mingham, for appellees. the only heir and legitimate child of Lewis J. Ashley
and denied relief. The complainant has appealed from
FOSTER, Justice. that decree.

This is an appeal from a final decree denying relief to A summary of the facts in chronological order is here
complainant in a suit in equity filed by authority of undertaken to be set out, repeating some of the mat-
section 145, Title 13, Code. This statute authorizes a ters already alleged so as to show their historical set-
suit in equity by an injured party to correct any error ting. These facts are as follows.
of law or fact in the settlement of an estate. The na-
ture of the error which is thus subject to correction is Myrtle Tucker at the age of fourteen married Samuel
discussed in Evans v. Evans, 200 Ala. 329, 76 So. Till Colley on June 30, 1907 in Blount County. They
95;Morgan v. Gaiter , 182 Ala. 322, 62 So. lived together about three months when he ‘went
731;Adams v. Walsh, 190 Ala. 516, 67 So. 432. No across the river’ to work. They did not live together
question is here raised as to the sufficiency of the bill after that. He enlisted in the Army October 19, 1907,
in that respect. and was discharged October 18, 1910, having served
his term of enlistment. There was no communication
The decree sought to be reviewed was rendered on between them, although he testified that he wrote her
the final settlement of the estate of Lewis J. Ashley, several times but received no answer. Colley re-
dated November 9, 1940. The bill was filed July 1, enlisted on the day he was discharged for another
1941, within the statutory period of two years. Lewis three year term and was again discharged October 18,
J. Ashley died March 25, 1940. On April 23, 1940, 1913.
Grover C. Ashley was appointed administrator on his
petition alleging that he was the only child and heir at Colley married Viola Hallmark on October 16, 1916,
law of the deceased. After other proceedings, to according to his testimony. He has three boys and
which we will refer, Grover C. Ashley filed in the two girls by that marriage: all of whom are grown.
probate court a petition alleging that he was the only He says he did not obtain a divorce from Mytle, hav-
child and heir at law or deceased, and there are no ing heard she was dead.
debts unpaid; that he was appointed administrator
April 23, 1940, and further administration is unneces- Myrtle testified to the effect that she married Colley
sary, and prayed that the administration be dismissed on June 30, 1907, when she was fourteen years of
and his surety released and discharged. No notice was age, and that they lived together ‘one’ month, when
given by reason of the allegation that he was the only he left and did not return. She was informed by her
child and heir at law. The probate court on that day father that Colley was dead; that he had been killed
made an order and decree as prayed for. That is the on the train. On December 7, 1909, she married Doss
decree sought to be corrected by the instant suit. and had two children: one of whom is now a grown
man, married and has four children. Doss died in

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51 So.2d 239 Page 4
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(Cite as: 255 Ala. 313, 51 So.2d 239)

1913. After Doss died, she married Lewis J. Ashley found that the will of Lewis J. Ashley was void be-
on February 7, 1915, and had one child, Grover C. cause of his unsound mind, and the contest of the will
Ashley, as to whose legitimacy the result of this by Grover C. Ashley was sustained. It was decreed
cause depends. She was divorced from Ashley De- that Grover C. Ashley is the son and only heir at law
cember 2, 1918. He died March 25, 1940. He was a of Lewis J. Ashley and is entitled to all of his prop-
soldier in World War 1 and came back demented and erty of every kind in **242 the hands of Ruth Wil-
was in the hospital for the insane. A birth certificate banks as the guardian of Lewis J. Ashley. There ap-
was offered in evidence showing that Grover C. Ash- pears an agreement dated April 13, 1940 between the
ley was born December 20, 1915 in Walker County, solicitor for Ruth Wilbanks, as guardian of Lewis J.
and that his parents were Myrtle Ashley and Lewis J. Ashley, on the one part, and Grover C. Ashley on the
Ashley. A. E. Ashley was appointed guardian of other, where he signed as the only child and heir at
Lewis J. Ashley on November 21, 1921. Myrtle mar- law of Lewis J. Ashley. Said agreement directs the
ried Miller in 1918, and has been living with him to guardian to pay over and deliver to Grover C. Ashley
the present time. She has three children by him, the all the assets belonging to the estate of Lewis J. Ash-
oldest being twenty-four years of age and the young- ley, and recites that Grover C. Ashley is the only
est sixteen years. child and heir at law of Lewis J. Ashley. It was rati-
fied by decree on April 13, 1940.
On December 2, 1931, Myrtle filed a petition in the
Probate Court of Cullman County, in which she On April 22, 1940, a petition was filed in the Circuit
sought an allowance to be made for Grover C. Ashley Court, in Equity, of Cullman County by J. A. Ashley
out of the estate of Lewis J. Ashley, alleging that said and C. A. Ashley, alleging that they are nephews of
Grover C. Ashley is the only heir at law and child of Lewis J. Ashley and praying said court to set aside
Lewis J. Ashley. Grover was then sixteen years of and annul the decree on final settlement of the
age. Said petition was heard by the judge of probate guardianship of Lewis J. Ashley made on the 13th
on December 8, 1931, when the court made an allow- day of April, 1940, alleging principally that Grover
ance of $30 a month to be paid by the guardian of C. Ashley is not the child and heir at law of said
Lewis J. Ashley to the guardian of said minor child, Lewis J. Ashley, and not entitled to inherit his estate.
Grover C. Ashley, for his maintenance, support and Said petition was heard on May 22, 1940, and was
education. The record shows that J. S. Hyatt, as denied and overruled upon the ground that the evi-
guardian of Grover C. Ashley, received from the dence was insufficient to sustain it.
Veterans Bureau on account of Lewis J. Ashley, the
total sum of $4,456.21 covering a period from Janu- On November 9, 1940, Grover C. Ashley filed a peti-
ary 26, 1929 to August 1933. tion in the probate court alleging that on April 23,
1940 he was appointed administrator of the estate of
On July 20, 1936, the guardianship of A. E. Ashley Lewis J. Ashley; that he is the only child and heir at
was transferred from the probate court to the circuit law of Lewis J. Ashley, which has been judicially
court in equity. On January 6, 1937, A. E. Ashley ascertained in the Circuit Court, in Equity, of Cull-
filed his accounts and vouchers and a hearing on the man County, and also in the will contest: the same
settlement was had on January 29, 1937. On that day having been transferred from the probate court to the
John Chapman was appointed guardian of Lewis J. circuit court for trial and judicially ascertained. The
Ashley. petition alleges that Lewis J. Ashley left no widow
and owes no debts, and that further administration is
Lewis J. Ashley died March 25, 1940. On April 23, unnecessary. That no notice of final settlement is
1940, Grover C. Ashley was *317 appointed adminis- necessary, because he is the only heir and waives all
trator of the estate of Lewis J. Ashley with the United notice and prays that the administration be dismissed
States Fidelity and Guaranty Company as surety on and that the surety on his bond be released and dis-
his bond. On November 9, 1940 he was discharged charged. On the same day, November 9, 1940, the
on final settlement in the Probate Court of Cullman judge of probate made an order granting the petition
County. and decreed that the administration be dismissed out
of court and the bond of the administrator be dis-
On April 13, 1940, a decree of the probate court charged.

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51 So.2d 239 Page 5
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(Cite as: 255 Ala. 313, 51 So.2d 239)

an heir since his death. As between Myrtle and Lewis


On February 19, 1941, Thelma Hearn filed a petition and their privies, the decree of divorce was conclu-
in the probate court claiming to be a niece of Lewis J. sive of the existence of a legal marriage which was
Ashley and an heir at law, and praying that the order thereby dissolved. 17 Am.Jur. 396, note 7; 27 Corpus
of November 9, 1940 be vacated and set aside upon Juris Secundum, Divorce § 174, page 832, note 17; In
the ground that Grover C. Ashley was not an heir at re Lee's Estate, 200 Cal. 310, 253 P. 145;Godfrey v.
law and child of Lewis J. Ashley, but that his heirs Godfrey, 30 Cal.App.2d 370, 86 P.2d 357;Borg v.
were as set out in said petition; that she is one of Borg, 25 Cal.App.2d 25, 76 P.2d 218. Our search has
them, and that she had no notice of the proceedings not disclosed any conflicting opinions.
and settlement and did not have the privilege of con-
testing the same. On April 5, 1941, said petition was [2] But it is well settled that one not a party to the
heard in the probate court, in which oral testimony divorce suit nor in privity with such a party is not
was given, and the court found that Grover C. Ashley concluded by the decree of divorce as to the legal
is the son and only heir at law of Lewis J. Ashley, status of the marriage before divorce. In re Holmes'
and the only person interested or entitled to share in Estate, 291 N.Y. 261, 52 N.E.2d 424, 150 A.L.R.
his estate and, therefore, said petition was denied. 447, annotation page 465; 2 Freeman on Judgments,
section 910; Routledge v. Githens, 118 Or. 70, 245 P.
Myrtle married Miller in 1918 and has been living 1072, 45 A.L.R. 922. The holding in Sloss-Sheffield
with him since then, to wit, twenty-eight years in Steel & Iron Co. v. Watford, 245 Ala. 425, 17 So.2d
1946 when she testified (twenty-three years when this 166, is not in conflict because it was a controversy
suit was filed). She has three children by him, the with a stranger to the divorce proceedings.
oldest being twenty-four or twenty-five years of age
and the youngest sixteen. It has been thirty-eight In the case of In re Lee's Estate, supra, the child of
years since she saw Colley. She also testified that she the marriage, which was dissolved by divorce, was
knew of no divorce having been granted from Colley. treated as having the status of her mother in the effect
She married again because she thought Colley was of the divorce as a determination that the marriage
dead. It appears that Myrtle and Miller have been was valid.
married and have lived together, as we have stated,
about twenty-eight years (now thirty-three years) and [3] When a proceeding results in fixing the status of
that marriage still continues. *318 To hold that Myr- a child as a bastard, he is sometimes made a party to
tle was not divorced from Colley before she married the proceeding. Taylor v. Taylor, 249 Ala. 419, 31
Doss, then Ashley and then Miller would bastardize So.2d 579. He certainly stands in the shoes of his
the two children by Doss, the one child by Ashley mother to support his claim of legitimacy effected by
and the four children by Miller. In the meantime, in the estoppel in that respect in favor of the mother
October 1916, Colley married and has three boys and against her alleged husband and his privies.
two girls, all of whom would likewise be bastardized.
The evidence does not show that an investigation has [4][5][6][7] The decree of divorce is an exhibit in
been made into the court records at any place where the record and in every way appears to be regu-
Myrtle and Colley lived together or where they lived lar. The other proceedings in the divorce suit are not
since they separated, for the purpose of ascertaining set out. There was no objection made to the decree
whether or not a divorce was granted. on account of the absence of such proceedings. As a
general rule it would be necessary to introduce them
**243[1] We think the effect of the divorce decree of to sustain the jurisdiction of the court. But their ab-
December 2, 1918, in favor of Myrtle Ashley grant- sence is not fatal unless objection was made on that
ing a divorce from Lewis J. Ashley, is controlling as ground, for without objection and to sustain the court,
to the parties to that suit that prior to and at the time we will presume that they conferred jurisdiction. The
the decree was rendered there was a legal marriage decree likewise became unimpeachable at the expira-
existing between Myrtle and Lewis. That was more tion of twenty years from its date, with no effort be-
than twenty years before Lewis died in 1940. Myrtle ing successfully made or begun within said pe-
is still living. That decree was never challenged by riod. Throughout said period both parties to it were
Lewis before he died, nor by anyone claiming to be alive. The fact that Lewis J. Ashley was non compos

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51 So.2d 239 Page 6
255 Ala. 313, 51 So.2d 239
(Cite as: 255 Ala. 313, 51 So.2d 239)

mentis does not prevent the binding force of the prin- The long delay is supplemented by the fact that in
ciple of prescription, nor does the fact he was de- several proceedings where the question was raised
mented when the decree was rendered and his condi- and contested as to whether Grover C. Ashley was
tion not brought to the attention of the court. As to the lawful son of Lewis J. Ashley, the record shows a
that we are not informed by the record. Wilkerson v. decree and finding that he was such lawful son and
Wilkerson, 230 Ala. 567, 161 So. 820;Hendley v. the only rightful heir. This began in 1931, when al-
First National Bank of Huntsville, 235 Ala. 664, 180 lowance was ordered paid out of the estate of Lewis
So. 667. J. Ashley, then a non compos mentis for the support
of Grover. This continued from then until 1933, mak-
This Court has gone to the limit in upholding the le- ing a total allowance of $4456.21. When Lewis J.
gality of a marriage after it has continued for twenty Ashley died, Grover was appointed administrator of
years without legal steps to dissolve it. Bass v. Bass, his estate upon a finding that he was the only heir. A
165 Ala. 223, 51 So. 753;Rawdon v. Rawdon, 28 will was propounded for probate and Grover con-
Ala. 565;Price v. Price, 142 Ala. 631, 38 So. 802,4 tested it as the only heir at law. The contest was suc-
A.L.R.2d 1328, note. cessful and the will was not probated. The court de-
creed that Grover was the only heir of Lewis J. Ash-
[8] Myrtle has been married to Miller and living with ley and ordered the entire estate paid over to him as
him as his wife since 1918, *319 and they have three such, and discharged the administrator and surety.
grown children. As stated above, Colley has married That is the decree sought to be reviewed.
and has five grown children. To hold that Grover C.
Ashley is not the legitimate child of Lewis J. Ashley Several petitions were filed by various collateral kin
because his mother, Myrtle, was not divorced from seeking a finding that Grover was not the lawful heir
Colley would upset Colley's marriage, which oc- of Lewis J. Ashley. After the final decree was ren-
curred in 1916 and still continues, and would bastard- dered another collateral relation filed a petition to
ize his children. It would upset the marriage of Myr- vacate it on the same ground. These petitions were
tle with Doss in 1909 and bastardize their two chil- heard and denied.
dren, as well as her marriage with Miller. Such result
alone is not controlling, but it is a strong incentive to [11][12][13] It is true that this complainant, a collat-
apply the principle of prescription so as to bind Myr- eral relative, was not a party to those proceedings.
tle and Lewis to the consequences of the decree of She was a non compos mentis and was not bound by
divorce in **244 1918, thereby establishing the va- them, and they are not controlling on her. But claim-
lidity of their marriage, which neither of them ever ing in succession to Lewis after his death, she is
questioned for more than twenty years. The decree of bound by the same estoppel which applies to him as
divorce between the Ashleys having become unim- to the effect of the divorce decree between Myrtle
peachable during their lifetime, cannot be impeached and Lewis.
by anyone claiming in succession to their rights. That
would effectually cut off the complainant in this case. It results that the decree of the lower court must be
affirmed.
[9][10] For like reasons, the presumption as to the
validity of all those marriages after the separation of Affirmed.
the Colley relation is so strong that it requires very
satisfactory evidence to overcome it, even if the di- LIVINGSTON, C. J., and LAWSON and STAKELY,
vorce decree of the Ashleys were not binding in that JJ., concur.
respect. The testimony of the parties, not properly
supported by evidence as to the divorce records in the
various jurisdictions in which a decree could be ren- Ala. 1951
dered, is usually treated as not sufficient to overcome Ashley v. Ashley
the presumption. Whitman v. Whitman, 253 Ala. 255 Ala. 313, 51 So.2d 239
643, 46 So.2d 422;Sloss-Sheffield Steel & Iron Co. v.
Watford, 245 Ala. 425, 17 So.2d 166. END OF DOCUMENT

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51 So.2d 239 Page 7
255 Ala. 313, 51 So.2d 239
(Cite as: 255 Ala. 313, 51 So.2d 239)

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TAB F
Page 1

19 Misc.3d 724, 853 N.Y.S.2d 501, 2008 N.Y. Slip Op. 28091
(Cite as: 19 Misc.3d 724, 853 N.Y.S.2d 501)

95k101(1) k. In General. Most Cited


Supreme Court, New York County, New York. Cases
BETH R., Plaintiff, It is a general rule of law that a contract entered into
v. in another State or country, if valid according to the
DONNA M., Defendant. law of that place, is valid everywhere.
Feb. 25, 2008.
[3] Child Custody 76D 274
Background: Divorce action was brought arising out
of same-sex marriage entered into in Canada. Defen- 76D Child Custody
dant moved for dismissal and plaintiff cross-moved 76DVII Particular Status or Relationship
asking court to determine whether she had continuing 76DVII(A) In General
custodial rights and support obligations for children 76Dk274 k. In Loco Parentis; De Facto
born immediately before and during marriage. Parents. Most Cited Cases
In divorce action arising out of same-sex marriage
Holdings: The Supreme Court, New York County, entered into in Canada, trial court would determine
Laura E. Drager, J., held that: whether best interests of children warranted granting
(1) same-sex marriage which was validly entered into custodial rights to non-biological, non-adoptive
under Canadian law was not void under New York mother, since biological mother held out non-
law, and biological mother as a parent to world and children;
(2) trial court would determine whether best interests children were given non-biological mother's last
of children warranted granting custodial rights to name, birth announcements presented non-biological
non-biological, non-adoptive mother. mother as parent of children, extended families of
each party were encouraged to treat non-biological
Motions granted in part and denied in part. mother as parent, and biological mother accepted
health insurance and financial contributions from
non-biological mother for children. McKinney's DRL
West Headnotes
§ 70.

[1] Marriage 253 17.5(2)


[4] Marriage 253 1
253 Marriage
253 Marriage
253k17.5 Same-Sex and Other Non-Traditional
253k1 k. Nature of the Obligation. Most Cited
Unions
Cases
253k17.5(2) k. Effect of Foreign Union. Most
Marriage is a status founded on contract and estab-
Cited Cases
lished by law; it constitutes an institution involving
Same-sex marriage which was validly entered into
the highest interests of society and is regulated and
under Canadian law was not void under New York
controlled by law based upon principles of public
law, even though Domestic Relations Law did not
policy affecting the welfare of the people of the State.
authorize same sex couples to marry in New York.
**502Wendy Parmet, Esq., Parmet Knopf & Green-
blatt, LLC, Susan Sommer, Esq., Lambda Legal De-
[2] Contracts 95 101(1) fense, New York, Jo Ann Citron, Esq., Citron Law,
Boston, MA, attorneys for plaintiff.
95 Contracts
95I Requisites and Validity Bettina Hindin, Esq., Raoul Felder & Partners, P.C.,
95I(F) Legality of Object and of Considera- New York, attorneys for defendant.
tion
95k101 What Law Governs LAURA E. DRAGER, J.

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19 Misc.3d 724, 853 N.Y.S.2d 501, 2008 N.Y. Slip Op. 28091
(Cite as: 19 Misc.3d 724, 853 N.Y.S.2d 501)

delivery room and cut the umbilical cord.


*725 In this divorce action arising out of a same-sex
marriage entered into in Canada, Defendant moves Defendant did not allow Plaintiff to adopt either
for dismissal of the action on the grounds that the child. Nonetheless, each child was given Plaintiff's
marriage is void under New York Law. In her cross- last name as reflected on the children's birth certifi-
motion, Plaintiff asks this court to determine whether cates. (Pl. Reply, Exs. C and D). Birth announce-
the Plaintiff has continuing custodial rights and sup- ments, prepared by the couple, were sent to family
port obligations for the children born immediately members and friends giving the children's last name
before and during the marriage. and reflecting the use by Defendant of Plaintiff's last
name as well (Pl. Cross-Motion, Ex. F). The birth
Plaintiff, is in her late 40s and is a senior vice presi- announcement for J.R. reads “We joyfully announce
dent of a media industry company. Defendant, also in the arrival of our daughter ... Defendant and Plaintiff
her 40s, holds a staff position at a magazine and sells R.” The announcement for S.R. reads “We joyfully
goods on e-bay. They met in late 1999 and soon announce the birth of S.R.... Delighted parents and
thereafter entered into an intimate relationship. In big sister Defendant, Plaintiff and J.R.” At some
May 2002, Plaintiff moved into Defendant's Manhat- point, Defendant prepared return address labels for
tan apartment. the family's mail that read “The R. Family” and lists
both parties and the two children as members of the
In February 2003, Defendant became pregnant by R. family. (Pl. Cross-Motion, Ex. G).
means of artificial insemination. In that same year,
Ontario became the first Canadian province to legal- In April 2004, Plaintiff added Defendant and J.R. to
ize marriage for same-sex couples. Prior to the birth her health insurance plan. She claims she was able to
of the child, the parties traveled to Toronto in Sep- do so only because she and Defendant were married.
tember 2003 and obtained a marriage license. They When born, S.R. received coverage as well. The
planned to marry on Monday, September 8, 2003. medical costs associated with S.R.'s birth were cov-
However, during the weekend preceding that date, ered by Plaintiff's insurance. (Pl. Cross-Motion Exs.
Defendant's father died unexpectedly and they post- H and I).
poned the wedding. His obituary, prepared by Defen-
dant, referred to Plaintiff as his daughter-in-law (Pl. Each party obtained life insurance naming the other
Cross-Motion, Ex. A). During September and Octo- party as beneficiary. Defendant prepared a will nam-
ber, family members and friends held baby showers ing Plaintiff as guardian of the children. Plaintiff's
for the couple. Defendant gave birth to a daughter will left property to Defendant.
**503 (“J.R.”) on October 20, 2003. Plaintiff was
present in the delivery room. She coached Defendant The parties taught J.R. to call Plaintiff “mom” and
during the delivery process and cut the umbilical Defendant “mommy.” J.R. calls Plaintiff's mother
cord. Each party took maternity leave (one after the “nana” and refers to Plaintiff's siblings as “aunt” and
other) so that one of them would be present with the “uncle.”
child for her first four months.
Each party cared for the children and contributed to
*726 When J.R. was 3 1/2 months old, the parties their support. The parties participated together in
traveled to Toronto to obtain a new marriage license making important decisions for the children, such as
since the first license had expired (Pl. Cross-Motion, the selection of a pediatrician and a nanny. Together
Ex. B). They were married on February 14, 2004, they explored options and decided on a pre-school
surrounded by family and friends who had traveled to and camp for J.R. In September 2006, without objec-
Toronto to be present. J.R. was carried down the tion*727 by Defendant, Plaintiff completed the
aisle. school application form, listing each party as a par-
ent. She signed the medical and trip authorization
In July 2005, Defendant was again impregnated by forms. (Pl. Cross-Motion, Ex. H). Each party con-
artificial insemination. Plaintiff paid for the proce- tributed to the cost of the school and participated in
dure. On March 30, 2006, Defendant gave birth to parent activities. They each attended parent-teacher
another daughter (“S.R.”). Plaintiff was present in the conferences and the child's school events.

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Page 3

19 Misc.3d 724, 853 N.Y.S.2d 501, 2008 N.Y. Slip Op. 28091
(Cite as: 19 Misc.3d 724, 853 N.Y.S.2d 501)

York should give to a validly entered out-of-state


In September 2006, when J.R. was 3 years old and same-sex marriage.
S.R. was 6 months old, Defendant announced that she
wanted to end the marriage. The parties continued to [2] Absent overriding legislation, recognition of out-
reside together in Defendant's apartment until the of-state marriages is governed by common law doc-
spring of 2007. During that period, Plaintiff slept in trines and comity. New York courts have long held
the bedroom with S.R. The children and Defendant that out-of-state marriages, if valid where entered
remained on Plaintiff's medical insurance plan and will be respected in New York even if under New
Plaintiff continued to make school tuition payments. York law the marriage would be void. “(I)t is a gen-
eral rule of law that a contract entered into in another
On April 17, 2007 Defendant filed and served a No- State or country, if valid according to the law of that
tice to Quit on Plaintiff to remove her from the place, is valid everywhere.... (T)he rule recognizes as
apartment. On April **504 24, 2007, Plaintiff filed valid a marriage considered valid in the place where
the instant divorce action. Pending resolution of the celebrated.” There are only two exceptions to this
instant motion and cross-motion, the parties entered rule. New York will not recognize either a marriage
into a stipulation in which it was agreed that Plaintiff prohibited by positive law of this state or a marriage
would remove herself from Defendant's apartment abhorrent to New York public policy. The abhorrence
and an access schedule was set providing Plaintiff exception is so narrow that it has been applied only to
visitation with the children alternate weekends from marriages involving polygamy or incest. Van Voorhis
Friday after school until Sunday evening, as well as v. Brintnall, 86 N.Y. 18, 24-5 (1881); Thorp v.
dinners with the children on Tuesday and Thursday Thorp, 90 N.Y. 602 (1882); In re May, 305 N.Y. 486,
evenings on alternate weeks. (Stipulation, dated May 114 N.E.2d 4 (1953); Martinez, supra.
11, 2007).
Yet even an out-of-state incestuous marriage has
[1] Defendant moves for dismissal of this action. She been recognized as valid within New York. Notwith-
contends that the marriage is void under New York standing this state's statutory provision voiding inces-
law. Since there is no marriage, there can be no ac- tuous marriages, the Court of Appeals upheld as valid
tion for divorce. [CPLR § 3211(a)(3), (7) ].FN1 De- a Rhode Island marriage between an uncle and niece.
fendant relies on the finding by the Court of Appeals In re May, supra. The parties were New York domi-
that New York prohibits the marriage of same-sex ciliaries who left the state solely for the purpose of
couples. Hernandez v. Robles, 7 N.Y.3d 338, 821 getting married and then returned to live in New
N.Y.S.2d 770, 855 N.E.2d 1 (2006). See also, York.
Funderburke v. New York State Dept. Of Civil Ser-
vice, 13 Misc.3d 284, 822 N.Y.S.2d 393 (Sup.Ct., Although the New York statute ... declares to be in-
Nassau Co.2006). Defendant's motion is denied. cestuous and void a marriage between an uncle and a
Martinez v. Monroe Community College, 50 A.D.3d niece and imposes penal measures upon the parties
189, 850 N.Y.S.2d 740 (4th Dept.2008). thereto, it is important to note that the statute does not
does not by express terms regulate a marriage solem-
FN1. This is the sole basis on which defen- nized in another **505 State where, as in our present
dant seeks dismissal of the action. Plaintiff case, the marriage was concededly legal....
has not yet served a complaint.
As ... the New York Domestic Relations Law does
The right to marry is a statutory right. The Court of not expressly declare void a marriage of its domi-
Appeals in Hernandez said no more than that the ciliaries solemnized in a foreign State where such
Domestic Relations Law does not authorize same sex marriage is valid, the statute's scope should not be
couples to marry in New York and that no constitu- extended by judicial construction (citation omitted ).
tional imperative required the court to interfere with “Indeed, had the legislature been so disposed it could
that law as enacted by the legislature. The issue in have declared by appropriate enactment that mar-
that case arose as a result of the effort of same-sex riages contracted in another State-which if entered
couples to *728 obtain marriage licenses within New into here would be void-shall have no force in this
York. Hernandez did not address what effect New state.” (305 N.Y. at 490-91, 114 N.E.2d 4).

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19 Misc.3d 724, 853 N.Y.S.2d 501, 2008 N.Y. Slip Op. 28091
(Cite as: 19 Misc.3d 724, 853 N.Y.S.2d 501)

recognized under our law. For example, prior to the


*729 Thus, the court concluded that no positive law Court of Appeals decision in Hernandez then Attor-
of this state precluded recognition of the marriage.FN2 ney General Elliot Spitzer issued an opinion in which
his office concluded that although the legislature did
FN2. The court also found that the religious not intend to authorize same-sex marriages under the
qualifications of the Rhode Island statute Domestic Relations Law, “New York law presump-
supported the conclusion that the incestuous tively requires that parties (to same-sex marriages
marriage before the court was not offensive from other jurisdictions) must be treated as spouses
to the public sense of morality to a degree for purposes of New York law.” 2004 N.Y. Op. (Inf.)
regarded generally with abhorrence and Att'y Gen. 1, 34-5. This same conclusion was reached
thus, was not within the inhibitions of natu- by current Attorney General Andrew Cuomo even
ral law. after the Hernandez decision.*730See, January 18,
2007 Reply Mem. In Further Supp. Of Def's Mot. To
Dismiss, Godfrey v. Hevisi, No. 5896/06 (Sup.Ct.
Courts have recognized other out-of-state marriages Albany County). The New York State Comptroller
that are repugnant under New York law. Historically, issued an opinion to the same effect, enabling**506
New York law prohibited a respondent who was di- spouses of out-of-state same-sex marriages to receive
vorced on the grounds of adultery from remarrying certain benefits through the New York State Retire-
during the former spouse's life. Yet the respondent's ment System. Op. of N.Y. State Comptroller Alan G.
remarriage in another state was recognized as valid in Hevisi (Oct. 8, 2004). New York City reached the
New York if the other state did not preclude the re- same conclusion with respect to certain benefits pur-
marriage of an adulterer. Van Voorhis, supra;Thorp, suant to its pension system. Letter of Corporation
supra;Moore v. Hegeman, 92 N.Y. 521 (1883). A Counsel Michael A. Cardozo to Hon. Michael R.
valid out-of-state marriage that was voidable under Bloomberg, dated November 17, 2004.FN3 Most re-
New York law because a spouse was underage was cently, and well after Hernandez the New York State
recognized as valid in New York. Donohue v. Department of Civil Service (“DCS”) announced its
Donohue, 63 Misc. 111, 116 N.Y.S. 241 (Sup.Ct., policy to recognize as valid out-of-state same-sex
Erie County.1909); Hilliard v. Hilliard, 24 Misc.2d marriages for the purpose of providing spousal bene-
861, 209 N.Y.S.2d 132 (Sup.Ct., Greene County fits under the New York State Health Insurance Pro-
1960). Common law marriages, although not recog- gram and other Department-administered benefit
nized in New York, will be upheld if validly entered programs. NYS DCS, Employee Benefits Division
into under the laws of another state. In re Mott v. Policy Memorandum, revised May 1, 2007.
Duncan Petroleum Trans., 51 N.Y.2d 289, 434
N.Y.S.2d 155, 414 N.E.2d 657 (1980); In re Farber
v. U.S. Trucking Corp., 26 N.Y.2d 44, 308 N.Y.S.2d FN3. The marital status of either a New
358, 256 N.E.2d 521 (1970); Lancaster v. 46 NYL York State or New York City employee has
Partners, 228 A.D.2d 133, 141, 651 N.Y.S.2d 440 no effect on the disbursement of most survi-
(1st Dept.1996); In re Estate of Yao You-Xin, 246 vor benefits since benefits typically go to a
A.D.2d 721, 667 N.Y.S.2d 462 (3d Dept.1998); designated beneficiary. However, some lim-
Carpenter v. Carpenter, 208 A.D.2d 882, 617 ited benefits are available only to a spouse,
N.Y.S.2d 903 (2d Dept.1994); In re Coney v. R.S.R. parent or child. The letters indicate that both
Corporation, 167 A.D.2d 582, 563 N.Y.S.2d 211 (3d New York State and New York City recog-
Dept.1990). New York recognizes as valid out-of- nize the partner of an out-of-state same-sex
state marriages by proxy, although such marriages marriage as a spouse.
cannot be performed within New York. Fernandes v.
Fernandes, 275 A.D. 777, 87 N.Y.S.2d 707 (2d As the Martinez court noted, “ Hernandez ... holds
Dept.1949); In re Valente, 18 Misc.2d 701, 188 merely that the New York State Constitution does not
N.Y.S.2d 732 (Sur.Ct., Kings County 1959). compel recognition of same-sex marriages solem-
nized in New York (citation omitted ). The Court of
Recent pronouncements by statewide and local ex- Appeals noted that the Legislature may enact legisla-
ecutive branch offices support this court's conclusion tion recognizing same-sex marriages (citations omit-
that out-of-state same-sex marriages are properly ted ) and, in our view, the Court of Appeals thereby

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19 Misc.3d 724, 853 N.Y.S.2d 501, 2008 N.Y. Slip Op. 28091
(Cite as: 19 Misc.3d 724, 853 N.Y.S.2d 501)

indicated that the recognition of (a same-sex) mar- N.Y.S.2d 586, 572 N.E.2d 27.
riage is not against the public policy of New York.”
Martinez, supra, 850 N.Y.S.2d at 743. Accordingly, In the seventeen years since Alison D., under con-
defendant's motion to dismiss this divorce action on straint of that decision, courts have continued to deny
the grounds that the parties' Canadian marriage is the proactive efforts of a non-biological, non-
void under New York law is denied. adoptive domestic partner or spouse to obtain custo-
dial rights, notwithstanding the ties that may have
[3] Plaintiff seeks to have this court determine developed between that person and the child.
whether the children are entitled to plaintiff's continu- Anonymous v. Anonymous, 20 A.D.3d 333, 797
ing custodial care and financial support. Plaintiff ar- N.Y.S.2d 754 (1st Dept.2005); Matter of Multari v.
gues that she is entitled to maintain an on-going rela- Sorrell, 287 A.D.2d 764, 731 N.Y.S.2d 238 (3d
tionship with and obligation to support the children. Dept.2001); In the Matter of Janis C. v. Christine T.,
She moves for appointment of a law guardian to rep- 294 A.D.2d 496, 742 N.Y.S.2d 381 (2d Dept.2002);
resent the best interests of the children. Defendant Speed v. Robins, 288 A.D.2d 479, 732 N.Y.S.2d 902
opposes the application. She contends that since the (2d Dept.2001); Lynda A.H. v. Diane T.O., 243
children were *731 not adopted by plaintiff she lacks A.D.2d 24, 673 N.Y.S.2d 989 (4th Dept.1998).
standing to pursue any right to an ongoing relation-
ship with them. Matter of Alison D. v. Virginia M., 77 However, parallel to that developing case law has
N.Y.2d 651, 569 N.Y.S.2d 586, 572 N.E.2d 27 been the continued use of equitable estoppel as a de-
(1991); Matter of Ronald FF. v. Cindy GG., 70 fense where a person, typically a non-biological fa-
N.Y.2d 141, 517 N.Y.S.2d 932, 511 N.E.2d 75 ther, seeks to avoid child support obligations or the
(1987). biological father belatedly seeks recognition of his
parental rights. Matter of Diana E. v. Angel M., 20
In Alison D. the Court of Appeals denied visitation A.D.3d 370, 799 N.Y.S.2d 484 (1st Dept.2005);
rights to the former partner of a same-sex relationship *732Hammack v. Hammack, 291 A.D.2d 718, 737
on the grounds that as a biological stranger to the N.Y.S.2d 702 (3d Dept.2002); Fung v. Fung, 238
child, she could not be deemed a “parent” under DRL A.D.2d 375, 655 N.Y.S.2d 657 (2d Dept.1997);
§ 70. The petitioner had argued that although she was Purificati v. Paricos, 154 A.D.2d 360, 545 N.Y.S.2d
not a “parent” either biologically or by virtue of 837 (2d Dept.1989).
adoption, her substantial relationship to the child re-
sulted in her being a “de facto” parent or that she In 2006, the Court of Appeals directly addressed the
should be viewed as a parent “by estoppel.” The application of the doctrine of estoppel in paternity
court rejected the application of equitable estoppel and support proceedings. In Matter of Shondel J. v.
and concluded that where the biological parent is fit, Mark D., 7 N.Y.3d 320, 820 N.Y.S.2d 199, 853
the state will not interfere with that parent's custodial N.E.2d 610 (2006), the court found that the respon-
choices. See, Matter of Ronald FF., supra;Matter of dent, who never married the mother and was not the
Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d biological father of the woman's child, was equitably
821, 356 N.E.2d 277 (1976). estopped from denying paternity. In that case, the
child was believed to be the product of a brief liaison
In her dissent, Chief Judge Kaye noted that the word between the respondent and the mother. The respon-
“parent” is not defined by statute. Where a term is dent initially acknowledged paternity and provided
undefined, it is for the courts to give definition to the some financial support. He had intermittent visitation
term to effectuate the legislative purpose. She con- with the child, although he was often not even in the
cluded that the narrow reading of the term “parent” same country as the mother and child. Four years
given by the majority, precluded the court from ad- after the child's birth, it was determined that he was
vancing the legislative intent. “The Legislature has not the biological father.
made **507 plain an objective in section 70 to pro-
mote the best interest of the child' and the child's wel- The Court found that the respondent was equitably
fare and happiness.' (citation omitted ). Those words estopped from raising the issue of paternity, both by
should not be ignored by us in defining standing for statute (Family Court Act §§ 418[a]; 532 [a] ) and at
visitation purposes ...” 77 N.Y.2d at 659, 569 common law. The Court concluded that both the stat-

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19 Misc.3d 724, 853 N.Y.S.2d 501, 2008 N.Y. Slip Op. 28091
(Cite as: 19 Misc.3d 724, 853 N.Y.S.2d 501)

ute and case law required that the best interests of the the opposing party's words or conduct, has been
child controlled whether a person was required to misled into acting upon the belief that such en-
continue support payments, even if it was belatedly forcement would not be sought' (citations omitted )
determined that he was not the biological parent. ....Courts have recognized the availability of this
“The potential damage to a child's psyche caused by doctrine as a defense in various proceedings in-
suddenly ending established parental support need volving challenges to paternity.... The paramount
only be stated to be appreciated. Cutting off that sup- concern in applying equitable estoppel in these
port, whether emotional or financial, may leave the cases has been and continues to be, the best inter-
child in a worse position than if the support had never ests of the child. (citations omitted ). (I)t is incon-
been given.... (T)he issue does not involve the equi- sistent to estop a nonbiological father from dis-
ties between the two adults; the case turns exclusively claiming paternity in order to avoid supporting the
on the best interests of the child.” (emphasis added ) child, but preclude a nonbiological father from in-
7 N.Y.3d at 330, 820 N.Y.S.2d 199, 853 N.E.2d 610. voking the doctrine against the biological mother
in order to continue a long-standing relationship
In support of this conclusion, the court cited favora- with the child. It would seem particularly appropri-
bly to Maby H. v. Joseph H., 246 A.D.2d 282, 676 ate to apply the doctrine under the circumstances in
N.Y.S.2d 677 (2d Dept.1998). That case, however, this case....(W)e are of the opinion that the best in-
did not concern the application of equitable estoppel terests of the child will not be served in this case if
as a defense in a paternity or support proceeding. Matter of Ronald FF. and Matter of Alison D. are
Rather, Maby H. addressed the question of whether a blindly applied. 246 A.D.2d at 285-89, 676
nonbiological parent may offensively invoke the doc- N.Y.S.2d 677 (Emphasis added.)
trine of equitable estoppel to preclude a biologi-
cal**508 parent from cutting off custody or visitation See also, Matter of Christopher S. v. Ann Marie S.,
with a child. 173 Misc.2d 824, 662 N.Y.S.2d 200 (Family Ct.,
Dutchess County 1997).
The parties in Maby H. began dating when the
woman was already pregnant as a result of a relation- Given the many cases that have authorized equitable
ship with another man. The parties lived together estoppel as a defense to paternity proceedings, this
after the child was born for two years before getting court concludes that it is not mere coincidence that in
married. Five years after the marriage, the *733 wife Shondel J. the Court of Appeals cited to Maby H. If
commenced the divorce action. The husband cross- the concern of both the legislature *734 and the Court
moved for custody of the child. of Appeals is what is in the child's best interest, a
formulaic approach to finding that a “parent” can
The trial level court found that, although knowing the only mean a biologic or adoptive parent may not al-
husband was not related to the child, the wife held ways be appropriate.FN4
him out to the world as the father, including to the
child's doctors, school, family and friends and for FN4. Of course, as noted by Judge Kaye,
purposes of obtaining medical insurance. She also there must be limitations set on who can pe-
accepted financial support from him for the child. tition for visitation. “Domestic Relations
Notwithstanding these findings, the court felt con- Law § 70 specifies that the person must be
strained by Alison D. and Ronald FF. to deny the the child's parent,' and the law additionally
husband's request for custody or visitation since the recognizes certain rights of biological and
wife was not an unfit mother. legal parents. Arguments that every dedi-
cated caretaker could sue for visitation if the
The Second Department reversed, finding: term parent' were broadened, or that such
action would necessarily effect sweeping
(T)he doctrine of equitable estoppel is imposed by change throughout the law, overlook and
law in the interest of fairness to prevent the en- misportray the Court's role in defining oth-
forcement of rights which would work [a] fraud or erwise undefined statutory terms to effect
injustice upon the person against whom enforce- particular statutory purposes, and to do so
ment is sought and who, in justifiable reliance upon narrowly, for those purposes only.” Alison

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19 Misc.3d 724, 853 N.Y.S.2d 501, 2008 N.Y. Slip Op. 28091
(Cite as: 19 Misc.3d 724, 853 N.Y.S.2d 501)

D., 77 N.Y.2d at 661, 569 N.Y.S.2d 586,


572 N.E.2d 27. A child by the age of three clearly identifies with
parental figures. The abrupt exclusion of a parental
In reliance on Shondel J. and Maby H., this court figure may be damaging to the emotional well being
concludes that the facts here warrant granting Plain- of that child. Although only an infant, it is conceiv-
tiff's motion to enable this court to determine whether able that S.R. might suffer emotional consequences
the best interests of the children warrant **509 grant- as well and she may well be considered the legitimate
ing custodial rights to Plaintiff. Although Defendant child of both parents having been born during the
did not allow the adoption of the children, she held marriage. Certainly both children might suffer finan-
out Plaintiff to the world, and most important, to the cial consequences due to the loss of support that
children, as their parent. The children were given would be available to them from Plaintiff. The best
Plaintiff's last name. The birth announcements pre- interests of the children require exploration of their
sented Plaintiff as the parent of each child. J.R. was custodial and support needs as between the parties to
encouraged to call Plaintiff “mom” and Plaintiff's this action. DRL § 70.
relatives by familial titles. The extended families of
each party were encouraged to treat Plaintiff as a par- Accordingly, it is hereby
ent. Defendant held out Plaintiff as a parent to the
children's nanny, doctor and J.R.'s teachers and ORDERED, that Defendant's motion is denied; and it
school administrators. Defendant accepted health is further
insurance and financial contributions from Plaintiff
for the benefit of the children.
ORDERED, that Plaintiff's cross-motion is granted
the extent that the parties will appear in court on
[4] An additional factor is the marriage. Although March 24, 2008 at 9:30 a.m. for a conference to ad-
Defendant seeks to minimize the significance of the dress the custodial issues of this action.
act of marriage, the law does not share her view.
Marriage is “a status founded on contract and estab-
lished by law. It constitutes an institution involving This opinion is the decision and order of the court.
the highest interests of society. It is regulated and
controlled by law based upon principles of public N.Y.Sup.,2008.
policy affecting the welfare of the people of the Beth R. v. Donna M.
State.” Fearon v. Treanor, 272 N.Y. 268, 272, 5 19 Misc.3d 724, 853 N.Y.S.2d 501, 2008 N.Y. Slip
N.E.2d 815 (1936). As a result of being married, Op. 28091
Plaintiff may be constrained to provide support for
the Defendant and Defendant would be a recipient of END OF DOCUMENT
a portion of Plaintiff's estate. These factors signifi-
cantly affect the children's welfare. Moreover, al-
though people enter into marriages for many reasons,
creating familial bonds is one of the most significant
reasons, particularly for the benefit of their children.
The parties here were clearly committed to becoming
married, having traveled *735 twice to Canada and
having obtained two marriage licenses. It is notewor-
thy that the Defendant voluntarily entered into the
marriage after her first child was born. Furthermore,
as Plaintiff argues, the artificial insemination during
the marriage resulting in the birth of S.R. may require
a finding that she is the legitimate child of both par-
ents. DRL § 73; H. v. P., 90 A.D.2d 434, 457
N.Y.S.2d 488 (1st Dept.1982); Laura G. v. Peter G.,
15 Misc.3d 164, 830 N.Y.S.2d 496 (Sup. C., Dela-
ware County.2007).

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TAB G
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935 A.2d 956


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361 Statutes
Supreme Court of Rhode Island. 361VI Construction and Operation
Margaret R. CHAMBERS 361VI(A) General Rules of Construction
v. 361k180 Intention of Legislature
Cassandra B. ORMISTON. 361k181 In General
No. 2006-340. 361k181(1) k. In General. Most
Cited Cases
Dec. 7, 2007.
Statutes 361 184
Background: One member of same-sex couple, who
had been married in Massachusetts, filed a petition 361 Statutes
for divorce. The Family Court certified to the Su- 361VI Construction and Operation
preme Court a question as to whether or not the Fam- 361VI(A) General Rules of Construction
ily Court had subject matter jurisdiction to grant a 361k180 Intention of Legislature
petition for divorce with respect to a same-sex cou- 361k184 k. Policy and Purpose of Act.
ple. While retaining jurisdiction, the Supreme Court, Most Cited Cases
916 A.2d 758, remanded the matter to the Family
Court and directed that it address several questions of Statutes 361 188
fact. The Family Court set forth its conclusion that
the case presented an actual case or controversy. 361 Statutes
361VI Construction and Operation
Holding: The Supreme Court, Robinson, J., held that 361VI(A) General Rules of Construction
as matter of apparent first impression, Family Court, 361k187 Meaning of Language
a court of limited statutory jurisdiction, was without 361k188 k. In General. Most Cited
jurisdiction to entertain divorce petition involving Cases
same sex couple who were married in Massachusetts. When interpreting statute, Supreme Court's role is to
determine the intent of the General Assembly by
Certified question answered. looking to the language, nature, and object of the
enactments of that body.
Suttell, J., dissented and filed opinion in which
Goldberg, J., joined. [3] Statutes 361 188

West Headnotes 361 Statutes


361VI Construction and Operation
[1] Statutes 361 176 361VI(A) General Rules of Construction
361k187 Meaning of Language
361k188 k. In General. Most Cited
361 Statutes
Cases
361VI Construction and Operation
If statute has a plain meaning and therefore is unam-
361VI(A) General Rules of Construction
biguous, courts simply apply that plain meaning to
361k176 k. Judicial Authority and Duty.
the case at hand.
Most Cited Cases
Supreme Court is the final arbiter with respect to
questions of statutory construction. [4] Statutes 361 190

[2] Statutes 361 181(1) 361 Statutes


361VI Construction and Operation
361VI(A) General Rules of Construction

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935 A.2d 956


(Cite as: 935 A.2d 956)

361k187 Meaning of Language 134k60 k. Place of Marriage. Most


361k190 k. Existence of Ambiguity. Cited Cases
Most Cited Cases The word “marriage,” as used in statute which em-
If a statute is ambiguous, courts must engage in powered the Family Court to hear and determine all
elaborate statutory construction process, in which petitions for divorce from the bond of marriage, was
process courts very frequently employ the canons of not intended by the General Assembly to empower
statutory construction. the Family Court to hear and determine petitions for
divorce involving two persons of the same sex who
[5] Courts 106 243 were purportedly married in another state, and there-
fore, Family Court, a court of limited statutory juris-
diction, was without jurisdiction to entertain divorce
106 Courts
petition involving same-sex couple who were married
106VI Courts of Appellate Jurisdiction
in adjoining state; in enacting statute over 40 years
106VI(B) Courts of Particular States
ago, General Assembly had in mind only marriages
106k243 k. Rhode Island. Most Cited
involving two persons of the opposite sex. Gen.Laws
Cases
1956, § 8-10-3(a).
By contrast with the federal courts, Rhode Island
Supreme Court's jurisdiction is not limited by an in-
flexible constitutional “cases and controversies” re- [8] Statutes 361 188
quirement.
361 Statutes
[6] Divorce 134 175 361VI Construction and Operation
361VI(A) General Rules of Construction
361k187 Meaning of Language
134 Divorce
361k188 k. In General. Most Cited
134IV Proceedings
Cases
134IV(O) Appeal
When courts are called upon to decide what the Gen-
134k175 k. Nature and Form of Remedy.
eral Assembly intended when it enacted a particular
Most Cited Cases
statute, courts always begin with the principle that
The issue of whether Family Court had subject matter
plain statutory language is the best indicator of legis-
jurisdiction to grant a petition for divorce with re-
lative intent.
spect to a same-sex couple, who were married in an
adjoining state, was an issue about which there was
real controversy, and the resolution of that contro- [9] Statutes 361 190
versy would have definite real-world consequences,
and thus, it was proper for Supreme Court to adjudi- 361 Statutes
cate the case. 361VI Construction and Operation
361VI(A) General Rules of Construction
[7] Divorce 134 59 361k187 Meaning of Language
361k190 k. Existence of Ambiguity.
Most Cited Cases
134 Divorce
When statute is unambiguous, courts simply must
134IV Proceedings
determine what the words in the statute were in-
134IV(A) Jurisdiction
tended to mean, and once courts have done so, courts'
134k58 Jurisdiction of Cause of Action
interpretive task is at an end and courts' role is simply
134k59 k. In General. Most Cited Cases
to apply the statute as written.
Divorce 134 60
[10] Statutes 361 188
134 Divorce
361 Statutes
134IV Proceedings
361VI Construction and Operation
134IV(A) Jurisdiction
361VI(A) General Rules of Construction
134k58 Jurisdiction of Cause of Action

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(Cite as: 935 A.2d 956)

361k187 Meaning of Language 92 Constitutional Law


361k188 k. In General. Most Cited 92XX Separation of Powers
Cases 92XX(C) Judicial Powers and Functions
In the absence of statutory definition or qualification, 92XX(C)2 Encroachment on Legislature
the words of a statute are given their ordinary mean- 92k2485 Inquiry Into Legislative
ing; however, what is crucial is to determine the or- Judgment
dinary meaning as of the time of enactment. 92k2488 k. Policy. Most Cited Cases
The role of the judicial branch is not to make policy,
[11] Statutes 361 215 but simply to determine the legislative intent as ex-
pressed in the statutes enacted by the General As-
sembly.
361 Statutes
361VI Construction and Operation
361VI(A) General Rules of Construction [15] Divorce 134 59
361k213 Extrinsic Aids to Construction
361k215 k. Contemporary Circum- 134 Divorce
stances. Most Cited Cases 134IV Proceedings
Words can have different meanings at different points 134IV(A) Jurisdiction
of historical time, but it is the role of the judiciary to 134k58 Jurisdiction of Cause of Action
ascertain what meaning a particular word had when 134k59 k. In General. Most Cited Cases
the statute containing that word was enacted.
Divorce 134 60
[12] Statutes 361 188
134 Divorce
361 Statutes 134IV Proceedings
361VI Construction and Operation 134IV(A) Jurisdiction
361VI(A) General Rules of Construction 134k58 Jurisdiction of Cause of Action
361k187 Meaning of Language 134k60 k. Place of Marriage. Most
361k188 k. In General. Most Cited Cited Cases
Cases
In carrying out the process of determining the mean- Marriage 253 17.5(2)
ing of the words employed by an enacting legislature,
reference to contemporaneous dictionaries is appro-
253 Marriage
priate and often helpful.
253k17.5 Same-Sex and Other Non-Traditional
Unions
[13] Statutes 361 193 253k17.5(2) k. Effect of Foreign Union. Most
Cited Cases
361 Statutes Family Court could not recognize, for the purpose of
361VI Construction and Operation entertaining a divorce petition, the marriage of two
361VI(A) General Rules of Construction persons of the same sex who were purportedly mar-
361k187 Meaning of Language ried in another state. Gen.Laws 1956, § 8-10-3(a).
361k193 k. Associated Words. Most *958Louis M. Pulner, for Margaret R. Chambers.
Cited Cases
Noscitur a sociis principle of statutory construction Nancy A. Palmisciano, Providence, for Cassandra B.
counsels that the meaning of questionable or doubtful Ormiston.
words or phrases in a statute may be ascertained by
reference to the meaning of other words or phrases Present: WILLIAMS, C.J., GOLDBERG,
associated with it. FLAHERTY, SUTTELL, and ROBINSON, JJ.

[14] Constitutional Law 92 2488 OPINION

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935 A.2d 956


(Cite as: 935 A.2d 956)

Justice ROBINSON for the Court. chusetts justice of the peace.

The Family Court, a legislatively created court of FN3. Ms. Chambers and Ms. Ormiston are
limited jurisdiction, FN1 acting pursuant to G.L. 1956 of the same sex.
§ 9-24-27, has certified the following question to this
Court: FN4.See Goodridge v. Department of Public
Health, 440 Mass. 309, 798 N.E.2d 941
FN1.State v. Kenney, 523 A.2d 853, 854 (2003) (plurality opinion).
(R.I.1987) (“[T]he Family Court is a court
of limited jurisdiction whose powers are On October 23, 2006, Ms. Chambers filed a petition
strictly limited to those conferred by the for divorce in the Family Court, and on October 27 of
Legislature.”); see also State v. Day, 911 that year Ms. Ormiston filed an answer and counter-
A.2d 1042, 1049 (R.I.2006) (“[T]he Family claim. Thereafter, on December 11, 2006, the Chief
Court is a court of limited statutory jurisdic- Judge of the Family Court certified to this Court a
tion * * *.”) (Internal quotation marks omit- question as to whether or not the Family Court has
ted.); Pierce v. Pierce, 770 A.2d 867, 870 subject matter jurisdiction to grant a petition for di-
(R.I.2001); State v. Zittel, 94 R.I. 325, 329- vorce with respect to a same-sex couple.
30, 180 A.2d 455, 457 (1962).
We considered the Family Court's certified question
“May the Family Court properly recognize, for the in conference on January 4, 2007 and again on Janu-
purpose of entertaining a divorce petition, the mar- ary 10, 2007, and we determined at that point that our
riage of two persons of the same sex who were consideration of the certified question required that
purportedly married in another state?” the Family Court make further findings of fact. While
For the reasons set forth herein, it is our opinion retaining jurisdiction, we remanded the matter to the
that the certified question must be answered in the Family Court and directed that it address several
negative.FN2 questions of fact. We also directed the certifying jus-
tice of the Family Court, based on his findings of
FN2. We are sensitive to the fact that our fact, to determine: (1) whether or not the case pre-
holding on the jurisdictional issue deprives sented an actual case or controversy; (2) whether or
the parties to this case of the opportunity to not the Full Faith and Credit Clause of the United
seek a divorce in our Family Court. (See States Constitution was relevant to the case; and (3)
discussion entitled “A Final Consideration,” whether or not the Defense of Marriage Act, 28
infra.) Nevertheless, it is our conviction that U.S.C. § 1738C (2000), was pertinent to the case.
the pertinent statute does not authorize the This Court further directed that the Family Court
Family Court to entertain a divorce petition reword the certified question to clarify that the issue
filed by “two persons of the same sex who was whether the Family Court could recognize the
were purportedly married in another state.” purported marriage for the purpose of entertaining a
divorce petition. Chambers v. Ormiston, 916 A.2d
Facts and Travel 758, 758-59 (R.I.2007) (mem.). The Family Court
responded to our request on February 21, 2007. The
On May 26, 2004, Rhode Island residents Margaret court's response set forth its conclusion that the case
Chambers and Cassandra Ormiston FN3 traveled to presented an actual case or controversy, that the Full
Massachusetts and applied for a marriage license in Faith and Credit Clause was relevant, and that the
that state. After Ms. Chambers and Ms. Ormiston Defense of Marriage Act had only “nominal” effect.
received a marriage license, a Massachusetts justice
of the peace performed a marriage ceremony in Fall On October 9, 2007, after reviewing the briefs filed
River, Massachusetts. The couple thereafter returned by the parties, as well as the briefs of a number of
to Rhode Island, where they resided together until amici curiae, we heard oral argument from the parties
they decided to seek to dissolve in *959 this state the with respect to the certified question.FN5
relationship that Massachusetts deems to be a mar-
riage FN4 and that had been solemnized by the Massa- FN5. We wish to thank the several amici cu-

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riae for the well-written and instructive (R.I.2007) (employing the in pari materia canon of
briefs that they submitted to this Court. statutory construction); Kells v. Town of Lincoln, 874
A.2d 204, 212 (R.I.2005) (employing the in pari ma-
Introduction teria canon); State v. Dearmas, 841 A.2d 659, 667
(R.I.2004) (employing the interpretive doctrine of
[1][2] Upon contemplating the question certified by noscitur a sociis in construing a provision of the Su-
the Family Court, it became clear to us that the pre- perior Court Rules of Criminal Procedure);
cise issue we must decide is ultimately the following: Berthiaume v. School Committee of Woonsocket, 121
What is the meaning of the word “marriage” within R.I. 243, 248, 397 A.2d 889, 893 (1979) (employing
the Rhode Island statute FN6 that empowers the Fam- the interpretive principle that repeals by implication
ily Court to grant divorces-or, stated even more pre- are disfavored); see also Gorman v. Gorman, 883
cisely, what did the word mean at the time that the A.2d 732, 738 n. 9 (R.I.2005) (employing the expres-
members of the General Assembly enacted the stat- sio unius est exclusio alterius maxim in interpreting
ute? It is imperative that we direct our attention to the the meaning of a contract).
meaning of this statutory term at that point in time.
We are well aware that “[t]his Court is the final arbi- FN7. In his helpful treatise, The Interpreta-
ter with respect to questions of statutory construc- tion and Application of Statutes 1-2 (1975),
tion.” New England Expedition-Providence, LLC v. Professor Reed Dickerson observed:
City of Providence, 773 A.2d 259, 263 (R.I.2001);
see also Unistrut Corp. v. State Department of Labor “The term ‘statutory interpretation’ itself
and Training, 922 A.2d 93, 98 (R.I.2007). In carrying is used to refer, on the one hand, solely to
out that responsibility, we are mindful of the princi- the cognitive process of ascertaining
ple that our role is to determine the intent of the Gen- meaning and, on the other hand, to the en-
eral Assembly by looking to “the language, na- tire process by which a court discharges
ture,*960 and object” of the enactments of that body. its responsibility of applying statutes to
In re Estate of Gervais, 770 A.2d 877, 880 (R.I.2001) specific controversies.”
(quoting State v. Pelz, 765 A.2d 824, 829-30
(R.I.2001)); see also Pacheco v. Lachapelle, 91 R.I. In this opinion, we use the terms “statu-
359, 361-62, 163 A.2d 38, 40 (1960). tory construction” and “statutory interpre-
tation” in the broad sense as referring both
FN6.General Laws 1956 § 8-10-3(a) reads to instances where we are able to deter-
in pertinent part as follows: “There is hereby mine that a given statute is unambiguous
established a family court, consisting of a and to instances where we must engage in
chief judge and eleven (11) associate jus- the more difficult task of ascertaining the
tices, to hear and determine all petitions for meaning of an ambiguous statute so that
divorce from the bond of marriage * * *.” we may apply it to the case at hand.
(Emphasis added.)
Analysis
[3][4] We have employed our customary procedure in
approaching this particular question of statutory con- After initially addressing the issue of our own juris-
struction.FN7 Pursuant to that procedure, we first at- diction, we shall turn to the certified question itself
tempt to see whether or not the statute in question has and determine whether or not the language of the
a plain meaning and therefore is unambiguous; in that statute (understanding that language as did the legis-
situation, we simply apply that plain meaning to the lators who enacted the statute) has a plain meaning
case at hand. See, e.g., State v. DiCicco, 707 A.2d and so is unambiguous. Thereafter, we shall consider
251, 253 (R.I.1998); Pacheco, 91 R.I. at 361-62, 163 the same language through the prism of the most
A.2d at 40. By contrast, if a statute is ambiguous, we relevant canon of statutory construction. Finally, we
must engage in a more elaborate statutory construc- shall conclude by referencing certain highly relevant
tion process, in which process we very frequently jurisprudential and public policy principles.
employ the canons of statutory construction. See,
e.g., Horn v. Southern Union Co., 927 A.2d 292, 294 I. This Court's Appellate Jurisdiction

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of statutory definition or qualification the words of a


[5][6] In our judgment, this case is properly justicia- statute are given their ordinary meaning.” Pacheco,
ble. By contrast with the federal courts, our jurisdic- 91 R.I. at 362, 163 A.2d at 40. What is crucial, how-
tion is not limited by an inflexible constitutional ever, is to determine the ordinary meaning as of the
“cases and controversies” requirement. Rhode Island time of enactment. See, e.g., St. Francis College v.
Ophthalmological Society v. Cannon, 113 R.I. 16, 28, Al-Khazraji, 481 U.S. 604, 610, 107 S.Ct. 2022, 95
317 A.2d 124, 130 (1974). Although it is our policy L.Ed.2d 582 (1987); State v. Perry, 336 Or. 49, 77
not to rule on abstract questions (see id. at 28, 317 P.3d 313, 315-16 (2003).
A.2d at 130-31), we do not view the instant case as
presenting an abstract question. Rather, the issue of [11] Words can have different meanings at different
Family Court jurisdiction vel non, which lies at the points of historical time, but it is the role of the judi-
heart of this case, is an issue about which there is real ciary to ascertain what meaning a particular word had
controversy, and the resolution of that controversy when the statute containing that word was enacted.
FN8
will have *961 definite real-world consequences. In It is possible that today's members of the General
view of those considerations, and bearing in mind our Assembly might have an understanding of the term
general supervisory authority over the courts, we are “marriage” that differs from the understanding of
convinced that it is proper for us to adjudicate this those legislators who enacted § 8-10-3(a) in 1961,FN9
case. See generally Vose v. Rhode Island Brother- but our role is to interpret what was enacted and not
hood of Correctional Officers, 587 A.2d 913, 915 to speculate as to what some other not-yet-enacted
(R.I.1991). statute might say or mean. See West Virginia Univer-
sity Hospitals, Inc. v. Casey, 499 U.S. 83, 101 n. 7,
II. The Meaning of the Word “Marriage” in G.L. 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991) (“The will of
1956 § 8-10-3(a) Congress we look to is not a will evolving from Ses-
sion to Session, but a will expressed *962 and fixed
[7] The issue before us is rather narrow, and it can be in a particular enactment.”) (Internal quotation marks
decided entirely on the statutory level: Does G.L. omitted.).
1956 § 8-10-3(a), the statute authorizing the Family
Court to “hear and determine all petitions for divorce FN8. In one of his most quoted opinions,
from the bond of marriage,” empower that court to Justice Holmes wrote: “A word is not a crys-
grant a divorce to the instant parties, who are de- tal, transparent and unchanged, it is the skin
scribed in the certified question as “two persons of of a living thought and may vary greatly in
the same sex who were purportedly married in an- color and content according to the circum-
other state?” stances and the time in which it is used.”
Towne v. Eisner, 245 U.S. 418, 425, 38
[8] When we are called upon to decide what the Gen- S.Ct. 158, 62 L.Ed. 372 (1918) (emphasis
eral Assembly intended when it enacted a particular added); see also Harry Willmer Jones, Statu-
statute, we always begin with the principle that “[t]he tory Doubts and Legislative Intention, 40
plain statutory language is the best indicator of legis- Colum. L. Rev. 957, 967 (1940) (“[A]ny se-
lative intent.” State v. Santos, 870 A.2d 1029, 1032 rious effort on the part of judges to discover
(R.I.2005) (citing numerous cases to the same effect). the thought or reference behind the language
of a legislative enactment must be based
upon a painstaking effort to reproduce the
[9] It is clear to us that in this instance we are not setting or context in which the statutory
confronted with an ambiguous statute. Therefore we words were employed.”).
simply must determine what the words in this statute
were intended to mean. Once we have done so, our
interpretive task is at an end and our role is simply to FN9.See Rhode Island Central Credit Union
apply the statute as written. See Santos, 870 A.2d at v. Pazienza, 572 A.2d 296, 297 (R.I.1990)
1032;DiCicco, 707 A.2d at 253;In re Denisewich, (“The Family Court was created by the Gen-
643 A.2d 1194, 1197 (R.I.1994). eral Assembly at its January 1961 session
with the passage of chapter 73 of the 1961
Public Laws.”).
[10] It is a fundamental principle that “in the absence

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sue in order to ascertain the meaning of the


[12] In carrying out the process of determining the term “marriage” as understood by the legis-
meaning of the words employed by an enacting legis- lators who enacted § 8-10-3(a) in 1961.
lature, reference to contemporaneous dictionaries is
appropriate and often helpful. See, e.g., Gustafson v. FN12. We believe that the primary diction-
Alloyd Co., 513 U.S. 561, 575, 115 S.Ct. 1061, 131 ary definition normally expresses the “ordi-
L.Ed.2d 1 (1995) (referencing the 1910 edition of nary meaning” of the word being defined.
Black's Law Dictionary in construing the term “pro- See Pacheco v. Lachapelle, 91 R.I. 359,
spectus” in the Securities Act of 1933); St. Francis 361-62, 163 A.2d 38, 40 (1960). It is true
College, 481 U.S. at 610-11, 107 S.Ct. 2022 (demon- that some of the subordinate definitions in
strating, by citing to various nineteenth century dic- the cited dictionaries indicate that the term
tionaries and encyclopedias, that the meaning of the “marriage” can be used in a metaphoric
word “race” at that time was different from what it is manner to describe a particularly close rela-
today); Perry, 77 P.3d at 315 (employing legal dic- tionship; but there is no reason to believe
tionaries from the 1920s and 1930s to determine the that the legislators had such a metaphoric
meaning of “place of business” as used in a statute sense in mind when they enacted § 8-10-
enacted in that era). 3(a). Moreover, there is absolutely no indi-
cation in any of the dictionary definitions
With respect to the case at hand, there is absolutely that a union between two persons of the
no reason to believe that, when the act creating the same sex was any part of the definitional
Family Court became law in 1961,FN10 the legislators schema.
understood the word marriage to refer to any state
other than “the state of being united to a person of the FN13. While recognized dictionaries suffice
opposite sex.” The quoted words are the definition of to reveal to us the plain and unambiguous
marriage that is set forth in the 1961 edition of Web- meaning of § 8-10-3(a), we would arrive at
ster's Third New International Dictionary of the Eng- precisely the same conclusion as to the stat-
lish Language.FN11Id. at 1384. Similarly, the Ameri- ute's meaning if we employed the venerable
can College Dictionary, published in 1955, defines maxim of noscitur a sociis. (We discuss the
marriage as “the legal union of a man with a woman relevance of that maxim more fully in sec-
for life.” Id. at 746. Likewise, Funk & Wagnalls tion III, infra.) The fact is that, when we
Standard College Dictionary, published in 1963, de- consider the Rhode Island General Laws in
fines marriage as, “[t]he state of being married; a their entirety, we note that our statutes con-
legal contract entered into by a man and a woman, to sistently use gendered terms when referring
live together as husband and wife.” Id. at 829. In each to various aspects of marriage. See, e.g.,G.L.
case, the primary dictionary definition FN12 of mar- 1956 § 15-2-1 (referring to the “female
riage refers only to a union between a man and a party” and the “male party” in the context of
woman.FN13 applications for marriage licenses); § 15-2-7
(requiring the “bride and groom” to swear to
FN10. We note that, although other provi- the truth of what they state in filling out the
sions of the relevant statute have been application for marriage); see alsoG.L. 1956
amended since that time, the portion at issue § 15-1-1 (providing that “[n]o man shall
in this case has remained unchanged. marry” any one of a number of specified
female relatives); § 15-1-2 (providing that
FN11. We are in no sense disregarding “[n]o woman shall marry” any one of a
Judge Learned Hand's advice that courts number of specified male relatives); G.L.
should not “make a fortress out of the dic- 1956 § 11-6-1 (employing gendered terms in
tionary.” Cabell v. Markham, 148 F.2d 737, setting forth the elements of the crime of
739 (2d Cir.), aff'd,326 U.S. 404, 66 S.Ct. bigamy).
193, 90 L.Ed. 165 (1945). Instead, we have
simply consulted dictionary definitions that *963 It is pertinent to note that Chief Justice Marga-
are contemporaneous with the statute at is- ret Marshall, writing in 2003 for the plurality in

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Goodridge v. Department of Public Health, 440 adhered to when it would bring about “an
Mass. 309, 798 N.E.2d 941 (2003), expressly ac- absurd result.” Kaya v. Partington, 681 A.2d
knowledged that the decision of the Supreme Judicial 256, 261 (R.I.1996). Our reading of the di-
Court in that case “marks a significant change in the vorce statute, however, does not produce an
definition of marriage as it has been inherited from absurd result, but simply one that is less
the common law, and understood by many societies broad than some would prefer. It is now the
for centuries.” Id. at 965 (emphasis added). role of the General Assembly to decide, if it
chooses to do so, whether there should be a
As we understand the language of the existing di- broader divorce statute.
vorce statute, it does not constitute “express language
conferring subject-matter jurisdiction upon the Fam- III. The Noscitur a Sociis Canon of Statutory Con-
ily Court” whereby it could entertain a divorce peti- struction
tion involving two persons of the same sex. See State
v. Kenney, 523 A.2d 853, 854 (R.I.1987) (noting that In the present instance, although we perceive abso-
the powers of the Family Court are “strictly limited to lutely no ambiguity in the statutory term “marriage,”
those conferred by the Legislature.”). Moreover, “[i]n it is noteworthy that we would have reached the same
the absence of a clear legislative intent to the con- result even if there were statutory ambiguity and we
trary, such jurisdiction cannot be inferred.” State v. were required to consult the canons of statutory con-
Zittel, 94 R.I. 325, 330, 180 A.2d 455, 458 (1962); struction, which we very frequently consult to help
see also Kenney, 523 A.2d at 854.FN14 guide us in determining the legislative intent that
underlies ambiguous statutory language.FN16
FN14. Both parties argue in their briefs that
the common law concept of “comity” re- FN16. Although in the ordinary case we
quires us to recognize their status as married would not engage in an analysis pursuant to
for the purpose of granting them a divorce. a canon of statutory construction after we
It is our view, however, that considerations had found a statute to be unambiguous, we
of comity (a largely discretionary and recognize that this is no ordinary case, and
somewhat amorphous concept) do not come we believe that such an analysis would be
into play if the court lacks jurisdiction over informative and useful to the public at large
the case before it. We have also concluded in this instance.
that, because our ruling as to the Family
Court's lack of jurisdiction ends our inquiry, In this case, well-established principles of statutory
the Full Faith and Credit Clause of the construction FN17 would lead us *964 ineluctably to
United States Constitution is not relevant to conclude that the General Assembly has not granted
these proceedings. Similarly, we have no the Family Court the power to grant a divorce in the
occasion to address the applicability vel non situation described in the certified question. Above
of the Defense of Marriage Act, 28 U.S.C. § all, we have been guided by the principle that statutes
1738C (2000). are not to be read in a myopic manner but rather ho-
listically and in context. See State v. Badessa, 869
We have concluded that § 8-10-3(a) is unambiguous, A.2d 61, 65 (R.I.2005); Park v. Ford Motor Co., 844
and we have ascertained its plain meaning by looking A.2d 687, 692 (R.I.2004); see also Davis v. Michigan
to the meaning of the word “marriage” at the time of Department of the Treasury, 489 U.S. 803, 809, 109
the statute's enactment in 1961-some forty-six years S.Ct. 1500, 103 L.Ed.2d 891 (1989) (“It is a funda-
ago. Once having arrived at that plain meaning,FN15 mental canon of statutory construction that the words
our role is to apply it to the situation at hand. of a statute must be read in their context and with a
DiCicco, 707 A.2d at 253. The plain meaning of the view to their place in the overall statutory scheme.”);
word “marriage” in § 8-10-3(a) indicates to us that see also Alliance to End Repression v. City of Chi-
the Family Court is without jurisdiction to entertain cago, 742 F.2d 1007, 1013 (7th Cir.1984) (en banc)
the instant petition for divorce. (Posner, J.) (“It is a great fallacy to think that by star-
ing hard at an isolated sentence one can come up with
FN15. The plain meaning rule need not be a meaningful interpretation. The sentence may look

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clear and yet if one understood its background and particular expression when taken singly is
context one might read it quite differently from its inoperative, the intention of a party who
superficially clear meaning.”); see generally Koons used it may frequently be ascertained by
Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60, looking at adjoining words, or at expres-
125 S.Ct. 460, 160 L.Ed.2d 389 (2004). sions occurring in other parts of the same
instrument.” Id.
FN17. We recognize that the canons of
statutory construction are guides and not Accordingly, we have looked to that broader context,
commandments. See, e.g., Jarecki v. G.D. and it is clear to us that the language used in several
Searle & Co., 367 U.S. 303, 307, 81 S.Ct. other statutes in the General Laws relating to mar-
1579, 6 L.Ed.2d 859 (1961) (noting that riage constitutes an extremely strong confirmatory
“[t]he maxim noscitur a sociis, * * * while indication that, in enacting § 8-10-3(a), the General
not an inescapable rule, is often wisely ap- Assembly had in mind only marriages involving two
plied * * *”). Nevertheless, those canons are persons of the opposite sex. Many provisions in the
often extremely useful guides to us as we General Laws that relate to marriage reflect an un-
carry out our role as interpreters of statutes, spoken assumption on the part of the General As-
and we have relied upon them with fre- sembly that the status called “marriage” consists of
quency in many different contexts. See, e.g., the union of a man and a woman. See, e.g.,G.L. 1956
State v. Oliveira, 882 A.2d 1097, 1110 § 15-2-1 (referring to the “female party” and the
(R.I.2005) (“This Court reviews questions of “male party” in the context of applications for mar-
statutory interpretation de novo * * *, and in riage licenses); § 15-2-7 (requiring the “bride and
undertaking this analysis, we apply our well- groom” to swear to the truth of what they state in
established maxims of statutory construc- filling out the application for marriage); *965see
tion.”); see also Tanner v. Town Council of alsoG.L. 1956 § 15-1-1 (providing that “[n]o man
East Greenwich, 880 A.2d 784, 796 shall marry” any one of a number of specified female
(R.I.2005). relatives); § 15-1-2 (providing that “[n]o woman shall
marry” any one of a number of specified male rela-
[13] The noscitur a sociis principle of statutory con- tives); G.L. 1956 § 11-6-1 (employing gendered
struction is especially pertinent.FN18 That principle terms in setting forth the elements of the crime of
counsels that “the meaning of questionable or doubt- bigamy).
ful words or phrases in a statute may be ascertained
by reference to the meaning of other words or phrases There are times, and this is one such time, where one
associated with it.” State v. DiStefano, 764 A.2d may properly infer that the General Assembly con-
1156, 1161 (R.I.2000) (internal quotation marks sidered something to be so obvious that no explicit
omitted); see also Jones v. United States, 527 U.S. statutory statement of definition was necessary. The
373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) overall statutory scheme reflects a legislative as-
(“Statutory language must be read in context and a sumption that matrimony involves two people of dif-
phrase gathers meaning from the words around it.”) ferent genders.
(Internal quotation marks omitted.); General Dynam-
ics Land Systems, Inc. v. Cline, 540 U.S. 581, 596, IV. The Proper Role of the Judicial Branch
124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004); Wigginton
v. Centracchio, 787 A.2d 1151, 1155 (R.I.2001). As explained in Section II of this opinion, we have
ascertained what the term “marriage” signified to the
FN18. The Latin maxim can be translated legislators who enacted the subject statute; in the
into English as “[i]t is known by its associ- words of a leading dictionary of that era, it meant
ates.” Latin for Lawyers 195 (3rd ed. 1960). “the state of being united to a person of the opposite
That same handbook paraphrases the maxim sex.” Webster's Third New International Dictionary
as follows: of the English Language 1384 (1961). Having made
that determination as to the statute's unambiguous
“[W]here the meaning of a particular meaning, our role is at an end; we have no constitu-
word is doubtful or obscure, or where a tional authority to extend the scope of this or any

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other statute. Citizens for Preservation of Waterman gress might have written.”); Caminetti v. United
Lake v. Davis, 420 A.2d 53, 57 (R.I.1980) (“It is well States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442
settled that when the language of a statute is clear and (1917) (“It is elementary that the meaning of a statute
unambiguous, the statute may not be construed or must, in the first instance, be sought in the language
extended but must be applied literally.”). Indeed, this in which the act is framed, and if that is plain, * * *
Court has in the past pointed to the limited statutory the sole function of the courts is to enforce it accord-
authority of the Family Court, and we have also indi- ing to its terms.”); Civitarese v. Town of Middlebor-
cated that it is not our role to supplement or amend a ough, 412 Mass. 695, 700, 591 N.E.2d 1091, 1095
statute. Waldeck v. Piner, 488 A.2d 1218, 1220 (1992) (“We will not read into the plain words of a
(R.I.1985) (noting that the powers of the Family statute a legislative intent that is not expressed by
Court “are limited to those expressly conferred upon those words.”).
it by statute: its jurisdiction cannot be extended by
implication”); see also Simeone v. Charron, 762 A.2d The case of Pizza Hut of America, Inc. v. Pastore,
442, 448-49 (R.I.2000) (“[T]his Court will not 519 A.2d 592 (R.I.1987), is especially instructive as
broaden statutory provisions by judicial interpretation to the relatively modest role of the judiciary. After
unless such interpretation is necessary and appropri- construing a particular liquor control statute as ex-
ate in carrying out the clear intent or defining the pressing a legislative intent to benefit public and pa-
terms of the statute.”); Sindelar v. Leguia, 750 A.2d rochial schools, but not other types of schools, this
967, 972 (R.I.2000) (“[O]ur assigned task is simply Court stated:
to interpret the Act, not to redraft it * * *.”); see gen-
erally Dodd v. United States, 545 U.S. 353, 359-60, “We believe that the Legislature intended to ex-
125 S.Ct. 2478, 162 L.Ed.2d 343 (2005) (“It is for clude private schools from the protection afforded
Congress, not this Court, to amend the statute if it by § 3-7-19. We are aware of the social intent of
believes that [the statutory language leads to undesir- the legislation, and yet upon the peculiar facts of
able consequences].”); Pinter v. Dahl, 486 U.S. 622, this case, we do not believe that this interpretation
653, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988); Pierce of the statute leads to an absurd result. If the court
v. Pierce, 770 A.2d 867, 872 (R.I.2001); State v. has not interpreted the statute in a manner consis-
Bryant, 670 A.2d 776, 779 (R.I.1996); Rhode Island tent with the legislative intent to promote temper-
Federation of Teachers v. Sundlun, 595 A.2d 799, ance, further societal response is the exclusive pre-
802 (R.I.1991); State v. Calise, 478 A.2d 198, 201 rogative of the Legislature.” Id. at 594.
(R.I.1984); Little v. Conflict of Interest Commission,
121 R.I. 232, 236-37, 397 A.2d 884, 887 (1979);
Gomes v. Rhode Island State Board of Elections, 120 In our judgment, when the General Assembly ac-
R.I. 951, 957, 393 A.2d 1088, 1091 (1978). corded the Family Court the power to grant divorces
from “the bond of marriage,” it had in mind only
marriages between people of different sexes. Having
[14] The role of the judicial branch is not to make said that, we remain mindful of the fact that, unlike a
policy, but simply to determine the legislative intent Constitutional Convention, the General Assembly
as expressed in the statutes enacted by the General meets every year. That body is free, if it so chooses,
Assembly. See, e.g., Little, 121 R.I. at 237, 397 A.2d to enact divorce legislation that it might possibly
at 887;State v. Patriarca, 71 R.I. 151, 154, 43 A.2d deem more appropriate. We have frequently so indi-
54, 55 (1945) (“[O]ur duty * * * is solely to construe cated with respect to numerous statutes. See, e.g.,
the statute * * *.”); see also Central Bank of Denver, Town of Johnston v. Santilli, 892 A.2d 123, 133
N.A. v. First Interstate Bank of Denver, N.A., 511 (R.I.2006) (“We recognize that there exists a public
U.S. 164, 188, 114 S.Ct. 1439, 128 L.Ed.2d 119 policy argument that in the current environment,
(1994) (“Policy considerations cannot override our school committees should have their own legal coun-
interpretation of the text and structure of the Act * * sel. That debate, however, should be resolved in the
*.”); *966Tennessee Valley Authority v. Hill, 437 public forum or in the Legislature, not in the
U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978); courts.”); Moretti v. Division of Intoxicating Bever-
United States v. Great Northern Railway Co., 343 ages, 62 R.I. 281, 286, 5 A.2d 288, 290 (1939) (“If
U.S. 562, 575, 72 S.Ct. 985, 96 L.Ed. 1142 (1952) the matter is called to the attention of the
(“It is our judicial function to apply statutes on the [L]egislature it may be persuaded to make the neces-
basis of what Congress has written, not what Con-

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sary amendment to the statute* * *.”); see also For the reasons set forth in this opinion, the question
Comtronics, Inc. v. Puerto Rico Telephone Co., 553 certified by the Family Court must be answered in the
F.2d 701, 707 (1st Cir.1977) (“It is for Congress, * * negative.
* and not for this Court, to rewrite the statute to re-
flect changed circumstances.”); Cardi Corp. v. City The papers in this case, with our answer in the nega-
of Warwick, 122 R.I. 478, 479, 409 A.2d 136, 137 tive to the certified question endorsed thereon, are
(1979); Malinou v. Board of Elections, 108 R.I. 20, remanded to the Family Court for further proceed-
35, 271 A.2d 798, 805 (1970). As we said years ago ings.
with respect to another statute, “ ‘the court is to go no
faster and no farther than the Legislature has gone.’ ” SUTTELL, J., with whom GOLDBERG, J., joins,
State v. Goldberg, 61 R.I. 461, 468, 1 A.2d 101, 104 dissenting.
(1938) (quoting Howard v. Howard, 120 Me. 479, Because we firmly believe that our statutory law does
115 A. 259, 260 (1921)); see also Rhode Island Dairy not bar the doors of the Family Court to Rhode Island
Queen, Inc. v. Burke, 101 R.I. 644, 647, 226 A.2d citizens desiring a judicial determination of their
420, 422 (1967). marital status, we respectfully dissent.

A Final Consideration We are in complete agreement with the majority on


one critical point, however. The legal recognition that
We know that sometimes our decisions result in pal- ought to be afforded same-sex marriages for any par-
pable hardship to the persons affected by them. It is, ticular purpose is fundamentally a question of public
however, a fundamental principle of jurisprudence policy, more appropriately determined by the General
that a court has no power to grant relief in the ab- Assembly after full and robust public debate. If the
sence of jurisdiction, as is true in the instant case. courts are called upon to resolve any issue involving
Ours is not a policy-making branch of the govern- the validity of such a marriage, they must, of course,
ment. We are cognizant of the fact that this observa- do so, but only when presented with an actual con-
tion may *967 be cold comfort to the parties before troversy by parties having adverse interests. See
us. But, if there is to be a remedy to this predicament, Devane v. Devane, 581 A.2d 264, 265 (R.I.1990)
fashioning such a remedy would fall within the prov- (“courts exist for the purpose of deciding live dis-
ince of the General Assembly. putes involving ‘flesh and blood’ legal problems with
data ‘relevant and adequate to an informed judgment’
Conclusion ”) (quoting People v. Lybarger, 700 P.2d 910, 915
(Colo.1985)). Such is not the situation with the case
[15] We conclude that the word “marriage” in § 8-10- at bar. Neither one of the parties is contesting the
3(a), the statute which empowers the Family Court legal validity of the marriage performed in the Com-
“to hear and determine all petitions for divorce from monwealth of Massachusetts. Both plaintiff and de-
the bond of marriage,” was not intended by the Gen- fendant have filed a complaint and counterclaim,
eral Assembly to empower the Family Court to hear respectively, seeking to terminate that relationship in
and determine petitions for divorce involving (in the the Rhode Island Family Court. Both parties have
words of the certified question) “two persons of the satisfied the applicable domicile and residence re-
same sex who were purportedly married in another quirements,FN19 and they have filed a certified mar-
state.” See Rhode Island State Labor Relations Board riage certificate from a sister sovereign state attesting
v. Valley Falls Fire District, 505 A.2d 1170, 1171 to the existence of their marriage. We believe that is
(R.I.1986) ( “This [C]ourt has stated repeatedly that sufficient to invoke the authority of the Family Court
in construing a statute, our task is to establish and to entertain their divorce petitions.
effectuate the intent of the Legislature by examining
the language, nature, and object of the statute.”). It FN19.General Laws 1956 § 15-5-12(a) re-
necessarily follows that the Family Court, a court of quires that at least one party “has been a
limited statutory jurisdiction, is without jurisdiction domiciled inhabitant of this state and has re-
over the captioned matter. See generally Kenney, 523 sided in this state for a period of one year
A.2d at 854-55. next before the filing of the complaint.”

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At the outset we think it essential to note that the man and a woman, to live together as hus-
certified question presented to this Court is extremely band and wife”); The American College
narrow in *968 scope.FN20 It requires only that this Dictionary 746 (1955) (“the legal union of a
Court consider whether the Family Court may recog- man with a woman for life”).
nize a same-sex marriage for the limited purpose of
entertaining a divorce petition. Thus, the question of As we discuss below, the Family Court has been
whether such a marriage is entitled to recognition in granted authority to hear and decide their complaint
Rhode Island for any other purpose is one this Court and counterclaim for divorce whether or not their
need not and should not answer. Clearly, the certified marriage is determined to be legally valid in Rhode
question does not implicate the eligibility vel non of Island. We would answer the certified question in the
same-sex couples to marry under Rhode Island mar- affirmative, therefore, based on the plain language of
riage licensing laws. the statutory grant of jurisdiction to the Family Court.
In addition, we believe such jurisdiction to be consis-
FN20. The certified question asks: “May the tent with Rhode Island's domestic relations jurispru-
Family Court properly recognize, for the dence in 1961, when the Family Court Act was en-
purpose of entertaining a divorce petition, acted, as it is today.
the marriage of two persons of the same sex
who were purportedly married in another The Parties' Marriage
state?”
The parties, both of whom were domiciled inhabi-
The issue presented to this Court by the certified tants of Rhode Island, were married in a ceremony
question is by its very terms limited to the divorce that took place on May 26, 2004, in Fall River, Mas-
context. To answer the question, the dissenting jus- sachusetts. Civil marriages between two persons of
tices perceive no need to consult forty-six-year-old the same sex were authorized in the Commonwealth
editions of standard dictionaries. A brief survey of of Massachusetts by the decision of the Massachu-
current dictionaries reveals that the same definition of setts Supreme Judicial Court in Goodridge v. De-
the word “marriage” predominates today as it did partment of Public Health, 440 Mass. 309, 798
when the Family Court Act FN21 was enacted in N.E.2d 941 (2003). In June 2004, thirteen municipal
1961.FN22 Nevertheless, the majority, in our opinion, clerks and eight nonresident same-sex couples from
overlooks the one central and unassailable fact upon several states, including Rhode Island, challenged the
which the certified question is predicated. On May application and enforcement of Mass. Gen. Laws
26, 2004, Ms. Chambers and Ms. Ormiston (the par- Ann. ch. 207, §§ 11 and 12.FN23*969Cote- Whitacre
ties) were lawfully married under the laws of the v. Department of Public Health, 446 Mass. 350, 844
Commonwealth of Massachusetts. N.E.2d 623, 631 (2006) (Spina, J., concurring). Be-
fore issuing marriage licenses to same-sex couples in
FN21. General Laws 1956 chapter 10 of title accordance with Goodridge, the Department of Pub-
8. lic Health and the Registry of Vital Records and Sta-
tistics had issued forms and guidance that effectively
FN22. The New Oxford American Diction- interpreted Mass. Gen. Laws Ann. ch. 207, § 11 to
ary 1039 (2d ed. 2005) (“the formal union of bar municipal clerks from issuing marriage licenses
a man and a woman, typically recognized by to nonresident, same-sex couples. See Cote-Whitacre
law, by which they become husband and v. Department of Public Health, 18 Mass.L.Rptr. 190,
wife”); Black's Law Dictionary 992 (8th ed. 2004 WL 2075557, at *4 (Mass.Super.Aug. 18,
2004) (“The legal union of a couple as hus- 2004). As a result, the petitioning couples either had
band and wife.”); Random House Webster's been denied marriage licenses or they had been pre-
College Dictionary 757 (2d rev. ed. 2001) vented from having their marriages registered in the
(“the social institution under which a man Commonwealth. Cote-Whitacre v. Department of
and woman live as husband and wife by le- Public Health, 2006 WL 3208758, at *1, 2006 Lexis
gal or religious commitments”); Funk & 670, at *2 (Mass.Super.Sept.29, 2006). The Massa-
Wagnalls Standard College Dictionary 829 chusetts Superior Court denied petitioners' motion to
(1963) (“a legal contract, entered into by a enjoin enforcement of Mass. Gen. Laws Ann. ch.

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207, § 11 for failing to demonstrate a likelihood of judgment was not appealed.


prevailing on the merits. Cote-Whitacre, 2004 WL
2075557, at *6. On appeal, the Supreme Judicial Whether the Massachusetts courts have correctly
Court, by plurality opinion, ruled that same-sex resi- interpreted Rhode Island law is irrelevant to our
dents of certain states could not marry in Massachu- analysis. What is germane is the fact the parties are
setts but remanded concerning couples residing in married validly under Massachusetts law, as declared
New York and Rhode Island “for a determination and applied by the Massachusetts courts. See Cote-
whether same-sex marriage is prohibited in those Whitacre, 2006 WL 3208758, at *5, 2006 Lexis 670,
States.” Cote-Whitacre, 844 N.E.2d at 631. at *15. That fact alone should end this Court's in-
quiry.
FN23.Massachusetts General Laws Anno-
tated ch. 207, §§ 11 and 12 lay out the pro- Family Court Jurisdiction
cedure to be used when the applicants for
marriage licenses are nonresidents. Section The Family Court is a statutory court and is vested
11 provides that “[n]o marriage shall be con- with jurisdiction “to hear and determine all petitions
tracted in this commonwealth by a party re- for divorce from the bond of marriage and from bed
siding and intending to continue to reside in and board.” G.L. 1956 § 8-10-3(a). Without question,
another jurisdiction if such marriage would Ms. Chambers and Ms. Ormiston are in, subject to,
be void if contracted in such other jurisdic- and/or entitled to the benefits of the bond of mar-
tion, and every marriage contracted in this riage, at least in the Commonwealth of Massachu-
commonwealth in violation hereof shall be setts, as well as any other jurisdiction that recognizes
null and void.” Section 12 continues that their marriage. They now wish to *970 dissolve that
[b]efore issuing a license to marry a person bond and return to the status of single persons.
who resides and intends to continue to reside Unless one or both of them establish the domicile and
in another state, the officer having authority residency requirements of another jurisdiction, how-
to issue the license shall satisfy himself, by ever, the Rhode Island Family Court is the only fo-
requiring affidavits or otherwise, that such rum available to them to terminate their marriage.
person is not prohibited from intermarrying Moreover, because the parties are citizens of Rhode
by the laws of the jurisdiction where he or Island it is solely within the sovereign authority of
she resides. Rhode Island to determine and/or alter their marital
status by granting or denying their divorce complaint
On remand, a justice of the Massachusetts Superior and counterclaim. That, in our opinion, is precisely
Court applied the test pronounced by Chief Justice the relief available to them under the plain and ordi-
Marshall in her concurring opinion in Cote-Whitacre nary language of § 8-10-3.
because, he said, it “articulates the narrowest grounds
for the judgment of the court.” Cote-Whitacre, 2006 This Court has long recognized that marriage is a
WL 3208758, at *3, 2006 Lexis 670, at *8. Under contractual relationship between the parties to it, pro-
that test, Rhode Island same-sex couples would be foundly affecting their status, i.e., their legal and so-
permitted to marry in Massachusetts unless the Mas- cial condition, and that the state has the sovereign
sachusetts Superior Court determined that same-sex authority to fix or alter the status of its domiciled
marriage is explicitly deemed void or otherwise ex- citizens. In 1856, this Court said:
pressly forbidden by a Rhode Island “constitutional
amendment, statute, or controlling appellate deci-
sion.” Cote-Whitacre, 844 N.E.2d at 653 (Marshall, “[I]t is obvious, that marriage, as a domestic relation,
C.J., concurring). Employing that construction of emerged from the contract which created it, is
Mass. Gen. Laws. Ann. ch. 207, §§ 11 and 12, and known and recognized as such throughout the civi-
finding no “prohibitory positive law” in Rhode Is- lized world; that it gives rights, and imposes duties
land, the trial justice ordered “that a declaratory and restrictions upon the parties to it, affecting
judgment enter that same-sex marriage * * * is not their social and moral condition, of the measure of
prohibited in Rhode Island.” Cote-Whitacre, 2006 which every civilized state, and certainly every
WL 3208758, at *5, 2006 Lexis 670, at *15. The state of this Union, is the sole judge so far as its
own citizens or subjects are concerned, and should

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be so deemed by other civilized, and especially sis- find support for such authority outside the statutory
ter, states; that a state cannot be deprived, directly language. The fact that the commonly accepted
or indirectly, of its sovereign power to regulate the meaning of the word “marriage” in 1961, the year the
status of its own domiciled subjects and citizens, Family Court Act was enacted, referred to a union
by the fact that the subjects and citizens, of other between a man and a woman does not alter the analy-
states, as related to them, are interested in that sis.FN24 It would have been quite extraordinary indeed
status, and in such a matter has a right, under the if the original drafters of the act had anticipated or
general law, judicially to deal with and modify or even contemplated same-sex marriages. Such a con-
dissolve this relation, binding both parties to it by cept would have been as foreign to the General As-
the decree, by virtue of its inherent power over its sembly in 1961 as would have been the advent of the
own citizens and subjects, and to enable it to an- Internet to the drafters of the “commerce clause” in
swer their obligatory demands for justice * * *.” the United States Constitution.FN25See Simmons v.
Ditson v. Ditson, 4 R.I. 87, 105-06. (1856). State, 944 So.2d 317, 331 (Fla.2006) (“the Internet
‘represents an instrument of interstate commerce,
In 1904, this Court pronounced, “It is a matter of albeit an innovative one’ ”) (quoting American Li-
duty which the courts owe to the public to declare the braries Association v. Pataki, 969 F.Supp. 160, 173
situation of the parties. * * * It may be necessary, for (S.D.N.Y.1997)). Nevertheless, “[i]n attempting to
the convenience and happiness of families, and of the apply a statute to a situation that was not intended by
public, likewise, that the real character of these do- its drafters, the interpreting court should not rely on
mestic connections should be ascertained and made literalisms, technical constructions, or so-called for-
known.” Leckney v. Leckney, 26 R.I. 441, 445, 59 A. mal rules of interpretation, but rather should rely on
311, 312 (1904) (quoting Lea v. Lea, 104 N.C. 603, the breadth of objectives of the legislation and the
10 S.E. 488, 489 (1889)). common sense of the situation.” FN26 A brief exami-
nation of the context of § 8-10-3 clearly demonstrates
If a statute is unambiguous, “there is no room for that the Family Court possesses the authority to hear
statutory construction and [the Court] must apply the the parties' divorce.
statute as written.” State v. Day, 911 A.2d 1042, 1045
(R.I.2006) (quoting State v. DiCicco, 707 A.2d 251, FN24. The majority opinion rests on the
253 (R.I.1998)). “If the [statutory] language is clear definition of the word “marriage” as gleaned
on its face, then the plain meaning of the statute must from dictionaries circa 1961. The Court
be given effect and this Court should not look else- states, “there is absolutely no reason to be-
where to discern the legislative intent.” Henderson v. lieve that when the Act creating the Family
Henderson, 818 A.2d 669, 673 (R.I.2003) (quoting Court became law in 1961, the legislators
Fleet National Bank v. Clark, 714 A.2d 1172, 1177 understood the word marriage to refer to any
(R.I.1998)). In this case, it cannot be gainsaid that the state other than ‘the state of being united to
parties are married for all legal purposes under the a person of the opposite sex,’ ” and cites
laws of the Commonwealth of Massachusetts. We, several dictionaries signifying that marriage
the dissenting justices, discern no impediment in the is a contract or union between a man and a
language of § 8-10-3 that precludes the Family Court woman. Yet G.L. 1956 § 15-1-5, originally
from entertaining their petition for divorce from the enacted in 1896 (G.L. 1896, ch. 191, § 5),
bond of their Massachusetts marriage. The subject- declares bigamous marriages void. Arguably
matter jurisdiction of the Family Court does not turn the General Assembly in 1961 understood a
on the gender of the parties; rather it turns on their marriage, albeit a void marriage, to encom-
status as a married couple. pass something other than the strict diction-
ary definition of one man, one woman. It is
The Family Court Act perhaps also interesting to note that since
Congress enacted the Defense of Marriage
Act, 28 U.S.C. § 1738C, in 1996, thirty-
Although we are satisfied that the plain meaning of § eight states, not including Rhode Island,
8-10-3(a) is sufficient to determine*971 that appro- have deemed it desirable to statutorily define
priate authority resides in the Family Court to enter- marriage as a union between one man and
tain the parties' complaint and counterclaim, we also one woman, or otherwise expressly prohibit

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same-sex marriages. Court's authority to entertain a divorce petition does


not depend on the validity of the marriage itself. A
FN25. United States Constitution Art. I, § 8. void marriage is a nullity, one that is invalid from its
inception. See Black's Law Dictionary 994-95, 1098
FN26. 2A Norman J. Singer & J.D. Shambie (8th ed. 2004). It is evident, therefore, that the Gen-
Singer, Sutherland Statutory Construction § eral Assembly has provided a means of relief in the
46:2 at 161-62 (7th ed. 2007). Family Court to parties who have entered a marriage
that could neither be performed in Rhode Island nor
granted legal effect in the state. It is incongruous to
The General Assembly created the Family Court in hold that a Rhode Island resident who lawfully has
1961 and infused it with broad and exclusive jurisdic- entered into a same-sex marriage is afforded no
tion over all matters of domestic relations. Opinion to means to dissolve the union in Rhode Island, whereas
the Governor, 93 R.I. 211, 213, 172 A.2d 596, 597 a Rhode Island resident who may have entered into
(1961) (“the [L]egislature intended to divest the an incestuous or bigamous marriage, both of which
[S]uperior [C]ourt of all existing jurisdiction over are statutorily void, is entitled to divorce under § 15-
divorces and all matters of domestic relations gener- 5-1.
ally and to vest that jurisdiction exclusively in the
[F]amily [C]ourt on and after September 1, 1961”).
We first observe that § 8-10-2 expressly provides that The scope of the certified question under review does
the Family Court Act “shall be liberally construed to not permit this Court to consider the underlying va-
the end that families whose unity or well-being is lidity of the parties' marriage. It is sufficient for our
threatened shall be assisted and protected, and re- inquiry to acknowledge the authority of the Family
stored, if possible, as secure units of law-abiding Court to grant (or deny) a divorce complaint on the
members * * *.” Surely that language encompasses a grounds, when properly pled, of voidness or voidabil-
family whose well-being is best served by severing ity under § 15-5-1, as it might grant a complaint on
its legal relationship. See Von Schack v. Von Schack, one of the other enumerated grounds such as irrecon-
893 A.2d 1004, 1011 (Me.2006) (“Maine has a cilable differences,FN27 living separate and apart for at
unique interest in assuring that its citizens are not least three years,FN28 or extreme cruelty. FN29
compelled to remain in such personal relationships
against their wills * * *.”). FN27.G.L. 1956 § 15-5-3.1(a).

Void or Voidable Marriages FN28. Section 15-5-3(a).

More significant, however, is the well-recognized FN29. Section 15-5-2(3).


principle of statutory construction that the Legislature
is presumed to *972 know the state of existing rele- Principles of Comity
vant law when it enacts or amends a statute. State v.
Sivo, 925 A.2d 901, 916-17 (R.I.2007); Barrett v. Secondly, the well-settled rule of law in 1961 was,
Barrett, 894 A.2d 891, 898 (R.I.2006); Shelter Har- and still remains, that the validity of a marriage is
bor Fire District v. Vacca, 835 A.2d 446, 449 determined by the law of the place where celebrated.
(R.I.2003). Two important aspects of the law as it Ex parte Chace, 26 R.I. 351, 354, 58 A. 978, 979
existed in 1961 are persuasive evidence that the reach (1904). The United States Supreme Court has said
of § 8-10-3's grant of jurisdiction to the Family Court “[m]arriages not polygamous or incestuous, or oth-
includes the power to adjudicate divorces from same- erwise declared void by statute, will, if valid by the
sex marriages. law of the State where entered into, be recognized as
valid in every other jurisdiction.” Loughran v.
First, when § 8-10-3 was enacted in 1961, the divorce Loughran, 292 U.S. 216, 223, 54 S.Ct. 684, 78 L.Ed.
laws contained a curious catchall provision: “Di- 1219 (1934). This rule of common law, lex loci cele-
vorces from the bond of marriage shall be decreed in brationis, is based upon the general principle “that
case of any marriage originally void or voidable by the capacity or incapacity to marry depends on the
law * * *.” G.L. 1956 § 15-5-1. That section, una- law of the place where the marriage is celebrated, and
mended, remains vital today. Thus, the Family not on that of the domicile of the parties.” Ex parte

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Chace, 26 R.I. at 354, 58 A. at 979. “ ‘[A]ll nations clear when it is viewed in the larger context of Rhode
have consented, or must be presumed to consent, for Island's domestic relations jurisprudence at the time
the common benefit and advantage, that * * * mar- the Family Court Act was enacted. That purpose is to
riages should be good, or not according to the laws of give all Rhode Island citizens a means of determining
the country where they are made. * * * By observing their marital status and dissolving their marriage.
this law no inconvenience can arise, but infinite mis-
chief will ensue if it is not.’ ” Id. at 355, 58 A. at 980 Finally, we observe that “we are bound to construe a
(quoting Scrimshire v. Scrimshire, 2 Hagg. Cons. statute in the most beneficial way which its language
395, 417). This doctrine reflects the principle of com- will permit, in order to prevent inconsistency or in-
ity, or “[t]he recognition and respect that a court of justice.” State v. Drowne, 20 R.I. 302, 306, 38 A.
one state * * * shows to *973 another state * * * in 978, 979 (1897). The result of the majority's opinion,
giving effect to the other's laws and political deci- in our view, places the parties, and all those similarly
sions.” Black's Law Dictionary 863 (8th ed. 2004). situated, in an untenable position. They are denied
“Comity is not a positive rule of law but one of prac- access to the Family Court and thus are left in a vir-
ticality based on a proper regard for the law of a for- tual legal limbo, unable to extricate themselves from
eign state.” O'Brien v. Costello, 100 R.I. 422, 430, a legal relationship they no longer find congenial
216 A.2d 694, 699 (1966). Because the doctrine was without establishing the domicile and residency re-
settled law in 1961, the General Assembly that origi- quirements of some other jurisdiction. Such a result
nally enacted § 8-10-3 conferring jurisdiction on the runs afoul of the “ ‘matter of duty which the courts
Family Court “to hear and determine all petitions for owe to the public to declare the situation of the par-
divorce from the bond of marriage” is charged with ties,’ ” Leckney, 26 R.I. at 445, 59 A. at 312, and, in
the knowledge that the capacity of Rhode Island citi- our opinion, is not required by the language of § 8-
zens to marry might well be determined by some 10-3. By leaving same-sex marriage outside the pur-
other jurisdiction. view of the Family Court, indeed outside the defini-
tion of the word “marriage” itself, the parties have no
The Chace Court also noted the well-recognized ex- means of dissolving the marriage they entered into in
ception to this general rule, viz., when “a marriage is Massachusetts, and thereby no means of altering their
odious by the common consent of nations, or if its marital status in their domiciliary state.
influence is thought dangerous to the fabric of soci-
ety, so that it is strongly against the public policy of We also are mindful that same-sex relationships are
the jurisdiction * * *.” Ex parte Chace, 26 R.I. at gradually gaining legal recognition, and domestic
356, 58 A. at 980. As we previously have noted, partners are afforded many of the same protections
however, even if the presumption of validity of a heretofore available only to opposite-sex couples.
Massachusetts same-sex marriage were rebutted by a This Court has held that “it is not illegal for two men
showing that it was “strongly against the public pol- to live together, much less to contract and to enter
icy” of Rhode Island, or if the General Assembly into *974 partnerships with each other while doing
declared it as such, the Family Court would not be so.” Doe v. Burkland, 808 A.2d 1090, 1094
deprived of authority to entertain a petition seeking to (R.I.2002). In Rubano v. DiCenzo, 759 A.2d 959
dissolve the marriage. See§ 15-5-1. (R.I.2000), we declared jurisdiction in the Family
Court, under the Uniform Law on Paternity no less,
When construing a statute, this Court's “ultimate goal to determine the existence vel non of a de facto par-
is to give effect to the purpose of the act as intended ent-child relationship between a woman and the bio-
by the Legislature.” Hanley v. State, 837 A.2d 707, logical child of her former same-sex domestic part-
711 (R.I.2003) (quoting Oliveira v. Lombardi, 794 ner. Moreover, the General Assembly has extended
A.2d 453, 457 (R.I.2002)). We believe that, with re- various benefits to same-sex couples. For instance,
spect to the certified question, the legislative intent the term “dependents” is defined to include “domes-
underlying § 8-10-3 is self-evident from its language tic partners” in a statute extending certain insurance
vesting the Family Court with jurisdiction “to hear benefits to dependents of state employees. G.L. 1956
and determine all petitions for divorce from the bond § 36-12-1(3). In 2006, the General Assembly enacted
of marriage.” We also believe that the purpose of the legislation providing that for the purposes of fulfill-
statute's grant of jurisdiction to the Family Court is ing an employer's obligations under the Consolidated

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Omnibus Budget Reconciliation Act of 1985 (CO- thorough, sometimes creative, and very
BRA), a domestic partner is a dependent of an em- helpful briefs.
ployee. Section 36-12-2.4, as enacted by P.L. 2006,
ch. 189, § 2. Also in 2006, the General Assembly R.I.,2007.
extended the state Parental and Family Medical Chambers v. Ormiston
Leave Act to domestic partners. G.L. 1956 § 45-19- 935 A.2d 956
4.3.
END OF DOCUMENT
In summary, we believe § 8-10-3 confers authority on
the Family Court to entertain a petition seeking to
dissolve a same-sex marriage. In our view, the filing
of a complaint and a certified marriage certificate is
sufficient to invoke such authority; it is enough to get
one in the door of the Family Court, which, we be-
lieve, the General Assembly intended to be a com-
prehensive forum for resolving issues concerning
marital relations.

We would answer the certified question therefore in


the affirmative. Such an answer in our opinion not
only is compelled by the plain and ordinary meaning
of the statutory language, but also is consistent with
the policies and purposes of the Family Court Act by
providing Rhode Island citizens a means of dissolv-
ing their marriage and judicially determining their
marital status. In addition, we believe it to be consis-
tent with the expectations of those Rhode Island resi-
dents who have in good faith entered into same-sex
marriages in Massachusetts. We do not mean to sug-
gest, however, that the Family Court is precluded
from adjudicating the validity of the marriage if one
of the parties alleges the marriage is void or voidable.
We agree rather with the Governor, the Attorney
General and several other amici curiae FN30 that this
Court should answer the certified question in the af-
firmative without determining the legal validity of the
underlying marriage. The parties in this case have not
challenged the marriage, and therefore the issue of
voidness is not properly before the Court. Moreover,
we do not think it proper for the Court, on the state of
this record, to attempt to determine whether same-sex
marriage is “strongly against the public policy of this
jurisdiction.” See Ex parte Chace, 26 R.I. at 356, 58
A. at 980. The resolution of that issue resides in the
State House and not the courthouse. In the case at
bar, therefore, we would remand to the Family Court
for further proceedings on the plaintiff's complaint
and the defendant's counterclaim.

FN30. We join the majority in expressing


our appreciation to amici curiae for their

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TAB H
Page 1

21 Misc.3d 926, 867 N.Y.S.2d 884, 2008 N.Y. Slip Op. 28398
(Cite as: 21 Misc.3d 926, 867 N.Y.S.2d 884)

The Supreme Court in New York is a court of general


Supreme Court, New York County, New York. jurisdiction and has the power to grant a divorce even
C.M., Plaintiff, if the marriage could not lawfully occur in state.
v.
C.C., Defendant. [3] Marriage 253 3
Oct. 14, 2008.
253 Marriage
Background: In divorce proceeding involving a 253k3 k. What law governs. Most Cited Cases
Massachusetts' same-sex marriage between two non- Massachusetts' same-sex marriage between two non-
residents of Massachusetts, the parties submitted a residents of Massachusetts was not invalid under
joint memorandum of law requesting the court to then-existing Massachusetts law, where parties were
grant a divorce once the ancillary issues of custody married at a time when, according to the Massachu-
and finances were resolved. setts court, same-sex marriage was not yet “prohib-
ited” in New York.
Holding: The Supreme Court, Rosalyn H. Richter, J., **885Nancy Chemtob, Daniel Z. Rivlin, Chemtob
held that Massachusetts' same-sex marriage between Moss Forman & Talbert, LLP, New York, for plain-
two non-residents of Massachusetts was not invalid tiff.
under then-existing Massachusetts law.
Lois J. Liberman, Valentina Shaknes, Blank Rome,
Ordered accordingly. LLP, New York, for defendant.

West Headnotes ROSALYN H. RICHTER, J.

[1] Marriage 253 3 *927 The parties, a same sex couple, were married in
Massachusetts in a civil ceremony on August 26,
253 Marriage 2005. At the time of their marriage, they were resi-
253k3 k. What law governs. Most Cited Cases dents of New York. They have provided this Court
It is well-settled that in deciding whether to recognize with a copy of their Certificate of Marriage which
a marriage that occurred in a sister state, the critical was recorded with a town clerk in Massachusetts.
question is whether the marriage would be valid
where contracted. Earlier this year, the parties filed for divorce in this
Court and an inquest on grounds was held. Although
there was no opposition to the holding of the inquest,
[2] Courts 106 148
a question arose as to whether this Court had jurisdic-
tion to grant a divorce to the parties since they could
106 Courts not, as a same sex couple, at the time of their mar-
106III Courts of General Original Jurisdiction riage or now, get married in New York State. Be-
106III(B) Courts of Particular States cause the question of subject matter jurisdiction can-
106k148 k. New York. Most Cited Cases not be waived or conferred on the Court by consent
and can be raised at any point in the proceeding, see
Divorce 134 59 generally, Matter of Fry v. Village of Tarrytown, 89
N.Y.2d 714, 658 N.Y.S.2d 205, 680 N.E.2d 578
134 Divorce (1997); Moulden v. White, 49 A.D.3d 1250, 856
134IV Proceedings N.Y.S.2d 329 (4th Dept.2008); Matter of Lorenzana
134IV(A) Jurisdiction v. Arafiles, 297 A.D.2d 679, 747 N.Y.S.2d 247 (2d
134k58 Jurisdiction of Cause of Action Dept.2002); Graham v. New York City Housing Au-
134k59 k. In general. Most Cited Cases thority, 224 A.D.2d 248, 637 N.Y.S.2d 701 (1st

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21 Misc.3d 926, 867 N.Y.S.2d 884, 2008 N.Y. Slip Op. 28398
(Cite as: 21 Misc.3d 926, 867 N.Y.S.2d 884)

Dept.1996), the Court requested briefing on this ju- law doctrine of comity required recognition of a same
risdictional issue. The parties have submitted a joint sex Canadian marriage for divorce purposes. In that
memorandum of law requesting that this Court grant decision, the court noted the numerous other types of
a divorce in this matter once the ancillary issues of marriage, including common law marriages, that
custody and finances are resolved.FN1 would not be valid if they occurred in New York, but
which are recognized by New York if they are valid
FN1. There is no issue in this case concern- out of state marriages. Indeed, it is well-settled that in
ing the standing of both parents because deciding whether to recognize a marriage that oc-
there was a second parent adoption. curred in a sister state, the critical question is whether
the marriage would be valid where contracted. See,
In Martinez v. County of Monroe, 50 A.D.3d 189, e.g., Matter of the Estate of Catapano, 17 A.D.3d
850 N.Y.S.2d 740 (4th Dept.), appeal dismissed,10 672, 794 N.Y.S.2d 401 (2d Dept.2005)(common law
N.Y.3d 856, 859 N.Y.S.2d 617, 889 N.E.2d 496 marriage); Katebi v. Hooshiari, 288 A.D.2d 188, 732
(2008), the **886 Appellate Division held that the N.Y.S.2d 382 (2d Dept.2001)(common law mar-
recognition of a same sex marriage solemnized riage); Lancaster v. 46 NYL Partners, 228 A.D.2d
abroad was not contrary to the public policy of this 133, 651 N.Y.S.2d 440 (1st Dept.1996)(common law
State even if the marriage could not be solemnized in marriage); Fernandes v. Fernandes, 275 A.D. 777,
New York. In Martinez, the parties had been married 87 N.Y.S.2d 707 (2d Dept.1949)(marriage by proxy).
in Canada and were seeking to have their marriage This Court concurs with the analysis in Beth R. and
recognized here for the purpose of receiving spousal sees no reason to distinguish between the Canadian
health benefits. As the Martinez court held, “[I]f a marriage in that case and the Massachusetts marriage
marriage is valid in the place where it was entered, it here.
is to be recognized as such in the courts of this State,
unless contrary to the prohibitions of natural law or In Godfrey v. Spano, 15 Misc.3d 809, 836 N.Y.S.2d
the express prohibitions of a statute.” Martinez, 50 813 (Sup.Ct. Westchester Cty.2007), the trial court
A.D.3d at 191, 850 N.Y.S.2d 740,quoting Moore v. analyzed the principles of comity discussed herein
Hegeman, 92 N.Y. 521, 524 (1883). It is undisputed and upheld an Executive Order issued by the West-
that the New York State legislature has not enacted chester County Executive that required departments
any statute that would prohibit recognition of a same and agencies in that County to recognize for benefit
sex marriage from another jurisdiction, nor is there purposes same sex marriages lawfully entered into
any constitutional amendment barring recognition of outside the State of New York in the same manner as
such marriages. Thus, there is no positive law that they recognize opposite sex marriages. The court in
would bar granting of a divorce in this case. More- Godfrey noted that New York has long recognized
over, as the Martinez decision correctly notes, the out of state marriages, valid where contracted, even
natural law exception “has generally been limited to when the purpose was to evade New York laws pro-
marriages involving polygamy or *928 incest or mar- scribing such marriages. It is important to note that
riages offensive to the public sense of morality to a one of the lower court cases whose reasoning was
degree regarded generally with abhorrence.” 50 rejected by the Godfrey court, **887Funderburke v.
A.D.3d at 192, 850 N.Y.S.2d 740,quoting Matter of NYS Department of Civil Service, 13 Misc.3d 284,
the Estate of May, 305 N.Y. 486, 493, 114 N.E.2d 4 822 N.Y.S.2d 393 (Sup.Ct. Nassau Cty.2006), was
(1953) (upholding out of state marriage between un- dismissed as moot on appeal earlier this year based
cle and niece). Neither party cites any precedent nor on a change in policy of the State *929 Department
has this Court found any in this jurisdiction that of Civil Service, as discussed below. See
would warrant inclusion of same sex marriages from Funderburke v. NYS Department of Civil Service, 49
other jurisdictions in the very narrow public policy A.D.3d 809, 854 N.Y.S.2d 466 (2d Dept.2008). Thus,
exception established by the existing case law. the Funderburke trial court decision, which was va-
cated by the Second Department decision, cannot be
[1] A similar result was reached in Beth R. v. Donna used as precedent and in any event, would not be
M., 19 Misc.3d 724, 853 N.Y.S.2d 501 (Sup.Ct. N.Y. binding on this Court.FN2
Cty.2008), in which a judge of this court concluded
in a thoroughly researched decision that the common FN2. The appellate decisions in Langan v.

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21 Misc.3d 926, 867 N.Y.S.2d 884, 2008 N.Y. Slip Op. 28398
(Cite as: 21 Misc.3d 926, 867 N.Y.S.2d 884)

State Farm Fire & Casualty, 48 A.D.3d 76, that recognition of these marriages is, in fact, consis-
849 N.Y.S.2d 105 (3d Dept.2007) and tent with public policy. Following the issuance of the
Langan v. St. Vincent's Hospital of NY, 25 Martinez decision, Governor *930 David Paterson
A.D.3d 90, 802 N.Y.S.2d 476 (2d issued an executive directive to all state agency coun-
Dept.2005), also do not bar the result sels asking them to conduct a review of agency pol-
reached here because those cases involved a icy statements and regulations to ensure that terms
Vermont civil union. In concluding the sur- such as “spouse,” “husband” and “wife” are con-
viving partner was not a “surviving spouse” strued in a manner that encompasses legal same sex
for purposes of the applicable New York marriages. The directive notes “agencies that do not
law, both the Second and Third Departments afford comity or full faith and credit to same-sex
noted that the parties had not married. marriages that are legally performed in other jurisdic-
tions could be subject to liability.” Furthermore, the
In Gonzalez v. Green, 14 Misc.3d 641, 831 N.Y.S.2d State Department of Civil Service recently changed
856 (Sup.Ct. N.Y. Cty.2006), a judge of this court, in its policy regarding recognition of out of state and
a divorce action, interpreted the decision of the New foreign same sex marriages, and now requires public
York Court of Appeals in Hernandez v. Robles, 7 employers within its jurisdiction to provide spousal
N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1 (2006), benefits to same sex couples validly married in an-
as prohibiting recognition of a same sex Massachu- other jurisdiction.**888FN3 Although ultimately the
setts marriage and declared the marriage null and determination of whether the marriage at issue in this
void. This conclusion cannot be reconciled with the case should be accorded comity or full faith and
subsequent holding of the Fourth Department in credit is a legal issue, the political developments cited
Martinez, and in any event, this Court respectfully above support the conclusion that recognition of the
declines to adopt this aspect of the holding in parties' out of state marriage would be consistent with
Gonzalez. In fact, the Fourth Department in Martinez the State's current policy direction.
explicitly concluded that Hernandez “holds merely
that the New York State Constitution does not com- FN3.In Golden v. Paterson, 2008 WL
pel recognition of same-sex marriages solemnized in 2344747, 2008 N.Y. Misc. LEXIS 5838
New York,” 50 A.D.3d at 192, 850 N.Y.S.2d 740 (Sup.Ct. Bronx Cty.2008), the court rejected
(emphasis in original), and they rejected the argu- a challenge to the legality of Governor
ment that Hernandez created a public policy excep- Paterson's executive directive. See also,
tion to the recognition of valid foreign marriages. The Lewis v. NYS Dept. of Civil Service, 2008
analysis in Martinez is consistent with this Court's N.Y. Misc. LEXIS 1623 (Sup.Ct. Albany
reading of the Hernandez case. The Court of Appeals Cty.2008) (upholding civil service policy
in Hernandez relied on the core principle of legisla- recognizing as spouses parties to same sex
tive deference in concluding that New York's consti- marriages from other jurisdictions where
tution did not mandate the granting of marriage li- such marriages are legal); Godfrey v. Hevesi,
censes to same sex couples in this State. The Court 2007 N.Y. Misc. LEXIS 6589 (Sup.Ct. Al-
noted that it was not for them “to say whether same- bany Cty.2007)(upholding policy of State
sex marriage is right or wrong,” but rather it con- Comptroller to recognize for retirement
cluded that the issuance of licenses in this State to benefit purposes Canadian same sex mar-
same sex couples must be explicitly authorized by the riage).
legislature. 7 N.Y.3d at 366, 821 N.Y.S.2d 770, 855
N.E.2d 1. There is nothing in the holding of [2] The decision of the Rhode Island Supreme Court
Hernandez to suggest that the Court of Appeals in- in Chambers v. Ormiston, 935 A.2d 956 (2007), is
tended to place same sex marriages, validly author- distinguishable from the instant case and in any
ized by other states or countries, into the narrow event, would not be binding on this Court. In
category of abhorrent conduct for which comity or Chambers, the court held that the Rhode Island Fam-
full faith and credit should not apply in a divorce ily Court, as a court of limited statutory jurisdiction,
proceeding. could not grant a divorce petition involving a same
sex couple who were married in Massachusetts. The
Indeed, recent developments lead to the conclusion Chambers court concluded that the concepts of full

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21 Misc.3d 926, 867 N.Y.S.2d 884, 2008 N.Y. Slip Op. 28398
(Cite as: 21 Misc.3d 926, 867 N.Y.S.2d 884)

and faith and credit or comity were not applicable remand, held that same sex marriage was “prohib-
because the Family Court as a court of limited juris- ited” in **889 New York. Cote-Whitacre v. Dept. of
diction could only exercise the powers granted to it Public Health, 2006 Mass.Super. LEXIS 670 (Su-
by the legislature, which did not include the power to per.Ct.Mass.2006)(Connolly, J.). However, in a deci-
divorce a same sex couple. The Supreme Court in sion dated May 10, 2007, Justice Connolly issued a
New York is a court of general jurisdiction and has further order clarifying that “same-sex marriage only
the power to grant a divorce even if the marriage became prohibited' in New York on July 6, 2006,”
could not lawfully occur in this State. Moreover, as which is the date of the Court of Appeals decision in
the dissent in Chambers correctly notes, it is a well Hernandez. Cote-Whitacre v. Dept. of Public Health,
established principle that the validity of a marriage is 2007 Mass.Super. LEXIS 149 (Su-
determined by the *931 place where the marriage is per.Ct.Mass.2007)(Connolly, J.). Here, the parties
celebrated. See generally, Mott v. Duncan Petroleum were married on August 26, 2005, at a time when,
Trans., 51 N.Y.2d 289, 434 N.Y.S.2d 155, 414 according to the Massachusetts court, same-sex mar-
N.E.2d 657 (1980); Matter of the Estate of May, 305 riage was not yet “prohibited” in New York.FN6 This
N.Y. at 486, 114 N.E.2d 4;Van Voorhis v. Brintnall, Court therefore concludes that the fact that the parties
86 N.Y. 18 (1881). were *932 non-residents of Massachusetts at the time
they were married does not render the marriage inva-
[3] The remaining question is whether the parties' lid under then-existing Massachusetts law.
marriage in Massachusetts is invalid by virtue of the SeeMass.G.L. c. 207, §§ 11, 12.FN7
fact that they were both non-residents of Massachu-
setts at the time they were married. The parties, in the FN6. The parties also point out that even if
memorandum submitted to this Court, assert that the this Court were to determine that the First
answer to this question is controlled by a series of Department decision in Hernandez v.
decisions from the Massachusetts courts concerning Robles, 26 A.D.3d 98, 805 N.Y.S.2d 354
the rights of non-resident same-sex couples to marry (1st Dept.2005), set the date for determining
in that state. In Cote-Whitacre v. Dept. of Public whether the parties' marriage would have
Health, 446 Mass. 350, 844 N.E.2d 623 (2006), the been “prohibited” in New York, the mar-
Supreme Judicial Court considered a challenge to a riage here would be valid because it oc-
1913 Massachusetts law, Mass.G.L. c. 207, §§ 11, curred before the First Department opinion
12, which barred non-residents from marrying in that was issued on December 8, 2005.
state if the marriage would be void if contracted in
their home state.FN4 The Supreme Judicial Court up- FN7. The Gonzalez decision, discussed ear-
held the law but remanded the matter back to the Su- lier in this opinion, was issued before the
perior Court to determine whether same sex marriage 2007 decision on remand in Cote-Whitacre.
was “prohibited” in New York.FN5 The parties in This provides another reason to distinguish
Cote-Whitacre agreed that question would be deter- the Gonzalez case.
mined by the resolution of the then-pending New
York Court of Appeals decision in Hernandez v. The purpose of the full faith and credit provision of
Robles, 7 N.Y.3d at 338, 821 N.Y.S.2d 770, 855 the constitution and the doctrine of comity is to ac-
N.E.2d 1. cord parties, especially in today's mobile society, the
ability to ensure that if they were married in another
FN4. In July of this year, the Governor of state, they can enforce the civil contract of marriage
Massachusetts signed legislation repealing in New York. This Court's research and the cases
the 1913 law. cited by the parties provide no reason to carve out a
unique exception for the parties here simply because
FN5. The term “prohibited” is the term used they are of the same gender or because of their sexual
by the Massachusetts courts in the Cote- orientation. As the Court of Appeals noted in Gotlib
Whitacre line of cases. v. Ratsutsky, 83 N.Y.2d 696, 700, 613 N.Y.S.2d 120,
635 N.E.2d 289 (1994), “[t]he comity doctrine is also
Following the New York Court of Appeals ruling in pragmatically necessary to deal properly and fairly
Hernandez, the Massachusetts Superior Court, on with the millions of relational and transactional de-

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21 Misc.3d 926, 867 N.Y.S.2d 884, 2008 N.Y. Slip Op. 28398
(Cite as: 21 Misc.3d 926, 867 N.Y.S.2d 884)

crees and determinations that would otherwise be put


at risk, uncertainty and undoing in a world of differ-
ent people, Nations and diverse views and policies.”
Accordingly, for all the reasons set forth above, no
basis exists to decline to exercise jurisdiction over the
dissolution of the parties' Massachusetts marriage and
this New York divorce action can proceed.

This constitutes the decision and order of the Court.

N.Y.Sup.,2008.
C.M. v. C.C.
21 Misc.3d 926, 867 N.Y.S.2d 884, 2008 N.Y. Slip
Op. 28398

END OF DOCUMENT

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TAB I
181 N.W. 12 Page 1
190 Iowa 919, 181 N.W. 12
(Cite as: 190 Iowa 919, 181 N.W. 12)

for an award of the child's custody to her, was enti-


Supreme Court of Iowa. tled to a hearing on the application, though she had
FARRELL remarried, obtained a second divorce, and contracted
v. a third marriage within a little over a year after the
FARRELL ET AL. first divorce.
No. 33715.
Child Custody 76D 567
Feb. 8, 1921.
76D Child Custody
Appeal from District Court, Wapello County; F. M. 76DIX Modification
Hunter, Judge. 76DIX(B) Grounds and Factors
76Dk567 k. New Partner for Party. Most
The opinion sufficiently states the nature of the pro- Cited Cases
ceeding and material facts. The petition having been (Formerly 134k303(1))
dismissed, plaintiff appeals. Reversed. A wife, granted a divorce for the fault of the husband
by a decree which reserved the right to make a per-
manent order as to the custody of a child two years
West Headnotes
old at a subsequent time, did not forfeit her right to
the child's custody by remarrying in another state
Child Custody 76D 605 without the court's permission under Code
Supp.1913, § 3181, obtaining a second divorce, and
76D Child Custody contracting a third marriage within a little over a year
76DIX Modification after the first divorce.
76DIX(C) Proceedings
76DIX(C)1 In General Child Custody 76D 579
76Dk605 k. Parties. Most Cited Cases
(Formerly 134k303(1))
76D Child Custody
Where a divorce decree continued the paternal
76DIX Modification
grandmother's custody of a child and reserved to the
76DIX(B) Grounds and Factors
court the right to make and enter a permanent order
76Dk579 k. Grandparents. Most Cited
on its own motion or on the application of either
Cases
party, and continued the cause for that purpose, the
(Formerly 134k303(2))
wife was within her rights in applying to the court for
A wife granted a divorce for the fault of the husband
an award of the child's custody to her.
by a decree continuing the grandmother's temporary
custody of a child two years old, and reserving the
Child Custody 76D 650 right to make a permanent order later, was entitled to
have the custody of the child awarded to her on a
76D Child Custody reasonably fair showing of her ability to care for the
76DIX Modification child; her moral character not being successfully im-
76DIX(C) Proceedings peached.
76DIX(C)3 Hearing and Determination
76Dk650 k. In General. Most Cited Divorce 134 320
Cases
(Formerly 134k303(1))
134 Divorce
Under a divorce decree reserving the right to make a
134VII Operation and Effect of Divorce, and
permanent order as to the custody of a child and con-
Rights of Divorced Persons
tinuing the cause for that purpose, the wife, applying
134k319 Right to Marry

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


181 N.W. 12 Page 2
190 Iowa 919, 181 N.W. 12
(Cite as: 190 Iowa 919, 181 N.W. 12)

134k320 k. In General. Most Cited Cases Annie Farrell, now holding the temporary custody of
Under Code Supp.1913, § 3181, prohibiting the par- the child, is not a suitable or proper person to have
ties to a divorce from marrying again within one year him in charge and teaches the child to hate its mother.
except by permission of the court, and making viola- Plaintiff further says she has a mother's love for her
tions a misdemeanor, a marriage contracted in an- child and a respectable and comfortable home in
other state within one year without the court's per- which to rear him. She therefore asks the court to fix
mission is not invalid. the time when the application will be heard and the
*12 W. W. Epps, of Ottumwa, for appellant. notice to be given. On this application the court
named January 31, 1920, as the time and the court-
J. A. Lowenberg, of Ottumwa, for appellees. house at Ottumwa, Iowa as the place for the hearing
upon plaintiff's application for modification of the
WEAVER, J. decree.

The plaintiff and defendant were formerly husband At the time and place named plaintiff appeared in
and wife. After a married life of about three years person and by counsel, together with witnesses
they were divorced at plaintiff's suit by the district whose testimony she proposed to offer in support of
court of Wapello county; Hon. F. M. Hunter, judge, the truth of said application. The defendant Annie
presiding. In that proceeding plaintiff asked to be Farrell also appeared with counsel. Both parties hav-
awarded the custody of the only child of the mar- ing announced readiness for trial, the court summa-
riage, a boy then two years old, and the decree of rily commanded the plaintiff to take the witness stand
divorce made provision with reference thereto in the and proceeded itself to examine her minutely as to
following words: her conduct since she was divorced from George Far-
rell. Answering the court's question, she said:
“It further appearing to the court that the minor child
of the parties, George W. Farrell, is now with his “My name is Jennie V. Strandberg, formerly Jennie
grandmother under a temporary order of this court, it V. Farrell. I got a divorce here a year ago. I was here
is ordered that said temporary order be continued for and testified, and after those proceedings I married
the present, the court reserving to itself the right to again. In about a month after the divorce I married
make and enter a permanent order as to the custody John Batterson.”
of said child, either upon its own motion or upon the
application of either party, and the cause is continued At this point the court interrupted and called:
for that purpose. It is further ordered that plaintiff
shall have the right to visit her child at all reasonable “Mr. Clerk, get me the papers in the case, Jennie Bat-
times without molestation or interference on part of terson v. John Batterson.”
defendant, the grandmother of said child, or any other
person of their household.” The examination then proceeded as follows:

This decree and order were dated February 9, 1918. “I was married that time in Rock Island, Ill. Came
On November 29, 1919, plaintiff filed in said district back here. Lived here not very long. I got a divorce
court an application to modify the decree and award from Batterson. Don't remember the date. Got it here
to her the care and *13 custody of her child. In sup- in this court. After I got the divorce I married again.
port of that application she states the original order Married Strandberg. Was married at Chillicothe, Mo.
placing the child in the temporary care of its grand- After the divorce from Farrell, I went over to Rock
mother was made for the reason that the child's father Island and got married. It was not right away, but it
had failed to support the plaintiff or child and left was within a year.
them no home or means on which to live; that she is
now married to one Strandberg, who joins with her in Q. Why did you go over there to get married? A.
desiring the care and custody of the child; that they Why, so I could get a home for my child.
have a good comfortable home and plenty on which
to live comfortably, and that her said husband is a
good machinist, earning $30 to $35 per week; that Q. Why did you go over there to get married? Why

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181 N.W. 12 Page 3
190 Iowa 919, 181 N.W. 12
(Cite as: 190 Iowa 919, 181 N.W. 12)

didn't you get married here? A. Well, I didn't know. home and live in moral surroundings, a home fit to
They told me I couldn't. raise any child in, and to show that the present home
of the child is not a fit place. I was led to marry Bat-
Q. Which child was it you wanted to get a home for? terson because he promised to fix a home so I could
A. The only one I have. That little boy. get my baby. I got a divorce from him because he
treated me cruelly and wanted me to be ‘onnery’ to
Q. He was already provided with a home, wasn't he? support him.”
A. Yes; but they told me as soon as I got a home for
him I could have him. At the conclusion of this testimony her counsel, Mr.
Epps, stated to the court that his client was in court
Q. Have you ever gotten him? A. No; I have not. I prepared to show that she has a suitable home for her
have tried for two years to get my child, but I have child, and that she is being refused the right of visita-
not got him yet.” tion provided for her under the decree of divorce. To
this the court replied as follows:
“I was divorced from Farrell in February, 1918, and
from Batterson in September, 1918. Married to “The Court: The court now calls attention to the de-
Strandberg in March, 1919. Married at Chillicothe, cree signed in case No. 9426, chancery, Jennie V.
Mo. Was living here. Went to Missouri to get mar- Farrell v. George Farrell, of date February 9, 1918,
ried. Was told to go there, and I listened to my filed February 18, 1918, and found recorded in Book
mother.” 45, page 321, of the records of this court, and also the
decree granted in the case of Jennie Batterson v. John
Batterson,*14 being chancery No. 9840, and to the
At this point the court made an announcement as decree of divorce signed therein on the 3d day of
follows: September, 1918, and filed on the same date. In nei-
ther of the said decrees is it provided that the plaintiff
“The Court: The court holds that this woman, having might remarry within a year. From the record already
lived in illicit relationship with two different men, made it appears that she was married very soon after
one in 1918 following her first decree, and the other the first decree and obtained a divorce in September,
one in 1919 following her second decree, and by her and was married again the following March. She had
contemptuous disregard for the laws of this state and no respect for the laws of the state and the decrees of
the decrees of this court, does not have any standing the court, and she has no standing to make a showing
in this court to ask from it the modification of the for further relief in this case, and the court declines to
decree of February 9, 1918, and the court declines to hear her application further than to dismiss the same.
hear her application further than to dismiss it.” To all of which the plaintiff is granted an exception.”

Thereupon plaintiff's counsel asked and obtained From the court's order dismissing her application
leave to “cross-examine” his client. She testified: without a hearing the plaintiff has appealed. The
questions thus presented may be stated and consid-
“I was only 17 years old when I married Farrell. My ered as follows:
mother made me marry him. He left me with no
property, nothing. When the divorce was granted they I. As to the relation of the plaintiff to the case in
told me I could go and see my baby, but she refused which she asks a modification of the decree: It is
me. She told it in court that I could see my child, but conceded that she was plaintiff in the divorce pro-
she refused me at the door. I have gone there many ceeding asking a dissolution of the marriage between
times and have been refused. Have never had its as- her and Farrell and for an award to her of the custody
sociation or had it with me. I live with my husband of her young child. The decree as entered granted her
Strandberg here in the city. He is making a living for a divorce as prayed, but for the time being withheld
me. Have a comfortable home. This is the only child any final adjudication of the right to the custody of
I have. I am attached to it, and as its mother want to the child. The language of the decree in this respect is
have its care and custody. I have witnesses here ready as follows:
to establish the fact that I have decent, comfortable

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181 N.W. 12 Page 4
190 Iowa 919, 181 N.W. 12
(Cite as: 190 Iowa 919, 181 N.W. 12)

“It further appearing to the court that the minor child crime. With advancing civilization that blot upon our
of the parties is now with his grandmother under a legal history disappeared, and it is now the boast of
temporary order of this court, it is ordered that the both England and America that the protection of the
temporary order be continued for the present, the law extends to every right of every individual without
court reserving to itself the right to make and enter a regard to his station in life and without regard to the
permanent order as to the custody of said child, either court's impression as to his personal character. Bad
upon its own motion or upon the application of either men and bad women have the same claim upon the
party, and the cause is continued for that purpose. It law for protection of their personal and property
is further ordered that plaintiff shall have the right to rights which is possessed by those of more exemplary
visit her child at all reasonable times without moles- character, and the courts of competent jurisdiction to
tation or interference on part of the defendant, the hear and try their complaints are not clothed with
grandmother, or any other person of their household.” authority or power to brand them as outlaws by arbi-
trarily closing the doors of the temple of justice
It will be seen that this order was made as a mere against them.
temporary expedient, that the question of the perma-
nent custody was held in abeyance with an express We are sure that the learned judge for the trial court
recognition of the right of either party to make appli- would not consciously or intentionally do this plain-
cation for such permanent order, and that the cause tiff an injury, but that the ruling from which appeal is
was retained on the docket for that purpose. When, taken works an injustice is very clear. This has re-
therefore, plaintiff appeared in court and asked that sulted to some extent at least from the apparent mis-
the order for the permanent custody of her child be conception by the court of the real nature of plaintiff's
settled, and presented her own claim to such ap- conduct which it so severely condemns. In refusing to
pointment and asked for a hearing thereon and of- listen to plaintiff's application, the court said that this
fered to prove the matters and things stated in her woman had lived in illicit relations with two different
application, she asked no more than a recognition of men in the years 1918 and 1919, and because of this
the rights which the court itself had guaranteed to her and her contemptuous disregard of the law and de-
in the decree of divorce. Moreover, even if the decree cree of the court, it would not hear her application
had not contained the provisions referred to, the order except to dismiss it. This is a very serious charge to
of the court awarding the custody of the child to ei- be made by a court against a litigant at its bar, and, so
ther party or to a third person was not a finality and far as the record shows, is wholly without support in
was by statute subject to changes “when circum- the evidence. It is true that plaintiff had been twice
stances render them expedient” (Code, § 3180); and divorced, and that each divorce was followed by an-
surely, if this be true as to so-called awards of per- other marriage within less than a year. It is also true
manent custody of children, it is for a much stronger that we have a statute (Code Supplement, § 3181)
reason true when the award is expressly made tempo- which provides that, where divorce is granted, neither
rary or is held in abeyance. Plaintiff was therefore party shall marry again within a year, except by per-
clearly within her rights in presenting her application mission*15 of the court in the decree, and that any
to the court and demanding a hearing thereon. one marrying contrary to the provisions of this act
shall be deemed guilty of a misdemeanor. There is no
II. Did the court err in refusing to give the plaintiff a provision declaring void the marriage of a divorced
hearing upon her application? In our judgment this person within the year. The act is made a misde-
must be answered in the affirmative. There was a meanor, as is also the case where a marriage is sol-
time in the earlier development of law in England emnized without a clerk's license, but, in the absence
when it was competent for a court, by decree or of any provision in express words or by necessary
judgment, to pass sentence of outlawery upon indi- implication making such marriage void, the parties to
viduals convicted of certain offenses. From a person such union cannot be said to be living “in illicit rela-
thus adjudged an outlaw all protection of the law was tionship.” In this case, however, neither of the plain-
withdrawn. No court would entertain a suit in his tiff's remarriages was solemnized in Iowa. In an en-
favor or grant him redress for any wrong. He was a tirely parallel case we have held such marriage valid.
man without rights. He forfeited everything he had Dudley v. Dudley, 151 Iowa, 142, 130 N. W. 785, 32
either in right or possession. To kill him was no L. R. A. (N. S.) 1170.

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181 N.W. 12 Page 5
190 Iowa 919, 181 N.W. 12
(Cite as: 190 Iowa 919, 181 N.W. 12)

in the name of the law. It has its root and source in a


In that case, as in this, husband and wife were di- Power which is above the law of man. True, the law
vorced, and soon thereafter, and within the year, the may and will interpose for the protection of child-
wife went temporarily to Nebraska, and there married hood against neglect and abuse by unnatural and in-
another man, and then returned with him to her home competent parents, but, in absence of good reason for
in Iowa. Her former husband, conceiving that this such interference, it jealously guards the parental
marriage was illegal and afforded sufficient ground to right to the custody, care, nurture, and companion-
secure a modification of the order as to custody of a ship of the child. This is particularly true as between
child, began proceedings for that purpose. On appeal the mother and young children, where the marriage
we held the marriage in Nebraska was not unlawful, relation of the parents has been dissolved on account
even though that state had a somewhat similar statute of the fault or wrong of the father. To this point, in
of its own. Speaking by Deemer, J., we said: Caldwell v. Caldwell, 141 Iowa, 195, 119 N. W. 600,
we said:
“Such statutes as the one existing in this state or the
one copied from the Nebraska statutes have no extra- “No argument is required to support the proposition
territorial effect. The original decree was passed in that a permanent abode is for the child's best interest,
this state where the parties were domiciled. Defen- and rarely, indeed, will a divided custody by parents
dant, on the advice of an attorney, went to Nebraska who have separated prove beneficial. Nature has de-
and there married Mullen, and soon returned to this volved upon the mother the care and nurture of her
state, where she has since lived with him as his wife. children in tender years, and during that time, save in
This act was not in violation of our law, as it took exceptional circumstances, she is best fitted and most
place in Nebraska. It was not in violation of the Ne- inclined to look after their welfare. Moreover, courts
braska statute for the reason that no decree was en- are inclined to award the custody of children to the
tered in that state forbidding the marriage. The mar- innocent party on the theory that better treatment may
riage was good in Nebraska, where consummated, be anticipated from a person who has observed the
and, being valid there, was valid when the parties marriage vows than from him who has violated
returned to this state.” them.”

Unless we are prepared to overrule that precedent, it The soundness of the rule thus applied in the cited
stands as the law of this state. We are not disposed to case cannot be denied, and the question of the per-
deny its authority nor question the essential justice of manent custody of this child having been expressly
the rule there applied. It is perhaps true that this reserved for further consideration with leave to either
woman by her successive marriages has shown lack party to call it up, on application therefor, the mother
of wisdom and want of due regard for the conven- was entitled to be heard, and if on such hearing she
tionalities of society, but the record before us is bar- made a reasonably fair showing of her ability to care
ren of any proof upon which she may be branded as a for the child, and her moral character was not suc-
harlot or loose-minded wanton without right to peti- cessfully impeached, then, as between her and the
tion the court for recognition of her claim as a mother former husband and grandmother, she would have
to the care and nurture of her own babe. It is true, as been entitled to an order restoring the child to her
we have already noted, that she was twice divorced, custody.
but it should not be overlooked that in each instance
she was found to be the innocent party entitled to be In view of the fact that the sole reason assigned by
relieved from further conjugal relation with a man by the trial court for refusing consideration of plaintiff's
whose brutality her life had been endangered. Aside application was her conduct in marrying again within
from her act in remarrying, there is no suggestion by the year, we think it proper to say that, these mar-
the court or counsel that her life, character, and habits riages being valid, her act in contracting them does
are not exemplary, or that she is not competent and not of itself work a forfeiture of her right as a mother.
qualified to be trusted with the proper discharge of Of the moral quality of her act in going out of the
the duties pertaining to her natural guardianship of state in order to be legally married, we are not called
her young son. Such guardianship is not a gift or upon to pass judgment. It is not to *16 her discredit,
grant to be bestowed or taken away at pleasure, even however, that she sought a legal marriage, and, being

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181 N.W. 12 Page 6
190 Iowa 919, 181 N.W. 12
(Cite as: 190 Iowa 919, 181 N.W. 12)

legal, it is not within the province of the courts to competent evidence.


penalize it by excluding her from access to its bar
when she has a right to be enforced or a wrong to be The order appealed from is reversed, and cause re-
redressed. manded for further proceedings not inconsistent with
this opinion.
The courts may not allow the mere human side of a
transaction to obstruct the course of legal justice, but Reversed and remanded.
there is a wide field in which both the legal and moral
quality of a deed depend so largely upon the motive EVANS, C. J., and PRESTON and DE GRAFF, JJ.,
and intent of the doer that cases are rare in which the concur.
virtue of charity is entirely out of place or in which
we may not with profit remember the exhortation of
the Poet Plowman: Iowa 1921.
Farrell v. Farrell
190 Iowa 919, 181 N.W. 12
“Then gently scan your brother man,
END OF DOCUMENT
Still gentler sister woman;

Tho' they may gang a kennin' wrang,

To step aside is human.”

This case is not without its legitimate call upon our


human sympathies. If we may put any confidence in
plaintiff's story (and under the trial court's ruling this
is all we have), her chief weakness seems to have
been her readiness to listen to what “they said” and
what “they told me” and her obsession from the day
of her divorce has been the making of a “home” for
her “baby.” It was the promise of the unspeakable
Batterson to provide a home for herself and baby
which led her to marry him, and it is to her honor that
as soon as this man revealed to her his real nature she
repudiated and divorced him. Her present husband,
Strandberg, has furnished her a comfortable home,
and naturally her heart turns with increased longing
toward her child. It is her claim, and there is color of
corroboration in the circumstances, that the order
committing the child to the grandmother was made
temporary only to give her opportunity to make or
find a home and with the promise that when she had
done so her babe should be returned to her. Now that
she has performed that condition and asks the sacred
privilege of caring for her only child, she finds the
grandmother's door shut against her entrance, and the
court which holds the master key to the situation re-
fusing to listen to her complaint. This should not be.
She may be unworthy of the relief she asks, but nei-
ther this court nor the trial court is commissioned
with authority to so say, except upon a full and fair
hearing in which her unworthiness is established by

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TAB J
108 P. 698 Page 1
37 Utah 384, 108 P. 698, Am.Ann.Cas. 1912C,241
(Cite as: 37 Utah 384, 108 P. 698)

General. Most Cited Cases


Supreme Court of Utah. Where the law provides a proceeding to establish an
HILTON individual's status upon giving notice prescribed by
v. law, a judgment in a proceeding solely for that pur-
SNYDER et ux. pose, declaring the status of the individual, is admis-
April 19, 1910. sible in evidence against a stranger in any subsequent
suit to prove such status, being evidence of that fact
Appeal from District Court, Third District; C. W. against all the world; but where the action is between
Morse, Judge. individuals, and the status of an individual is merely
incidentally in issue, the judgment therein is not ad-
missible against strangers to that judgment, so that a
Action by Annie F. A. Hilton against Gideon Snyder judgment in an action to recover dower in land con-
and wife. From a judgment for defendants, plaintiff veyed by the husband in which the widow's marriage
appeals. Affirmed. was in issue and established is not admissible in a
subsequent action against strangers to that judgment
West Headnotes to prove the marriage; the establishment of the
widow's status as a married woman being merely
Dower and Curtesy 136 79 incidental to the main purpose of the suit.

136 Dower and Curtesy Judgment 228 708


136III Rights and Remedies of Surviving Spouse
136k70 Actions 228 Judgment
136k79 k. Evidence. Most Cited Cases 228XIV Conclusiveness of Adjudication
In an action for dower, the burden is upon the widow 228XIV(B) Persons Concluded
to establish a valid marriage; the validity of her mar- 228k706 Persons Not Parties or Privies
riage being put in issue. 228k708 k. Judgment as Evidence in
General. Most Cited Cases
Dower and Curtesy 136 80 In an action against an estate to have plaintiff de-
clared the widow of decedent under a valid marriage
136 Dower and Curtesy and to have dower awarded her, grantees of decedent
136III Rights and Remedies of Surviving Spouse were not bound by the judgment therein, establishing
136k70 Actions the marriage, the adjudication of plaintiff's status
136k80 k. Trial or Hearing. Most Cited being merely incidental to the action to establish
Cases dower, so that, in an action against such grantees by
In an action for dower, a finding that plaintiff must the widow to establish dower in the land conveyed to
fail because she failed to establish the existence of a them, the judgment was not admissible to prove her
lawful marriage between herself and decedent is in marriage.
effect a negative finding, and is sufficient to support *698 N. V. Jones (Ogden Hiles, of counsel), for ap-
a judgment for defendant on that ground. pellant. Snyder & Snyder, for respondents.

Judgment 228 708 FRICK, J.

228 Judgment This is an action to recover dower. The case may be


228XIV Conclusiveness of Adjudication said to be a companion to the case of Hilton v. Sloan,
228XIV(B) Persons Concluded 108 Pac. 689, and the seven other cases tried with
228k706 Persons Not Parties or Privies that case, all of which have just been decided by this
228k708 k. Judgment as Evidence in court. The controlling issues presented for trial to the
district court, affirmatively stated, are: (1) The mar-

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108 P. 698 Page 2
37 Utah 384, 108 P. 698, Am.Ann.Cas. 1912C,241
(Cite as: 37 Utah 384, 108 P. 698)

riage of appellant to Dr. Park; and (2) that appellant


was estopped from claiming her dower interest in the From the foregoing it will thus be seen that in two
land in question as against respondent. The parties to actions or proceedings in which appellant was plain-
the action at the trial stipulated with regard to all the tiff it had been adjudicated by this court that she at a
issues except that of marriage, which was left to be certain time and place was legally married to Dr.
established by such competent evidence as appellant Park, and that at the time of his death was his lawful
might produce. The only evidence that she produced widow, and as such was entitled to a widow's share in
in support of her claim that she was married to Dr. his estate. At the trial of the case at bar in the district
Park, and that she was his legal wife, and hence his court that court pro forma admitted the findings and
widow, were the pleadings, findings of fact, conclu- judgments aforesaid in evidence over respondent's
sions of law, and judgments in the cases of Hilton v. objection, with the understanding, however, that their
Roylance, 25 Utah, 129, 69 Pac. 660, 58 L. R. A. effect as evidence would be determined later. Upon
723, 95 Am. St. Rep. 821, and Hilton v. Stewart, 25 further consideration, the court ruled that the findings
Utah, 161, 69 Pac. 671. and judgment in neither of the cases mentioned were
admissible as evidence of the marriage in the case at
It is deemed material to state the issues that were bar. Appellant having produced no other or further
involved in those two cases. Hilton*699 v. Roylance evidence of her marriage with Dr. Park, the court
was an action by the appellant here to recover dower found that issue in favor of respondent, and entered
in land conveyed by Dr. Park during his lifetime, and judgment against appellant upon the sole ground that
during the time it is alleged appellant was his wife. In she had failed to prove her marriage to Dr. Park, and
that case Mrs. Roylance denied that appellant and Dr. hence had not established her right to dower in the
Park ever had been married. The trial court found that lands in question. Appellant assigns the ruling of the
issue in favor of Mrs. Roylance and entered judgment court excluding the judgments as error, and insists
accordingly, but this court, on appeal, reversed the that the findings and judgment in both cases were
judgment, and ordered findings and judgment in fa- competent and conclusive evidence of the marriage
vor of appellant here, who was also the appellant in claimed by her.
that case. By the findings and judgment in that case it
was adjudicated that appellant and Dr. Park were As we understand appellant's contention, it is, in ef-
married as claimed by appellant, and that at the time fect, this: That proceedings to establish a status, such
of the conveyance of the property involved in that as marriage, divorce, pedigree, citizenship, inquisi-
case, and at the time of his death, she was his legal tions of lunacy, etc., are in their nature proceedings in
wife. In the action or proceeding of Hilton v. Stewart, rem, and hence the judgment by which the status of
supra, appellant petitioned the court (1) that it be ad- any individual is adjudged is competent evidence as
judged that she is the widow of Dr. Park; (2) that she against all the world to prove the status as it is de-
be awarded a certain sum per month out of Dr. Park's clared to be by such a judgment. 2 Black on Judg-
estate as his widow for maintenance and support ments, §§ 802-806, inclusive. Appellant therefore
pending the administration of the estate; and (3) that insists that in both cases referred to her status,
she be awarded a widow's share in the estate of Dr. namely, that she was the legal wife of Dr. Park, was
Park. It may be said that in effect the latter proceed- solemnly adjudicated, and that hence the judgments
ing was either directly against the estate, or indirectly in those cases were at least evidence of her marriage
so by proceeding against Mr. Stewart as the executor with Dr. Park. It may be conceded that, where there is
of the last will and testament of Dr. Park, which will some law by which a proceeding to establish a status
had, in a proper proceeding, been duly probated when of any individual may be instituted upon such notice
Hilton v. Stewart was commenced and determined. as may be prescribed by law, in such a proceeding the
The district court in Hilton v. Stewart also found judgment declaring the status of the individual in
against appellant upon all three claims aforesaid. On whose interest or against whom the proceeding is had
appeal to this court, however, the findings and judg- may ordinarily be used as evidence against all the
ment of the district court were reversed as to the first world for the purpose of proving that the status is
and third claims. As to the second claim the lower what it is declared to be in the judgment. Generally it
court was sustained by this court, but for reasons may be conceded that in nearly all, if not all, jurisdic-
other than those given by the district court. tions special proceedings are provided for by which

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108 P. 698 Page 3
37 Utah 384, 108 P. 698, Am.Ann.Cas. 1912C,241
(Cite as: 37 Utah 384, 108 P. 698)

the status of certain individuals may be determined tion, his conveyance thereof, and its value were ele-
and established when for special reasons it becomes ments which had to be established, all of them essen-
necessary to do so. Those most generally provided tial, but only incidental. It might as well be contended
for are inquisitions of lunacy, naturalization proceed- that the judgment in the Roylance Case was evidence
ings by which certain individuals are adjudged citi- upon any other issue in any other case commenced by
zens, and matters of that character. We know of no appellant to recover dower in so far as the issues in
special law or procedure in this state, however, the two cases were the same. It is manifest the court
whereby every possible status may be established as committed no error in excluding the judgment in the
is done in some countries, notably in England. Shores Hilton v. Roylance Case.
v. Hooper, 153 Mass. 231, 26 N. E. 846, 11 L. R. A.
308. But, even where status may be determined by Did the court err in excluding the judgment in the
some special proceeding, notice thereof is usually case of Hilton v. Stewart, which we have assumed in
provided for which must be given to some designated effect was a proceeding against Dr. Park's estate? We
public official, or to the public generally, by publica- think not. Assuming, but not deciding, that all those
tion, or the like. In this way the public generally may who claimed any interest in Dr. Park's estate were in
be said to have been brought into court, and for that legal effect parties to the proceeding instituted by
reason may be bound by the judgment, for certain appellant to obtain a dower interest therein, it does
purposes at least. In cases between individuals, how- not follow that all those who simply claim as grantees
ever, where the status is merely incidentally in issue, of Dr. Park, and who claim no interest in his estate as
a judgment, which, among other things, also fixes the such, were also parties to the proceeding. While any
status of one or both parties, is not admissible as evi- person who claimed a direct interest in Dr. Park's
dence of that fact as against strangers to that judg- estate could no doubt have resisted appellant's claim
ment. So far as we are aware, the reasons for the rule for dower, and if she was successful might have
itself governing the admission and exclusion of prosecuted an appeal from any judgment so obtained,
judgments obtained between private parties in pro- such clearly was not the case with respondents. They
ceedings where the status of an individual is inciden- had no interest in Dr. Park's estate as such, and
tally involved are the same as in other cases. As we claimed none, and hence could not have tested appel-
understand the rule which distinguishes a status from lant's right to dower in it. They had to postpone their
any other element in a case, it is this: If an action, defense, if any they had, to her claim for dower, until
*700 although prosecuted by one individual against she sought to enforce it against property in which
another, is instituted for the sole purpose of changing they were interested. Respondents, therefore, were in
or declaring the status of either one or both of the no sense parties to or interested in the action or pro-
parties to the action, then, in the absence of fraud or ceeding of Hilton v. Stewart, and hence cannot be
collusion in obtaining the judgment, it is binding affected by any judgment that was rendered therein,
upon all the world as well as the parties and their or be concluded by any fact or facts that may have
privies. But, if the status is merely incidentally in- been judicially determined and established in that
volved, the judgment, although fixing the status of proceeding. The end in view in instituting those pro-
either or both parties, is not admissible as against ceedings was not merely to establish the status of
strangers as evidence of the status. It certainly cannot appellant, but it was to have her rights in Dr. Park's
be seriously contended that the case of Hilton v. Roy- estate as his widow determined and adjudicated. Her
lance was instituted and prosecuted for the purpose of status, in so far as strangers to the estate were con-
establishing appellant's status. The purpose of that cerned, was thus again determined and declared for
action was to recover dower, and the relation of ap- the purpose of a particular proceeding only. Under
pellant to Dr. Park, while a material issue, was never- such circumstances, the judgment entered in a pro-
theless only an incidental issue. That is, the principal ceeding in which the status is in fact declared is not
thing sought to be obtained by that action was to ob- evidence of the fact in another proceeding, unless
tain dower in particular land once owned by Dr. Park, such judgment would be admissible as evidence upon
and by him conveyed to Mrs. Roylance, and, in order grounds upon which judgments are generally admis-
to obtain the principal thing, the marriage between sible. That such is the law is well and clearly stated in
appellant and Dr. Park had to be proved. This was, Shores v. Hooper, 153 Mass., at page 235, 26 N. E.,
therefore, a mere element to be established. Dr. Park's at page 848 (11 L. R. A. 308), where, in speaking for
ownership of the property during the marriage rela- the court, Mr. Justice Devans said: “The only relation

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108 P. 698 Page 4
37 Utah 384, 108 P. 698, Am.Ann.Cas. 1912C,241
(Cite as: 37 Utah 384, 108 P. 698)

which the former proceeding in the probate court had 837;State v. McDonald, 108 Wis. 8, 84 N. W. 171, 81
to the present suit is that the demandant, in order to Am. St. Rep. 878;Farrell v. St. Paul, 62 Minn. 271,
succeed there, was obliged, as against other parties, 64 N. W. 809, 29 L. R. A. 778, 54 Am. St. Rep. 641.
to prove, as she is here, that she is the daughter of Dr. We have carefully examined the authorities cited
Ellis. If that had been, as this is, a writ of entry upon the foregoing propositions by counsel for appel-
against another party for a piece of land, it certainly lant, and while in some of them general expressions
cannot be maintained that a recovery of a judgment are used which, if standing alone, might lead one to
there by a decision in her favor would enable her, so the conclusion that there are authorities to the effect
far as this proof is concerned, to recover a judgment that, when a status is once determined and adjudi-
against the tenant for a different piece of land, even if cated in any case, the judgment in that case may be
the title to both pieces had descended to her from the used as evidence of the status in other cases, yet,
same ancestor. In the proceeding in the probate court, when the cases upon the subject are carefully read,
as a preliminary fact to be decided before the admin- the conviction is forced upon one that little, if any,
istrator could be held liable, it was found that the room for doubt is left that the law upon the question
defendant was the daughter of Dr. Ellis. Even if the is as we have attempted to outline it herein.
subsequent determination of the responsibility of the
administrator and settlement of his accounts would be From what has been said it follows that the court
conclusive under our statutes, proper notice having committed no error in excluding the judgments. It
been given, and to that extent would possess many of also follows that, if this ruling is correct, then the
the characteristics of a judgment in rem, the finding court had no alternative save to find the issue of mar-
which preceded should have no effect in other pro- riage against appellant, for the reason that the burden
ceedings against another party, a stranger, not af- of establishing the marriage was upon her, and, as she
fected by any notice thereof, nor entitled to be then adduced no evidence in support of the issue, the court
heard therein, if he had actually appeared.” The only was bound to find in the negative. We remark that the
difference between that case and the case at bar is finding of the court is to the effect that appellant must
that, in order to entitle the claimant in that case to fail for the reason that she failed to establish the exis-
recover, she had to judicially establish the fact that tence of a lawful marriage between her and Dr. Park.
she was a child of the deceased, while in this case Since there is no objection to the form of the finding,
appellant is required to establish the fact that she is and as it is in effect a finding in the negative, and is
the wife of Dr. Park, deceased. In that case the rela- sufficient to support the judgment, we also have no
tion of the claimant to the deceased person had been alternative save to affirm the judgment, with costs to
judicially determined in another proceeding just as it respondent. It is so ordered.
has been in this case. In the proceedings reported in
the case referred to it was necessary to again establish McCARTY, J., and LEWIS, District Judge, concur.
the relation as a necessary element in the case pre-
cisely as in the case at bar. The claimant in that case
attempted to establish the relation by using the judg- Utah 1910.
ment in the former proceeding as evidence wherein Hilton v. Snyder
her *701 relationship was determined and adjudged, 37 Utah 384, 108 P. 698, Am.Ann.Cas. 1912C,241
and the court held that the judgment was inadmissible
as evidence to establish that fact as against a stranger END OF DOCUMENT
to the judgment. This is the precise question involved
in the ruling complained of, and if the decision in
Shores v. Hooper, supra, is sound, and we think it is,
then the ruling complained of in this case is right.
The following are among the best-considered cases in
which the question of when and to what extent judg-
ments are evidence of the facts adjudicated therein, in
other proceedings, is discussed and decided: Shores
v. Hooper, 153 Mass. 228, 26 N. E. 846, 11 L. R. A.
308;Brigham v. Fayerweather, 140 Mass. 411, 5 N.
E. 265;Sorensen v. Sorensen, 68 Neb. 483, 98 N. W.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


TAB K
43 P. 756 Page 1
111 Cal. 261, 43 P. 756
(Cite as: 111 Cal. 261, 43 P. 756)

for divorce, and the determination as to its allowance


Supreme Court of California. is not the trial of an issue in the case; and hence a
HUNTER new trial will not be granted for a re-examination of
v. an allowance of alimony, a new trial being a re-
HUNTER. examination of an issue of fact in the same court after
No. 19,555. a trial.

Feb. 15, 1896. Estoppel 156 9

In bank. Appeal from superior court, Los Angeles 156 Estoppel


county; J. W. McKinleys, Judge. 156I By Record
156k9 k. Persons Estopped. Most Cited Cases
Action by Jesse Hunter against Jane Elizabeth Hunter A woman was twice married, and, having heard that
or Milam to annul a marriage between the parties. her first husband was living, began proceedings to
From a judgment in favor of defendant, plaintiff ap- obtain a divorce from him. Held, that her affidavit in
peals. Affirmed. such case that she was the wife of defendant at the
time of her subsequent marriage to another did not
estop her from denying such fact in an action by her
West Headnotes
second husband to annul the second marriage.

Divorce 134 172


Marriage 253 40(6)
134 Divorce
253 Marriage
134IV Proceedings
253k40 Presumptions
134IV(N) Judgment or Decree
253k40(6) k. Presumptions as to Death of or
134k172 k. Conclusiveness of Adjudica-
Divorce from Prior Spouse. Most Cited Cases
tion. Most Cited Cases
In proceedings for divorce by a second husband it
A woman was twice married, and, having heard that
will be presumed that the first husband was dead at
her first husband was living, began proceedings to
the time of the wife's second marriage, under Code
obtain a divorce from him. The proceedings were ex
Civ.Proc. § 1963, presuming a person innocent of
parte, defendant having been served with summons
crime or wrong.
by publication, and a decree was entered as prayed.
Held, that the proceedings were strictly in rem, and
determined only that plaintiff was no longer the wife Marriage 253 40.1(1)
of defendant, and did not determine that defendant
was then living, and that she was his wife at the time 253 Marriage
of entering the decree. 253k40.1 Burden of Proof
253k40.1(1) k. In General. Most Cited Cases
Divorce 134 239 (Formerly 253k40(11))
In proceedings by a second husband for divorce, on
the ground that his wife had another husband living,
134 Divorce
the burden of showing definitely that such prior hus-
134V Alimony, Allowances, and Disposition of
band is not dead rests on the plaintiff.
Property
**756*262 Knight, Simpson & Harpham, for appel-
134k230 Permanent Alimony
lant.
134k239 k. Application and Proceedings
Thereon. Most Cited Cases
The allowance of alimony is an incident to an action S. A. W. Carver, for respondent.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


43 P. 756 Page 2
111 Cal. 261, 43 P. 756
(Cite as: 111 Cal. 261, 43 P. 756)

*263 TEMPLE, J. lam, was living, and she had not been divorced from
him. The complaint in that suit was also verified. The
The action was brought to annul a marriage between action was finally dismissed by her before it came to
the parties, entered into on the 3d day of July, 1862, judgment. Two of plaintiff's brothers testified that at
upon the ground that defendant had another husband, the time the parties to this action were married they
to wit, Joseph Milam. *264 It is now conceded that heard travelers say the man defendant married was
defendant was married to Joseph Milam in February, still living there (San Bernardino). It is, however,
1858, when defendant was but 15 years of age; that pretty certain that he was not then living at San Ber-
she lived with Milam as his wife for 10 days, when nardino. This is all the evidence contained in the re-
she was taken away by her parents, and went to Salt cord upon this subject.
Lake. It does not appear how long she was absent
from San Bernardino, but it could not have been a It is contended, first, that the judgment in the divorce
very long time, for she testified that she lived at San suit is conclusive upon defendant that she was di-
Bernardino, after her marriage to Milam, about 4 1/2 vorced from Milam; that is, that Milam was then
years, when she married plaintiff. Only about that alive, and that until the decree was entered she was
period elapsed between her first and second mar- his wife. But this adjudication as such did not bind
riages. She testified that Milam left a few days after Milam. He was not served with **757 summons, and
her marriage to him, and she had heard nothing of was without the state, and the action was therefore
him since. Plaintiff and defendant lived together as strictly in rem. ‘No sovereignty,’ says Story, Confl.
husband and wife at Los Angeles for about 22 years, Laws, § 539, ‘can extend its process beyond its own
when, as defendant testified, she was told by her territorial limits to subject either persons or property
nephew, who lived in Arizona, that he had met a to its judicial decisions.’ The res before the court was
brother of Joseph Milam, who said Joseph Milam the status of the plaintiff in the divorce suit. No ser-
was living at Walla Walla. This is all she has ever vice of summons being had, it was not an action inter
heard in regard to Milam since he left San Bernar- partes, but a proceeding affecting only the status of
dino. She then commenced an action against Joseph the wife. ‘It did not establish, but recognized and
Milam to secure a divorce. In her verified complaint, presupposed, the relation of husband and wife as pre-
filed December 21, 1883, she describes herself as viously existing.’ Burlen v. Shannon, 3 Gray, 387. It
Jane Elizabeth Milam, and states that plaintiff and was conclusive against all the world that the plaintiff
defendant were married in February, 1858, and ever in that suit was no longer the wife of Joseph Milam,
since have been, and now are, husband and wife, and and it was an adjudication of nothing else. No one
that defendant resides out of the state of California. would claim that Milam would be estopped by the
On the same day she made and presented to the court decree to deny that he had ever been *266 married to
her affidavit to procure the publication of summons, defendant, or, had he remarried and had children, that
in which she stated that defendant resides out of the the decree would be evidence of their bastardy. Mi-
state, that his last residence within the state was in lam may have been previously divorced, and in such
Pajaro, in Santa Cruz county; that through knowledge case there would be two valid decrees, which, on the
derived from his brother she believes he resides at theory that they constituted an adjudication of mar-
Walla Walla, in Washington territory. Such proceed- riage at the time of the divorce, conclusive against
ings were had in the action that on the 29th day of the world, would contradict each other, and yet both
March, 1894, a decree was entered dissolving the be binding on all the world. See, on this point, Gill v.
marriage between Joseph Milam and the defendant, Read, 5 R. I. 343; Gouraud v. Gouraud, 3 Redf. Sur.
plaintiff in that action. Certain findings were also 262; Freem. Judgm. 154. But since the court had ju-
filed, and purport to constitute part of the judgment risdiction to declare the status of Mrs. Milam as af-
roll, but, as there were no *265 issues to try, and fected by an assumed marriage with Joseph Milam,
judgment was entered on default, express findings and did adjudge that she was no longer the wife of
were unauthorized, and add nothing to the necessary Joseph Milam, it would follow that he could no
adjudication. Subsequently defendant commenced an longer be her husband. He was thus affected by the
action against the plaintiff to have her marriage with judgment as he would have been by the death of his
him declared void on the same ground on which wife, and this resulted simply from the fact that the
plaintiff now seeks relief, to wit, that at the time of status of his wife was changed. So far, and no further,
her marriage with him her first husband, Joseph Mi- the judgment bound him and all the world. That be-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


43 P. 756 Page 3
111 Cal. 261, 43 P. 756
(Cite as: 111 Cal. 261, 43 P. 756)

ing so, it must follow that as an adjudication it bound The second marriage was held good. The court said:
her no further. Had she borne children to Hunter, the ‘The law presumes the continuation of life, but it also
judgment would have estopped neither such children presumes against the commission of crimes, and that
nor her to deny that she was the wife of Milam when even in civil cases, until the contrary is proved.’ This
she married Hunter. was the question in Rex v. Inhabitants of Harborne, 2
Adol. & E. 540. It was said that there was no absolute
It is further contended that her affidavits are conclu- presumption, but that it was a question for the jury to
sive evidence against her. Three times she stated un- determine under the circumstances of the case, and a
der oath that she was the wife of Milam when she verdict convicting a defendant of bigamy was upheld
was married to Hunter. This is very strong testimony on proof that the husband was alive 25 days before
against her, but is only strong evidence. It is not an the second marriage. See, *268 also, Reg. v. Lumley,
estoppel. She went upon the stand as a witness for L. R. 1 C. C. 196. Murray v. Murray, 6 Or. 1, in-
herself, and explained that she made those affidavits volved the legitimacy of the children of a second
upon the strength of a rumor she heard. This was all marriage. It was held that the presumption of inno-
she had heard. The court found in her favor, and must cence should be preferred, but the presumption was
have believed her statement. The statements made by not absolute, and the question would depend upon the
plaintiff's brother do not show that Milam had been special circumstances of the case. In Lockhart v.
heard from and if defendant's testimony was true, White, 18 Tex. 102, Mrs. Waggoner had been sepa-
such statements must have been unfounded. The rated from her husband about five years. One witness
court could well find that there was no authentic in- had heard of him since the separation. The court said:
formation to the effect that Milam was alive. ‘There is no evidence that Waggoner had been heard
of within twelve months (though that exact time is
*267 But it is said the marriage of the parties to this not necessary to raise a favorable presumption) prior
suit took place only about 4 1/2 years after the mar- to the marriage with Allsbrooks, and under the rule
riage to Milam, and it will be presumed that Milam established in the above case the continuance of the
was alive, in the absence of proof to the contrary. **758 life of Waggoner will not be presumed. The
There was no proof tending to show that Milam was second marriage was consequently lawful and
dead, or that his chance for life was below the aver- valid.’ It was also said that the presumption of the
age; therefore it is contended the court should have continuance of life was weaker, and must yield to the
found that he was alive. This presumption of the con- presumption of innocence. Sharp v. Johnson, 22
tinuation of life is, however, overcome by another. It Ark. 79, was a case involving a question of heirship
is presumed that a person is innocent of crime or depending upon legitimacy. This depended upon the
wrong. Code Civ. Proc. § 1963. There is also a pre- validity of a marriage. The court refused an instruc-
sumption, and a very strong one, in favor of the legal- tion to the effect that the former wife, if alive within
ity of a marriage regularly solemnized. Rather than five years before the last marriage, was presumed to
hold a second marriage invalid, and that the parties be still alive. The ruling was affirmed, and the court
have committed a crime or been guilty of immorality, quoted from Mathews on Presumptive Evidence: ‘A
the courts have often indulged in the presumption of charge of an act of immorality, or of disobedience of
death in less than seven years; or, where the absent a positive law, will not be received unless supported
party was shown to be alive, have allowed a pre- by direct evidence. Circumstances showing probabil-
sumption that the absent party has procured a di- ity merely are not enough; the fact averred must be
vorce. A more correct statement perhaps would be conclusively proved.’ Klein v. Laudman, 29 Mo.
that the burden is cast upon the party asserting guilt 259, was an action of slander, and a similar ruling
or immorality to prove the negative,-that the first was made. Spears v. Burton, 31 Miss. 547, involved
marriage had not ended before the second marriage. the question of legitimacy, and it was held that the
A few cases will best illustrate the rule. Rex v. In- presumption of continuance of life would not estab-
habitants of Twyning, 2 Barn. & Ald. 386, was a lish a crime, even in a civil case. To the same effect
question as to a settlement, which depended upon the is Town of Greensborough v. Town of Underhill, 12
validity of a second marriage of Mary Burns. She Vt. 604. The question in that case was as to settle-
was a pauper, and married about 12 months after her ment. Schmisseur v. Beatrie, 147 Ill. 210, 35 N. E.
husband had enlisted as a soldier in foreign service. 525, was a case involving the question of legitimacy.
It was proven that an absent*269 husband was alive

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


43 P. 756 Page 4
111 Cal. 261, 43 P. 756
(Cite as: 111 Cal. 261, 43 P. 756)

at the time of the marriage, and the court held that in


favor of this second marriage it would presume that
the absent party had obtained a divorce, and that the
burden of proving that such divorce had not been
obtained was on the party alleging the invalidity of
the second. It is said that a contrary doctrine is estab-
lished in People v. Stokes, 71 Cal. 263, 12 Pac. 71.
This precise point was not there discussed, although
it was raised. The court contented itself with asserting
the general proposition, which no one disputes, that
the presumption of life continue for seven years. The
fact that there were conflicting presumptions must
have escaped the attention of the court, otherwise the
case is in conflict with all the cases upon the subject
and with all the text-books. We cannot hold that this
long line of decisions, in which there is no break, has
been overruled by a case in which the point was not
discussed.

The court found for the defendant upon all points,


notwithstanding the fact that owing to her former
statements under oath her testimony was justly sub-
ject to grave suspicion. If her explanation of the for-
mer affidavits was true, I think it sufficient. We can-
not reverse the judgment for insufficiency of the evi-
dence.

As the appeal from the judgment was taken too late,


we cannot consider the objections to the allowance of
alimony. A new trial is a re-examination of an issue
of fact in the same court after a trial. The allowance
of alimony is an incident to an action for a divorce,
and, although the determination as to its allowance
may involve a controversy as to facts, such determi-
nation is not the trial of an issue in the case. It may be
before or after trial. The appeal from the judgment is
dismissed, and the order denying a new trial is af-
firmed.

We concur: McFARLAND, J.; VAN FLEET, J.;


HARRISON, J.; GAROUTTE, J.; HENSHAW, J.
Cal. 1896
Hunter v. Hunter
111 Cal. 261, 43 P. 756

END OF DOCUMENT

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


TAB L
141 P.2d 832 Page 1
172 Or. 293, 141 P.2d 832
(Cite as: 172 Or. 293, 141 P.2d 832)

[3] Executors and Administrators 162 29(5)


Supreme Court of Oregon.
In re ROWE'S ESTATE. 162 Executors and Administrators
ROWE 162II Appointment, Qualification, and Tenure
v. 162k29 Operation and Effect of Appointment
ROWE. 162k29(5) k. Matters Concluded. Most
Oct. 5, 1943. Cited Cases
Allegations in petition for appointment of administra-
Appeal from Circuit Court, Marion County; E. M. tor respecting heirship are not jurisdictional, and
Page, Judge. court's order thereon is not “res judicata”; hence peti-
tioner is not estopped by such allegations from mak-
Proceeding in the matter of the estate of Edwin F. ing contradictory allegations in a subsequent pro-
Rowe, deceased, on objections by Alonzo W. Rowe ceeding. ORS 43.160, 115.020, 115.140, 115.310.
to the amended final account of John A. Heltzel, ad-
ministrator, which alleged that objector was only a [4] Children Out-Of-Wedlock 76H 3
stepson of decedent and not entitled to inherit,
wherein Alzina Rowe, widow of deceased, filed an 76H Children Out-Of-Wedlock
answer to objections. From the decree, both objector 76HI Status in General
and widow appeal. 76Hk2 Evidence
76Hk3 k. Presumptions. Most Cited Cases
Affirmed. It is general policy of law to presume that all children
are legitimate.
West Headnotes
[5] Children Out-Of-Wedlock 76H 3
[1] Executors and Administrators 162 29(1)
76H Children Out-Of-Wedlock
162 Executors and Administrators 76HI Status in General
162II Appointment, Qualification, and Tenure 76Hk2 Evidence
162k29 Operation and Effect of Appointment 76Hk3 k. Presumptions. Most Cited Cases
162k29(1) k. In General. Most Cited Cases Under both Oregon law and Montana law, there is a
The finding of a county court, sitting in probate, upon disputable statutory presumption in favor of legiti-
jurisdictional facts alleged in petition for appointment macy of children born in wedlock. Rev.Codes
of an administrator, is a final judicial determination. Mont.1935, §§ 5830, 10606; ORS 41.360.

[2] Executors and Administrators 162 10 [6] Children Out-Of-Wedlock 76H 3

162 Executors and Administrators 76H Children Out-Of-Wedlock


162II Appointment, Qualification, and Tenure 76HI Status in General
162k8 Jurisdiction of Courts 76Hk2 Evidence
162k10 k. Domicile of Decedent. Most 76Hk3 k. Presumptions. Most Cited Cases
Cited Cases Under both Oregon law and Montana law, statutory
In proceedings on petition for appointment of admin- presumption in favor of legitimacy of children born
istrator, single jurisdictional fact was that decedent, at in wedlock is conclusive unless rebutted by clear,
or immediately before his death, was an inhabitant of satisfactory, and convincing evidence showing hus-
the county. ORS 115.140, 115.310. band's impotency or nonaccess. Rev.Codes
Mont.1935, § 5830, and § 10605, subd. 5; 10606;
ORS 41.360.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


141 P.2d 832 Page 2
172 Or. 293, 141 P.2d 832
(Cite as: 172 Or. 293, 141 P.2d 832)

is received with caution, and is insufficient in itself to


[7] Children Out-Of-Wedlock 76H 4 establish paternity.

76H Children Out-Of-Wedlock [11] Children Out-Of-Wedlock 76H 5


76HI Status in General
76Hk2 Evidence 76H Children Out-Of-Wedlock
76Hk4 k. Burden of Proof. Most Cited 76HI Status in General
Cases 76Hk2 Evidence
In proceedings to determine objector's heirship to 76Hk5 k. Admissibility. Most Cited Cases
decedent, where it appeared that objector's mother Upon a disputed question of paternity, child may be
was still married to another although living with de- exhibited to jury in recognition of physiological fact
cedent at time of objector's birth, which occurred in that peculiarities of form, features. and personal traits
Montana, objector had burden, under both Oregon are often transmitted from parent to child.
and Montana law, to establish that he was not legiti-
mate son of his mother and her husband. Rev.Codes [12] Divorce 134 172
Mont.1935, § 5830, 10606; ORS 41.360.
134 Divorce
[8] Children Out-Of-Wedlock 76H 3 134IV Proceedings
134IV(N) Judgment or Decree
76H Children Out-Of-Wedlock 134k172 k. Conclusiveness of Adjudica-
76HI Status in General tion. Most Cited Cases
76Hk2 Evidence
76Hk3 k. Presumptions. Most Cited Cases Judgment 228 728
On issue of legitimacy of child, access of husband is
usually presumed unless contrary is shown, and proof
228 Judgment
of noncohabitation by husband and wife must be
228XIV Conclusiveness of Adjudication
clear and positive.
228XIV(C) Matters Concluded
228k723 Essentials of Adjudication
[9] Children Out-Of-Wedlock 76H 12 228k728 k. Incidental and Collateral
Matters. Most Cited Cases
76H Children Out-Of-Wedlock Decree of divorce as a decree in rem binds whole
76HI Status in General world as to status of parties to extent that their status
76Hk8 Formalization of Parental Relation in is the thing adjudicated, but such decree is not “res
General; Legitimation judicata” as between strangers or between parties and
76Hk12 k. Recognition or Acknowledg- strangers as to facts incidentally though necessarily
ment. Most Cited Cases determined.
On issue of legitimacy, recognition of child by puta-
tive father, collection of child's wages by putative [13] Divorce 134 172
father, use by child of putative father's name, family
reputation and school records are material. ORS
134 Divorce
41.900.
134IV Proceedings
134IV(N) Judgment or Decree
[10] Children Out-Of-Wedlock 76H 5 134k172 k. Conclusiveness of Adjudica-
tion. Most Cited Cases
76H Children Out-Of-Wedlock
76HI Status in General Judgment 228 728
76Hk2 Evidence
76Hk5 k. Admissibility. Most Cited Cases
228 Judgment
Evidence of physical resemblance between child and
228XIV Conclusiveness of Adjudication
putative father is admissible in cases of paternity, but

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


141 P.2d 832 Page 3
172 Or. 293, 141 P.2d 832
(Cite as: 172 Or. 293, 141 P.2d 832)

228XIV(C) Matters Concluded sumed that husband would avail himself of opportu-
228k723 Essentials of Adjudication nity of access to wife even if such opportunity were
228k728 k. Incidental and Collateral present.
Matters. Most Cited Cases
In proceeding between child and decedent's widow, [17] Children Out-Of-Wedlock 76H 11
wherein child claimed to be son of decedent, al-
though mother, who was living with decedent at time
76H Children Out-Of-Wedlock
of child's birth, was then married to another, mother's
76HI Status in General
subsequent divorce from her husband on ground of
76Hk8 Formalization of Parental Relation in
pre-existing desertion and abandonment was not “res
General; Legitimation
judicata” on such point so as to establish nonaccess
76Hk11 k. Marriage of Parents. Most Cited
of mother's husband. Rev.Codes Mont.1935, §§ 5830,
Cases
10606; ORS 41.360(32).
Under both Oregon and Montana law, the intermar-
riage of mother with father subsequent to birth of
[14] Children Out-Of-Wedlock 76H 5 illegitimate son had effect of making son legitimate.
Rev.Codes Mont.1935, § 5852; ORS 111.240.
76H Children Out-Of-Wedlock
76HI Status in General [18] Executors and Administrators 162 501
76Hk2 Evidence
76Hk5 k. Admissibility. Most Cited Cases
162 Executors and Administrators
Generally, neither husband nor wife may be permit-
162XI Accounting and Settlement
ted to testify as to nonaccess between them in cases
162XI(D) Compensation
where legitimacy of a child born in wedlock is called
162k501 k. Proceedings and Order for Al-
into question.
lowance. Most Cited Cases
Decree, in proceedings on objection to petition for
[15] Children Out-Of-Wedlock 76H 6 distribution, providing that entire cost of proceeding
including compensation of administrator be paid
76H Children Out-Of-Wedlock from assets of estate, was not intended to allow ad-
76HI Status in General ministrator, who was an attorney, additional compen-
76Hk2 Evidence sation for legal services, but required payment to ad-
76Hk6 k. Sufficiency. Most Cited Cases ministrator of ordinary compensation for administer-
In proceedings on objections to petition for distribu- ing estate and payment of ordinary costs and dis-
tion of decedent's estate to establish objector as son bursements of proceeding on objections.
of decedent and entitled to inherit, evidence that ob-
jector's mother before and at time of objector's birth [19] Executors and Administrators 162
was living in open adultery with decedent and that 314(13)
decedent recognized objector as his son was suffi-
ciently clear, satisfactory, and convincing that, at
162 Executors and Administrators
time of conception and birth of objector, his mother's
162VII Distribution of Estate
husband had no access. Rev.Codes Mont.1935, §§
162k314 Proceedings for Payment or Distri-
5830, 10606; ORS 41.360.
bution
162k314(13) k. Costs and Attorney Fees.
[16] Children Out-Of-Wedlock 76H 3 Most Cited Cases
In proceedings on objection to petition for distribu-
76H Children Out-Of-Wedlock tion, trial court had discretion to allow costs of both
76HI Status in General parties out of estate.
76Hk2 Evidence **833*296 Charles H. Heltzel, of Salem, for appel-
76Hk3 k. Presumptions. Most Cited Cases lant.
In paternity cases where it appears that wife was no-
toriously living in open adultery, it will not be pre- Ira W. Carl, of Portland, for respondent.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


141 P.2d 832 Page 4
172 Or. 293, 141 P.2d 832
(Cite as: 172 Or. 293, 141 P.2d 832)

administrator, that the respondent is a son and heir of


*295 Before BAILEY, C. J., and BELT, KELLY, the decedent. He also contends that the order appoint-
LUSK, BRAND, and HAY, JJ. ing the administrator is res judicata on the question of
heirship.
HAY, Justice.
[1][2][3] The finding of a county court, sitting in
Edwin F. Rowe, a resident and inhabitant of Marion probate, upon the jurisdictional facts alleged in a peti-
County, Oregon, died on October 21, 1940, leaving tion for the appointment of an administrator, is a final
an estate in said county. On the petition of Alzina judicial determination. Holmes v. Oregon & C. R.
Rowe, the decedent's widow, and of John A. Heltzel Co., C.C., 9 F. 229, 232, 7 Sawy. 380. The single
the county court of Marion County duly appointed jurisdictional fact, so far as the present case is con-
John A. Heltzel administrator of the decedent's estate. cerned, was that the decedent, at or immediately be-
The petition alleged that decedent left as his only fore his death, was an inhabitant of the
heirs Alzina Rowe, his widow, and Alonzo Rowe, his county. Sections 19-206 and 19-210, O.C.L.A. In
son, and the order appointing the administrator addition to such jurisdictional fact, the law requires
adopted such allegation as to heirship. In due course, that the petition shall state whether or not the de-
the administrator filed a final account, in which no ceased left a will, and the names, age and residence,
statement was made respecting heirship. Thereafter so far as known, of his heirs. Section 19-203,
he filed an amended final account, wherein he alleged O.C.L.A. It would appear that the allegations re-
that, since filing the original final account, he had specting heirship are not jurisdictional, and that the
made an investigation and had ascertained therefrom court's order thereon is not res judicata. Section 2-
that Alonzo W. Rowe, who is named as Alonzo 721, O.C.L.A. This is the rule generally followed by
Rowe in the petition and in the order appointing the the courts. Morgan v. Dodge, 44 N.H. 255, 82
administrator, was only a stepson of decedent, and Am.Dec. 213;*298 Bancroft's Probate Practice, vol.
hence was not entitled to any distributive portion of 1, section 276; 21 Am.Jur., Executors and Adminis-
the estate. Alonzo W. Rowe duly objected to such trators, section 122; Annotation, 119 A.L.R., p. 608.
amended final account. The widow answered, and A fortiori appellant is not estopped by the allegations
issue was joined upon the question of the paternity of of her petition respecting heirship, the statute requir-
the objector. A hearing upon such question was had ing only that the heirs be named so far as known.
in the circuit court for Marion County, to which, in
the interim, the legislature had transferred jurisdiction The evidence shows that in the year 1866, the re-
of probate matters, and in due course such court spondent's mother married one Benjamin Pugh. They
made its decree sustaining the objections and adjudg- lived together for a number of years, and had several
ing that Alonzo W. Rowe was the legitimate son and children. Some three years prior to 1891, they sepa-
an heir at law of Edwin F. Rowe, entitled to his dis- rated, and the respondent's mother began living with
tributive share of decedent's estate. The decree fur- the decedent, Edwin F. Rowe. Mrs. Pugh and Rowe
ther **834 provided *297 that “the entire costs of this cohabited, ostensibly as man and wife, from that time
proceeding, including compensation of the adminis- until the woman's death. During this period, on April
trator be paid from the assets of this estate before 3, 1891, Mrs. Pugh gave birth to the respondent
distribution”. From this decree the widow, Alzina herein, who was named “Alonzo” after an uncle of
Rowe, has appealed to this court. Alonzo W. Rowe Edwin F. Rowe's. The respondent was brought up in
has appealed from that portion of the decree which the family of Edwin F. Rowe as his son. On Decem-
provides that the costs of the proceeding, including ber 18, 1898, at Helena, Montana, Mary E. Pugh filed
compensation of the administrator, be paid from the suit against her husband, Benjamin Pugh, alleging
assets of the estate before distribution. We shall refer desertion, and seeking to divorce him on that ground.
to the widow as the appellant and to Alonzo W. Personal service in Montana was made upon the de-
Rowe as the respondent. fendant, who defaulted, and, upon such default, a
decree of divorce was duly entered on May 17, 1899.
At the outset we are met with a contention on the part Five days thereafter, Mary E. Pugh, under the as-
of the respondent that the appellant is estopped by the sumed name of Ireland, married Edwin F. Rowe.
allegation, in her petition for the appointment of an Mary E. Rowe (formerly Pugh) died on March 21,

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141 P.2d 832 Page 5
172 Or. 293, 141 P.2d 832
(Cite as: 172 Or. 293, 141 P.2d 832)

1905. In 1913, Edwin F. Rowe and the appellant unless the contrary is shown. 10 L.R.A., 662, note.
herein, Alzina Rowe, intermarried. Proof of non-cohabitation by husband and wife must
be clear and positive. Annotation, 7 A.L.R., p. 329.
[4] Even in the absence of statute, it is the general
policy of the law to presume that all children are le- Rowe and the former Mrs. Pugh cohabited, ostensibly
gitimate. 7 Am.Jur., Bastards, section 1; In re Gre- as man and wife, for some years immediately prior to
goire's Estate, 156 Or. 111, 64 P.2d 1328;Stegall v. Alonzo's birth. This was conclusively established,
Stegall, 22 Fed.Cas., page 1226, No. 13,351, 2 Brock. and was moreover practically conceded. Up to the
256. time of the death of Alonzo's mother, she, Rowe and
Alonzo lived together as one family. Rowe, on nu-
*299[5][6] The appellant takes the position that re- merous occasions, recognized Alonzo as his son. This
spondent, having been born in wedlock, must be pre- he did sometimes in a negative and ungenerous man-
sumed to have been the legitimate child of Mary and ner (as, for example, when he told the appellant that
Benjamin Pugh. There is, by statute, a disputable Alonzo “might have been my boy and he might not”),
presumption in favor of the legitimacy of children and sometimes without reservation. To Mrs. Minnie
born in wedlock. This is the law of Montana, where Sheppard, a neighbor, Rowe spoke of Alonzo either
the respondent was born, Rev.Codes of Mont.1935, as his son, or as “that boy of mine”. Gunder Rustad,
sections 5830 and 10606, and it is also the law of another neighbor, testified that, in 1938, Rowe told
Oregon. Section 2-407, subd. (32) O.C.L.A. The dis- him that he had a son, that the son “had done some-
putable presumption thus established is regarded as thing wrong to him”, and that he would never forgive
conclusive, unless rebutted by evidence showing the him. Mrs. Sara Peterson, Rowe's niece, testified that
husband's impotency or his non-access. 7 Am.Jur., she first saw Alonzo at Boyceville, Wisconsin, when
Bastards, section 43. The presumption is a very he was just a small boy and she was a girl in her
strong one, and may not be overcome by less than teens. The child was with Rowe at that time and he
“clear, satisfactory and convincing” evidence. In re spoke of him as his son, never as his stepson. I. L.
Gregoire's Estate, supra; Westfall v. Westfall, 100 Or. Blodgett, Rowe's nephew, testified that he had heard
224, 197 P. 271, 13 A.L.R. 1428. One court, indeed, Rowe refer to Alonzo as his son, and that it had al-
has indicated that it may be overcome only by evi- ways been common reputation in the family that
dence which establishes the fact to the contrary be- Alonzo was Rowe's son. The appellant herself testi-
yond all reasonable doubt (Stegall v. Stegall, supra), fied that she had always understood that Alonzo was
but this court has not gone so far. Edwin F. Rowe's illegitimate son. Alonzo testified
that, when he was a boy of around fourteen or fifteen
“When all the ends which the presumption of legiti- years of age, he worked as a sort of houseman at a
macy is designed to conserve have been defeated by hotel in Helena, Montana, and that, although he was
sordid facts, the courts must deal with the situation in not living at home, Edwin F. *301 Rowe collected his
a common sense way. ***” **835Nolting v. Holt, first wages, and disgorged the money only after con-
113 Kan. 495, 215 P. 281, 31 A.L.R. 1117. siderable argument. After his mother died, Alonzo
and Rowe “batched” together for about a year, until
Rowe remarried. Rowe, on one occasion, gave
[7] In view of the presumption, no doubt the burden Alonzo's wife some property. Mrs. Ada Kennedy, a
was upon the respondent to establish his contention San Francisco policewoman, who is a cousin of
that he was not the legitimate son of Benjamin and Rowe's, testified that she first saw Alonzo in Mason
Mary Pugh. City, Iowa, when he was a creeping infant less than a
year old. Rowe had brought him there to the home of
There is a conclusive presumption by the law of Mrs. Kennedy's mother and desired that she should
Montana that the issue of a wife cohabiting with her raise him. Rowe said that the child was his, and that
husband, who is not impotent, is legitimate. his wife had died. He stayed there a month or six
Rev.Codes of Mont.1935, section 10605, subd. 5. weeks, and thereafter took the baby back to Montana.
The matter of impotency, however, has not been He had been living with Mrs. Pugh, and his brother
raised in this case. tried to get him to leave her, but he refused to do so.
Mrs. Kennedy testified further that the family reputa-
*300[8] Access of the husband usually is presumed tion was that Alonzo was Rowe's son. It is true that

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141 P.2d 832 Page 6
172 Or. 293, 141 P.2d 832
(Cite as: 172 Or. 293, 141 P.2d 832)

Mrs. Mae Wright, appellant's sister, testified that less is required by way of recognition in cases where
Edwin F. Rowe disowned Alonzo “right from the the parents have intermarried, as they did here subse-
first time I ever seen him, he said he was no part of quent to Alonzo's birth, than where they have not
his family”. The evidence indicates that for a time done so. Annotation, L.R.A., 1916E, 662.
there was bad feeling between Rowe and Alonzo, and
we are uncertain as to whether Mrs. Wright meant to [10][11] There was evidence offered at the hearing,
say that Rowe intimated that Alonzo actually was not tending to show a strong physical resemblance be-
his son, or was merely venting his spleen upon a son tween Alonzo and Edwin F. Rowe. The appellant
whom he had grown to dislike. Mrs. Gunda Rustad, a testified that others had told her of this resemblance,
practical nurse who was employed in the Rowe but said that she herself could not see it. Evidence of
household, testified that the appellant told her, after such resemblance is admissible in cases of paternity,
Edwin F. Rowe's death, that Alonzo was “mean to although it is received with caution. Annotation, 40
Ed” (meaning Edwin F. Rowe), and, on the witness A.L.R., p. 97. It must be conceded that such evi-
asking her whom she meant, said she was talking dence is insufficient in itself to establish paternity,
“about Ed's son”. (Rowe had no other son.) The ap- and is helpful only in decidng doubtful cases. 7
pellant told the witness further that Alonzo “was go- Am.Jur., Bastards, section 49. This court, however,
ing to get his share, but if he would come to the has given its approval to the exhibition of a child-
house she wouldn't be at home”. *302 Alonzo has even a very young infant-to a jury upon a disputed
always used the surname of Rowe and never that of question of paternity, and has recognized the physio-
Pugh. One school record, dated 1898, gives his name logical fact that peculiarities of form, features and
as Alonzo Rowe and his mother's as Mrs. Mary Pugh, personal traits are often transmitted from parent to
and another, apparently made about 1903, gives his child. State v. Russell, 64 Or. 247, 250, 129 P.
name as Alonzo W. Rowe and his father's as Mr. E. 1051;State ex rel. Dickerson v. Tokstad, 139 Or. 63,
Rowe. 8 P.2d 86;State ex rel. v. Bartlett, 141 Or. 560, 18
P.2d 590;Anderson v. Aupperle, 51 Or. 556, 95 P.
[9] All of these circumstances were material evidence 330.
of the question of the status of the child as Rowe's
son. 7 Am.Jur., Bastards, section 39. In Goodright v. [12][13] The respondent's mother divorced her hus-
Saul, 4 Term Rep. (Durnford & East) 356 (1791), it band, Pugh, upon a complaint charging him with de-
was held that the circumstance of a person's having sertion and abandonment commencing in September,
taken the name of the man with whom his mother 1887, and continuing thereafter. The respondent con-
was living at the time of his birth, which was retained tends that the decree which established the fact of
by him always thereafter, went **836 strongly to such desertion is res judicata upon that point as
rebut the presumption of access by his mother's hus- against all the world. On the basis of such contention,
band, and was a very strong family recognition of his he argues that the non-access of his mother's husband
illegitimacy. There are letters in evidence before us to his mother during the period of such desertion is
in which Rowe addressed Alonzo as his son. Rowe conclusively established. We do not concede, how-
being dead, evidence of such declarations by him was ever, that, as against the appellant herein, the decree
competent as proof of the fact of such relationship. is res judicata of the fact of desertion, to say nothing
In re Wray's Estate, 93 Mont. 525, 19 P.2d 1051, of the inference of non-access sought to be drawn.
1055; 7 Am.Jur., Bastards, section 27. This court, in
State v. McDonald, 55 Or. 419, 441, 103 P. 512,104 “While the decree in a divorce suit as a decree in rem
P. 967,106 P. 444, intimated that the declarations of a binds the whole world as to the status of the parties,
putative father in letters to a supposed son, address- to the extent that their status is the res adjudicated,
ing him as his son, are admissible in evidence upon with that limitation it is subject to the usual rule that
the question of paternity, and will be construed prima estoppels must be mutual and is therefore not conclu-
facie to mean that the person so addressed was his sive for or against any third person in reference to the
legitimate son. Common reputation, existing previous facts which it necessarily affirms or denies. Judg-
to the controversy, is competent evidence on an issue ments in rem, as such, are not res judicata with re-
of pedigree. Section 2-228, subd.(11), O.C.L.A.; spect to facts incidentally though necessarily deter-
State v. McDonald, supra. On the question of legiti- mined, except as to the res adjudicata. As between
mation of bastards, it has been held that somewhat

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141 P.2d 832 Page 7
172 Or. 293, 141 P.2d 832
(Cite as: 172 Or. 293, 141 P.2d 832)

strangers or between parties and strangers, a decree band with a paramour, and the latter's treatment of
of divorce does not establish the previous validity of the offspring. See also Stegall v. Stegall, supra; Ray
the marriage, since the res involved and adjudicated v. Ray, 219 N.C. 217, 13 S.E.2d 224, 226;In re
is the condition of subsequent singleness of the par- Findlay, 253 N.Y. 1, 9, 170 N.E. 471. We subscribe
ties and not the valid prior existence of marital rela- to the doctrine of those cases, and of many others
tions between them. ***” Freeman on Judgments, which we have not cited. It is our opinion that the
vol. 2, section 910, and cases cited. lower court correctly found, from the evidence *304
in this case, that the respondent, Alonzo W. Rowe,
[14] The divorce complaint failed to make mention of was the illegitimate son of Mary E. Pugh and the
any of the children who were born to the Pugh mar- decedent, Edwin F. Rowe.
riage, although there were several. If the names of
those children who were concededly the legitimate [17] The intermarriage of Mary E. Pugh with Edwin
offspring of Pugh and his wife had been included, F. Rowe subsequent to the birth of their illegitimate
and that of Alonzo alone had been omitted, that son, Alonzo W. Rowe, had the effect of making the
might be persuasive as a declaration by Alonzo's respondent their legitimate son, both by the law of
mother that Alonzo was not the son of Benjamin Montana and by the law of Oregon. Rev.Codes of
Pugh. However, it is generally held that neither the Mont.1935, section 5852; section 16-202, O.C.L.A.
husband nor the wife may be permitted to testify as to
non-access between them in cases where the legiti- [18][19] As for the respondent's cross-appeal, it is
macy of a child born in wedlock is called into ques- apparent that counsel for the respondent believed that
tion. 7 Am.Jur., Bastards, section 21; Goodright ex the lower court intended to allow to the administrator,
dem. Stevens v. Moss, 86 Eng. Reprint, 1257; who is an attorney at law, additional compensation
*303Martin v. Stillie, 129 Kan. 19, 281 P. 925, 68 for legal services performed in connection with the
A.L.R. 415, 417; Westfall v. Westfall, supra. hearing. The reply brief of the appellant, however,
makes it clear that the administrator sought no such
[15][16] The facts that the husband and wife were compensation. Appellant construes the meaning and
living apart and that the wife was notoriously living effect of the lower court's decree in that regard as
in open adultery have been held to be sufficient proof requiring, first, payment to the administrator of his
of **837 non-access on the part of the husband, even ordinary compensation for administering the estate,
although he might have had the opportunity of ac- and second, payment from the assets of the estate of
cess. It is our opinion that the evidence in the present the ordinary costs and disbursements of the proceed-
case is “clear, satisfactory and convincing” that, at ing on the objections, such as filing fees, trial fee,
the time of the conception and at the time of the birth reporter's fee, witnesses' fees, etc., as incurred by
of the respondent herein, his mother and her husband both respondent and appellant. Such, we believe, is a
were living apart, and that, for a period of years be- correct construction of the trial court's decree, and we
fore, at and after the date of such birth, the mother are of the opinion that the court acted within its dis-
had been living in adultery with Edwin F. Rowe. In a cretionary powers in this respect.
leading English case (Cope v. Cope, 5 C. & P. 604,
1833), the court expressed the opinion that it would The decree of the circuit court is affirmed, without
be monstrous to suppose that, under such circum- costs to either party.
stances, the husband would avail himself of the op-
portunity of access to his wife, even if such opportu- BELT, J., did not participate in this opinion.
nity were present. A similar opinion was expressed
by the court in The Aylesford Peerage Case, (L.R.)
11 App.Cas. 1, 17, 18 (1885). In Woodward v. Blue, Or. 1943.
107 N.C. 407, 12 S.E. 453, 10 L.R.A. 662, 22 In re Rowe's Estate
Am.St.Rep. 897, it was said that the presumption of 172 Or. 293, 141 P.2d 832
legitimacy of a child born in wedlock might be rebut-
ted by circumstances showing the contrary, and that END OF DOCUMENT
there could be no such circumstance more potent than
the conduct of a wife living separate from her hus-

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TAB M
101 P.2d 790 Page 1
55 Ariz. 368, 101 P.2d 790
(Cite as: 55 Ariz. 368, 101 P.2d 790)

45 Attorney and Client


Supreme Court of Arizona. 45I The Office of Attorney
In re VAN BEVER. 45I(C) Discipline
No. 4225. 45k34 k. Tenure of Office in General. Most
Cited Cases
April 29, 1940.
Attorney and Client 45 38
Original proceeding in disbarment in the matter of
Emile V. Van Bever, a member of the State Bar, un- 45 Attorney and Client
der State Bar Act, and upon petition filed by James E. 45I The Office of Attorney
Nelson, as Secretary of the State Bar of Arizona. 45I(C) Discipline
45k37 Grounds for Discipline
Order to show cause discharged. 45k38 k. Character and Conduct. Most
Cited Cases
Under State Bar Act, an attorney was a member of
West Headnotes
the bar in good standing until actually suspended,
notwithstanding that he was in arrears on his dues,
[1] Attorney and Client 45 36(1) and was therefore entitled to pay his arrearages of
dues as a matter of right, and upon such payment was
45 Attorney and Client no longer subject to suspension for such delinquency.
45I The Office of Attorney Laws 1933, c. 66 (A.R.S. § 32-201 et seq.).
45I(C) Discipline
45k36 Jurisdiction of Courts [4] Attorney and Client 45 38
45k36(1) k. In General. Most Cited
Cases
45 Attorney and Client
The Supreme Court has the power to investigate the
45I The Office of Attorney
moral fitness of one who has been admitted to prac-
45I(C) Discipline
tice before it and, if it appears that it is not in the best
45k37 Grounds for Discipline
interests of the public and the profession that he be
45k38 k. Character and Conduct. Most
permitted to continue such practice, to disbar him.
Cited Cases
The action of the Supreme Court of California in
[2] Attorney and Client 45 40 disbarring an attorney had no extraterritorial effect
and did not automatically act as a disbarment from
45 Attorney and Client practice in Arizona.
45I The Office of Attorney
45I(C) Discipline [5] Attorney and Client 45 34
45k37 Grounds for Discipline
45k40 k. Admission Fraudulently Pro-
45 Attorney and Client
cured. Most Cited Cases
45I The Office of Attorney
One who seeks admission to the bar is under duty of
45I(C) Discipline
making full disclosure of any fact material to the is-
45k34 k. Tenure of Office in General. Most
sue of his moral fitness, and a willful concealment of
Cited Cases
such facts warrants disbarment if admission was pro-
The state bar has no right of disbarment, but such
cured by reason of such concealment.
power can be exercised only by the Supreme Court.
Laws 1933, c. 66 (A.R.S. § 32-201 et seq.).
[3] Attorney and Client 45 34
[6] Attorney and Client 45 38

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101 P.2d 790 Page 2
55 Ariz. 368, 101 P.2d 790
(Cite as: 55 Ariz. 368, 101 P.2d 790)

the conduct so conclusively established is such as


45 Attorney and Client shows an unfitness for practice of law, it would be
45I The Office of Attorney Supreme Court's duty to disbar offender from prac-
45I(C) Discipline tice in Arizona.
45k37 Grounds for Discipline
45k38 k. Character and Conduct. Most [9] Attorney and Client 45 61
Cited Cases
An attorney was under no duty to disclose his dis- 45 Attorney and Client
barment by the Supreme Court of California at time 45I The Office of Attorney
of paying secretary of state bar of Arizona arrearages 45I(C) Discipline
of dues and making application for reinstatement, and 45k61 k. Reinstatement. Most Cited Cases
a failure to volunteer such information was not a Disbarment of an attorney is not necessarily final,
ground for disbarment action by Supreme Court of and one who has been disbarred for unethical conduct
Arizona. Laws 1933, c. 66 (A.R.S. § 32-201 et seq.). may by his subsequent life convince Supreme Court
that he is again worthy of being admitted to the prac-
[7] Judgment 228 815 tice of law, and if such is the case Supreme Court
may reinstate the offender.
228 Judgment
228XVII Foreign Judgments [10] Attorney and Client 45 53(1)
228k814 Judgments of State Courts
228k815 k. Adjudications Operative in 45 Attorney and Client
Other States. Most Cited Cases 45I The Office of Attorney
A judgment of a sister state disbarring an attorney is 45I(C) Discipline
entitled to full faith and credit in Arizona, in the same 45k47 Proceedings
manner as a judgment in a civil and criminal action 45k53 Evidence
obtained in sister state. 45k53(1) k. In General. Most Cited
Cases
[8] Attorney and Client 45 38 If judgment of California disbarring attorney is called
to attention of Supreme Court of Arizona in discipli-
45 Attorney and Client nary proceedings based thereon, Supreme Court must
45I The Office of Attorney assume that attorney at time he was disbarred in Cali-
45I(C) Discipline fornia was guilty of conduct which would necessarily
45k37 Grounds for Discipline require disbarment in Arizona also; but, where sev-
45k38 k. Character and Conduct. Most eral years have elapsed since California disbarment,
Cited Cases attorney is entitled to show that by his conduct sub-
sequent to the disbarment he is again worthy of trust.
Judgment 228 822(3)
[11] Attorney and Client 45 61
228 Judgment
228XVII Foreign Judgments 45 Attorney and Client
228k814 Judgments of State Courts 45I The Office of Attorney
228k822 Conclusiveness of Adjudication 45I(C) Discipline
228k822(3) k. Matters Concluded. 45k61 k. Reinstatement. Most Cited Cases
Most Cited Cases Burden is upon attorney who has been disbarred to
If judgment of sister state disbarring an attorney is show that by his conduct subsequent to the disbar-
called to Supreme Court's attention in disciplinary ment he is again worthy of being admitted to the
proceedings based thereon, Supreme Court must ac- practice of law.
cept as conclusive that attorney has been disbarred in **790*369 James E. Nelson, of Phoenix, for State
sister state for acts there charged, and that he is guilty Bar of Arizona.
of such acts, and if it is Supreme Court's opinion that

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101 P.2d 790 Page 3
55 Ariz. 368, 101 P.2d 790
(Cite as: 55 Ariz. 368, 101 P.2d 790)

Struckmeyer & Flynn, of Phoenix, for respondent. fornia, and stating that although he knew of the dis-
barment*371 proceedings pending against him, he
LOCKWOOD, Judge. did not appear in the supreme court of California to
contest the disbarment, but removed to Chicago,
James E. Nelson, as secretary of the state bar of Ari- where he had previously been admitted to the bar,
zona, hereinafter called petitioner,**791 filed in this and practiced there for several years, and then be-
court a petition setting up the following facts. Emile came engaged in the work of investigating crime, in
V. Van Bever, hereinafter called respondent, was which he continued for some time. Thereafter he re-
admitted to practice before the supreme court of Ari- turned to Arizona and paid to petitioner his arrear-
zona in 1917. On or about September 25, 1939, re- ages in dues, but that the latter never asked him any
spondent called on petitioner at the office of the lat- questions which related directly or indirectly to his
ter, and stated that he had been out of Arizona for standing as a member of the California bar.
*370 a number of years, but had returned and was
making his residence in the city of Prescott; that he Petitioner demurred to the answer on the ground that
had just learned of the organization of the state bar, it did not constitute a defense to the charges pending
under chapter 66 of the regular session of 1933, and against respondent. Briefs were submitted, and the
desired to pay up his arrearages of dues because he whole matter is now before us for our determination
intended to engage in the practice of law in Prescott. as to what, if anything, should be done in the prem-
He further stated that he had been for several years in ises.
an intelligence service and traveling almost continu-
ously, but had now retired from that employment. [1][2] Respondent admits very frankly that this court
Relying upon this statement, and learning upon in- has the power at all times to investigate the moral
quiry of the clerk of this court that her records fitness of one who has been admitted to practice be-
showed respondent was a member of the bar in good fore it, and if it appears that it is not in the best inter-
standing, petitioner collected the amount of arrear- ests of the public and the profession that he be per-
ages due under chapter 66, supra, and issued to re- mitted to continue such practice, to disbar him. He
spondent a certificate therefor, whereupon the latter also admits that one who seeks admission to the bar
commenced the practice of law in Prescott. Shortly is under the duty of making full disclosure of any fact
thereafter petitioner learned from other sources that material to the issue of his moral fitness, and that a
respondent, between the years 1922 and 1933 had willful concealment of such facts warrants disbar-
practiced law in the city of Santa Barbara, California, ment if the admission was procured by reason of such
and that while engaged in such practice he was concealment. He contends, however, the under all the
charged before the state bar of California with unpro- facts and circumstances of the present case there was
fessional and unethical conduct. The charges took no duty incumbent upon him at the time he paid his
their regular course and eventually resulted in the arrearages to the state bar to disclose the fact that he
supreme court of California, on August 28, 1933, had been disbarred previously in California.
permanently disbarring respondent from practice in
that state. Respondent was admitted to practice in this state in
1917, and from that time to this no action has been
It was further stated that at the time respondent paid taken by this court discipling him in any manner. He
his arrearages he did not in any manner disclose to was, therefore, a member of our bar in good stand-
petitioner, or to any officer of the state bar, that he ing*372 at the time of his payment of the arrearages
had been disbarred in California. Petitioner, there- of bar dues, except as such good standing was af-
fore, submitted the matter to this court for such action fected by chapter 66, supra, commonly known as the
as was appropriate, and this court issued a citation ‘State Bar Act.’ That act creates a public corporation
requiring respondent to appear and show cause why known as the state bar, and says that its first members
he should not be disbarred for his failure to disclose shall include all persons who were at the time of its
the fact of his disbarment in California. enactment entitled to practice law in Arizona. By its
terms respondent automatically became a member of
Respondent answered, admitting in substance all the the state bar when the act was adopted. It was further
allegations of the petition and his disbarment in Cali- provided that all members of the state bar should pay

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101 P.2d 790 Page 4
55 Ariz. 368, 101 P.2d 790
(Cite as: 55 Ariz. 368, 101 P.2d 790)

an annual membership fee. This fee was payable on sively established is such as shows an unfitness for
or before February 1st of each year, and it was further the practice of law, it would be our duty to disbar the
provided that any member who failed to pay the an- offender from practice in Arizona. Disbarment, how-
nual fee after it became **792 due, and after two ever, is not always necessarily final. ‘While the lamp
months' written notice of his delinquency, should be holds out to burn, the vilest sinner may return’, and it
suspended by this court from membership in the bar, sometimes happens that one who has been disbarred
but that he might be reinstated upon payment of the for unethical conduct may by his subsequent life
accrued fees, and a penalty to be fixed by the board convince the court that he is again worthy of being
of governors. admitted to the practice of law, and if such be the
case this court may, as have other courts under simi-
[3][4][5] There is no contention that respondent was lar circumstances, reinstate the offender.
ever given the required two months' written notice of
delinquency. Until actually suspended, notwithstand- [10][11] Applying these principles to the present
ing that he was in arrears on his dues, he was a mem- case, we must assume on the record submitted to us
ber of the bar in good standing. He was, therefore, that respondent at the time he was disbarred in Cali-
entitled to pay his arrearages of dues as a matter of fornia was guilty of conduct which would necessarily
right, and upon such payment was no longer subject require disbarment in Arizona also. Seven years,
to suspension for such delinquency. But was respon- however,*374 have elapsed since such disbarment. It
dent at the time he called upon petitioner and ten- is possible that the conduct of respondent has been
dered his arrearages under an obligation to make any such during the seven years that it shows he is again
statement whatever as to his past conduct or situa- worthy of trust. If this be true, and the burden of
tion? Even had he made a full and complete disclo- proof is upon him to establish the fact affirmatively
sure of his disbarment in California, petitioner could to our satisfaction, it would be foolishly technical for
not have refused to accept the arrearages and to issue this court to disbar him for his conduct in California,
him a certificate showing payment, for the action of and immediately to reinstate him on his showing of
the supreme court of California has no extraterritorial repentance and reform.
effect and does not automatically act as a disbarment
from practice in Arizona. Nor has our state bar the The order to show cause in the present case is dis-
right of *373 disbarment. That power can be exer- charged, with leave to the state bar to file a petition
cised only by this court. for disbarment based upon the fact that he was dis-
barred in California, when respondent may, if he so
[6] We think respondent was under no duty to dis- desires, make a showing in confession and avoidance
close his California disbarment at the time he ten- along the lines indicated in this opinion.
dered his arrearages, since he did not receive any-
thing by reason of such failure to disclose that could ROSS, C. J., and McALISTER, J., concur.
have been withheld from him by petitioner had he Ariz. 1940
made a complete disclosure. It follows that a failure In re Van Bever
to volunteer information in regard to the California 55 Ariz. 368, 101 P.2d 790
disbarment is not a ground for action by this court.
END OF DOCUMENT
[7][8][9] This, however, does not mean that he may
not be subject to discipline on other grounds. A
judgment of a sister state disbarring an attorney is, in
our opinion, entitled to full faith and credit in Ari-
zona, in the same manner as a judgment in a civil and
criminal action obtained in that state. If the matter is
called to our attention in disciplinary proceedings
based thereon, it is our duty to accept as conclusive
that respondent has been disbarred in California for
the acts there charged, and that he is guilty of such
acts. If it is our opinion that the conduct so conclu-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


TAB N
126 N.W. 737 Page 1
143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
(Cite as: 143 Wis. 249, 126 N.W. 737)

In case the trial judge, in the progress of a trial, be-


Supreme Court of Wisconsin. cause of any emergency, concludes that it is impera-
OBORN tively necessary for him to suspend the trial indefi-
v. nitely, and especially if counsel for the accused con-
STATE. curs in that view without protest by the accused
May 24, 1910. brought to the attention of the court, and in such
situation the jury is discharged, leaving the trial to be
Syllabus by the Judge. taken up again before another jury, the jeopardy cre-
ated by the partial trial is thereby wholly superseded.
The constitutional guaranty of trial by jury and the
statute as well entitle one, charged with having com- In case of an accused person, after having been put in
mitted a criminal offense, to a trial by a jury of 12 jeopardy, taking or consenting to any proceeding
men selected according to law, from the county rendering necessary a new or additional trial in order
where the crime is claimed to have been committed, to fully conclude the case, he cannot in such further
and to have all issues, including that of insanity, tried trial successfully claim immunity on the ground of
in such county and by the one jury. former jeopardy created by the first proceeding.

The right to a change of venue in a criminal case, Counsel who call a witness to testify within the field
depends upon statute and can only be claimed in the of opinion evidence, may frame his question upon
manner and upon the ground provided. such hypothesis as he thinks is reasonably warranted
by the evidence, aiming to reasonably cover an entire
situation, so warranted, subject to the opinion of the
The rule that the right to a change of venue in a court as to competency.
criminal case is purely statutory, does not exclude the
idea that a change by consent is proper.
On the question of competency, the interrogatory to
the expert, is not to be condemned because not war-
An accused person in a criminal case is competent to ranted from the viewpoint of adverse counsel, since
waive irregularities and rights, whether constitutional each party may take and have presented to the jury
or statutory, very much the same as a party may in a any reasonable position, in the judgment of the court,
civil action. by propounding to witnesses such party's own hy-
pothesis leaving the weight of the answer to the jury
One accused of crime is competent to waive any ir- and to turn, in part at least, on whether such hypothe-
regularity or right, constitutional or statutory, except sis presents the true state of the case.
in a capital case the right of trial by a jury of 12 men,
and that extends to waiver of the right of trial by a The decision of the trial court on the question of
jury of 12 men competent to act as jurors. competency, is not to be disturbed on appeal unless it
not only appears clearly wrong but that, had the error
The right to a jury trial and that to a trial in the not occurred, the result of the trial might, within rea-
county of the offense and the one to have all the is- sonable probabilities, have been materially more fa-
sues tried before a single jury, are subject to waiver vorable to the complaining party.
by the accused.
The constitutional guaranty of the right of the ac-
If one is put in jeopardy as regards a criminal charge, cused person in a criminal prosecution to meet the
the jeopardy is subject to supersession where the ends witnesses face to face, does not extend to mere offi-
of justice require the *738 jury to be discharged and cial authenticators of official documents offered in
another jury to be impaneled to try the case. evidence on the subject of competency of a person
produced as a witness to testify.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


126 N.W. 737 Page 2
143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
(Cite as: 143 Wis. 249, 126 N.W. 737)

*739 If the court instructs the jury in a criminal case


A judgment of divorce, so far as in rem, is conclusive that they should acquit the defendant unless they be-
on the whole world as to the status of the parties be- come satisfied by the evidence beyond every reason-
ing, from that time, single as to each other, but does able doubt that he is guilty, that sufficiently informs
not settle the status of their prior relations so as to them that each juror should pass his own judgment on
render them, as to the whole world, valid regardless the evidence and not agree with his fellows to a con-
of whether they were so in fact or not. viction unless he is convinced, with the certainty
mentioned, that the accused is guilty.
The rule precluding a husband or wife from being a
witness for or against each other, or from disclosing Proof of epilepsy does not, necessarily, directly es-
confidential communications, contemplates the exis- tablish insanity, as epilepsy is not, as a matter of fact
tence of a valid marriage. or law, insanity, though evidence of an epileptic con-
dition may bear, circumstantially, on the mental con-
Whether evidence of conduct of a person after the dition of the afflicted person to the extent of estab-
fact, in a criminal prosecution, is admissible on the lishing insanity.
question of whether such person was legally sane at
the time of such fact, depends upon whether such Whether the accused, in any given case, was afflicted
conduct bears such relation to such person's former with epilepsy, and if so whether the affliction was a
condition of mind as, in reason, to be worthy of con- mental disease or had impaired his mind, and if so
sideration in respect thereto. whether sufficiently to render him unable to appreci-
ate between right and wrong, are matters of fact to be
If the question of fact last suggested is decided in established by evidence.
favor of admissibility, then the, rather miscalled, dis-
cretionary power, which is, really under the circum- If one points a loaded gun and discharges it in a di-
stances, power to judge as to the fact, is exhausted rection other than at a person who is in fact killed by
and there is no discretion as to whether to allow or the bullet reaching his person, glancing from another
not to allow the evidence; it is admissible as matter of object, that one is yet guilty of a homicidal offense, if
right. he knew, or ought reasonably to have known, that his
conduct was dangerous to human life and yet he
The term “insanity,” in the law, means such an ab- acted regardless thereof.
normal condition of the mind, from any cause, as to
render the afflicted one incapable of distinguishing It is not improper to say, according to the facts, in
between right and wrong in the given instance and so instructing a jury, that experts have given their opin-
rendering him unconscious of the punishable charac- ions as to the sanity of the accused, leaving it to the
ter of his act. jury to find the truth of the matter without being nec-
essarily bound by the opinion evidence.
A person is not immune from punishment for a
wrongful act if he has, at the time of perpetrating it, After a decision against the accused on a special issue
capacity to distinguish between right and wrong in as to insanity, evidence of his mental condition is
respect thereto--if he has such capacity and is con- only admissible on the general issue as bearing on the
scious of the wrongfulness of his conduct. grade of the offense.

The law does not recognize a form of insanity in It is improper, in the trial of a capital case, to allow
which there exists capacity to distinguish between communications, verbal or written, between jurors
right and wrong and consciousness of the wrongful and outside parties, unless strictly necessary and with
nature of the particular act, without power to abstain knowledge of counsel on both sides.
from it; i. e., in law he who can distinguish between
right and wrong must, at his peril, choose rightly be- Careful isolation of the jury, in a capital case, from
tween them. all outside influence, so as to avoid any suspicion of
the result being characterized by any improper influ-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


126 N.W. 737 Page 3
143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
(Cite as: 143 Wis. 249, 126 N.W. 737)

ence, is advised. The test of responsibility for a crime depends on the


capacity to understand the nature of the act alleged to
Prejudice to a complaining party on appeal is not be criminal, and to distinguish between right and
presumed from mere occurrence of error. The error wrong with respect to such act.
cannot be regarded as harmful, so as to require a re-
versal unless, within reasonable probabilities, had the Criminal Law 110 50
error not occurred the result might have been materi-
ally more favorable to the one complaining of it. 110 Criminal Law
110VI Capacity to Commit and Responsibility for
Error to Circuit Court, Winnebago County; George Crime
W. Burnell, Judge. 110k47 Insanity
110k50 k. Irresistible Impulse. Most Cited
Dell Oborn was convicted of murder in the second Cases
degree, and brings error. Affirmed. The law does not recognize a form of insanity in
which there exists capacity to distinguish between
West Headnotes right and wrong without power to abstain from it.

Criminal Law 110 48 Criminal Law 110 119

110 Criminal Law 110 Criminal Law


110VI Capacity to Commit and Responsibility for 110IX Venue
Crime 110IX(B) Change of Venue
110k47 Insanity 110k118 Right of Accused to Change
110k48 k. In General. Most Cited Cases 110k119 k. In General. Most Cited
The term “insanity” means such an abnormal condi- Cases
tion of mind as renders the afflicted one incapable of The right to change of venue in a criminal case de-
distinguishing between right and wrong in a given pends upon statute, and can only be claimed in the
instance, and rendering him unconscious of the pun- manner and upon the grounds therein provided.
ishable character of his act.
Criminal Law 110 130
Criminal Law 110 48
110 Criminal Law
110 Criminal Law 110IX Venue
110VI Capacity to Commit and Responsibility for 110IX(B) Change of Venue
Crime 110k129 Application
110k47 Insanity 110k130 k. In General. Most Cited
110k48 k. In General. Most Cited Cases Cases
Proof of epilepsy does not necessarily directly estab- The rule that a right to change a venue in a criminal
lish insanity as epilepsy is not as a matter of fact or case is purely statutory does not prevent a change by
law insanity, though evidence thereof may bear on consent.
the mental condition of the afflicted person to the
extent of establishing insanity. Criminal Law 110 145

Criminal Law 110 48 110 Criminal Law


110IX Venue
110 Criminal Law 110IX(C) Objections and Exceptions
110VI Capacity to Commit and Responsibility for 110k145 k. In General. Most Cited Cases
Crime The right to a trial in the county of the offense may
110k47 Insanity be waived.
110k48 k. In General. Most Cited Cases

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


126 N.W. 737 Page 4
143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
(Cite as: 143 Wis. 249, 126 N.W. 737)

Double Jeopardy 135H 86 time of such fact depends on whether the conduct has
such relation to the person's former condition of mind
135H Double Jeopardy as to be worthy of consideration.
135HIV Effect of Proceedings After Attachment
of Jeopardy Criminal Law 110 354
135Hk86 k. Retrial and Premature Termina-
tion of Case in General. Most Cited Cases 110 Criminal Law
(Formerly 110k182) 110XVII Evidence
Where the trial judge because of any emergency sus- 110XVII(D) Facts in Issue and Relevance
pends the trial indefinitely, and especially if counsel 110k354 k. Insanity. Most Cited Cases
for accused concurs without protest, and the jury is Where the conduct of accused after the fact is worthy
discharged leaving the trial to be taken up again be- of consideration as bearing on such person's former
fore another jury, the jeopardy created by the partial condition of mind, it is admissible.
trial is wholly superseded.
Criminal Law 110 485(1)
Double Jeopardy 135H 96
110 Criminal Law
135H Double Jeopardy 110XVII Evidence
135HIV Effect of Proceedings After Attachment 110XVII(R) Opinion Evidence
of Jeopardy 110k482 Examination of Experts
135Hk95 Mistrial or Recusal 110k485 Hypothetical Questions and
135Hk96 k. Consent or Fault of Accused. Answers
Most Cited Cases 110k485(1) k. In General. Most
(Formerly 110k183) Cited Cases
Where accused, after being put in jeopardy, consents Counsel who call a witness to give opinion evidence
to proceeding rendering a new trial necessary, he may frame his question on such hypothesis as he
cannot successfully claim immunity on the ground of thinks is reasonably warranted by the evidence.
the former jeopardy.
Criminal Law 110 485(1)
Double Jeopardy 135H 95.1
110 Criminal Law
135H Double Jeopardy 110XVII Evidence
135HIV Effect of Proceedings After Attachment 110XVII(R) Opinion Evidence
of Jeopardy 110k482 Examination of Experts
135Hk95 Mistrial or Recusal 110k485 Hypothetical Questions and
135Hk95.1 k. In General. Most Cited Cases Answers
(Formerly 110k184) 110k485(1) k. In General. Most
If one is put in jeopardy as to a criminal charge, the Cited Cases
jeopardy is subject to supersession where the ends of On the question of competency, an interrogatory to
justice require the jury to be discharged and another an expert is not to be condemned because not war-
to be impaneled. ranted by the viewpoint of the adverse counsel, but
each party may propound to witnesses such party's
Criminal Law 110 354 own hypothesis, leaving the weight of the answer to
the jury.
110 Criminal Law
110XVII Evidence Criminal Law 110 354
110XVII(D) Facts in Issue and Relevance
110k354 k. Insanity. Most Cited Cases 110 Criminal Law
Whether evidence of conduct of accused after the fact 110XVII Evidence
is admissible on the question of his insanity at the 110XVII(D) Facts in Issue and Relevance

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


126 N.W. 737 Page 5
143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
(Cite as: 143 Wis. 249, 126 N.W. 737)

110k354 k. Insanity. Most Cited Cases Criminal Law 110 789(4)


(Formerly 110k624)
After decision against the accused on special issue as 110 Criminal Law
to insanity, evidence of his mental condition is ad- 110XX Trial
missible only as bearing on the grade of his offense. 110XX(G) Instructions: Necessity, Requi-
sites, and Sufficiency
Criminal Law 110 662.40 110k789 Reasonable Doubt
110k789(4) k. Sufficiency of Instruc-
110 Criminal Law tions as to Proof Beyond Reasonable Doubt. Most
110XX Trial Cited Cases
110XX(C) Reception of Evidence Where the court instructs that the jury should acquit
110k662 Right of Accused to Confront unless they are satisfied beyond a reasonable doubt
Witnesses that accused is guilty, it sufficiently informs the jury
110k662.40 k. Use of Documentary that each juror should pass his own judgment on the
Evidence. Most Cited Cases evidence.
(Formerly 110k662(1))
The constitutional guaranty of the right of accused to Criminal Law 110 855(8)
meet the witnesses face to face does not extend to
official authenticators of official documents offered 110 Criminal Law
on the subject of the competency of a person pro- 110XX Trial
duced as a witness. 110XX(J) Issues Relating to Jury Trial
110k855 Misconduct of or Affecting Jurors
Criminal Law 110 740 110k855(8) k. Communication Be-
tween Jurors and Third Persons. Most Cited Cases
110 Criminal Law It is improper in the trial of a capital case to allow
110XX Trial communications between jurors and outside parties
110XX(F) Province of Court and Jury in unless strictly necessary and with knowledge of
General counsel on both sides.
110k733 Questions of Law or of Fact
110k740 k. Defense of Insanity. Most Criminal Law 110 855(8)
Cited Cases
Whether accused was afflicted with epilepsy, and 110 Criminal Law
whether the affliction was a mental disease which 110XX Trial
had impaired his mind so as to render him unable to 110XX(J) Issues Relating to Jury Trial
appreciate between right and wrong, are matters of 110k855 Misconduct of or Affecting Jurors
fact to be established by the evidence. 110k855(8) k. Communication Be-
tween Jurors and Third Persons. Most Cited Cases
Criminal Law 110 773(2) Careful isolation of a jury in a capital case so as to
avoid any suspicion of the result being characterized
110 Criminal Law by any improper influence is advisable.
110XX Trial
110XX(G) Instructions: Necessity, Requi- Criminal Law 110 895
sites, and Sufficiency
110k773 Insanity 110 Criminal Law
110k773(2) k. Sufficiency in General. 110XX Trial
Most Cited Cases 110XX(L) Waiver and Correction of Irregu-
It is not improper to instruct that experts have given larities and Errors
their opinions as to the sanity of accused, leaving it to 110k895 k. Defects and Objections Which
the jury to find the truth of the matter. May Be Waived or Cured in General. Most Cited
Cases

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


126 N.W. 737 Page 6
143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
(Cite as: 143 Wis. 249, 126 N.W. 737)

An accused is competent to waive irregularities and 230k29(2) k. Right to Waive Jury in


rights, whether constitutional or statutory, very much General. Most Cited Cases
the same as a party may in a civil action. Accused, except in a capital case, may waive the
right of a trial by a jury of 12 men competent to act as
Homicide 203 504 jurors.

203 Homicide Criminal Law 110 1153.12(2)


203I In General
203k504 k. Nature of Act or Omission Caus- 110 Criminal Law
ing Death. Most Cited Cases 110XXIV Review
(Formerly 203k2) 110XXIV(N) Discretion of Lower Court
Where one discharges a loaded gun in a direction 110k1153 Reception and Admissibility of
other than at a person who is killed by the bullet Evidence
glancing from another object, that one is yet guilty of 110k1153.12 Opinion Evidence
homicide if he knew, or ought to have known, that 110k1153.12(2) k. Competency of
his conduct was dangerous to human life. Witness. Most Cited Cases
(Formerly 110k1153(2))
Jury 230 24.2 The decision of the trial court on the question of
competency of an expert will not be disturbed unless
clearly wrong, and it is evident that, had the error not
230 Jury
occurred, the result of the trial might have been more
230II Right to Trial by Jury
favorable to the complaining party.
230k20 Criminal Prosecutions
230k24.2 k. Other Particular Proceedings.
Most Cited Cases Criminal Law 110 1163(1)
(Formerly 230k21(6))
One charged with a criminal offense is entitled under 110 Criminal Law
Const. art. 1, §§ 5, 7 (W.S.A.), and St.1898, §§ 4679, 110XXIV Review
4697, to a trial by a jury of 12 men selected from the 110XXIV(Q) Harmless and Reversible Error
county where the crime is claimed to have been 110k1163 Presumption as to Effect of Error
committed, and to have all issues, including that of 110k1163(1) k. In General. Most Cited
insanity, tried in such county and by the one jury. Cases
Error cannot be regarded as harmful so as to require
Jury 230 29(2) reversal, unless within reasonable probabilities, had
the error not occurred, the result might have been
materially more favorable to the one complaining of
230 Jury
it.
230II Right to Trial by Jury
230k27 Waiver of Right
230k29 In Criminal Cases Divorce 134 172
230k29(2) k. Right to Waive Jury in
General. Most Cited Cases 134 Divorce
The right to a jury trial in the county of the offense 134IV Proceedings
and to have all the issues tried before a single jury are 134IV(N) Judgment or Decree
subject to waiver by accused. 134k172 k. Conclusiveness of Adjudica-
tion. Most Cited Cases
Jury 230 29(2) A judgment of divorce is conclusive on the world as
to the status of the parties, single as to each other, but
does not settle the status of their prior relations so as
230 Jury
to render them valid, whether they were so in fact or
230II Right to Trial by Jury
not.
230k27 Waiver of Right
230k29 In Criminal Cases

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


126 N.W. 737 Page 7
143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
(Cite as: 143 Wis. 249, 126 N.W. 737)

Witnesses 410 63 September term of the circuit court of Winnebago


county and brought to *740 trial at such term on the
410 Witnesses 14th day of December, 1908, at 2 p. m. That a jury be
410II Competency summoned upon a special venire for the trial of said
410II(A) Capacity and Qualifications in Gen- cause. And the court to fix a time for hearing the ar-
eral gument on the motion to set aside the verdict ren-
410k51 Husband and Wife dered on the insanity plea and granting a new trial,
410k63 k. Effect of Invalidity of Mar- which motion is to be heard before the Honorable
riage. Most Cited Cases Geo. W. Burnell, the presiding judge at this trial at
The rule precluding a husband or wife from being a Oshkosh, Winnebago county, Wis., upon notice by
witness for or against each other, or from disclosing the court to both parties, which motion is to be passed
confidential communications, contemplates the exis- upon and argued before the 14th day of December,
tence of valid marriage. 1908.”

The plaintiff in error was informed against as having, Accordingly the jury were discharged, an order
on the 19th day of May, A. D. 1908, at the town of changing the place of trial was entered, and, in due
Amberg in Marinette county, Wis., feloniously and course, the cause was brought on to be heard in Win-
with premeditated design, killed one Louis Tobaltz. nebago county. Whereupon counsel for the accused
Such proceedings were duly had that he was placed moved the court for an order setting aside the verdict
on trial on a plea of not guilty and a special plea of on the special issue and for a new trial thereof, as-
insanity. A verdict was duly rendered on the special signing various reasons, all of which related to error
issue in favor of the state. Before there was opportu- claimed to have been committed on the former trial.
nity to proceed with the trial on the general issue, the No point was made, at first, to the effect that the dis-
circuit judge was constrained to believe it was neces- charge of the jury in Marinette county opened up the
sary for him to suspend the trial and discharge the special issue for a retrial. All grounds for the motion
jury because of the serious illness of his wife at the were upon the theory that the verdict was to be
family home in Oshkosh, Winnebago county. Coun- treated the same as if the whole case had been tried in
sel on both sides recognizing that such emergency Marinette county and a motion made there for an
existed, entered into a stipulation, as follows: order vacating the result and granting a new trial be-
cause of errors committed on the trial of the special
issue. The motion was denied. Thereupon the ac-
“It is hereby expressly stipulated that the jury now
cused, by his attorney, consented to further submit to
impaneled which has tried the issue of insanity and
the jurisdiction of the court only upon condition of
now is in the custody of the officer shall be dis-
the whole case being regarded as open for trial the
charged from further consideration of the case, that
same as if nothing had occurred in Marinette county
the place of trial and venue of the action be changed
regarding the special issue. The court adhered to the
from Marinette county to Winnebago county, Wis.,
opinion that the trial in Marinette county was conclu-
the defendant expressly requesting such change and
sive as to the special issue, leaving only the general
waiving any irregularity in not proceeding with the
issue of not guilty to be tried on the change of venue,
issue of not guilty at this time and place, reserving
the same as if the trial of such issue had been pro-
however the right to move the court to set aside the
ceeded with in Marinette county after the verdict on
verdict and grant a new trial upon the insanity issue
the special issue. Thereafter a plea of former jeopardy
heretofore tried in this county and at this term, that
was interposed, the claim being that the jeopardy
the argument on said matter be taken up before the
created by the proceedings in Marinette county had
Honorable Geo. W. Burnell, the presiding judge, at
not been conclusively waived or superseded; that the
such time and place as he may direct. Further stipu-
consent to discharge the first jury was upon the the-
lated that the state may have the privilege of intro-
ory that the one to be impaneled in Winnebago
ducing the testimony of such witnesses as given upon
county would take the case where the first jury did,
the trial of the insanity plea as they may see fit, sub-
not where it left off; that such was the effect of the
ject to the objections entered and the objections as to
written agreement; and that, by the court refusing to
its competency, relevancy and materiality, that the
so administer it, defendant was entitled to efficiently
cause may be placed on the calendar of the present
claim his constitutional right of immunity from being

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


126 N.W. 737 Page 8
143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
(Cite as: 143 Wis. 249, 126 N.W. 737)

again placed on trial.


The court on the main issue, among other things,
The plea of former jeopardy was overruled. Under informed the jury of the result of the trial of the spe-
protest by the accused, that further proceedings were cial issue and that such result settled the question of
erroneous and illegal because of a former jeopardy, whether the accused was insane at the time of the
as claimed in the plea, he was, in due form, placed on shooting, against him, but that evidence of impair-
trial upon the plea of not guilty. ment of his mind, not amounting to legal insanity,
was to be considered on the question of whether, if
The evidence was to this effect: Prior to the date of the accused was guilty of having committed a crimi-
the alleged homicide, the accused with his child and a nal homicide, it was characterized by the element of
woman purporting to be his wife, resided in the vil- premeditated design to effect the death of Tobaltz,
lage of Amberg, Marinette county, Wis. He did not essential to the full offense charged; that of murder in
live happily with the woman. He was quite jealous of the first degree.
her because, among other things, of her supposed
improper relations with Louis Tobaltz. On the eve- The trial resulted in a verdict of murder in the second
ning before the homicide he locked the door of his degree and judgment was duly pronounced.
house against her so she could not gain entrance
thereto upon her return after an absence of some less The points saved for consideration on review by this
than an hour. The next morning she entered the house court and so presented as to require*741 considera-
through a door left unlocked by a boarder upon his tion, so far as they seem to have sufficient warrant to
leaving for his day's duties. A short time thereafter, require special discussion and decision, will be
the accused, taking his rifle and revolver, coerced her treated in their order.
to precede him to the working place of Tobaltz. Such W. B. Quinlan (Daniel H. Grady, of counsel), for
place being closed the journey was continued to the plaintiff in error.
place where Tobaltz resided. She then, at the defen-
dant's command, rapped at the door. Thereupon To- F. L. Gilbert, Atty. Gen., and A. C. Titus, Asst. Atty.
baltz appeared but upon observing the accused with Gen. (John O. Miller, of counsel), for the State.
gun in hand he attempted to retreat into the house,
and close the door before him and the accused. At
that instant the accused pointed and discharged his MARSHALL, J. (after stating the facts as above).
rifle in the direction of Tobaltz whose position was
such that the shot passed through the door and struck The Constitution (section 5, art. 1) guaranteed the
the latter, severing the main artery of one arm, from inviolability of the existing right of trial by jury; that
the effect of which he died in a short time. As the is, that it should continue as before the formation of
fatal wound was inflicted, the door swung inward and the Constitution. So the fundamental law contem-
Tobaltz staggered backward, exclaiming, “I am shot,” plates a trial of all the issues in a criminal case before
the accused exclaiming in reply, “Yes, come out here an impartial jury of 12 men, selected in the manner
and I will shoot you again.” Immediately, or soon, provided by law from the vicinage where the crime
thereafter, he used harsh language toward the woman was committed; that is of the previously ascertained
and expressions indicating that he was in a frame of jurisdiction within which the offense occurred. In
mind to shoot her. Later he claimed his conduct was harmony with that, section 7, art. 1, of the Constitu-
caused by improper relations between her and To- tion, provides that “in all criminal prosecutions the
baltz, confessed by her to him on the morning after accused shall enjoy the right to * * * a speedy public
her aforesaid absence from the house, and preceding trial by an impartial jury of the county or district
his starting out to meet Tobaltz. wherein the offense shall have been committed;
which county shall have been previously ascertained
On the insanity issue there was much evidence tend- by law.” In harmony with both these constitutional
ing to show that the accused was afflicted with epi- provisions the statutes regulating the trial of criminal
lepsy, the claim being that it, and other derange- causes where the defense of insanity is interposed,
ments, had affected his mind so as to render him irre- provides for a trial of such issue and the general issue
sponsible for the homicide. of not guilty as well before a single jury. Sections
4679, 4697, St. 1898.

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126 N.W. 737 Page 9
143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
(Cite as: 143 Wis. 249, 126 N.W. 737)

supra.
That defendant has, as indicated, a constitutional
right to have all the issues in his case, including any So it follows that it was competent for the accused, in
special issue of fact, particularly as to his sanity, tried this case, to bind himself by a waiver of the right to a
before a single common-law jury of 12 impartial men full trial, or any trial, in Marinette county, unless the
of the county where the crime shall have been com- statutory provisions contemplate a waiver in a par-
mitted, has always been recognized in the jurispru- ticular way and upon particular grounds, excluding
dence of this state. Gaston v. Babcock, 6 Wis. all others, creating a disability, if none existed, oth-
503;Bennett v. State, 57 Wis. 69, 14 N. W. 912, 46 erwise, to make a binding waiver upon other grounds
Am. Rep. 26;Schissler v. State, 122 Wis. 365, 99 N. and in other ways. It goes without saying that the
W. 593. It follows that the trial in this case of the statute makes no provision for a change of venue in a
special issue in Marinette county before one jury and criminal case for the reason or in the manner the one
of the general issue of not guilty in Winnebago occurred in this case. Does the constitutional guar-
county before a second jury, was illegal, as claimed anty, or the statute, or both, create a disability in that
by counsel for the accused, unless he could and did regard? Those questions are now involved.
waive his constitutional right to have the whole case
submitted to one jury in one county. The circuit courts of this state are courts, under the
Constitution, of very extensive jurisdiction. Each is a
The Constitution makes no provision for a change of court for the whole state, restricted, however, some-
venue in a criminal case, so any such change must be what in its activities as to taking jurisdiction in invi-
referable to some statute which is in harmony with tum, but not by consent. The circuit court for Winne-
the guaranteed right, unless such right may be bago county had jurisdiction of such subjects as that
waived. French v. State, 93 Wis. 325, 67 N. W. 706. involved in this case, and must be held to have had
The Statutes, at section 4680, provide for a change of jurisdiction of the subject-matter of the particular
venue in specified circumstances upon application of cause of action, if it came to the court in a permissi-
the accused. That contemplates competency to waive ble way. The question of competency of the accused
the constitutional right by invoking the statutory to waive his right to be tried before a single jury, and
privilege to a change and has been held valid on the his competency to waive his right, as it is claimed he
ground of such competency in fact existing. The idea did, to a trial by such jury in Winnebago county, may
is that the trial must be held in the county where the be treated together.
crime shall have been committed, unless changed
upon application of the defendant ( Wheeler v. State, The doctrine of waiver, as applied to a criminal case,
24 Wis. 52;Bennett v. State, 57 Wis. 69, 75, 14 N. W. is a very broad one--quite as broad as in civil cases. It
912, 46 Am. Rep. 26), and as the right to a change is applies to constitutional as well as statutory rights.
purely statutory, unless it is invoked upon the terms Emery v. State, 101 Wis. 627, 645, 78 N. W.
and in the manner provided by the statute, it does not 745;Lowe v. State, 118 Wis. 641, 96 N. W.
exist at all. French v. State, supra. 417;Stoddard v. State, 132 Wis. 521, 112 N. W.
453;Hack v. State, 124 N. W. 493.
It must be observed that the decisions referred to
deal, mainly, with constitutional and statutory rights, An examination of the cited cases will show that no
so when it is said that the “right to a change of venue limit has yet been found in this *742 court to the
depends entirely upon the statute” and “can be had competency of an accused person in a criminal case
only” as the statute provides, that means can be had to waive irregularities or rights, except the single
only as a matter of right, not that it cannot occur by instance, one of disability, in a capital case to waive
consent, the accused waiving his right. the right of trial by 12 jurors: Jennings v. State, 134
Wis. 307, 114 N. W. 492, 14 L. R. A. (N. S.) 862,
As indicated, the very idea of the statute contem- following the early case of State v. Lockwood, 43
plates a constitutional privilege of an accused person Wis. 403, decided before the doctrine of waiver had
to waive his right of trial in the particular county. It attained the recognition which it has in recent years.
must not be lost sight of that the statute respecting a In the judgment of the writer, the exception men-
change is valid only on that ground. Bennett v. State, tioned would not be made now if the court were per-

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126 N.W. 737 Page 10
143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
(Cite as: 143 Wis. 249, 126 N.W. 737)

mitted to treat the matter from an original standpoint. for such further proceedings as might be necessary to
In Okershauser v. State, 136 Wis. 111, 116 N. W. conclude it in Winnebago county. Did he do so with
769, it was said that the rule of State v. Lockwood, the understanding that such further proceedings
supra, should not be extended, and that was emphati- would, necessarily, include a retrial of the special
cally affirmed in Hack v. State, supra. The saying in issue before the second jury, or only in case of the
Emery v. State, supra, that the trend is in favor of the verdict on the special issue, on motion made in Win-
doctrine that a party in a criminal case may waive nebago county, being set aside for error?
irregularities and even rights very much the same as
in a civil case, Judicia posteriora sunt in lege fortiora, Looking solely to the stipulation for the change of
has been many times significantly illustrated in recent venue, in connection with what was done under it, it
years. Constitutional rights have been held waivable seems that the understanding of all the parties, when
in common with mere irregularities. The instances they signed the agreement, was that the trial in Win-
are very numerous. The cases cited are a few of the nebago county would be taken up before a second
many. jury in the condition in which it was left when the
verdict of the first jury on the special issue was re-
In Bennett v. State, 57 Wis. 69, 14 N. W. 912, 46 corded. The meaning of this language seems quite
Am. Rep. 26, it was held that a party in a criminal clear: “The jury now impaneled which has tried the
case, irrespective of any statutory authorization, and issue of insanity * * * shall be discharged [and] the
in addition thereto, may waive constitutional rights. place of trial and venue of the action shall be changed
In Re Staff, 63 Wis. 285, 23 N. W. 587, 53 Am. Rep. from Marinette county to Winnebago county, Wis-
285, it was remarked that any right secured by sec- consin, the defendant expressly requesting such
tion 7, art. 1, of the Constitution, to an accused per- change and waiving any irregularity in not proceed-
son may be waived by him without authority of stat- ing with the issue of not guilty at this time and place,
ute, as has often been judicially determined, except reserving however the right to move the court to set
the right of a trial by jury. Many illustrations are aside the verdict and grant a new trial upon the insan-
given of sustained waivers of constitutional rights, ity issue. * * *” Other language as plainly suggested
among them waiver of the right to a trial in the a new trial of the whole case only upon the verdict on
county of the alleged offense and consent to a trial in the insanity issue being set aside for cause. Do not
a county hundreds of miles distant therefrom. Some the words “in not proceeding with the issue of not
regret seems to be there expressed because the court guilty at this time and place” by necessary inference
was not untrammeled, as was the court in Iowa, to suggest that the next thing to be done in the case was
recognize that competency to waive extended even to the trial of that issue, subject to the reserved right to
a jury trial, the court saying that, even in such field, challenge in Winnebago county, for cause, the valid-
the right is not so sacred but that it may be waived by ity of the verdict rendered on the special issue, the
legislative consent, thus holding that the question of same as it might have been in the latter county before
whether an accused person, in such field, may be the stipulation was made? It seems so to us. More-
bound by waiver, is a matter of public policy rather over, we should feel sure that the learned counsel for
than constitutional disability. plaintiff in error so understood the stipulation, when
the case was brought on for a hearing in Winnebago
So it seems to follow, logically, that it was competent county, in the absence of his protest that he did not.
for the plaintiff in error to waive his right to a full No claim was at first made that the partial trial in
trial in Marinette county and his right to a trial before Marinette county was superseded by the stipulation
a single jury as well; to waive all things done, out of and that what had occurred under it, so as to open up
the ordinary, resulting in his conviction, which it is the case for trial in the whole. An ordinary motion
claimed affected fatally such conviction. Whether the was made, as might have been done in Marinette
waivers occurred or not depends upon the meaning of county before the jury there were discharged, for an
the stipulation. There is no controversy but what the order vacating the verdict for error. That motion
accused waived any further proceedings before the treated the verdict already rendered, binding, so far as
first jury after the verdict was rendered on the special it went, unless the court should set it aside for some
issue, and waived any further trial in Marinette ground of error suggested.
county, and all objections to the case being taken up

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126 N.W. 737 Page 11
143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
(Cite as: 143 Wis. 249, 126 N.W. 737)

Again, when the plea of former jeopardy was inter- the court held:
posed, consent was incorporated therein to stand by
the stipulation. There, for the first time, so far as the “Courts of justice are invested with authority to dis-
record shows, it appears that a claim was made that charge a jury from giving any verdict, whenever in
the stipulation secured to the accused a new trial of their opinion, taking all the circumstances into con-
the special issue, regardless of whether *743 fatal sideration, there is a manifest necessity for the act, or
error was committed upon the first trial. The lan- the ends of justice would otherwise be defeated, and
guage does not suggest that the result of the first trial to order a trial by another jury; and that the defendant
was necessarily superseded by the mere circumstance is not thereby twice put in jeopardy. * * *”
of the suspension of the proceedings till again taken
up before another jury in another county. It suggests Under the foregoing it is considered that upon the
that there was a stipulation, not for leave to move for emergency occurring, which in the judgment of the
a new trial of the special issue, or merely reserving trial court and counsel upon both sides rendered fur-
the right to so move, but for a new trial of such issue, ther proceeding with the case for a considerable pe-
and the court had lost jurisdiction by denying it, ren- riod of time practically impossible, it was within the
dering the accused competent to plead the former competency of the court to supersede the jeopardy
partial trial as a jeopardy not waived, and so preclud- existing and discharge the jury, and certainly within
ing a second jeopardy. The idea expressed in the plea, such competency, the accused consenting. So there
“the defendant now offers to submit to a trial of said was no former jeopardy existing when the trial was
special insanity plea under and pursuant to the stipu- called in Winnebago county, interfering with the trial
lation,” the trial court was unable to discover was in of the issue of not guilty before the second jury. The
the stipulation, in letter or spirit, and we are likewise accused was a party to the agreement creating the
unable. The plea did not attempt to withdraw from conditions rendering it competent for the court to
the stipulation. It merely claimed for it, seemingly as proceed with such trial. He was competent to bind
a last resort, a meaning not found to be therein by the himself to submit to the trial as it was had by signing
court nor by this court. If the learned counsel in- the stipulation after rendition of the verdict on the
tended to incorporate such meaning in the paper, the special issue. He could not without permission of the
words chosen to express it were most unfortunately court have withdrawn from such stipulation. He made
selected. no attempt to withdraw therefrom, but only claimed
therefor a different meaning than seems to have been
It follows that the right of trial before a single jury of incorporated therein.
and in Marinette county, was not only effectually
waived by the accused, but the jeopardy created by We are unable to agree with counsel for plaintiff in
the partial trial in such county was waived by the error that the evidence established insanity as a mat-
consent to discharge of the first jury and conclusion ter of law. We are rather constrained to believe that
of the trial before another jury in another county. the jury were well warranted in reaching the conclu-
sion that there was no reasonable doubt but that the
It is elementary that, if though an accused person accused was sane, in the legal sense, at the time of
once enters jeopardy he consents, expressly or by the homicide. Therefore, the court properly refused to
necessary inference, to its being superseded, he may direct a verdict in favor of the accused on the special
again be placed in jeopardy without any violation of issue.
his constitutional protection against being so placed
twice. Moreover, it is quite elementary that after We are unable to discover any prejudicial ruling on
jeopardy has been entered it is subject to necessary objections to questions propounded to experts who
suspension without a formal verdict where the ends testified upon the special issue. It is suggested that
of justice, under the circumstances would otherwise the trial court ruled on such objections upon the the-
be defeated if it was not competent to suspend the ory that it was competent for a party calling an expert
trial, discharge the jury and later impanel a second to propound to him and have answered hypothetical
jury. State v. Crane, 4 Wis. 400; Benedict v. State, questions, omitting or including at pleasure matters
14. Wis. 423; Thompson v. United States, 155 U. S. covered by the evidence, leaving the weight of re-
271, 15 Sup. Ct. 73, 39 L. Ed. 146. In the federal case sponses to abide the judgment of the jury under all

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126 N.W. 737 Page 12
143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
(Cite as: 143 Wis. 249, 126 N.W. 737)

the circumstances. Counsel gathered that idea be- on either side. They have been examined in detail
cause of the court having remarked in overruling an without discovering prejudicial error within the rules
objection, “The counsel has framed his own hypothe- stated.
sis; he is not obliged to take the hypothesis of the
other, and if there are any assumptions in the ques- The reputed wife of the accused was called as a wit-
tion which are not proven by the evidence, why to ness and to show her competency the record of a di-
that extent it destroys the value of the answer.” True, vorce action in a court of competent jurisdiction, and
the counsel calling an expert has a right to frame his authenticated so as to be admissible as evidence un-
own hypothesis, but just as true it should be one rea- der ordinary circumstances, was offered and received
sonably covering an entire supposed situation accord- for the purpose of showing that the purported mar-
ing to the evidence. It should include, from a reason- riage of the witness with the accused was within one
able viewpoint, all elements disclosed by the evi- year after he was divorced from a former wife and so
dence bearing on the precise point to which the ex- was illegal under Lanham v. Lanham, 136 Wis. 360,
pert's attention is directed. But the viewpoint is that 117 N. W. 787, 17 L. R. A. (N. S.) 804, 128 Am. St.
of the interrogator, not of the adversary attorney. Rep. 1085. It must be conceded that if the marriage
True, as the court said, whether the facts assumed for occurred as suggested, it was invalid, but it is claimed
the purposes of the question are true in fact, is for the that it was not competent to prove the record by certi-
jury to determine and in the case of a determination fication, in that such method violated the constitu-
adverse to the questioner, to that extent it destroys the tional right of the accused to meet the witnesses face
value of the answer. Really, we are unable to see the to face.
meaning in the court's language which counsel attrib-
utes to it. Rightly understood, we do not see any dif- The witness sworn was the only one whose compe-
ficulty with it. It means that the *744 questioner had tency was legitimately in question. That witness de-
a right to state to the witness a hypothesis, reasonable fendant met face to face. The person upon whose act
from his viewpoint, subject to the judgment of the the requisite character of the certified copy depended,
court, on the question of competency, as to whether it was not a witness against the accused in the constitu-
was reasonable from such point though it might ap- tional sense. At most, he was a witness on the ques-
pear not so from an adversary situation. It must be tion of the competency of the purported wife to be a
assumed, from aught appearing in the record, that, in witness in the case. The question is rather new, but,
testing questions objected to for competency, the logically, it seems that the constitutional right does
court considered them with reference to whether they not extend so far as to preclude the use of duly au-
were justified by all the evidence and included, in a thenticated copies of public records on a criminal
reasonable view of the case, all elements bearing on trial for the mere purpose of establishing, on the issue
the precise subject of inquiry. That is all the rules before the court of competency, the right of a witness
require as this court has held. Schissler v. State, 122 to testify.
Wis. 365, 373, 99 N. W. 593. In such field a trial
judge has much latitude. The decision cannot prop-
erly be disturbed unless it is manifestly wrong and To meet the evidence as to the competency of Mrs.
also prejudicial to the extent that if the error had not Oborn, so called, to testify, counsel for the accused
been committed the result of the trial might, within offered in evidence the original record of a divorce
reasonable probabilities, have been different. This action wherein, subsequent to the time of the pur-
doctrine, as to rulings of trial courts on mere ques- ported marriage, she was divorced from him. Counsel
tions of competency, follows from the general rule contended that the judicial treatment of the relations
that determinations of such courts on matters of fact between the parties at the time of such divorce judg-
are to be taken as verities unless manifestly wrong, ment, as those of husband and wife, in effect, judi-
and the rule of the Code that errors however numer- cially established such to be their status, till changed
ous shall be regarded as inconsequential, unless it by such judgment. The record, as the court remarked,
appears that they were in fact prejudicial, in that they negatived the fact that the parties entered into a mar-
may reasonably have led to a materially different riage contract subsequent to the void marriage, be-
result than otherwise would have occurred. These cause such void marriage was the one, according to
general observations sufficiently answer the assign- the finding, the action was brought, and the judgment
ments of error as to questions propounded to experts purported, to dissolve. It seems that the mere treat-

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126 N.W. 737 Page 13
143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
(Cite as: 143 Wis. 249, 126 N.W. 737)

ment of the parties as man and wife in the divorce From the foregoing it is obvious that it must be, not
action, and judicial dissolution of their purported only a case of plain error, but prejudicial error, not
relations, did not make the void marriage valid. It prejudicial in the ancient sense of legal presumption
merely established the status of the parties toward of prejudice from the mere commission of error, but
each other as judicially separated and absolved from prejudicial as a fair inference of fact, to justify a
all obligations of a marital nature existing between court, upon review, in condemning a mistake in re-
them. The action was not to establish the status of the spect to rulings on the admission of evidence of acts
parties to be that of man and wife. Had that been the of a person after the fact bearing on his mental condi-
purpose of the action it would have been binding tion at the time thereof, or even finding that mistake
generally. The action and the result, dissolving any of any sort was made. The alleged error in question
existing marital relations between the parties, did not, falls well outside of that field.
as to the public generally, establish such relations to
be such as the parties claimed for them. So far as the The court was requested, on behalf of the accused, to
action was in rem the res was the condition of subse- instruct the jury to the effect that though the accused
quent singleness as to each other, not valid prior exis- at the time of the homicide had sufficient mental ca-
tence of marital relations. pacity to enable him to know and appreciate the
wrong of his act, yet he was legally insane, if by im-
So it seems that upon all the evidence before the paired will power, resulting from an abnormal condi-
court on the question of competency, the witness tion, he was unable to resist the impulse to do the
never in fact became the wife of the accused and so deed. That was refused. It was, as claimed, good law
was competent to testify when she was called for that according to some authorities, particularly Plake v.
purpose. State, 121 Ind. 433, 23 N. E. 273, 16 Am. St. Rep.
408. It is condemned, however, by numerous deci-
Complaint is made because the court excluded evi- sions in this state, notably State v. Wilner, 40 Wis.
dence of the appearance of the accused some time 304;Bennett v. State, 57 Wis. 69, 14 N. W. 912, 46
after the homicide and while he was confined in jail, Am. Rep. 26;Butler v. State, 102 Wis. 364, 366, 78
during a period when he was afflicted, as said, with N. W. 590;Eckert v. State, 114 Wis. 160, 163, 89 N.
an epileptic disturbance. There is no doubt but what W. 826;Lowe v. State, 118 Wis. 641, 660, 96 N. W.
actions of a person, within reasonable limitations, 417;Schissler v. State, 122 Wis. 365, 99 N. W. 593,
after a homicide committed by him, as well as before, though it must be admitted that in one of them, at
may be competent on the question of sanity. This least, language was used approving some such idea as
court has distinctly so held. French v. State, 93 Wis. at least not harmful error because of its liberality to
325, 338, 67 N. W. 706. But as there said evidence of the accused. The test declared in those cases is the
such subsequent conduct is not necessarily admissi- well-known knowledge of right and wrong test.
ble. Whether it is so, is within the field of compe-
tency, where, as before indicated, a wide range of The term “insanity,” as used in the special plea in a
judgment is permitted and error of judgment is re- criminal case, means such abnormal mental condi-
garded as inconsequential, unless it appears that it tion, from any cause, as to render the accused at the
may probably have materially affected the result. In time of committing the alleged criminal act, incapa-
such a situation as that presented to the court here, ble of distinguishing between right and wrong and so
the remoteness of time, the situation and surround- unconscious at the time of the nature of the act which
ings and many other things bearing on whether the he is committing, and that commission of it will sub-
incidents inquired *745 about had such relation to the ject him to punishment.
defendant's condition of mind at the time of the
homicide, or such relation as to render the evidence True, as indicated, there are things in some of the
of any real substantial probative force in any reason- cases liable to lead to the belief that legal insanity
able view of the case, all had to be considered. Such a may exist if, though the person be fully conscious of
matter, as said in French v. State, supra, is addressed the wrong and its punishable character, he, because
“in the first instance, to the sound discretion of the of a perverted mind is moved by an uncontrollable
trial court.” impulse. For instance, such theory was incorporated
into the charge in Butler v. State, supra, in connection

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126 N.W. 737 Page 14
143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
(Cite as: 143 Wis. 249, 126 N.W. 737)

with and as an addition to the statement that legal lar act he is then doing,--a knowledge and conscious-
insanity means such a perverted and deranged condi- ness that the act he is doing is wrong and criminal
tion of the mental and moral faculties as to render a and will subject him to punishment. In order to be
person incapable of distinguishing between right and responsible, he must have sufficient power of mem-
wrong. That was approved, really, as not prejudicial, ory to recollect the relation in which he stands to oth-
since it was the doctrine most favorable to the ac- ers, and in which others stand to him; that the act he
cused and one announced in a famous case referred is doing is contrary to the plain *746 dictates of jus-
to. We will say, however, that the instruction given in tice and right, injurious to others, and a violation of
such case does not possess the dignity of having been the dictates of duty. On the contrary, although he may
approved by ultimate authority. Whether a refusal to be laboring under partial insanity, if he still under-
give the element so said to be most favorable to the stands the nature and character of his act and its con-
accused would have been regarded as fatal error, was sequences; if he has a knowledge that it is wrong and
not stated. criminal, and a mental power sufficient to apply that
knowledge to his own case, and to know that, if he
In Lowe v. State, supra, the giving of such so-called does the act, he will do wrong and receive punish-
most favorable rule was held not error, to the preju- ment,--such partial insanity is not enough to exempt
dice of the accused upon authority of Butler v. State, him from responsibility for criminal acts.”
supra; Eckert v. State, supra, being also referred to. In
that case complaint was made because the trial court Consistent with that view, in the more recent case of
in the charge preserved throughout, as the dominating Schissler v. State, supra, it was held that the trial
feature, the idea that “if the defendant at the time of court did not unduly restrict the test of insanity by
the homicide, had sufficient mind to know right from impressing upon the jury the idea that the accused
wrong and understand the nature and quality of the was legally sane at the time he did the act if he was
act he was committing, then that he was sane in the then capable of realizing the nature and quality of the
law,” and that was unqualifiedly approved as a cor- act, or that the act was wrong. The following instruc-
rect statement of the law. True, it was said to be tions were approved as the correct statement of the
“fully justified by and that it in fact closely followed law:
what was said in Butler v. State.” Consistency re-
quires us to hold that it follows what was stated to be “The term ‘insanity’ as used in the special plea and
the rule rather than the most liberal rule. Whether the issue of insanity made by the defendant, means such
former or the latter was technically the correct rule, perverted condition of the mental and moral faculties
was not stated in Butler v. State. as to render the person incapable of distinguishing
between right and wrong, or unconscious at the time
That there is a wide distinction between the two rules of the nature of the act he is committing.”
seems plain. The so-called most liberal rule recog-
nizes existence of legal insanity notwithstanding ca- “If you find from the evidence that at the time of the
pability to distinguish between right and wrong and alleged commission of the offense the defendant was
consciousness of the wrongfulness of the particular suffering from mental aberration or sickness of mind
act. The other does not. This court in Eckert v. State, produced by any cause, and by reason thereof his
supra, clearly reaffirmed the latter to be the correct judgment, memory, and reason were so perverted that
rule. That is unmistakable because the court referred he did not realize the nature and quality of the act he
to the language of Chief Justice Shaw in was doing, or that he did not realize that it was
Commonwealth v. Rogers, 7 Metc. (Mass.) 501, 41 wrong, you must find that he was insane, and for that
Am. Dec. 458, as having become the reliable classic reason not guilty.”
on the subject and incorporated into the text-books so
as to be recognized, generally, as elementary. The It is not without interest in the historical review of the
following is the language: subject under discussion, that in neither of the later
cases were the earlier ones of State v. Wilner, de-
“A man is not to be excused from responsibility if he cided in 1876, and Bennett v. State, decided in 1883,
has capacity and reason sufficient to enable him to referred to. In both the consciousness of right and
distinguish between right and wrong as to the particu- wrong test was regarded as the correct one. In the

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126 N.W. 737 Page 15
143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
(Cite as: 143 Wis. 249, 126 N.W. 737)

latter case, except for other language in the charge


considered, covering an additional unwarranted ele- Many foreign judicial illustrations might be given
ment, this was approved: supporting the foregoing stated doctrine of this court.
It is in harmony with the common law as indicated by
“If the evidence satisfies you that, at the time when a multitude of English decisions and all text-books. It
he killed Dr. Hogle, the defendant was laboring under is denominated, for brevity, by some of the latter as
such a defect of reason from disease of the mind as the “right and wrong test.” In Bellingham's Case,
not to know the nature and quality of the act he was reported in Collinson on Lun. 650, Lord Mansfield
doing; * * * then you should find that he was insane.” charged the jury that:

That definite declaration of the correct rule is some- “The single question for them to determine was
what involved by a brief quotation, in discussing lan- whether (the accused) when he committed the offense
guage condemned, from Ortwein v. Commonwealth, charged upon him, he had sufficient understanding to
76 Pa. 421, 18 Am. Rep. 420. The quotation, it distinguish between good from evil, right from
should be remembered, was from that portion of the wrong; and that murder was a crime, not only against
charge of the trial court respecting whether the ac- the law of God, but against the law of his country.”
cused was sufficiently sane to commit murder in the That test of power to distinguish between right and
first degree, not whether he was wholly irresponsible. wrong, so formulated by Lord Mansfield, is in sub-
The court said that one's criminal responsibility ex- stantial harmony with English authorities as far back
ists, to some extent, so long as his perception be- as 1706, at least, and is said to have ever since been
tween right and wrong exists. followed in England “as the only one to mark the line
between sanity and insanity, responsibility and irre-
Thus it will be seen that one should not be misled sponsibility.” Lawson on Insanity as a Defense to
into the belief, from the approval in Butler v. State, Crime, p. 552.
supra, of a stated test of insanity as being a correct
formulation of the most liberal rule, and that the giv- In McNaughten's Case, 10 Cl. & F. 200, which is a
ing of it cannot be efficiently complained of by an leading English authority at the present day, it was
accused person, that such most liberal rule is the cor- held that if the accused *747 was conscious that the
rect rule, or that it ought to be given in any case, or act was one which he ought not to do, and if the act
that the rule, eliminating the element which would was at the same time contrary to law he was punish-
dignify it as the most liberal, is not the correct one in able, he was legally sane. Lawson on Insanity as a
fact. This court is not committed to the doctrine that Defense to Crime, p. 231. That has been adopted in
one can successfully claim immunity from punish- the great majority of state and federal courts, while
ment for his wrongful act, consciously committed moral insanity, or irresistible impulse accompanied
with consciousness of its wrongful character, upon by consciousness of right and wrong doing, as legal
the ground that, through an abnormal mental condi- insanity, has been recognized in but a very few juris-
tion, he did the act under an uncontrollable impulse dictions, and in some of them not consistently. Those
rendering him legally insane. One, at his peril of pun- ideas are spoken of, rightly, as dangerous and as hav-
ishment, commits an act while capable of distinguish- ing taken hold most firmly in Kentucky.
ing between right and wrong, and conscious of the
nature of his act. He is legally bound, in such circum- In United States v. Shults, 6 McLean, 121, Fed. Cas.
stances, to exercise such self-control as to preclude No. 16,286, the law was very tersely stated thus:
his escaping altogether from the consequences of his
act on the plea of insanity, though his condition may “If * * * defendant in violating the mail knew he was
affect the grade of the offense. Thus far the charity of doing wrong and that he was liable to punishment for
the law goes and no farther. As said in Flanagan v. the act, he is a proper subject for punishment.” With
People, 52 N. Y. 467, 11 Am. Rep. 731, as epito- like commendable brevity, it is said in United States
mized in the syllabus: “The law does not recognize a v. Young (D. C.) 25 Fed. 710, for a syllabus:
form of insanity in which the capacity of distinguish-
ing right from wrong exists without the power of
choosing between them.” “The legal test of the accountability of a criminal for
his acts is his mental ability, at the time of the com-

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126 N.W. 737 Page 16
143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
(Cite as: 143 Wis. 249, 126 N.W. 737)

mission of the crime, to discriminate between right is doing and that it is wrong, renders him legally
and wrong, with respect to the offense charged.” sane. We should say, in passing, that the written law
remains the same in New York as it was at the time
That was referred to in the opinion as the “famous of such suggestion in 1893.
‘knowledge of right and wrong test’ adopted by the
court after long discussion and formulated by the This lengthy discussion of the subject of legal insan-
House of Lords in 1843.” McNaughten's Case, before ity seems warranted because of the evident miscon-
referred to. ception of what was held in Butler v. State, supra. We
should further say in passing that the learned court,
In New York the same doctrine was adopted ( Willis though having refused the requested instruction gave
v. People, 32 N. Y. 715), though there were many others requested, going nearly as far as the one re-
attempts to engraft onto it modifications in accor- jected and more liberal to the accused than the right
dance with the views of medical experts. In Freeman rule demanded.
v. People, 4 Denio (N. Y.) 9, 47 Am. Dec.
216;Flanagan v. People, 52 N. Y. 467, 11 Am. Rep. The court refused to specially instruct, as requested,
731, a like effort was made. It was answered by reaf- that each juror should adhere to his own individual
firming the doctrine announced by Tindal, C. J., in judgment from the evidence as to the defendant's
McNaughten's Case, 10 Cl. & F. 200, as of the high- insanity and not join with others in finding him sane
est authority and the sound rule. Contrary medical so long as he entertained an honest reasonable doubt
and scientific authority was emphatically rejected. on the question. It is, said this court in Franklin v.
The matter was regarded of sufficient importance to State, 92 Wis. 269, 66 N. W. 107, regarding refusal
warrant special treatment by Justice Andrews, result- to give a similar instruction, error. Such does not
ing in its being held that “capacity of the defendant to seem to be the case. The difficulty there was in fail-
distinguish between right and wrong at the time the ure to charge on the legal presumption of innocence,
act was done” was the only safe test; that he who is not because the court, in addition to such a charge,
capable of knowing one from the other is bound, in did not admonish the jury that before finding the ex-
law, to choose the right one regardless of the notions istence of a fact, each should come to the conclusion
of some as to moral insanity or irresistible impulse. It in that regard from his own judgment based on the
was said that “the vagueness and uncertainty of the evidence. When jurors are instructed properly they
inquiry which would be opened and the manifest need not, necessarily, be told that they should not
danger of introducing the limitations claimed into the agree upon a verdict, unless individually convinced
rule of responsibility, in cases of crime may well from the evidence of its correctness to the requisite
cause courts to pause before assenting to it.” degree of certainty. A person who has sufficient intel-
ligence to sit on a jury knows, from the proper gen-
Notwithstanding the emphatic adoption by the New eral instructions, that he should act according to his
York court of the capacity to distinguish between own judgment based on the evidence.
right and wrong test, as indicated, the pressure by
eminent alienists to engraft onto it the irresistible The claim made that it was error to refuse to instruct
impulse element, and others, was such that the Legis- to the effect that as a matter of law epilepsy is a men-
lature, evidently intending to guard the jurisprudence tal disease and that grief, agony or terror is one of the
of the state from falling into confusion, or the safe producing causes of epileptic attacks, under the rul-
rule from being departed from to the impairment of ing of Kreuziger v. C. & N. W. R. Co., 73 Wis. 158,
the safety of human life, incorporated it into written 160, 40 N. W. 657, and some other cases cited, does
law. People v. Taylor, 138 N. Y. 398, 34 N. E. 275. not seem to possess merit. It is argued that proof of
The court there said that the eminent alienists who epilepsy is proof of insanity and that the authorities
were disposed to criticize the rule and claim that a so hold. As *748 we read the citations, such is not the
person should be held legally insane when by reason case. They are to the effect that a person may be an
of an abnormal mental condition he acts under an epileptic and be perfectly responsible for his actions,
irresistible impulse, should address themselves to the except when suffering from an epileptic disturbance,
lawmaking power; that as the matter stood, knowl- called a fit; that epilepsy may cause insanity, but does
edge of the nature and quality of the act that a person not constitute it, and the two should not be con-

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126 N.W. 737 Page 17
143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
(Cite as: 143 Wis. 249, 126 N.W. 737)

founded. Aurentz v. Anderson, 3 Pittsb. R. (Pa.) 310. sane or there was a reasonable doubt on the subject,
That a person afflicted with insanity may yet have the court suggesting, as was done, that the jury were
capacity to distinguish between right and wrong, and not bound by the opinion evidence; that it was for
if so he is legally sane. Fogarty v. State, 80 Ga. 450, them to decide from all the evidence, under the test
5 S. E. 782. That it is not sufficient to establish irre- given for legal insanity, whether the accused was
sponsibility to show epileptic affliction, but it must sane at the time of the homicide, and if they believed
be shown by evidence as a fact that epilepsy is a dis- he was not, or were in reasonable doubt on the ques-
ease which affects the mind or produces insanity, and tion, to find him not guilty on that ground. The in-
that there was legal insanity in the given instance. structions as to evidence of mental impairment ex-
Walsh v. People, 88 N. Y. 458. pressly informed the jury that it bore on whether
there was design to take human life, and informed
Thus, whether the accused was afflicted with epi- them, fairly, that it bore on whether the accused was
lepsy, and if so whether it was a mental disease, or conscious of his act being dangerous to human life.
whether it had progressed so far as to affect the mind, That, it seems, was sufficient.
and if so whether the mind was so affected that the
accused was not conscious of the wrongful character During the trial of the special issue, unknown to the
of his act at the time of the homicide, were all matters accused or his counsel till after trial of the main issue,
of fact to be established by the evidence. letters addressed to a juror, or jurors, after having
been examined by the judge and any reference to the
Complaint is made because the court refused to in- case eliminated, were allowed to be delivered. The
struct the jury to the effect that if the accused inten- judge explained the occurrences as pursuant to an
tionally pointed the gun at some other object than the announcement made in open court after the jury were
deceased and the bullet was accidentally deflected, sworn, to the effect that written communications
striking the deceased with fatal effect, he was not might pass between jurors and their families, subject
guilty. The court gave the requested instruction by to inspection by the court in all instances to guard
adding the words “of murder in the first degree.” The against anything improper so reaching them from the
instruction might well have been refused altogether outside or the outside from them, and that no objec-
because of its not being warranted by any evidence in tion was made by counsel upon either side. No evi-
the case. As we understand the evidence, the bullet dence of such announcement having been made ap-
went straight to the person of the deceased; passing peared upon the clerk's or the reporter's minutes, nei-
through the door, it is true, because of that being sud- ther did counsel on either side have any recollection
denly partly closed between the person of the de- of it.
ceased and the accused as the former saw the latter
raise his gun. But if there were evidence that the gun Further irregularities in respect to the conduct of the
was not pointed at the deceased, but yet was handled jurors is suggested in that, as claimed, two jurors,
so as to be imminently dangerous to him or some during the trial, while standing at the open window of
other human being and regardless thereof, though their room talked with two persons outside. There
without design to effect the death of any one, the ac- was much proof to the effect that no such conversa-
cused was, nevertheless, guilty of some homicidal tion occurred, except that a person from the street on
offense. the occasion of the claimed conversation, asked his
father, who was on the jury, for some keys which,
It is suggested that the court, by way of recital, said without saying anything, he passed out to the son.
to the jury that experts on both sides had given opin-
ions as to the sanity of accused at the time of the The circuit judge explained that all written communi-
homicide, and also instructed so as to limit the effect cations between jurors and outside parties, four or six
of evidence, on the general issue, of defendant's men- in number, were between jurors and members of their
tal condition, to murder in the first degree. It was not families and that none were delivered during the trial
improper to speak of the obvious fact that the experts which contained any reference to the case. The sug-
had expressed opinions on the question of sanity, gested irregularities with the jury were brought to the
leaving it to the jury to find whether, as matter of attention of the trial court as ground for a new trial.
fact, the accused, at the time of the homicide, was

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126 N.W. 737 Page 18
143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
(Cite as: 143 Wis. 249, 126 N.W. 737)

Thus it will be seen that not only is there no showing that it is not in harmony with expressions made now
that the accused was prejudiced by the occurrence and then to the effect that from the mere occurrence
complained of, but prejudice is pretty clearly nega- of error prejudice is presumed. Doubtless, it was in
tived. Courts should be slow to disturb verdicts upon great measure because of such occasional expressions
the ground of alleged misconduct of jurors or inter- that the Legislature, very recently, thought, by chap-
ference with their deliberations. The motive to cast ter 192, Laws 1909, to challenge judicial attention
suspicion upon the result of a trial is so great, and the anew to the declared public policy of the state in its
opportunity to do it so open and so easily embraced, written law, in providing that, no judgment in either a
especially in a case of great public interest, that, in civil or criminal case shall be disturbed except for
most any such case, many little incidents actually error which, in view of the whole situation, in the
occurring of a perfectly legitimate character may be judgment of the court, affected the substantial rights
easily given a false coloring,*749 and other incidents, of the party seeking to have it disturbed. That, in the
not legitimate, may be brought to the attention of the judgment of the writer, is no more than emphasizing
court without any reasonable ground for an inference what was covered by the early Code provision and
of fact as to their having affected the result, and still has been, in general, intended by the court to be
other incidents may easily be falsely claimed to have firmly and fully carried out. As such, it is welcomed
occurred, so that unless such matters are held not to by those who firmly believe it was unnecessary and
be sufficient to disturb the course of justice, in the does not really change the procedure in this state. At
absence of clear indications, and by preponderating least, it aids in unifying judicial sentiment, if that
inferences of fact, that they, within reasonable prob- were necessary, as to the proper method of adminis-
ability, at least, materially affected the result ad- tering justice in order to render right results as cer-
versely to the complaining party,--the administration tain, speedy and economical as practicable, and in
of justice would be intolerably embarrassed to the eliminating seeming or actual departures therefrom in
great detriment of public and private interests. Doubt- the past, as evidenced by Hack v. State, 124 N. W.
less the constructors of the Code by section 2829, St. 492.
1898, designed that such should be the guiding idea
of judicial practice in this state when they there pro- Of course, the Legislature did not intend to, and
vided, in mandatory language, that: could not if it would, control the court in the admini-
stration of justice by the act of 1909. It was only in-
“The court shall, in every stage of an action, disre- tended to declare a public policy as to such admini-
gard any error or defect in the pleadings or proceed- stration which it is the duty, as well as the pleasure,
ings which shall not affect the substantial rights of of the court to conform to, so far as it reasonably
the adverse party; and no judgment shall be reversed promotes, or does not unreasonably interfere with,
or affected by reason of such error or defect.” the exercise of their constitutional jurisdiction.

That has been referred to as a most beneficent provi- There is no longer, if there ever was, any reason for
sion, precluding disturbance of judicial results by any holding that a judgment should be reversed for mere
inconsequential matter, and that, in the spirit of it, all errors, however numerous and inexcusable, or errors
irregularities and errors should be deemed inconse- in the absence of its reasonably appearing as an infer-
quential, in the absence of reasonably clear indica- ence of fact that the party seeking reversal was preju-
tions that the adverse party was prejudiced thereby, in diced thereby, in that had the error not occurred the
that, otherwise, the result, as to him, might, within result, as to him, might, within reasonable probabili-
reasonable probabilities, have been different. Under ties, have been more favorable. That must be the true
the guide of that statute judgments have been af- test of prejudicial error, displacing, if necessary, the
firmed though grounded on records bristling with idea that prejudice is to be presumed from the mere
error, of which the following are significant illustra- occurrence of error and giving controlling dignity to
tions. Mauch v. Hartford, 112 Wis. 40, 87 N. W. the idea that prejudicial error is presumed against,
816;Miller v. State, 139 Wis. 57, 94, 119 N. W. 850. this presumption to prevail till overcome, to the ex-
tent above indicated, by preponderating inferences of
Such is believed to have been the general trend of the fact. To go further than suggested would probably
decisions of this court, though it must be admitted invade the constitutional right to have the weight of

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126 N.W. 737 Page 19
143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
(Cite as: 143 Wis. 249, 126 N.W. 737)

probabilities respecting matters of fact determined by 143 Wis. 249, 126 N.W. 737, 31 L.R.A.N.S. 966
a jury or the trial judge according to circumstances.
END OF DOCUMENT
In view of the foregoing it is thought that the claimed
misconduct of the jury must be held to have been
inconsequential. That is in harmony with the ruling in
Cupps v. State, 120 Wis. 504, 97 N. W. 210, 98 N.
W. 546, 102 Am. St. Rep. 996. It is claimed to be out
of harmony with Havenor v. State, 125 Wis. 444, 104
N. W. 116,Hurst v. Webster Mfg. Co., 128 Wis. 342,
107 N. W. 666,Du Cate v. Town of Brighton, 133
Wis. 628, 114 N. W. 103, and Dralle v. Town of
Reedsburg, 135 Wis. 293, 299, 115 N. W. 819, all
decided, as will be seen, before the recent legislative
expression of public policy. In any event, they are in
a class by themselves. They deal only with private
communications between the trial judge and the jury.
Doubtless, the rule thereof should not be extended in
letter or spirit. No more need be said at this time.

We may well say, in closing, that notwithstanding the


practice of allowing written communications to pass
between jurors and outside parties in such a serious
case as this, or any, under the circumstances shown
here, is held to be harmless error, it must be con-
demned as improper. The fact that many irregulari-
ties*750 may occur in the progress of a trial without
affecting the result, should not lead to any laxity in
judicial procedure and will not be regarded as any
excuse for it. In capital cases, especially, the greatest
care should be taken by trial judges to so administer
affairs as to leave the final result free from any suspi-
cion of improper influence. To that end the jury from
the time of being sworn in the cause till deliverance
of their verdict may well be kept as free as practica-
ble from all, even appearances of, opportunity for
communicating with outside parties, or receiving
communications from them.

Thus we have reviewed the record of the two trials in


this cause, giving careful attention to the complaints
in quite minute detail without finding any harmful
error, and very little error at all. On the whole, the
cause seems to have been very fairly tried and the
accused found guilty in due course. So the judgment
must be affirmed.

So ordered.

Wis. 1910.
Oborn v. State

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TAB O
Page 1

188 P.3d 137, 2008 OK 71


(Cite as: 188 P.3d 137)

[2] Divorce 134 139.5


Supreme Court of Oklahoma.
C. O'DARLING, Appellant, 134 Divorce
v. 134IV Proceedings
S. O'DARLING, Appellee. 134IV(K) Dismissal
No. 104,107. 134k138 Dismissal
134k139.5 k. Involuntary. Most Cited
July 1, 2008. Cases
Trial court was required to give petitioner personal
Background: Following entry of default judgment notice of intent to dismiss petition for dissolution of
dissolving marriage, the District Court, Tulsa County, marriage after learning from reporter that default
C. Michael Zacharias, J., entered order vacating dis- judgment dissolving marriage had been granted to
solution decree and dismissed petition for dissolution. persons of same sex, where dismissal was dispositive
Petitioner appealed. event terminating litigation, and purported divorce
affected property interests of parties.
Holdings: The Supreme Court, Hargrave, J., held
that: *137APPEAL FROM THE DISTRICT COURT
(1) petitioner's failure to disclose that marriage for OF TULSA COUNTY; HONORABLE C. MI-
which she filed petition to dissolve was between two CHAEL ZACHARIAS, TRIAL JUDGE
women was statutory ground for vacating judgment ¶ 0 Appeal arising from trial court's vacation of a
dissolving marriage, but that Decree of Dissolution of Marriage and dismissal of a
(2) trial court was required to give petitioner personal Petition for Dissolution of Marriage between two
notice of intent to dismiss petition for dissolution. women who were purportedly*138 married in On-
tario, Canada. We previously granted appellant's mo-
tion to retain and find:
Affirmed in part; reversed in part; remanded.
THE ORDER OF THE TRIAL COURT IS AF-
FIRMED IN PART, REVERSED IN PART, AND
Reif, J., concurred in result. REMANDED WITH INSTRUCTIONS.John
Flippo, Laurie Phillips, Fraiser, Fraiser & Hickman,
West Headnotes LLP, Tulsa, OK, for Appellant C. O'Darling.

[1] Divorce 134 161 Stephanie Griffith O'Darling Meissen, Owasso, OK,
Pro Se Appellee.
134 Divorce
134IV Proceedings Sandra D. Rinehart, Senior Assistant Attorney Gen-
134IV(N) Judgment or Decree eral, Martha R. Kulmacz, Assistant Attorney General,
134k159 By Default or Pro Confesso Oklahoma City, OK, for the Attorney General of
134k161 k. Opening or Setting Aside. Oklahoma.
Most Cited Cases
Petitioner's failure to disclose to trial court that mar- Stephen L. Cale, Shawnee, OK, for Amicus Curiae
riage which she filed petition to dissolve was mar- Oklahoma Family Policy Council.
riage between two women allegedly entered into in
Canada, or to disclose controlling legal authority re- Kevyn Gray Mattax, Oklahoma City, OK and Roger
garding same-sex marriages in Oklahoma, was statu- T. Severino, Washington, D.C., for Amicus Curiae
tory grounds for vacation of default judgment dis- The Becket Fund for Religious Liberty.
solving marriage. 12 Okl.St.Ann. § 1031.
Steven Lewis, Edmond, OK, for Amicus Curiae The

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Page 2

188 P.3d 137, 2008 OK 71


(Cite as: 188 P.3d 137)

National Legal Foundation. tice and an opportunity to present evidence and ar-
guments to the trial court about the legality of her
Billy E. (Bill) Kumpe, Tulsa, OK, and Benjamin W. foreign marriage. She alleges that the trial court
Bull, Glen Lavy, Austin R. Nimocks, Alliance De- abused its discretion and violated her basic funda-
fense Fund, Scottsdale Arizona for Amicus Curiae mental due process rights by dismissing the Petition
The Honorable Lance Cargill. for Dissolution of Marriage and vacating the Decree
of Dissolution of Marriage without notice and the
HARGRAVE, J. opportunity to be heard.

¶ 1 Appellant and Appellee were purportedly married THE TRIAL COURT PROPERLY VACATED
in Toronto, Canada on December 16, 2002. Appellant THE DECREE OF DISSOLUTION OF MAR-
filed her Petition for Dissolution of Marriage on July RIAGE BUT ERRED IN DISMISSING THE PE-
18, 2006, in Tulsa County. The Petition and Sum- TITION FOR DISSOLUTION OF MARRIAGE
mons were properly served on Appellee on July 25,
2006. The Appellee failed to file a response. Appel- [1] ¶ 5 12 O.S.2001 1031.1 states that:
lant filed a Motion for Default which was set for
hearing on the 20th day of November 2006. Prior to A court may correct, open, modify or vacate a judg-
the hearing, Appellee filed a Waiver of Summons and ment, decree, or appealable order on its own initia-
Time to Plead and signed the Decree of Dissolution tive not later than thirty (30) days after the judg-
of Marriage. ment, decree or appealable order prepared in con-
formance with Section 696.3 of this title has been
¶ 2 On November 13, 2006, Appellant appeared with filed with the court clerk. Notice of *139 the
her attorney before the trial court judge. Appellant court's action shall be given as directed by the
gave testimony about jurisdiction and division of court to all affected parties.
property and debts. Appellant informed the trial court
that she and the Appellee were married in Canada. 12 O.S.2001 1031 states:
The fact that the marriage was between two women The district court shall have power to vacate or mod-
was not mentioned at this hearing. The style of the ify its own judgments or orders within the times
case did not indicate that the marriage was between prescribed hereafter:
two women. The notary's signature block on the
waiver referred to the signor as he/she and Petition (3) For mistake, neglect or omission of the clerk or
for Dissolution of Marriage referred to the Petitioner irregularity in obtaining a judgment or order;
as “him.” The trial court granted the dissolution of
marriage and signed the Decree of Dissolution of (4) For fraud, practiced by the successful party, in
Marriage on November 13, 2006. obtaining a judgment or order;

¶ 3 Sometime after November 14, 2006, the trial The court has power to vacate when the successful
court was contacted by a reporter from the Tulsa party acted improperly to obtain the decree or there
World concerning allegations that a dissolution of was irregularity in obtaining the judgment. 12
marriage had been granted to persons of the same O.S.2001 1031. In Stepp v. Stepp, 1998 OK 18 ¶ 9,
gender. The trial court confirmed this by contacting 955 P.2d 722, this Court observed:
the office of the plaintiff's attorney. On November In Schepp v. Hess, 1989 OK 28 ¶ 7, 770 P.2d 34, we
20, 2006, the trial court entered a Minute Order va- held that trial courts acting under § 1031.1 retain
cating the Decree of Dissolution of Marriage and “plenary control over their terminal decisions.”
dismissing the Petition for Dissolution of Marriage. Under § 1031 trial judges enjoy “a very wide and
The Minute Order was formalized in an Order and extended discretion that has been described as ‘al-
filed on January 17, 2007. most unlimited’ ” Schepp at ¶ 9 quoting from
Morgan v. Phillips Petroleum, 1949 OK ----, 212
¶ 4 Appellant now claims she was denied the right of P.2d 663.
due process granted by the United States Constitu-
tion. She argues that she should have been given no-

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Page 3

188 P.3d 137, 2008 OK 71


(Cite as: 188 P.3d 137)

¶ 6 Appellant now complains that she was denied due


process as she was not given notice and the opportu- The Due Process Clause of the Fourteenth Amend-
nity to set forth facts that would entitle her to relief. ment inexorably commands that “prior to an action
In the present matter, Appellant was in attendance at which will affect an interest in ... property ... a
the purported divorce hearing. Neither Appellant nor State must provide ‘notice reasonably calculated,
her counsel, acting as an officer of the court, gave under all the circumstances, to apprise interested
notice to the bench that the purported marriage was parties of the pendency of the action and afford
one between two women. 5 O.S. Ch. 1 App. 3-A, them an opportunity to present their objections.’ ”
Rule 3.3(a) states that: Applying this sine qua non requirement of due
process, we hold today that the statutorily author-
A lawyer shall not knowingly: ized publication notice was not sufficient to inform
the plaintiffs and defendants of the disposition-
(2) fail to disclose to the tribunal legal authority in docket setting.
the controlling jurisdiction known to the lawyer
to be directly adverse to the position of the client We further held in that matter at ¶ 9:
and not disclosed by opposing counsel; or We note that while published notice of the disposi-
tion docket appears authorized by statute, if the set-
(3) offer evidence that the lawyer knows to be false. ting to take place may result in an end-of-the-line
If a lawyer, the lawyer's client, or a witness order-one marking an event dispositive of or termi-
called by the lawyer, has offered material evi- nating the litigation-personal notice is re-
dence and the lawyer comes to know of its fal- quired,*140 whether it be effected by personal ser-
sity, the lawyer shall take reasonable remedial vice or by mail.
measures, including, if necessary, disclosure to
the tribunal. A lawyer may refuse to offer evi- ¶ 9 In the present matter, O'Darling was never given
dence that the lawyer reasonably believes is personal notice of the possibility of an end-of-the-line
false. order dismissing her lawsuit. The trial court was act-
ing within its statutory power in vacating the Decree
[2] ¶ 7 In the present matter the parties and attorney of Dissolution of Marriage, however, before dismiss-
failed to disclose controlling legal authority regarding ing the lawsuit outright, the parties must be given
same-sex marriage in Oklahoma. Disclosure that the personal notice, as the purported divorce affected the
purported marriage was between two women was not property interests of the parties.
made, and it was not until contacted by the local pa-
per, that the trial court discovered this information. ¶ 10 On remand, we instruct the trial court to conduct
An Oklahoma trial court may “correct, open, modify, a hearing, after notice is given to the parties and the
or vacate” a decree on its own initiative within thirty Oklahoma Attorney General's office, allowing Peti-
days after issuance of the decree. 12 O.S.2001 tioner to argue if there exists facts that would entitle
1031.1. The court has power to vacate when the suc- her to relief. See Conley v. Gibson, 355 U.S. 41, 45-
cessful party acted improperly to obtain the decree or 46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Atchison,
if there was irregularity in obtaining the decree. 12 Topeka, and Santa Fe Ry. Co. v. Buell, 480 U.S. 557,
O.S.2001 1031. Such actions are shown in the facts 569, 107 S.Ct. 1410, 1417 n. 15, 94 L.Ed.2d 563
in the present matter. However, the trial court erred (1987). The Oklahoma Attorney General's office
by dismissing the Petition for Dissolution of Mar- shall be given notice if any State Constitutional issue
riage without giving the petitioner notice and a right is to be addressed.
to be heard.
THE ORDER OF THE TRIAL COURT IS AF-
¶ 8 In Heiman v. Atlantic Richfield Co., 1991 OK 22, FIRMED IN PART, REVERSED IN PART, AND
807 P.2d 257, the trial court gave notice of its dispo- REMANDED WITH INSTRUCTIONS.
sition docket by publication only. The parties had no
actual notice to inform them of the docket. Neither ¶ 11 CONCUR: WINCHESTER, C.J.,
party appeared and the case was dismissed by the EDMONDSON, V.C.J., HARGRAVE, OPALA,
trial court. We held at ¶ 7: KAUGER, WATT, TAYLOR, COLBERT, JJ.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


Page 4

188 P.3d 137, 2008 OK 71


(Cite as: 188 P.3d 137)

¶ 12 CONCUR IN RESULT: REIF, J.


Okla.,2008.
O'Darling v. O'Darling
188 P.3d 137, 2008 OK 71

END OF DOCUMENT

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


TAB P
214 P.2d 495 Page 1
121 Colo. 212, 214 P.2d 495
(Cite as: 121 Colo. 212, 214 P.2d 495)

other than Colorado, which was valid under laws of


Supreme Court of Colorado, en Banc. that jurisdiction, is valid. '35 C.S.A. c. 107, § 4.
PAYNE
v. [3] Divorce 134 6
PAYNE.
No. 16314. 134 Divorce
134I Nature and Form of Remedy
Jan. 23, 1950. 134k6 k. Scope of Judicial Remedies in Gen-
eral. Most Cited Cases
Action by Burleigh Payne, a minor, by his next
friend and natural guardian, Inez Payne, against Marriage 253 57
Frankie Payne for annulment of marriage, wherein
defendant by counterclaim sought a divorce. 253 Marriage
253k56 Annulment
To review a judgment of the District Court of Baca 253k57 k. Nature and Form of Remedy. Most
County, Alfred A. Arraj, J., dismissing both com- Cited Cases
plaint and counterclaim, plaintiff brought error. Action for divorce is based on valid marriage and a
cause of divorce arising post-nuptially, while action
The Supreme Court, Alter, J., agreed that both action for annulment is based upon assumption that by rea-
and counterclaim were properly dismissed but held son of some legal impediment the parties were inca-
that in view of such dismissal the trial court had no pable of contracting a valid marriage and that at-
jurisdiction to make an award of the custody of the tempted marriage was void ab initio.
minor child of the parties and to direct monthly sup-
port payments. [4] Marriage 253 3

Judgment modified and affirmed as modified. 253 Marriage


253k3 k. What Law Governs. Most Cited Cases
West Headnotes A marriage contract is valid or void according to the
statutes in force in jurisdiction where contract was
[1] Marriage 253 3 entered into, and if, according to those statutes, it is
valid, it is generally so considered in all other juris-
dictions, though under statutes of another jurisdiction
253 Marriage
the marriage might be voidable or even void.
253k3 k. What Law Governs. Most Cited Cases
Under Texas statute, marriage of 16 year old minor in
the presence of his mother and with her consent was [5] Courts 106 8
valid not only in Texas but in Colorado as well and
could not be annulled under Colorado statute making 106 Courts
voidable all marriages wherein either party is under 106I Nature, Extent, and Exercise of Jurisdiction
the age of 18 years. Vernon's Ann.Civ.St.Tex. arts. in General
4605, 4628; '35 C.S.A. c. 56, §§ 33, 34; c. 107, § 4. 106k3 Jurisdiction of Cause of Action
106k8 k. Actions Under Laws of Other
[2] Marriage 253 3 State. Most Cited Cases
Colorado statute declaring voidable all marriages
wherein either party is under age of 18 years and
253 Marriage
permitting annulment of such a marriage are applica-
253k3 k. What Law Governs. Most Cited Cases
ble only if marriage occurs in Colorado and has no
Under statute, marriage contracted in jurisdiction
extra-territorial application. '35 C.S.A. c. 56, §§ 33,

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


214 P.2d 495 Page 2
121 Colo. 212, 214 P.2d 495
(Cite as: 121 Colo. 212, 214 P.2d 495)

34. returned to Baca county, Colorado, where they there-


after resided with plaintiff's mother, Inez Payne, until
[6] Child Custody 76D 328 the 27th day of April, 1949, when defendant**496
left their said residence, and has since resided else-
where in said Baca county. It is further alleged that a
76D Child Custody
child was born as a result of the marriage; at the time
76DVII Particular Status or Relationship
of the filing of the complaint said child was approxi-
76DVII(D) Termination of Parents' Marriage
mately six months of age; that plaintiff was seventeen
76Dk328 k. Dismissal of Divorce or Disso-
years of age on August 5, 1948, *214 and at the time
lution Proceedings or Failure to Terminate Marriage.
of the filing of the complaint, defendant was nineteen
Most Cited Cases
years of age; also it is alleged that defendant was
(Formerly 253k64, 134k294)
neglectful of her household duties and permitted
plaintiff's mother to assume the care of the minor
Child Support 76E 58 child. Plaintiff prays that the custody of said minor
child be awarded to him.
76E Child Support
76EIII Factors Considered Upon the filing of the complaint, and upon the hear-
76EIII(A) In General ing of a motion for temporary custody of the minor
76Ek57 Effect of Divorce, Dissolution of child, custody was awarded to defendant subject to
Marriage, or Annulment the rights of the plaintiff and his mother to visit it at
76Ek58 k. In General. Most Cited reasonable hours.
Cases
(Formerly 253k64, 134k294)
In the answer defendant admits her residence and
Where court dismissed both annulment action and
marriage between plaintiff and herself as alleged in
counterclaim for divorce, it had no jurisdiction to
the complaint; denies that she left defendant without
award custody of minor child nor to direct payment
cause; admits her age as alleged, and denies all other
of support money by husband.
allegations in the complaint. For a counterclaim de-
*213**495 D. E. Johnson, Springfield, for plaintiff in
fendant alleges the marriage as set forth in plaintiff's
error.
complaint and the residence of the parties for more
than a year in said Baca county; admits the stated age
Howard M. Schmidt, Springfield, for defendant in of the infant child; alleges that plaintiff has been
error. guilty of extreme and repeated acts of cruelty toward
her; and that plaintiff has property and is capable of
ALTER, Justice. providing for, and supporting, defendant and his mi-
nor child. She prays for an absolute decree of di-
Burleigh Payne, a minor, appearing by his natural vorce, temporary and permanent support money, at-
guardian and next friend, Inez Payne, plaintiff in er- torney fees, permanent custody of the child, and an
ror here, brought an action in the district court for equitable division of property.
annulment of his marriage to Frankie Payne, defen-
dant below, defendant in error here, who answered In the answer to the counterclaim plaintiff denies
the complaint and filed a counterclaim seeking a di- generally the allegations thereof.
vorce. The trial was to the court and resulted in a
dismissal of both the complaint and counterclaim. Plaintiff filed a motion to strike the counterclaim,
Plaintiff in error is here by writ of error, seeking a and a motion for judgment on the pleadings, both of
reversal of the judgment. which were denied.

It is alleged in the complaint that Burleigh Payne is In determining the questions presented, the trial
now, and for a number of years past has been, a resi- court said:
dent of Baca county, Colorado; that on the 3rd day of
April, 1948, he and defendant entered into a ceremo-
‘With reference to the annullment, it appears to the
nial marriage at Dalhart, Texas, and immediately
Court that both counsel overlooked an important

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


214 P.2d 495 Page 3
121 Colo. 212, 214 P.2d 495
(Cite as: 121 Colo. 212, 214 P.2d 495)

point in that phase of the case. The marriage was a plaintiff was *216 over the age of sixteen years at the
Texas contract and not a Colorado contract and there- time of his marriage in Texas on April 3, 1948, and
fore the validity of the marriage should be deter- that his mother was present at the ceremony and gave
mined by the law of the State in which it was per- her consent thereto. Under the statutes of Texas, enti-
formed. The evidence*215 shows that the mother tled ‘Consent of parent or guardian’, we find the fol-
consented to this marriage-her son testified to that. lowing:
Yes, she testified herself that she gave her consent
without reservation. I believe the marriage is valid. In ‘No clerk shall issue a [marriage] license without the
addition to that, I believe the marriage was only consent of the parent or guardian of the parties apply-
voidable in Colorado-not void. The Court doesn't feel ing, if there be a guardian. Such consent may be
that an annullment should be granted in this case and given in person, or in writing signed and acknowl-
annullment [is] denied. edged by said parent or guardian before an officer
authorized to take acknowledgments, unless the par-
‘With reference to the cross complaint for divorce, ties so applying are, in the case of the male twenty-
with reference to the charges of extreme and repeated one years of age, and in case of the female eighteen
cruelty, the Court does not feel that the Defendant years of age. * * *’ Vernon's Civil Statutes of Texas,
has substantiated the charges. There has been some Art. 4605.
evidence of cruelty in this case, but so trivial and so
small the Court is surprised they deem it serious We hold that under the evidence in the case the mar-
enough for divorce. * * *’ riage between plaintiff and defendant, occurring in
Dalhart, Texas, on April 3, 1948, was a valid mar-
The court entered its decree of which the following riage.
is a part:
We find that in Texas, ‘The marriage relation may be
‘It is hereby ordered, adjudged, and decreed: That dissolved where the causes alleged therefor shall be
the Plaintiff's Complaint for annulment be denied. natural or incurable impotency of body at the time of
That the Defendant's counter-claim for divorce be entering into the marriage contract, or any other im-
denied. That until further order of the Court, the care pediment that renders such contract void, and the
and custody of said minor child, Alvin Leroy Payne, court may decree the marriage to be null and void.’
is awarded the Defendant, Frankie Payne, subject to Vernon's Civil Statutes of Texas, Art. 4628.
visitation privileges at reasonable times and places by
the Plaintiff, Burleigh Payne, and his mother, Inez The statute of Colorado under which plaintiff seeks
Payne. annulment in this jurisdiction is to be found in chap-
ter 56, '35 C.S.A., in the following sections:
‘That the Plaintiff, Burleigh Payne, be granted the
right, if he so desires, of taking the said minor child, ‘33. All marriages wherein either party is under the
Alvin Leroy Payne, for a full twenty-four (24) hour age of eighteen years, are hereby declared to be void-
period once during every two (2) weeks. able.

‘That the Plaintiff, Burleigh Payne, shall pay the ‘34. Actions for annulment may be maintained upon
Defendant, Frankie Payne, for maintenance of said the following grounds:
minor in her custody, the sum of fifty dollars
($50.00), together with any actual medical expenses ‘(a) Upon the ground set forth in the preceding sec-
incurred by the Defendant, Frankie Payne, on account tion hereof, providing the party seeking such annul-
of the minor child. That these payments shall be ment is under the age of nineteen years at the time of
made to the Clerk of the District Court, the first pay- the institution of the suit.
ment to be made on the 15th day of June, 1949, and
subsequent payments to be made on the 15th day of
each month thereafter.’ ‘(b) In such other cases as are recognized in equity.’

**497[1] The undisputed evidence discloses that Section 4, chapter 107, '35 C.S.A., reads: ‘All mar-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


214 P.2d 495 Page 4
121 Colo. 212, 214 P.2d 495
(Cite as: 121 Colo. 212, 214 P.2d 495)

riages contracted without this state, which shall be riage, p. 929, § 52; 35 Am.Jur., p. 224, § 67; 2
valid by the laws of the country in which the same Schouler, Marriage, Divorce, Separation, and Domes-
*217 were contracted, shall be valid in all courts tic Relations, 6th Ed., p. 1412, § 153 et seq.
within this state; provided, nothing in this section
shall be construed so as to allow bigamy or polygamy [4] Our study persuades us that irrespective of
in this state.’ whether the action is brought in the jurisdiction
where the marraige ceremony was performed or in
[2][3] Under section 4, supra, we have repeatedly that where the parties, or one thereof, is domiciled at
held that a marriage contracted in a jurisdiction other the time of the commencement of the annulment ac-
than Colorado, which was valid under the laws of the tion, nevertheless, in such an action, with exceptions
jurisdiction in which it was performed, is a valid mar- not necessary to note here, the marriage contract is
riage. Griswold v. Griswold, 23 Colo.App. 365, held to be valid or void, according to the statutes in
129 P. 560;Loth v. Loth's Estate, 54 Colo. 200, 129 force and effect in the jurisdiction where the same
P. 827;Crouse v. Wheeler, 62 Colo. 51, 158 P. 1100, was entered into, and if, according to these statutes, it
Ann.Cas.1918E, 1074;Bauer v. Abrahams, 73 Colo. is found to be valid, it must be, with exceptions not
509, 216 P. 259. In the instant case, as we have necessary here to note, so considered in all other ju-
stated, the marriage between the parties here was risdictions, notwithstanding the fact that under the
valid in Texas; consequently, under section 4, chapter statutes of another jurisdiction the marriage might be
107, '35 C.S.A., as well as decisions of our court, the voidable or even void. Dodds v. Pittsburgh, M. & B.
marriage being valid in Texas, we hold it to be so in Rys. Co., supra; Davis v. Davis, supra; Storf v. Papa-
Colorado. We appreciate the difference between ac- lia, 46 A.2d 907, 24 N.J.Misc. 145;Inhabitants of
tions for divorce and annulment, the former being Cummington v. Inhabitants of Belchertown, 149
based on a valid marriage and a cause of divorce aris- Mass. 223, 21 N.E. 435; Levy v. Downing, supra;
ing post-nuptially, while the latter pre-supposes and Hanson v. Hanson, 287 Mass. 154, 191 N.E. 673, 93
is based entirely upon the assumption that by reason A.L.R. 701; Levy v. Levy, supra; 35 Am.Jur., p. 283,
of some legal impediment the parties were incapable § 168; Restatement of the Law-Conflict of Laws, p.
of contracting a valid marriage. In other words, in the 203, § 136; 127 A.L.R., p. 437.
latter case, because of the legal impediment, the at-
tempted marriage is void ab initio. Under the facts and circumstances here disclosed by
the record, the marriage between plaintiff and defen-
It is not necessary for us to determine whether, under dant was valid under the laws of the state of Texas,
the evidence, our district court had jurisdiction to rule and, that being the case, under section 4, supra, it is
on the question of annulment or whether the district valid in the state of Colorado, and the trial court cor-
court in Texas had the sole and exclusive jurisdiction rectly construed the applicable law and dismissed the
to make the determination. Upon this question there annulment action.
is a great diversity of authority, some courts holding
that a suit for the annulment must be brought in the [5] Sections 33 and 34, supra, are applicable only
jurisdiction where the ceremonial marriage was per- *219 where the marriage occurs in this jurisdiction;
formed, while others fix the jurisdiction for annul- they have no extraterritorial application.
ment on the basis of the domicile of the parties or one
of them. Levy v. Downing, 213 Mass. 334, 100 N.E. We have read the entire record and agree with the
638;Murphy v. Murphy, 249 Mass. 552, 144 N.E. trial court's finding that there was no evidence suffi-
394;Levy v. Levy, 309 Mass. 230, 34 N.E.2d cient to entitle defendant to a decree of divorce on
650;McDade v. McDade, Tex. Civ.App. 16 S.W.2d her counterclaim.
304;*218Garcia v. Garcia, 25 S.D. 645, 127 N.W.
586, 32 L.R.A.,N.S., **498 424, Ann.Cas.1912C,
621; Dodds v. Pittsburgh, M. & B. Rys. Co., 107 [6] The court, having dismissed the annulment action
Pa.Super. 20, 162 A. 486;Davis v. Davis, 119 Conn. and counterclaim for divorce, it had no jurisdiction to
194, 175 A. 574;Jurisdiction to Annul a Marriage, 32 award the custody of the minor child of the parties to
Harvard Law Review, 806; Restatement of the Law- either thereof, nor had it jurisdiction to enter any de-
Conflict of Laws, § 115, chapter 4; 55 C.J.S., Mar- cree requiring plaintiff to pay any sum whatever for
the support of the minor child of the parties hereto so

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


214 P.2d 495 Page 5
121 Colo. 212, 214 P.2d 495
(Cite as: 121 Colo. 212, 214 P.2d 495)

long as the marital status of these parties exists. Un-


der the facts and circumstances here appearing, the
dependency and custody of the minor child is within
the exclusive jurisdiction of the juvenile court or dis-
trict court, under applicable statutes.

It is, therefore, ordered that that part of the decree


entered by the trial court herein, awarding the cus-
tody of the minor child of the parties to defendant,
and that part requiring plaintiff to make monthly sup-
port payments to the defendant for the support of the
minor child, be entirely expunged therefrom; in all
other respects the judgment of the trial court is af-
firmed.

Colo. 1950
Payne v. Payne
121 Colo. 212, 214 P.2d 495

END OF DOCUMENT

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


TAB Q
685 S.E.2d 199 Page 1
55 Va.App. 247, 685 S.E.2d 199
(Cite as: 55 Va.App. 247, 685 S.E.2d 199)

360I Political Status and Relations


Court of Appeals of Virginia, 360I(A) In General
Alexandria. 360k5 Relations Among States Under Con-
Tanya Lynn PRASHAD stitution of United States
v. 360k5(2) k. Full faith and credit in each
Roberto-Luis Manuel COPELAND and Philip Byron state to the public acts, records, etc. of other states.
Spivey. Most Cited Cases
Record No. 2609-08-4. The full faith and credit clause does not require a
state to apply another State's law in violation of its
Nov. 24, 2009. own legitimate public policy. U.S.C.A. Const. Art. 4,
§ 1.
Background: Mother filed petition to register North
Carolina child custody orders granting primary cus- [2] Judgment 228 815
tody to biological father and father's homosexual
partner and granting secondary custody to mother, 228 Judgment
and also filed petition to modify the orders, so as to 228XVII Foreign Judgments
allow enforcement of only those portions of the or- 228k814 Judgments of State Courts
ders granting custody to father and mother. The Cir- 228k815 k. Adjudications operative in
cuit Court, Fairfax County, Bruce D. White, J., regis- other states. Most Cited Cases
tered the orders in their entirety, and mother ap- Regarding judgments, the full faith and credit obliga-
pealed. tion is exacting; a final judgment in one state, if ren-
dered by a court with adjudicatory authority over the
Holdings: The Court of Appeals, Powell, J., held subject matter and persons governed by the judg-
that: ment, qualifies for recognition throughout the land.
(1) orders had been entered consistently with the Pa- U.S.C.A. Const. Art. 4, § 1.
rental Kidnapping Prevention Act (PKPA), as a re-
quirement for orders to be given full faith and credit [3] Judgment 228 821
in state;
(2) Uniform Child Custody Jurisdiction and En- 228 Judgment
forcement Act (UCCJEA) did not allow modification 228XVII Foreign Judgments
of orders; 228k814 Judgments of State Courts
(3) Defense of Marriage Act (DOMA) did not apply 228k821 k. Merger and bar of causes of
to allow partial registration and enforcement; action. Most Cited Cases
(4) Virginia Marriage Amendment (VMA) did not
apply to require partial registration; and Judgment 228 822(1)
(5) Marriage Affirmation Act (MAA) did not apply
to require partial registration.
228 Judgment
228XVII Foreign Judgments
Affirmed. 228k814 Judgments of State Courts
228k822 Conclusiveness of Adjudication
Bales, J., filed a dissenting opinion. 228k822(1) k. In general. Most Cited
Cases
West Headnotes For claim and issue preclusion, or res judicata, pur-
poses, the judgment of a rendering state gains na-
[1] States 360 5(2) tionwide force pursuant to the full faith and credit
clause. U.S.C.A. Const. Art. 4, § 1.
360 States

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


685 S.E.2d 199 Page 2
55 Va.App. 247, 685 S.E.2d 199
(Cite as: 55 Va.App. 247, 685 S.E.2d 199)

[4] Judgment 228 815 76DX(B) Foreign Decrees and Orders


76Dk715 k. In general. Most Cited Cases
228 Judgment
228XVII Foreign Judgments Child Custody 76D 725
228k814 Judgments of State Courts
228k815 k. Adjudications operative in 76D Child Custody
other states. Most Cited Cases 76DX Interstate Issues
In giving effect to the judgment of another state pur- 76DX(B) Foreign Decrees and Orders
suant to the full faith and credit clause, a court may 76Dk725 k. Authority to modify foreign
be guided by the forum state's public policy in deter- decree. Most Cited Cases
mining the law applicable to a controversy; but there Section of Uniform Child Custody Jurisdiction and
is no roving public policy exception to the full faith Enforcement Act (UCCJEA) requiring a court, upon
and credit due judgments. U.S.C.A. Const. Art. 4, § registration of an out-of-state child custody order, to
1. recognize and enforce, but not modify, the order,
takes an all-or-nothing approach to the registration of
[5] Child Custody 76D 715 child custody determinations. West's V.C.A. § 20-
146.27(B).
76D Child Custody
76DX Interstate Issues [8] Child Custody 76D 725
76DX(B) Foreign Decrees and Orders
76Dk715 k. In general. Most Cited Cases 76D Child Custody
The Parental Kidnapping Prevention Act (PKPA) is a 76DX Interstate Issues
mandate directed to state courts to respect the child 76DX(B) Foreign Decrees and Orders
custody decrees of sister states. 28 U.S.C.A. § 76Dk725 k. Authority to modify foreign
1738A. decree. Most Cited Cases
Uniform Child Custody Jurisdiction and Enforcement
[6] Child Custody 76D 721 Act (UCCJEA) did not allow modification of North
Carolina child custody orders, granting biological
76D Child Custody father and father's homosexual partner primary cus-
76DX Interstate Issues tody of child and granting mother secondary custody,
76DX(B) Foreign Decrees and Orders and thus trial court could not register and enforce
76Dk721 k. Jurisdiction to enter decree. only the portion of the orders granting custody as to
Most Cited Cases father and mother, since North Carolina court had
North Carolina child custody orders, granting father exercised jurisdiction in substantial conformity with
and father's homosexual partner primary custody of the UCCJEA; trial court was required to either regis-
child and granting mother secondary custody, had ter the orders in their entirety or not at all. West's
been entered consistently with the Parental Kidnap- V.C.A. § 20-146.27(B).
ping Prevention Act (PKPA), as a requirement for
orders to be given full faith and credit, since North [9] Child Custody 76D 725
Carolina court had jurisdiction to enter orders and
North Carolina had been child's home within six 76D Child Custody
months prior to time that mother had filed her initial 76DX Interstate Issues
complaint for custody there. U.S.C.A. Const. Art. 4, 76DX(B) Foreign Decrees and Orders
§ 1; 28 U.S.C.A. § 1738A(c); West's N.C.G.S.A. § 76Dk725 k. Authority to modify foreign
50A-201. decree. Most Cited Cases

[7] Child Custody 76D 715 Marriage 253 17.5(2)

76D Child Custody 253 Marriage


76DX Interstate Issues 253k17.5 Same-Sex and Other Non-Traditional

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


685 S.E.2d 199 Page 3
55 Va.App. 247, 685 S.E.2d 199
(Cite as: 55 Va.App. 247, 685 S.E.2d 199)

Unions Marriage 253 17.5(2)


253k17.5(2) k. Effect of foreign union. Most
Cited Cases 253 Marriage
Defense of Marriage Act (DOMA) did not apply to 253k17.5 Same-Sex and Other Non-Traditional
allow trial court to modify North Carolina child cus- Unions
tody orders granting biological father and father's 253k17.5(2) k. Effect of foreign union. Most
homosexual partner primary custody of child and Cited Cases
granting mother secondary custody, so as to allow Basis of portion of North Carolina child custody or-
registration and enforcement, pursuant to Uniform ders, granting primary custody to biological father's
Child Custody Jurisdiction and Enforcement Act homosexual partner as well as to father, was partner's
(UCCJEA), only of the portions of the orders grant- relationship with child, not any allegedly valid mar-
ing custody as to father and mother, since no party riage between father and partner, and thus Virginia
was seeking recognition of father and partner's rela- Marriage Amendment (VMA) did not apply to re-
tionship as a valid marriage, and orders did not arise quire registration, pursuant to Uniform Child Custody
from the relationship being treated as a marriage; Jurisdiction and Enforcement Act (UCCJEA), only of
orders granted partner custody on the basis of his portion of orders granting custody as to father and
relationship with child, rather than his relationship mother; North Carolina had allowed partner to inter-
with father. 28 U.S.C.A. § 1738C; West's V.C.A. § vene in custody dispute on basis that he had been
20-146.27. full-time parent to child since her birth two years
previously, partner had been named as child's father
[10] Marriage 253 17.5(2) on child's birth certificate, child had partner's sur-
name, and parties believed partner had been child's
253 Marriage biological father until DNA testing proved otherwise.
253k17.5 Same-Sex and Other Non-Traditional West's V.C.A. Const. Art. 1, § 15-A; West's V.C.A. §
Unions 20-146.27.
253k17.5(2) k. Effect of foreign union. Most
Cited Cases [12] Child Custody 76D 720

Marriage 253 54(2) 76D Child Custody


76DX Interstate Issues
253 Marriage 76DX(B) Foreign Decrees and Orders
253k54 Effect of Informal or Invalid Marriage or 76Dk720 k. Validity in general. Most Cited
Union Cases
253k54(2) k. Same-sex and other non-
traditional union. Most Cited Cases Marriage 253 17.5(2)
Defense of Marriage Act (DOMA) is permissive in
nature, meaning that it allows each state to decide for 253 Marriage
itself what effect, if any, that state will give to same- 253k17.5 Same-Sex and Other Non-Traditional
sex relationships that are treated as a marriage under Unions
the laws of another state and the rights or claims aris- 253k17.5(2) k. Effect of foreign union. Most
ing therefrom. 28 U.S.C.A. § 1738C. Cited Cases
Child custody and visitation rights of biological fa-
[11] Child Custody 76D 720 ther's homosexual partner, as granted in North Caro-
lina child custody orders, arose out of partner's rela-
76D Child Custody tionship with child, not out of any allegedly valid
76DX Interstate Issues marriage between father and partner, and thus Mar-
76DX(B) Foreign Decrees and Orders riage Affirmation Act (MAA) did not apply to re-
76Dk720 k. Validity in general. Most Cited quire registration, pursuant to Uniform Child Custody
Cases Jurisdiction and Enforcement Act (UCCJEA), only of
portion of orders granting custody as to father and
mother; partner had been allowed to intervene in cus-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


685 S.E.2d 199 Page 4
55 Va.App. 247, 685 S.E.2d 199
(Cite as: 55 Va.App. 247, 685 S.E.2d 199)

tody dispute on basis that he had been full-time par-


ent to child since her birth two years previously, The relationship between the parties was initially
partner had been named as child's father on child's very open and cordial. However, after February of
birth certificate, child had partner's surname, and 2005, the relationship began to deteriorate. Prashad's
parties believed partner had been child's biological subsequent requests to see A.C.C. and inquiries into
father until DNA testing proved otherwise. West's her well-being went unanswered.
V.C.A. §§ 20-45.3, 20-146.27.
**201Catherine M. Bowers; Brett D. Lucas (Walker **202 In April of 2005, Prashad and her husband
Jones P.C.; Gabriel & Associates P.C., on briefs), traveled to North Carolina with the intent to return to
Warrenton, for appellant. Minnesota with A.C.C. Following a confrontation
between the parties, Copeland and Spivey refused to
Gregory R. Nevins (Rebecca Glenberg, Richmond; allow Prashad access to A.C.C. Copeland and Spivey
Laurie E. Forbes, Fairfax; Margo B. Owen; Lambda then moved from North Carolina with A.C.C.
Legal Defense & Education Fund, Inc.; American
Civil Liberties Union of Virginia Foundation, Inc.; Copeland and Spivey subsequently traveled to Cali-
Law Office of Laurie Forbes, LLC, on brief), for ap- fornia. On May 10, 2005, Copeland and Spivey filed
pellees. a Declaration of Domestic Partnership with the State
of California. Sometime thereafter Copeland and
Present: ELDER, BEALES and POWELL, JJ. Spivey returned to North Carolina. Shortly thereafter,
Copeland, Spivey and A.C.C. moved to Virginia,
POWELL, Judge. where they currently reside.

*251 Tanya Lynn Prashad (“Prashad”) appeals the *253 At some point, Prashad filed a Complaint for
registration of the entirety of four custody and visita- Custody in the General Court of Justice, District
tion orders from the Gaston County, North Carolina Court Division, of Gaston County, North Carolina
Court of General Justice adjudicating custody and (“North Carolina court”). Prashad sought custody of
visitation over A.C.C., a minor child, *252 as be- A.C.C. and a DNA test to determine the biological
tween Prashad, Roberto-Luis Manuel Copeland paternity of A.C.C. On August 16, 2005, the North
(“Copeland”) and Philip Byron Spivey (“Spivey”). Carolina court ordered Copeland to produce A.C.C.
Specifically, Prashad argues that the portions of the and submit to a DNA test to determine paternity.
orders pertaining to Copeland violate Virginia's Mar-
riage Amendment, Va. Const. art. I, § 5A, and Mar- On October 10, 2005, Spivey was determined to be
riage Affirmation Act, Code § 20-45.3, and therefore the biological father of A.C.C. Spivey subsequently
should have been excluded. filed a motion to intervene on October 18, 2005. On
that same day, the North Carolina court determined
BACKGROUND that it had jurisdiction over the matter, as North Caro-
lina was the last state of residency for Spivey, Cope-
On September 20, 2003, Prashad, Copeland, and land, and A.C.C.FN1
Spivey entered into a surrogacy agreement in Minne-
sota. Prashad was artificially inseminated with the FN1. The written order, however, was not
sperm of both Copeland and Spivey. As a result, entered until November 2, 2005.
A.C.C. was born in Minnesota on August 10, 2004.
Copeland was listed on the birth certificate as On June 13, 2006, a consent order was entered by the
A.C.C.'s father, even though no DNA test had veri- North Carolina court permitting Spivey to intervene.
fied biological paternity at that time. Similarly, on June 26, 2006, Copeland was allowed
to intervene in the case because, as the North Caro-
On August 15, 2004, with the consent of Prashad, lina court stated,
Copeland and Spivey moved with A.C.C. to North
Carolina. Prashad later visited A.C.C. in North Caro- [Copeland] is listed as the father on the birth certifi-
lina on a number of occasions. cate of [A.C.C.], [Copeland] has been a full-time

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parent to [A.C.C.] since her birth and has assumed dary custody to Prashad.
all responsibilities of being a parent to her, [Cope-
land] is entitled to claim a right of custody of On March 12, 2008, after hearing argument regarding
[A.C.C.] and be a party in this custody action pur- the Registration Petition, the **203 J & DR court
suant to [North Carolina's] custody statutes and entered an order registering the custody orders in
case law, [Copeland] has an interest in the custody their totality. Prashad subsequently appealed the J &
of [A.C.C.], the child he has raised for almost two DR court's registration of the custody orders to the
years, and disposition of this action without his in- Fairfax County Circuit Court.
volvement will significantly impair or impede his
ability to protect his relationship with [A.C.C.]. The circuit court heard argument on the matter on
June 18, 2008. In a letter opinion dated August 18,
On that same day, a written agreement resolving the 2008, the circuit court ruled that the custody orders
custody dispute was signed by Prashad, Copeland, would be registered in their entirety. A final order
and Spivey. The contents of the agreement were later was entered on October 9, 2008, memorializing the
reflected in an order entered by the North Carolina circuit court's ruling. Prashad appeals.
court on September 20, 2006. According to the order,
Copeland and Spivey were awarded *254 primary *255ANALYSISFN3
legal and physical custody of A.C.C.; Prashad was
awarded secondary legal and physical custody.
FN3. The dissent contends that we need not
address this case on the merits as neither the
On December 20, 2007, Prashad filed two petitions in circuit court nor this Court has jurisdiction
the Fairfax Juvenile and Domestic Relations District to hear this appeal. According to the dissent,
(“J & DR”) Court: “Emergency Petition for Registra- because the J & DR court still has to address
tion and Expedited Enforcement of Child Custody the Modification Petition, the order register-
Order and Petition for Ex Parte Order to Take Physi- ing the custody orders is not a final order.
cal Custody of Child” (“Registration Petition”) and
“Petition for Modification of Custody” (“Modifica-
tion Petition”). In the Registration Petition, Prashad This argument fails for three primary rea-
sought immediate custody of A.C.C., registration of sons. First, the dissent ignores the plain
the four orders of the North Carolina Court (collec- language of the UCCJEA with regard to
tively referred to as the “custody orders”),FN2 and the nature of the proceedings. The plain
enforcement of those orders. Prashad specifically language of the UCCJEA establishes that
asked the J & DR court to register the custody orders an enforcement proceeding and a modifi-
only to the extent that they addressed the parental and cation proceeding are distinctly separate
custodial rights of herself and Spivey. She expressly proceedings. See Jamil v. Jahan, 280
asked the J & DR court not to register the portions of Mich.App. 92, 760 N.W.2d 266, 272
the custody orders that dealt with the parental and (2008) (“We conclude that registration to
custodial rights of Copeland. In the Modification enforce a child-custody determination is
Petition, Prashad asked the court to modify the cus- distinct from actually making a child-
tody orders so that she had sole legal and physical custody determination.”). Code § 20-
custody of A.C.C. 146.1 defines the term “child custody de-
termination” as “a judgment, decree, or
other order of a court providing for the le-
FN2. The custody orders consisted of 1) the gal custody, physical custody, or visitation
August 16, 2005 order requiring the parties with respect to a child. The term includes
to appear for initial custody determination; a permanent, temporary, initial, or modi-
2) the November 2, 2005 order establishing fication order.” (Emphasis added). A
that North Carolina had jurisdiction over the “child custody proceeding” is defined to
matter; 3) the June 13, 2006 consent order include modification proceedings, but the
permitting Spivey to intervene; and 4) the definition specifically excludes enforce-
September 20, 2006 order awarding primary ment proceedings. Code § 20-146.1. Thus,
custody to Copeland and Spivey and secon- by definition, a modification proceeding

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and an enforcement proceeding are dis- ally compliance with the order”). Accord-
tinct from one another. ingly, the circuit court had jurisdiction to
hear this case when it was appealed from
Second, the fact that the two proceedings the J & DR court, and, therefore, this
are distinct and independent is highlighted Court has jurisdiction to consider the mer-
by the differences in the operative provi- its of this appeal.
sions of Article 2 (which details modifica-
tion of child custody determinations) and As an initial matter, it is important to state that this
those of Article 3 (which details the rec- case is only about the registration of custody and
ognition and enforcement of child custody visitation orders *256 from another state under the
determinations). A child custody determi- provisions of the Parental Kidnapping Prevention Act
nation can only be modified if the juris- and Virginia law. Although there has been much dis-
dictional requirements of Article 2 are cussion concerning homosexual marriage and same-
met, Code § 20-146.14, whereas a child sex relationships, both at the trial level and before
custody determination can be registered this Court, neither of the parties is seeking to have the
under Article 3 regardless of whether the civil union between Copeland and Spivey recognized
registering state has jurisdiction over any under Virginia law. Accordingly, this case is not
of the parties, Code § 20-146.26. See about homosexual marriage, civil unions, or same-
alsoCode § 20-146.26, Official Comment sex relationships.
(explaining that § 20-146.26 “authorizes a
simple registration procedure that can be A. Standard of Review
used to predetermine the enforceability of
a custody determination” (emphasis “In determining whether the trial court made an error
added)). of law, ‘we review the trial court's statutory interpre-
tations and legal conclusions de novo.’ ” Rollins v.
Third, and most importantly, the UCCJEA Commonwealth, 37 Va.App. 73, 79, 554 S.E.2d 99,
by its terms provides for an appeal of an 102 (2001) (quoting Timbers v. Commonwealth, 28
enforcement or registration proceeding Va.App. 187, 193, 503 S.E.2d 233, 236 (1998)).
independent of a modification proceeding.
Code § 20-146.35 specifically provides B. Foreign Custody and Visitation Determinations
that “[a]n appeal may be taken from a fi-
nal order in a proceeding under [Article 3]
in accordance with expedited appellate 1. Full Faith and Credit Clause
procedures in other civil cases.” As previ-
ously noted, Article 3 of the UCCJEA ad- Full Faith and Credit shall be given in each State to
dresses only registration and enforcement the public Acts, Records, and **204 judicial Pro-
proceedings. ceedings of every other State. And the Congress
may by general Laws prescribe the Manner in
Thus, the Registration Petition was inde- which such Acts, Records and Proceedings shall be
pendent of the Modification Petition. As proved, and the Effect thereof.
such, the trial court's order registering the U.S. Const. art. IV, § 1.
custody orders was final, as it disposed of
the whole subject of the Registration Peti- The United States Supreme Court has recognized that
tion, gave all the relief contemplated, and
left nothing to be done in the matter. See [t]he full faith and credit clause is one of the provi-
Alexander v. Morgan, 19 Va.App. 538, sions incorporated into the Constitution by its
540, 452 S.E.2d 370, 371 (1995) (holding framers for the purpose of transforming an aggre-
that a final order is one “that disposes of gation of independent, sovereign States into a na-
the whole subject, gives all the relief con- tion. If in its application local *257 policy must at
templated, and leaves nothing to be done times be required to give way, such “is part of the
in the cause save to superintend ministeri- price of our federal system.”

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A court may be guided by the forum State's “public


Sherrer v. Sherrer, 334 U.S. 343, 355, 68 S.Ct. 1087, policy” in determining the law applicable to a con-
1093, 92 L.Ed. 1429 (1948) (quoting Williams v. troversy. But our decisions support no roving “pub-
North Carolina, 317 U.S. 287, 302, 63 S.Ct. 207, lic policy exception” to the full faith and credit due
215, 87 L.Ed. 279 (1942)). judgments.

The Supreme Court has further recognized that the Baker v. Gen. Motors Corp., 522 U.S. 222, 232, 118
Full Faith and Credit Clause “prescribes a rule by S.Ct. 657, 663, 139 L.Ed.2d 580 (1998) (citations and
which courts, Federal and State, are to be guided footnotes omitted).
when a question arises in the progress of a pending
suit as to the faith and credit to be given by the court 2. Parental Kidnapping Prevention Act
to the public acts, records and judicial proceedings of
a State other than that in which the court is sitting.” In 1980, recognizing the inherent problems of apply-
Minnesota v. Northern Securities Co., 194 U.S. 48, ing full faith and credit to child custody agreements,
72, 24 S.Ct. 598, 605, 48 L.Ed. 870 (1904). Congress Congress passed 28 U.S.C. § 1738A as an addendum
subsequently passed 28 U.S.C. § 1738, which, in to the full faith and credit statute. Commonly referred
effect, codifies the Supreme Court's holding in to as the Parental Kidnapping Prevention Act
Northern Securities, stating: (“PKPA”), the chief purpose of 28 U.S.C. § 1738A
was to “avoid jurisdictional competition and conflict
Such Acts, records and judicial proceedings or copies between State courts.” Pub.L. 96-611, 94 Stat. 3569 §
thereof ... shall have the same full faith and credit 7(c)(5), note following 28 U.S.C. § 1738A.
in every court within the United States and its Ter-
ritories and Possessions as they have by law or us- [5] “[T]he PKPA is a mandate directed to state courts
age in the courts of such State, Territory or Posses- to respect the custody decrees of sister states.”
sion from which they are taken. Thompson v. Thompson, 484 U.S. 174, 183, 108 S.Ct.
513, 518, 98 L.Ed.2d 512 (1988). It requires that
[1][2][3][4] In applying the Full Faith and Credit “[t]he appropriate authorities of every State shall en-
Clause, the Supreme Court has distinguished between force according to its terms ... any custody determina-
statutes and judgments. With regard to statutes, the tion or visitation determination made consistently
Supreme Court has held that the Full Faith and Credit with the provisions of [the PKPA] by a court of an-
Clause does not require “a state to substitute the stat- other state.” **20528 U.S.C. § 1738A(a). Accord-
utes of other states for its own statutes dealing with a ingly, the United States Supreme Court has recog-
subject matter concerning which it is competent to nized that “Congress has extended the full faith and
legislate.” Pacific Employers Ins. Co. v. Industrial credit requirements to child custody orders.”
Accident Comm'n, 306 U.S. 493, 501, 59 S.Ct. 629, Thompson, 484 U.S. at 187, 108 S.Ct. at 520. Thus,
633, 83 L.Ed. 940 (1939). Furthermore, “the Full the PKPA
Faith and Credit Clause does not require a state to
apply another State's law in violation of its own le- imposes a duty on the States to enforce a child cus-
gitimate public policy.” Nevada v. Hall, 440 U.S. tody determination entered by a court of a sister
410, 422, 99 S.Ct. 1182, 1189, 59 L.Ed.2d 416 State if the determination is consistent with the
(1979) (footnote omitted). provisions of the [PKPA]. In order for a state
court's custody decree to be consistent with the
Regarding judgments, however, the full faith and provisions of the [PKPA], the State must *259
credit obligation is exacting. A final judgment in have jurisdiction under its own local law and one
one State, if rendered by a court with adjudicatory of five conditions set out in § 1738A(c)(2) must be
authority over the *258 subject matter and persons met. Briefly put, these conditions authorize the
governed by the judgment, qualifies for recognition state court to enter a custody decree if the child's
throughout the land. For claim and issue preclusion home is or recently has been in the State, if the
(res judicata) purposes, in other words, the judg- child has no home State and it would be in the
ment of the rendering State gains nationwide force. child's best interest for the State to assume jurisdic-
tion, or if the child is present in the State and has

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been abandoned or abused. Once a State exercises ulgated and adopted by a majority of the
jurisdiction consistently with the provisions of the states to address the mechanics of enforce-
[PKPA], no other State may exercise concurrent ju- ment, including registration. See UCCJEA
risdiction over the custody dispute, § 1738A(g), Prefatory Note, 9 U.L.A. 649, 652 (1997).
even if it would have been empowered to take ju-
risdiction in the first instance, and all States must Although the UCCJEA is comprised of four articles,
accord full faith and credit to the first State's ensu- in the present case, only Article 3 is at issue. Consis-
ing custody decree. tent with the PKPA, Article 3 “requires the courts of
this Commonwealth to ‘recognize and enforce’ ap-
Id. at 175-77, 108 S.Ct. at 514 (footnotes omitted). propriate child custody determinations of the courts
of other states.” Tyszcenko v. Donatelli, 53 Va.App.
[6] In the present case, neither party argues that the 209, 218, 670 S.E.2d 49, 54 (2008). “Article 3 also
custody orders were not made consistent with the addresses the mechanisms by which child custody
PKPA. See28 U.S.C. § 1738A(c); Thompson, 484 determinations may be enforced, as well as other as-
U.S. at 176-77, 108 S.Ct. at 515. Indeed, the record pects of enforcement proceedings under the UC-
clearly establishes that the North Carolina court had CJEA.” Id.
jurisdiction pursuant to North Carolina law, seeN.C.
Gen.Stat. § 50A-201 (2009), and A.C.C.'s home was The UCCJEA states:
in North Carolina within the six (6) months prior to
Prashad filing her initial complaint for custody. As A court of this Commonwealth shall recognize and
the custody orders were made consistently with the enforce a child custody determination of a court of
provisions of the PKPA, Virginia must extend full another state if the latter court exercised jurisdic-
faith and credit to the custody orders, unless some tion in substantial conformity with this act ... and
other statutory or constitutional provisions dictate the determination has not been modified in accor-
otherwise. dance with this act.

3. The Uniform Child Custody Jurisdiction and En- Code § 20-146.24.


forcement Act
The first step in the recognition and enforcement of a
Although the PKPA requires that each state enforce foreign child custody determination**206 is register-
the custody orders entered by a court of another state, ing that order with “the appropriate juvenile and do-
it provides no uniform method of enforcement.FN4 mestic relations district court in this Common-
Recognizing that “this *260 lack of specificity in wealth.” Code § 20-146.26(A). Such registration is
enforcement procedures has resulted in the law of accomplished by sending 1) a request for registration;
enforcement evolving differently in different jurisdic- 2) two copies of the determination to be registered
tions,” the National Conference of Commissioners on (including one certified copy) and “a statement under
Uniform State Laws drafted the UCCJEA. The stated penalty of perjury that to the best of the knowledge
purpose of the UCCJEA was to bring existing state and belief of the person seeking registration the order
laws into compliance with the PKPA and to bring has not been modified;” *261 and 3) “the name and
uniformity to the enforcement procedures. Virginia address of the person seeking registration and any
has since adopted and enacted the UCCJEA. SeeCode parent or person acting as a parent who has been
§ 20-146.1 et. seq. awarded custody or visitation” to the appropriate
court. Id. Upon receipt of the required documents,
FN4. Although the PKPA mandates that Code § 20-146.26 clearly states that “the registering
“[t]he appropriate authorities of every State court shall [c]ause the determination to be filed as a
shall enforce according to its terms ... any foreign judgment.” Code § 20-146.26(B)(1) (empha-
custody determination or visitation determi- sis added).
nation,” there is no further mention of en-
forcement within the Act. 28 U.S.C. § [7] Upon registration, “[a] court of this Common-
1738A(a). Thus, it does not specifically ad- wealth shall recognize and enforce, but may not mod-
dress registration. The UCCJEA was prom- ify, except in accordance with Article 2 (§ 20-146.12

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et seq.) of this chapter, a registered child custody persons of the same sex ... is treated as marriage.” 28
determination of a court of another state.” Code § 20- U.S.C. § 1738C.FN5 Similarly, DOMA allows a state
146.27(B) (emphasis added). Under the UCCJEA, “ to deny recognition of “a right or claim arising from
‘Modification’ means a child custody determination such relationship.” Id. Thus, DOMA is permissive in
that changes, replaces, supersedes, or is otherwise nature, meaning that it allows each state to decide for
made after a previous determination concerning the itself what effect, if any, that state will give to same
same child, whether or not it is made by the court that sex relationships that are treated as a marriage under
made the previous determination.” Code § 20-146.1. the laws of another state and the rights or claims aris-
Thus, during registration, ing therefrom. SeeH.R. Rep. No. 104-664, at 2
(1996), reprinted in 1996 U.S.C.C.A.N. 2905,
[t]he scope of the enforcing court's inquiry is limited 2906.FN6
to the issue of whether the decree[ing] court had ju-
risdiction and complied with due process in render- FN5.28 U.S.C. § 1738C states:
ing the original custody decree. No further inquiry
is necessary because neither Article 2 nor the No State, territory, or possession of the
PKPA allows an enforcing court to modify a cus- United States, or Indian tribe, shall be re-
tody determination. quired to give effect to any public act, re-
cord, or judicial proceeding of any other
UCCJEA Prefatory Note, 9 U.L.A. 649, 653 (1997); State, territory, possession, or tribe re-
see also Official Comment to Code § 20-146.24 specting a relationship between persons of
(“The changes made in Article 2 of this Act now the same sex that is treated as a marriage
make a State's duty to enforce and not modify a child under the laws of such other State, terri-
custody determination of another State consistent tory, possession, or tribe, or a right or
with the enforcement and nonmodification provisions claim arising from such relationship.
of the PKPA.”). Thus, it is clear that the UCCJEA
takes an all-or-nothing approach to the registration of FN6. An examination of the legislative his-
child custody determinations. tory of DOMA demonstrates its permissive
nature.
[8] In the present case, because the North Carolina
court exercised jurisdiction in substantial conformity [DOMA] has two primary purposes. The
with the UCCJEA, unless some other statutory or first is to defend the institution of tradi-
constitutional provisions dictate otherwise, the trial tional heterosexual marriage. The second
court was required to register the custody orders in is to protect the right of the States to for-
their entirety or not register them at all. mulate their own public policy regarding
the legal recognition of same-sex unions,
*262C. The Defense of Marriage Act free from any federal constitutional impli-
cations that might attend the recognition
[9] Prashad argues that the Defense of Marriage Act by one State of the right for homosexual
(“DOMA”), 28 U.S.C. § 1738C, trumps the PKPA couples to acquire marriage licenses.
and creates an exception to the Full Faith and Credit
Clause with regard to custody determinations involv- To achieve these purposes, [DOMA] has
ing same-sex couples in a relationship that is tanta- two operative provisions. Section 2, enti-
mount to marriage. Thus, Prashad contends that Vir- tled “Powers Reserved to the States,” pro-
ginia need not extend full faith and credit to the cus- vides that no State shall be required to
tody orders. accord full faith and credit to a marriage
license issued by another State if it relates
[10] DOMA, 28 U.S.C. § 1738C, passed by Congress to a relationship between persons of the
in 1996, is another addendum to the full faith and same sex. And Section 3 defines the terms
credit statute, 28 U.S.C. § 1738. DOMA allows a “marriage” and “spouse,” for purposes of
state to refuse to give full faith and credit to another federal law only, to reaffirm that they re-
state's determination that “a relationship between fer exclusively to relationships between

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persons of the opposite sex. nize*264 another union, partnership, or other legal
status to which is assigned the rights, benefits, ob-
H.R.Rep. No. 104-664, at 2, reprinted in ligations, qualities, or effects of marriage.
1996 U.S.C.C.A.N. at 2906 (emphasis
added); see also id. at 18, reprinted in Va. Const. art. I, § 15-A (emphasis added).
1996 U.S.C.C.A.N. at 2922 (“It is surely a
legitimate purpose of government to take The operative language of the VMA prohibits the
steps to protect the right of the people, Commonwealth creating or recognizing relationships
acting through their state legislatures, to that are “assigned the rights, benefits, obligations,
retain democratic control over the manner qualities, or effects of marriage.” As noted above,
in which the States will define the institu- neither party is asking the Court to recognize Cope-
tion of marriage. [DOMA] advances this land and Spivey's relationship. Therefore, registration
most important government interest.” of the custody orders does not implicate the VMA
(emphasis added)). under the facts of this case.

**207*263 However, as neither party is asking the Prashad, however, goes on to argue that, by register-
Court to recognize Copeland and Spivey's relation- ing the custody orders, the trial court “tacitly” recog-
ship as a valid marriage in the Commonwealth of nized the relationship between Copeland and Spivey.
Virginia and, as will be discussed below, the custody In support of this argument, Prashad posits that the
orders did not arise from Copeland and Spivey's rela- only basis that the North Carolina court had to grant
tionship being treated as a marriage, DOMA is inap- custody to Copeland was his relationship with
plicable to the present case. As DOMA is inapplica- Spivey. Assuming, arguendo, that the VMA prohibits
ble to the present case, we make no decision as to such tacit recognition of same-sex relationships,
what effect, if any, DOMA has upon the PKPA. Prashad would still have to prove that the North
Carolina court's grant of custodial rights to Copeland
D. The Virginia Marriage Amendment arose out of his relationship with Spivey.

[11] Prashad argues that registering the custody or- We begin by noting that, like Virginia, North Caro-
ders in their entirety under the UCCJEA violates the lina does not recognize same sex marriage. SeeN.C.
Virginia Constitution, specifically, the Virginia Mar- Gen.Stat. § 51-1.2 (2009) (“Marriages, whether cre-
riage Amendment (“VMA”), Va. Const. art. I, § 15- ated by common law, contracted, or performed out-
A. Prashad posits that Copeland's custodial and visi- side of North Carolina, between individuals of the
tation rights arise from his relationship with Spivey same gender are not valid in North Carolina.”). Fur-
and are therefore an “effect of marriage.” According thermore, the only reference to Copeland and
to Prashad, the VMA prohibits the recognition of Spivey's homosexual relationship appears in the No-
such “effects of marriage,” and thus the trial court vember 2, 2005 order establishing that North Caro-
erred in registering the custody orders. lina had jurisdiction over the matter. It is highly il-
logical that the North Carolina court granted Cope-
The VMA states: land's custodial rights based on a relationship **208
that the State of North Carolina does not recognize
That only a union between one man and one woman and that the North Carolina court does not acknowl-
may be a marriage valid in or recognized by this edge in its orders.
Commonwealth and its political subdivisions.
It is important, however, that, in allowing Copeland
This Commonwealth and its political subdivisions to intervene in the initial custody dispute, the North
shall not create or recognize a legal status for rela- Carolina court made no mention of Copeland's rela-
tionships of unmarried individuals that intends to tionship to Spivey. *265 Rather, the North Carolina
approximate the design, qualities, significance, or court clearly stated that Copeland was allowed to
effects of marriage. Nor shall this Commonwealth intervene as an interested party because
or its political subdivisions create or recog-
[Copeland] has been a full-time parent to [A.C.C.]

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685 S.E.2d 199 Page 11
55 Va.App. 247, 685 S.E.2d 199
(Cite as: 55 Va.App. 247, 685 S.E.2d 199)

since her birth and has assumed all responsibilities


of being a parent to her, [Copeland] has an interest A civil union, partnership contract or other arrange-
in the custody of [A.C.C.], the child he has raised ment between persons of the same sex purporting
for almost two years, and disposition of this action to bestow the privileges or obligations of marriage
without his involvement will significantly impair is prohibited. Any such civil union, partnership
or impede his ability to protect his relationship contract or other arrangement entered into by per-
with [A.C.C.]. sons of the same sex in another state or jurisdiction
shall be void in all respects in Virginia and any
Prashad's contention that “[t]here is no basis for contractual rights created thereby shall be void and
Copeland to have formed a relationship with ACC unenforceable.
aside from his relationship with Spivey” has no basis
in fact. To accept this proposition, this Court would Code § 20-45.3.
have to ignore the specific basis on which the North
Carolina court allowed Copeland to intervene. We Prashad's argument regarding the MAA relies on the
would also have to ignore the fact that Copeland's same logic as her VMA argument, namely, that
name is on A.C.C.'s birth certificate, that Copeland Copeland's custodial and visitation rights arise out of
allowed A.C.C. to use his surname, FN7 and that, for his relationship with Spivey. Prashad's attempt to
all intents and purposes, all parties believed Copeland characterize the September 20, 2006 order as a con-
was A.C.C.'s biological father for the first fourteen tract does not change our analysis. As we previously
(14) months of her life until the DNA tests proved noted, Copeland's custodial and visitation rights arise,
otherwise. Virginia has long recognized these facts, not out of his relationship with Spivey, but out of his
among others, to be clear and convincing evidence of relationship with A.C.C. Accordingly, this argument
paternity. See, e.g.,Code § 64.1-5.2. fails for the same reasons as Prashad's argument re-
garding the VMA.
FN7. A.C.C.'s surname is hyphenated, in-
corporating the surnames of both Copeland CONCLUSION
and Spivey.
We hold that the trial court correctly determined that
Thus, it is readily apparent that the North Carolina full faith and credit must be extended to the custody
court determined that Copeland's custodial rights orders in this case. Accordingly, we affirm the trial
arose out of the fact that he has a legitimate interest court's decision to register the custody orders in their
in A.C.C. for purposes of custody and visitation, and entirety.
not from his relationship with Spivey being treated as
a marriage under the laws of North Carolina. In light
of the fact that Copeland has a legitimate interest in Affirmed.
A.C.C., we cannot say that registration of the custody
orders is “tacit” recognition of Copeland and Spivey's BEALES, J., dissenting.
relationship. After reviewing the record and argument, I would
find that this appeal is not properly **209 before us. I
E. Marriage Affirmation Act believe this Court should not address the merits here
because this appeal was *267 not ripe for considera-
tion by the circuit court nor ripe for consideration by
[12] In her final argument, Prashad contends that the this Court. Cf. Jewell Ridge Coal Corp. v. Hender-
Marriage Affirmation Act (“MAA”), Code § 20-45.3, son, 229 Va. 266, 268-69, 329 S.E.2d 48, 50 (1985)
forbade *266 the trial court from registering the cus- (noting that the decision of a commission to deny
tody orders in their entirety. Specifically, Prashad peer review is not ripe for appeal as no final decision
argues that, under the MAA, the September 20, 2006 on the merits of the case have been reached). The
order awarding primary custody to Copeland and Fairfax County Circuit Court did not have jurisdic-
Spivey and secondary custody to Prashad is a “par- tion to take this case on appeal, and, therefore, the
tially void order.” Again, we must disagree. Court of Appeals should not consider the questions
presented in this case, given its posture.
The MAA reads:

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685 S.E.2d 199 Page 12
55 Va.App. 247, 685 S.E.2d 199
(Cite as: 55 Va.App. 247, 685 S.E.2d 199)

orders that were listed in the Emergency Petition. The


Under Virginia's statutes, which limit the jurisdiction arguments in the Modification Petition were essen-
of the courts, “[a]n appeal may be taken from a final tially the same as those in the Emergency Petition
order in a proceeding under” the UCCJEA. Code § and its supporting memorandum.
20-146.35 (emphasis added). See alsoCode § 16.1-
296 (allowing appeals to circuit courts “[f]rom any Although the actual order is not contained in the re-
final order or judgment of the juvenile court” (em- cord before this Court, it appears based on the parties'
phasis added)). The legislature has limited the circuit representations that the JDR court denied the request
courts' ability to hear appeals from the JDR courts to in Prashad's Emergency Petition for physical custody
those appeals that are “provided by law,” i.e., final of the child fairly soon after the petitions were filed.
orders. Code § 17.1-513; Walker v. Department of The JDR court then set a hearing for September 16
Public Welfare, 223 Va. 557, 562, 290 S.E.2d 887, and 18, 2008, on the Modification Petition.
890 (1982) (“Only final orders [of a JDR court] are
appealable.”). Thus, an action becomes ripe for ap- In addition, the JDR court heard argument on the
peal and within the subject matter jurisdiction of the registration of the North Carolina orders on March
circuit court when the JDR court has entered an order 12, 2008. During that hearing, the court explained,
that is final, i.e., one “that disposes of the whole sub- “Obviously, before this Court can do anything,
ject, gives all the relief contemplated, and leaves whether enforcement or modification of the North
nothing to be done in the cause save to superintend Carolina order, it has to first register it....” The court
ministerially compliance with the order.” Alexander noted, “It is up to this Court at this point, once the
v. Morgan, 19 Va.App. 538, 540, 452 S.E.2d 370, registration has been addressed to then address, obvi-
371 (1995). If the JDR court order regarding registra- ously, the grounds of modification in terms of what
tion is a final order, then appeal to the circuit court [the child's] best interests are, and how these two
was appropriate. However, I do not believe it was a individuals are connected to her in terms of this
final order. child's well-being.” The JDR court found all four
North Carolina orders should be registered in their
Initially, to determine whether the JDR order was a entirety and entered a handwritten order, retroactively
final order, it is important to consider the posture of registering **210 the orders as of the day that
this case-what relief the petitioner requested and what Prashad had filed her petitions with the JDR clerk's
remained to be done. Here, Prashad initiated the case office. The handwritten order *269 does not mention
by filing two petitions in the JDR court, one labeled the pending hearing on modification of the North
“Emergency Petition for Registration and Expedited Carolina custody order, which was still on the JDR
Enforcement of Child Custody Order and Petition for court's docket.
Ex Parte Order to Take Physical Custody of Child”
(Emergency Petition) and another labeled “Petition Prashad then filed a notice of appeal in the JDR
for *268 Modification of Custody” (Modification clerk's office. The notice indicated that she was ap-
Petition). In the Emergency Petition and its memo- pealing to the circuit court from an “order registering
randum, Prashad asked for immediate physical cus- (4) NC orders with respect to Copeland.”
tody of the child, registration of four North Carolina
orders which included a September 20, 2006 consent In the circuit court, Spivey filed a “Motion for Sum-
order regarding custody of A.C.C. (“with the excep- mary Judgment” and supporting memorandum. In her
tion of any and all orders recognizing any parental written response to Spivey's motion, Prashad noted
rights” of Copeland), and enforcement of some pro- that the September 2008 hearing in the JDR court FN8
visions in the September 20, 2006 custody order, was set “so that the matter currently before this [Cir-
such as ordering Spivey and Copeland to allow her cuit] Court could be decided, as the determination
visitation with the child. The Emergency Petition also would involve whether or not Copeland would re-
referenced the Modification Petition as providing main a party to the case.” During the hearing on the
additional support for the Emergency Petition. The motion for summary judgment, Prashad's counsel
Modification Petition asked that Prashad be granted noted that she had “invoked the jurisdiction of the
sole legal and physical custody of A.C.C., and it spe- court which allows for, under the UCCJEA, simulta-
cifically referenced the same four North Carolina neous requests for enforcement and registration [of

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


685 S.E.2d 199 Page 13
55 Va.App. 247, 685 S.E.2d 199
(Cite as: 55 Va.App. 247, 685 S.E.2d 199)

orders].” She also noted that “in order to modify [the 146.26(A), “[a] child custody determination issued
North Carolina order], this Court has to register it ...” by a court of another state may be registered in this
and pointed out that registering an order was the first Commonwealth, with or without a simultaneous re-
step towards its modification. quest for enforcement, by sending [the appropriate
documents] to the appropriate juvenile and domestic
FN8. The JDR court held this hearing in relations district court in this Commonwealth....”
September 2008, according to the represen- Here, Prashad filed the request for registration of the
tations of the parties, but did not enter its or- four North Carolina orders “with a simultaneous re-
der denying the Modification Petition until quest” for enforcement and for modification of the
after the circuit court had granted Spivey's custody order because she wanted the North Carolina
motion for summary judgment and Prashad custody order amended to give her sole custody of
had noted her appeal of that ruling to this the child and to take the custody rights of both
Court. At present, we are informed by the Spivey and Copeland. Clearly, registration here was
parties, an appeal of the JDR court's refusal simply a procedural prerequisite to the overall en-
to modify the North Carolina custody order forcement and modification action that Prashad initi-
is pending in the circuit court. ated and was pursuing. Cf. Gary v. Board of Zoning
Appeals, 246 Va. 1, 1-2, 429 S.E.2d 875, 875 (1993)
The circuit court granted Spivey's motion for sum- (finding the appeal was not ripe because the board
mary judgment and entered an order, dated October had not made a decision regarding the property in
9, 2008, that registered the North Carolina orders in dispute and, thus, had not “exhausted” its “powers”
their entirety and remanded the case “to the jurisdic- over the controversy). In fact, the JDR court appar-
tion” of the JDR court. Prashad then appealed to this ently did not believe that its order registering the four
Court from the circuit court's order. North **211 Carolina orders was a final order in the
case. As that court noted *271 during the March 12,
2008 hearing, “Obviously, before this Court can do
I would find that the JDR court's order to register the anything, whether enforcement or modification of the
four North Carolina orders in their entirety was not a North Carolina order, it has to first register it....” Cf.
final order in this matter. This order, although it re- Alexander, 19 Va.App. at 540, 452 S.E.2d at 372
sponded to a request in *270 the Emergency Petition, (noting that the Norfolk JDR court's memorandum
was integral to the relief that Prashad had requested clearly stated that the court expected an endorsed
simultaneously-that she be given primary custody of order would be entered and that the case was contin-
A.C.C.-in the Modification Petition.FN9 As she (and ued, and, therefore, the memorandum was not the
both lower courts) admitted during these proceedings, final order).FN10
registration of the orders was simply a preliminary
step to reaching the actual issue in this case-possible
modification of the North Carolina custody order. FN10. The fact that Prashad filed two peti-
tions is not controlling in this analysis. Cf.
Comcast of Chesterfield County, Inc. v.
FN9. The substantive relief requested in the Board of Supervisors, 277 Va. 293, 301, 672
Emergency Petition, that Prashad be granted S.E.2d 870, 873-74 (2009) (finding that, al-
temporary custody of the child and that her though the circuit court had bifurcated the
visitation be enforced, was denied prior to proceedings to address a classification issue
the JDR court's hearing on registration of the first, the order on classification was not a fi-
orders. That order was not appealed to the nal order). Each of Prashad's petitions essen-
circuit court. tially requests the same relief-that she be
granted primary custody of the child. There-
Registration is usually a preliminary step to enforce- fore, her decision to use more than one peti-
ment or amendment of a custody order previously tion should not control the jurisdiction of the
entered by an out-of-state court. SeeCode §§ 20-108; courts in this matter.
20-146.26; 20-146.27; cf. Ohlen v. Shively, 16
Va.App. 419, 423, 430 S.E.2d 559, 561 (1993) (dis- Both of Prashad's petitions involved the same adverse
cussing the change of circumstances requirement for parties, the same child, and the same orders, and they
amendment of pre-existing orders). Under Code § 20-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


685 S.E.2d 199 Page 14
55 Va.App. 247, 685 S.E.2d 199
(Cite as: 55 Va.App. 247, 685 S.E.2d 199)

were filed simultaneously in the JDR court. When the particularly relevant to this case, as the fact that pro-
JDR court denied her request for registration of only ceedings can be “distinctly separate” in the abstract
part of the North Carolina orders, that court did not does not establish the fact that an order in a particu-
resolve all the issues between the parties. Whether lar case is final.
the orders were registered in full or in part, their reg-
istration did not resolve the substantive issues raised As discussed supra, final orders resolve the contro-
in the simultaneously filed petitions. See Whitaker v. versies between the litigants. In order to determine if
Day, 32 Va.App. 737, 743, 530 S.E.2d 924, 927 the controversies are resolved, examination of the
(2000) (finding that an order is not final simply be- particular proceedings in the case, including the par-
cause it will possibly affect the outcome of a case). ties' petitions and motions, is often required. There-
By simply entering the registration order, the JDR fore, simply indicating that two requests are “sepa-
court had not yet resolved the controversy raised in rate” does not resolve the question of whether an or-
the simultaneously filed petitions. That court still had der is final.FN12 Instead, the particular case must be
to determine whether Prashad's custody rights, examined to determine if an order is final. In this
Spivey's custody rights, and, of course, Copeland's case, the registration of the custody order did not
custody rights would remain the same as initially resolve the controversy. Here, although Prashad filed
granted in the September 20, 2006 North Carolina separate petitions and gave them separate titles, in
custody order. Therefore, there was no final order both petitions **212 she asked that the existing North
entered here, “one that disposes of the whole subject, Carolina custody order be modified. In the Emer-
gives all the relief contemplated, and leaves nothing gency Petition,*273 she did not simply ask that the
to be done in the cause save to superintend ministeri- pre-existing order be registered, but instead asked
ally compliance with the order.” Alexander, 19 that a portion of the order be excluded, effectively
Va.App. at 540, 452 S.E.2d at 371;*272McLane v. asking the JDR court to modify the order without
Vereen, 278 Va. 65, 70, 677 S.E.2d 294, 297 (2009). considering if any change of circumstances had oc-
Thus, the circuit court did not have jurisdiction to curred since the entry of the order. Therefore, al-
consider the appeal of the March 12, 2008 JDR court though there may be instances where an order that
order. Code § 17.1-513; Walker, 223 Va. at 562, 290 registers an out-of-state custody order is a final order,
S.E.2d at 890.FN11 we are not presented with such an instance here, es-
pecially since both petitions in this case (the one
FN11. If the order registering the North acted on by the JDR court and the one that had not
Carolina orders is considered an interlocu- been) dealt with the same custody and visitation dis-
tory order of the JDR court, then my analy- pute between the same parties over the same child. In
sis on this issue would not change. Under short, both petitions filed here dealt with the same
Code § 16.1-296, “[t]he only provision [in overall dispute, which was not resolved by simply
the Code sections on JDR court procedure] registering the North Carolina orders, since their reg-
relating to appeals from the juvenile court to istration still left the biggest part of the dispute to be
the circuit court,” only final orders can be resolved later by the JDR court.
appealed, not interlocutory orders. Walker,
223 Va. at 562, 290 S.E.2d at 890. There- FN12. For example, although modification
fore, the JDR court's order registering the of child support and enforcement of child
four North Carolina orders, if interlocutory, support are separate proceedings, a party
still was not appealable to the circuit court. cannot necessarily appeal one determination
without appealing the other. See Sharma v.
The majority opinion contends in a footnote that the Sharma, 46 Va.App. 584, 592-93, 620
March 12, 2008 JDR court order was a final order, S.E.2d 553, 557-58 (2005).
relying on language in the UCCJEA and a Michigan
case that distinguishes the registration of an order In Sharma v. Sharma, 46 Va.App. 584, 592-93, 620
from other “proceedings.” However, neither the UC- S.E.2d 553, 557-58 (2005), this Court discussed at-
CJEA nor Jamil v. Jahan, 280 Mich.App. 92, 760 tempts to appeal an individual order entered by a JDR
N.W.2d 266 (2008), defines a “final order.” There- court in child support cases. In Sharma, the appellant
fore, these points made by the majority here are not claimed he was not required to provide an appeal

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


685 S.E.2d 199 Page 15
55 Va.App. 247, 685 S.E.2d 199
(Cite as: 55 Va.App. 247, 685 S.E.2d 199)

bond because he appealed only the JDR order that Likewise, any subsequent proceeding based on
had increased the amount of his child support obliga- such a defective judgment is void or a nullity.
tion, but not the JDR order finding that he was in
arrears. We found in that case that, where orders are Even more significant, the lack of subject matter
“intrinsically, inherently, and logically related,” a jurisdiction can be raised at any time in the pro-
party cannot appeal only one of several orders en- ceedings, even for the first time on appeal by the
tered during resolution of the issues. Id. at 592, 620 court sua sponte.
S.E.2d at 557. We then concluded that “these two
issues could not be separated on appeal, nor could the Morrison v. Bestler, 239 Va. 166, 169-70, 387 S.E.2d
judgment appealed be bifurcated.” Id. Here, simi- 753, 755-56 (1990) (citations omitted) (emphasis
larly, the issues of registration of the North Carolina added). Therefore, as the circuit court did not have
custody order and of modification of that same order jurisdiction at the time it entered its order, any ruling
cannot be separated and should not have been bifur- that we reach in this case would likewise be void. Id.
cated by an appeal.FN13 at 170, 387 S.E.2d at 756.

FN13. If appeals such as the current one are In summary, I believe the circuit court did not have
allowed, then the circuit courts and this jurisdiction to consider Prashad's appeal because she
Court will be asked to resolve numerous did not appeal a final order of the JDR court. Conse-
half-litigated cases. For example, if a court quently, we should not consider the merits of the cir-
entered an order finding that a contract was cuit court's void order. Therefore, I respectfully dis-
enforceable, under the example provided by sent.
the case currently before us, then that order
would be appealable before that initial court
could address the more substantive contro- Va.App.,2009.
versies in the case, such as whether a party Prashad v. Copeland
breached the contract and what remedy was 55 Va.App. 247, 685 S.E.2d 199
appropriate, if any. In addition to the obvi-
ous problems of judicial economy from such END OF DOCUMENT
appeals, this Court would also find it ex-
tremely difficult to apply Code § 8.01-678
and determine whether any error in the
lower court was harmless because the effect
of any error on the ultimate outcome of the
case would still be unknown. Indeed, this
case presents such a problem as it is unclear
how any alleged error in registering the
North Carolina orders materially affected
Prashad and her child custody rights, which
are still being litigated in the Fairfax courts.

*274 Furthermore, the fact that the parties here do


not raise this issue on appeal is irrelevant.

Subject matter jurisdiction alone cannot be waived or


conferred on the court by agreement of the parties.
A defect in subject matter jurisdiction cannot be
cured by reissuance of process, passage of time, or
pleading amendment. While a court always has ju-
risdiction to determine whether it has subject mat-
ter jurisdiction, a judgment on the merits made
without subject matter jurisdiction is null and void.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


TAB R
221 P.2d 1 Page 1
35 Cal.2d 796, 221 P.2d 1, 20 A.L.R.2d 1152
(Cite as: 35 Cal.2d 796, 221 P.2d 1)

30XIII Dismissal, Withdrawal, or Abandonment


Supreme Court of California, in Bank. 30k805 k. Abandonment. Most Cited Cases
REDIKER Award of $15,000 to plaintiff as putative spouse for
v. her share of community property was based on de-
REDIKER et al. cree annulling marriage as bigamous and was insepa-
L. A. 20704. rable therefrom and appeal therefore had to be taken
from the entire judgment and could not be abandoned
Aug. 18, 1950. as to the award.

Action by Alice Gordillo Rediker against Abraham [2] Divorce 134 172
Sanford Rediker and others for separate maintenance,
naming Josefina Valle, also known as Josefina Valle 134 Divorce
Rediker, as co-respondent, wherein named defendant 134IV Proceedings
filed a cross-complaint for annulment of marriage. 134IV(N) Judgment or Decree
The Superior Court for Los Angeles County, William 134k172 k. Conclusiveness of Adjudica-
J. Palmer, J., entered a judgment annulling the mar- tion. Most Cited Cases
riage as bigamous and awarding plaintiff $15,000 as While a divorce decree as between parties or privies
putative spouse and plaintiff appealed. The Supreme is res judicata not only of their status with relation to
Court, Traynor, J., held that divorce decree obtained each other but also of all issues that were litigated or
by named defendant's first wife after his marriage to could have been litigated therein, as to strangers to
plaintiff was not as to plaintiff res judicata of exis- the action or a stranger and a party thereto, the decree
tence of first marriage until entry of decree, that de- is res judicata only to the extent that it adjudicates the
cree of divorce from first wife obtained by named future status of the parties in relation to each other.
defendant in Cuba was entitled to full faith and credit
and that named defendant was estopped from denying [3] Divorce 134 172
the validity thereof.
134 Divorce
Judgment reversed and cause remanded for a new 134IV Proceedings
trial. 134IV(N) Judgment or Decree
134k172 k. Conclusiveness of Adjudica-
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A divorce decree is not res judicata of the previous
West Headnotes validity of the marriage as against third persons who
were not parties to the action and had no right to be
heard therein.
[1] Appeal and Error 30 122
[4] Constitutional Law 92 4012
30 Appeal and Error
30III Decisions Reviewable
30III(E) Nature, Scope, and Effect of Deci- 92 Constitutional Law
sion 92XXVII Due Process
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of Judgment or Order. Most Cited Cases 92k4007 Judgment or Other Determination
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Appeal and Error 30 805
(Formerly 92k315)
A decision purporting to bind by the findings of fact
30 Appeal and Error in an earlier action, even though it was a proceeding

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


221 P.2d 1 Page 2
35 Cal.2d 796, 221 P.2d 1, 20 A.L.R.2d 1152
(Cite as: 35 Cal.2d 796, 221 P.2d 1)

in rem, a person who was not a party thereto and who cause and the parties.
had no notice or right to a hearing in such action
would deprive such person of property without due [7] Divorce 134 364(1)
process of law in violation of Fourteenth Amend-
ment. U.S.C.A.Const. Amend. 14.
134 Divorce
134VIII Foreign Divorces
[5] Divorce 134 353(1) 134k357 Jurisdiction of Foreign Court
134k364 Recitals or Findings of Jurisdic-
134 Divorce tional Facts
134VIII Foreign Divorces 134k364(1) k. Conclusiveness and Ef-
134k351 Adjudications Recognized fect in General. Most Cited Cases
134k353 Particular Foreign Divorces (Formerly 134k327)
134k353(1) k. In General. Most Cited It must be presumed, in absence of competent evi-
Cases dence to the contrary, that a foreign court had juris-
(Formerly 134k326) diction of suit for divorce brought in the state of
domicile of complainant and that recital of jurisdic-
Divorce 134 364(1) tion in divorce decree is true.

134 Divorce [8] Divorce 134 81


134VIII Foreign Divorces
134k357 Jurisdiction of Foreign Court 134 Divorce
134k364 Recitals or Findings of Jurisdic- 134IV Proceedings
tional Facts 134IV(F) Appearance
134k364(1) k. Conclusiveness and Ef- 134k81 k. In General. Most Cited Cases
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husband domiciled in Cuba and where divorce decree even though entry of decree under such circum-
recited that court had jurisdiction and there was no stances may have been error.
evidence that absent spouse was not constructively
served with process or that decree was obtained [9] Judgment 228 501
through fraud or collusion, divorce decree must be
given the same effect by California courts as final
228 Judgment
judgments rendered in that state or in the courts of a
228XI Collateral Attack
sister state which are entitled to full faith and credit
228XI(B) Grounds
under Constitution of the United States. West's
228k500 Errors and Irregularities
Ann.Code Civ.Proc. § 1915; U.S.C.A.Const. art. 4, §
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[6] Divorce 134 78 the action is not subject to collateral attack on ground
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134IV Proceedings [10] Divorce 134 386(2)
134IV(E) Process or Notice
134k78 k. Substituted Service. Most Cited
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134VIII Foreign Divorces
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134k380 Construction and Operation
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© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


221 P.2d 1 Page 3
35 Cal.2d 796, 221 P.2d 1, 20 A.L.R.2d 1152
(Cite as: 35 Cal.2d 796, 221 P.2d 1)

(Formerly 134k330)
Husband, having instituted suit for divorce in Cuba [1] Plaintiff appeals from a judgment annulling as
and remarried in reliance on divorce decree, was es- bigamous her marriage to defendant and awarding
topped from denying its validity in suit by second her $15,000 as a putative spouse for her share of the
wife for separate maintenance, even though he had community property and as compensation for her
merely employed an attorney to obtain divorce and services to defendant during the purported mar-
did not appear personally in Cuban action. riage. She seeks to abandon her appeal from the
award of $15,000, but that award is based on the de-
[11] Divorce 134 168 cree of annulment and is inseparable therefrom. The
appeal must therefore be taken from the entire judg-
134 Divorce ment. Milo v. Prior, 210 Cal. 569, 571, 292 P.
134IV Proceedings 647;Bailey v. Bailey, 60 Cal.App.2d 291, 293, 140
134IV(N) Judgment or Decree P.2d 693.
134k168 k. Collateral Attack. Most Cited
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The validity of a divorce decree cannot be contested York in 1922. The following year they moved to Ha-
by a party who has procured the decree or has remar- vana, Cuba, where defendant entered the manufactur-
ried in reliance thereon or by one who has aided an- ing business and registered with the American consul
other to procure the decree so that the latter will be as a Cuban resident. They lived together in Havana
free to remarry. until 1930 when Bessie and their minor daughter re-
turned to the United States. Defendant remained in
[12] Marriage 253 40(1) Havana, and on January 27, 1939, in the Court of
First Instance of the Southern District of Havana, he
obtained a default divorce decree from Bessie. Bessie
253 Marriage
was awarded custody of their daughter. On Novem-
253k40 Presumptions
ber 28, 1939, defendant married plaintiff and lived
253k40(1) k. In General. Most Cited Cases
with her as her husband until January 26, 1956, when
A strong presumption exists as to the validity of a
he left plaintiff and came to Los Angeles. She fol-
marriage in absence of positive evidence to the con-
lowed him and discovered that he had married
trary.
Josefina Valle, a former employee in his Havana fac-
tory.
[13] Marriage 253 58(5)
Defendant was charged with bigamy because he mar-
253 Marriage ried Miss Walle while still married to plaintiff. He
253k56 Annulment was convicted of the charge but was granted proba-
253k58 Grounds tion upon payment of a $2,500 fine.
253k58(5) k. Prior Existing Marriage. Most
Cited Cases *799 Plaintiff brought this action in the Superior
Where marriage was contracted in reliance on di- Court of Los Angeles County for separate mainte-
vorce obtained by husband from previous wife, pub- nance on the grounds of adultery and extreme cruelty.
lic policy required preservation of second marriage Defendant was personally served in the sction and
rather than its annulment on ground of invalidity of **3 cross-complained for an annulment of their mar-
divorce decree, particularly where first wife had al- riage on the ground that at the time of their purported
ready obtained another divorce decree. marriage plaintiff was still the wife of one Reinhold
**2*798 William Ellis Lady, Los Angeles, for appel- Graf. The trial court found that plaintiff was divorced
lant. from Graf six years before her marriage to defendant.
The court also found, however, that at the time of her
Hahn, Ross, Goldstone & Saunders and Philip marriage to defendant he was still the husband of
Gordon, all of Los Angeles, for respondents. Bessie Yalkut Rediker and that the marriage of plain-
tiff and defendant was therefore bigamous and void.
TRAYNOR, Justice. It found defendant's Cuban decree invalid for want of

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jurisdiction in that ‘said Bessie Rediker was never cree therein by remarrying, is estopped to deny its
served with process in any such proceedings or pur- validity.
ported proceedings, if any were had, and no trial or
hearing was had in connection with any such pro- Defendant contends that an existing valid marriage is
ceedings or purported proceedings for the purpose of a condition precedent to the entry of a divorce decree
divorcing defendant from Bessie Rediker,’ and that under Florida law, Keener v. Keener, 152 Fla. 13, 11
defendant was lawfully married to Bessie Rediker So.2d 180, and that the entry of the decree imports a
until she obtained a divorce decree on August 28, finding that defendant and Bessie were lawfully mar-
1944 in the Circuit Court of Dade County, Florida. ried at the time of its entry, five years after the pur-
ported marriage of defendant to plaintiff. He urges
Defendant introduced the Florida decree over plain- that, since a divorce decree is a judgment in rem, the
tiff's objection for the purpose of establishing that he essential finding that the parties thereto were lawfully
and Bessie were lawfully married until the entry of married is res judicata in this action, and that, since
the decree dissolved their marriage. The trial court, the Florida court had jurisdiction to enter the decree
holding that the decree was conclusive of that fact and plaintiff does not contend that it was procured by
stated: ‘Now, the Constitution of the United States fraud or collusion, this court must accord full faith
specifically places upon this Court the duty to give and credit to the decree and to the finding of a lawful
full faith and credit to that judgment of the Court of marriage necessarily implied therein. U.S.Const. Art.
the State of Florida. * * * Consequently I am not in a IV, s 1; Williams v. State of North Carolina, 317 U.S.
position to ignore it. I have to accept it and as I 287, 299, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R.
pointed out in my notice of decision that judgment 1273;Estin v. Estin, 334 U.S. 541, 546-547, 68 S.Ct.
carried the absolutely necessary implication that up to 1213, 92 L.Ed. 1561, 1 A.L.R.2d 1412. He alleges
the time that it was rendered Abraham and Bessie that ‘a judgment in a divorce case must be treated as
were married and that at the time Abraham married dealing with status prior to divorce as well as after,
Alicia he was married to Bessie. * * * You say that and the one independently of the other,’ and that the
you were not a party to the divorce action. That is not res in divorce action **4 ‘is not only the subsequent
a fully correct statement because we are all parties to singleness of the parties, but also their prior marital
every divorce action because a divorce action is an status a determination which is ‘immune from collat-
action in rem and that divorce action was presented in eral attack’.'
this Court for the purpose of proving not any of the
issues that were involved in the case but simply for [2][3] That contention, however, is opposed to the
the purpose of proving itself, namely, that she was prevailing rule in most of the jurisdictions of the
given a decree of divorce as of a certain date and in United States and to several decisions of this court. It
my judgment it was very properly admissible in this is an oversimplification to state that a divorce pro-
case.’ ceeding is a proceeding in rem, and to proceed from
that statement to the assumption that a decree entered
The trial court concluded that in ‘proving itself’ the therein is res judicata in an action between a party
*800 Florida decree proved the ‘absolutely necessary and a stranger thereto, not only as to the subsequent
implication’ that defendant and Bessie were married status *801 of the parties with relation to each other,
until the date it was entered and that it was res judi- but also as to all issues decided or that might have
cata on that issue. It therefore found that the marriage been decided in the proceeding. The weight of au-
of defendant and plaintiff was bigamous and granted thority holds that a decree of divorce is a judgment in
the prayer of the cross-complaint for an annulment. rem only to the extent that it adjudicates the future
status of the parties in relation to each other.
On this appeal plaintiff contends that the Florida de- Williams v. North Carolina, 317 U.S. 287, 298, 63
cree is res judicata in this action only insofar as it S.Ct. 207, 87 .l.Ed. 279, 143 A.L.R. 1273;Williams v.
adjudicated the parties' lack of marital relationship to North Carolina, 325 U.S. 226, 232, 65 S.Ct. 1092, 89
each other from then on, that the trial court's finding L.Ed. 1557,157 A.L.R. 1366. As between parties or
that the Cuban divorce is invalid is not supported by privies, the decree is res judicata not only of their
the evidence, and that defendant, having initiated the status with relation to each other but also of all issues
Cuban action and having taken advantage of the de- that were litigated or that could have been litigated

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therein. Blumenthal v. Blumenthal, 97 Cal.App. entry of the divorce decree. This court, however, held
558, 561, 275 P. 987;Petry v. Petry, 47 Cal.App.2d that as between a party to the divorce action and a
594, 595, 118 P.2d 498;Borg v. Gorg, 25 Cal.App.2d stranger thereto the decree was a judgment in rem
25, 29, 76 P.2d 218; 2 Freeman, Judgments, s 906, p. only in that it adjudicated the future status of the par-
1904. Estate of Lee, 200 Cal. 310, 314, 253 P. 145, ties. ‘So far, and no farther, the judgment bound him
on which defendant relies, has been properly inter- and all the world.’ 111 Cal. 261, 266, 43 P. 756,
preted in Blumenthal v. Blumenthal, supra, as stating 757.
the rule applicable between parties and their privies.
As between strangers or strangers and parties, how- In Estate of James, 99 Cal. 374, 379, 33 P. 1122,37
ever, the decree is res judicata only in that it conclu- Am.St.Rep. 60, and Estate of McNeil, 155 Cal. 333,
sively determines that the parties are thereafter free to 343-344, 100 P. 1086, identical questions were pre-
remarry so far as any relation to each other is con- sented. In **5 each case, a first wife challenged the
cerned. It does not establish the previous validity of right of decedent's second wife to succeed to his es-
their marriage against third persons who were not and tate. In each case the first wife contended that dece-
had no right to be heard thereon. 2 Freeman, Judg- dent's second marriage was bigamous for the reason
ments, s 910, p. 1913; 3 Freeman, Judgments, s 1524, that his divorce from his first wife was invalid. In
pp. 3131-3132; Restatement, Judgments, s 74, p. 335; support of that contention, each first wife offered in
Hunter v. Hunter, 111 Cal. 261, 266, 43 P. 756, 31 evidence a separate maintenance decree obtained by
L.R.A. 411, 52 Am.St.Rep. 180; Estate of James, 99 her after the decedent obtained the allegedly invalid
Cal. 374, 379, 33 P. 1122,37 Am.St.Rep. 60. ‘We divorce, contending that the separate maintenance
may lay on one side, then, any argument based on the decree was res judicata of the continued existence of
misleading expression that all the world are parties to the first marriage. In both cases, the court held that
a proceeding in rem. This does not mean that all the the later decree did not, as between a party thereto
world are entitled to be heard; and, as strangers in and a stranger, reinstate the first marriage notwith-
interest are not entitled to be heard, there is no reason standing the intervention of a previous decree.
why they should be bound by the findings of fact,
although bound to admit the title or status which the This court has also held that an order admitting a will
judgment establishes.’ Holmes, J., in Brigham v. to probate, although a judgment in rem to that extent,
Fayerweather, 140 Mass. 411, 413, 5 N.E. 265, 267; was not res judicata of the essential finding that de-
see also, Wilson v. Mitchell, 48 Colo. 454, 469, 111 cedent was a California domiciliary, except as be-
P. 21, 30 L.R.A.N.S., 507;Oborn v. State, 143 Wis. tween the parties to the probate proceeding. Estate
249, 267, 126 N.W. 737, 31 L.R.A.N.S., of Bloom, 213 Cal. 575, 578-579, 2 P.2d 753; see
966;Williams v. Williams, 63 Wis. 58, 75, 23 N.W. also, Estate of Newman, 124 Cal. 688, 692, 57 P.
110,53 Am.Rep 253;Pollard v. Ward, 289 Mo. 275, 686,45 L.R.A. 780;Riley v. New York Trust Co., 315
284, 233 S.W. 14, 20 A.L.R. 936;*802American U.S. 343, 342-343,62 S.Ct. 608, 86 L.Ed. 885. Al-
Woolen Co. v. Lesher, 267 Ill. 11, 17-18, 107 N.E. though several decisions have held that the findings
882;Willey v. Howell, 168 Ky. 466, 470, 182 S.W. in a divorce action are res judicata as between the
619;Matter of Holmes' Estate, 291 N.Y. 261, 269- parties thereto, they *803 have disclaimed any inten-
270, 271, 52 M.E.2d 424, 150 A.L.R. 447; 44 tion to apply the doctrine to persons not parties to the
Col.L.Rev. 442, 444-445; 16 Cal.L.Rev. 146. divorce action. Estate of Hughes, 80 Cal.App.2d
550, 556, 182 P.2d 253;Godfrey v. Godfrey, 30
The decisions of this court have estabished that a Cal.App.2d 370, 380, 86 P.2d 357;Borg v. Borg, 25
divorce decree is res judicata as to strangers thereto Cal.App.2d 25, 29, 76 P.2d 218.
only to the extent that is establishes the future status
of the parties. Thus, in Hunter v. Hunter, 111 Cal. Uncertainty as to the validity of migratory divorces
261, 43 P. 756, 31 L.R.A. 411, 52 Am.St.Rep. 180, created by the recent decisions of the United States
plaintiff, suing to annul as bigamous his marriage to Supreme Court, Williams v. State of North Carolina,
the defendant, introduced a decree of divorce ob- 317 U.S. 287, 299, 63 S.Ct. 207, 87 L.Ed. 279, 143
tained by her from her first husband twenty-five A.L.R. 1273;Williams v. State of North Carolina, 325
years after she married plaintiff. He asserted that the U.S. 226, 65 S.Ct 1092, 89 L.Ed. 1577, 157 A.L.R.
entry of the decree dissolving that marriage was res 1366;Rice v. Rice, 336 U.S. 674, 69 S.Ct. 751, 93
judicata of its existence until it was dissolved by the

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L.Ed. 957, has induced many spouses, doubtful of the defendant admits that he was. The Cuban court there-
validity of such a divorce and wishing to insure the fore had jurisdiction to enter the decree and, since its
validity of a remarriage, to seek a second divorce in procurement was not the result of fraud or collusion,
the state of their present domicile. See Powell, And the decree must be given ‘the same effect as final
Repent at Leisure, 58 Harv.L.Rev. 930, 1004. The judgments rendered in this state’ or in the court of a
possibility that a trial court in a later proceeding may sister state to which this court must give full faith and
find that the moving spouse was not domiciled in the credit. Code of Civil Procedure s 1915; Williams v.
state in which the decree was entered may induce State of North Carolina, 317 U.S. 287, 299, 63 S.Ct.
many spouses to secure a second decree rather than 207, 87 L.Ed. 279, 143 A.L.R. 1273;Sherrer v.
or rely on the first, to avoid the risk that later litiga- Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429,
tion will prove such reliance misplaced. Williams v. 1 A.L.R.2d 1355;Coe v. Coe, 334 U.S. 378, 68 S.Ct.
State of North Carolina, 325 U.S. 226, 232, 65 S.Ct. 1094, 92 L.Ed. 1451, 1 A.L.R.2d 1376;Baldwin v.
1092, 89 L.Ed. 1577, 157 A.L.R. 1366;Rice v. Rice, Baldwin, 28 Cal.2d 406, 410-411, 170 P.2d 670.
336 U.S. 674, 69 S.Ct. 751, 93 L.Ed. 957;Crouch v.
Crouch, 28 Cal.2d 343, 169 P.2d 897; see Powell, [6][7] The trial court found the Cuban divorce decree
supra. invalid for want of jurisdiction in that ‘said Bessie
Rediker was never served with process in any such
[4] The rights of an innocent second spouse or the proceedings.’ It is undisputed that Bessie was not
children of a second marriage are not diminished by personally served in the Cuban action, but personal
the findings of fact in a proceeding to which they service on an absent spouse is not a jurisdictional
were not parties and in which they had no right to be requirement, if the action is brought in the state if
heard. Such a holding would be not only unreason- domicile of the complainant. Williams v. State of
able but constitutionally objectionable. A decision of North Carolina, supra; Baldwin v. Baldwin, supra;
any court purporting to bind by the findings of fact of Crouch v. Crouch, 28 Cal.2d 343, 169 P.2d 897;Saul
an earlier action a person who was not a party thereto v. Saul, 75 App.D.C. 287, 122 F.2d 897; Saul v. Saul,
and who had no notice or right to a hearing in that 74 tive service on the absent spouse gives the court of
action deprives that person of property without due the state of domicile jurisdiction of the cause and the
process of law and is prohibited by the Fourteenth parties, and the record is devoid of any evidence that
Amendment to the United States Constiltution. Bessie was not constructively served in the Cuban
Mullane v. Central Hanover Bank & Trust Co., 339 action. The only evidence before the trial judge on
U.S. 306, 70 S.Ct. 652, 656;Hansberry v. Lee, 311 that issue was the recital of jurisdiction in the Cuban
U.S. 32, 40-41,62 S.Ct. 115,85 L.Ed. 22, 132 A.L.R. decree. In the absence of competent contrary evi-
741;Gratiot County State Bank v. Johnson, 249 U.S. dence, it must be presumed that the foreign court had
246, 248-249, 39 S.Ct. 263, 63 L.Ed. 587. A state jurisdiction and that its recital thereof is true. De
court cannot dispense with the requirement of notice Young v. De Young, 27 Cal.2d 521, 525, 165 P.2d
and hearing by labelling the proceeding ‘in rem’ if it 457;Saul v. Saul, 74 App.D.C. 287, 122 F.2d 64, 69.
seeks to make the findings of fact binding upon a
stranger to the earlier action. A state court may no [8][9] Defendant testified by deposition that he did
more *804 make its findings of fact binding on a per- not appear in the Cuban action but that he gave an
son over whom it has no jurisdiction than it may bind attorney seventy-five *805 dollars and requested him
him by a judgment in personam when he has not been to procure a divorce, and that he knew nothing fur-
personally served. Hansberry v. Lee, supra; Pennoyer ther about the matter until his attorney informed him
v. Neff, 95 U.S. 714, 729, 24 L.Ed. 565. that the divorce was granted. Entry of the decree
upon the failure of the complainant to appear person-
[5] Apart from the Florida decree, there is no evi- ally in the Cuban action may have been error, but his
dence to support the finding that ‘the marriage be- failure to appear did not deprive the Cuban court of
tween said Bessie Rediker and defendant was not jurisdiction to entertain the action. If a court has ju-
dissolved **6 prior to August 28, 1944 or at all by or risdiction of an action, a judgment entered therein is
as a result of any proceedings conducted’ in the Cu- not subject to collateral attack on a showing of error
ban divorce action. The trial court did not find that in the exercise of that jurisdiction. ‘Something more
defendant was not a bona fide Cuban domiciliary; than mere error must be shown, in attack upon a for-

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eign judgment, to deprive it of force and effective- which a husband sought to assert the invalidity of his
ness.’ Rutledge, J., in Saul v. Saul, 74 App.D.C. 287, or his wife's earlier divorce from another as a defense
122 F.2d 64, 68;Baldwin v. Baldwin, 28 Cal.2d 406, to her action for divorce and alimony. Margulies v.
410-411, 170 P.2d 670. Margulies, 109 N.J.Eq. 391, 392, 157 A. 676;Van
Slyke v. Van Slyke, 186 Mich. 324, 330, 152 N.W.
[10][11] Even it the Cuban decree were invalid, de- 921.
fendant cannot contest its validity. The validity of a
divorce decree cannot be contested by a party who In Harlan v. Harlan, 70 Cal.App.2d 657, 161 P.2d
has procured the decree or a party who has remarried 490, plaintiff sued his wife for an annulment of their
in reliance thereon, or by one who had aided another marriage as bigamous, alleging that she secured a
to procure the decree so that the latter will be free to Mexican divorce from her first husband but that the
remarry. Brugiere v. Brugiere, 172 Cal. 199, 203- divorce was invalid for want of jurisdiction in the
204, 155 P. 988, Ann.Cas. 1917E. 122;Kelsey v. Mexican court. The trial court granted an annulment
Miller, 203 Cal. 61, 86, 263 P. 200;Harlan v. Harlan, on the finding that the Mexican decree was invalid.
70 Cal.App.2d 657, 662, 161 P.2d 490;Estate of The judgment was reversed on appeal. The appellate
Davis, 38 Cal.App.2d 579, 584-585, 101 P.2d court held that notwithstanding that the defendant's
761,102 P.2d 545;Hensgen v. Silberman, 87 Mexican decree was invalid, plaintiff was estopped
Cal.App.2d 668, 674, 197 P.2d 356;In re Kyle, 77 from asserting its invalidity because he had aided and
Cal.App.2d 634, 639-640, 176 P.2d 96;Goodloe v. counselled the defendant in procuring it so that she
Hawk, 72 App.D.C. 287, 113 F.2d 753, 756, might marry him. ‘To hold otherwise protects neither
757;Saul v. Saul, 74 App.D.C. 287, 122 F.2d 64, the welfare nor morals of society but, on the contrary,
70;Margulies v. Margulies, 109 N.J.Eq. 391, 392, such holding is a flagrant invitation to others to at-
157 A. 676;Van Slyke v. Van Slyke, 186 Mich. 324, tempt to circumvent the law, cohabit in unlawful
330, 152 N.W. 921;Bowen v. Fink, D.C., 34 F.Supp. state, and when tried of such situation, apply to the
235;Krause v. Krause, 282 N.Y. 355, 360, 26 N.E.2d courts for a release from the indicia of the marriage
290;Brown v. Brown, 242 App.Div. 33, 272 N.Y.S. status.’ Harlan v. Harlan, 70 Cal.App.2d 657, 663-
877, affirmed 266 N.Y. 532, 195 N.E. 186;Chapman 664, 161 P.2d 490, 494.
v. Chapman, 224 Mass. 427, 433, 113 N.E. 359,
L.R.A. 1916F, 528;Matter of Lindgren's Estate, 293 The New York Court of Appeals, in a case similar to
N.Y. 18, 22-23, 55 N.E.2d 849, 153 A.L.R. the present one, reached the same conclusion as the
936;Marvin v. Foster, 61 Minn. 154, 160, 63 N.W. court in the Harlan case. As a defense to his wife's
484,52 Am.St.Rep. 586;**7Mohler v. Shank's Estate, suit for separate maintenance, the defendant con-
93 Iowa 273, 282, 61 N.W. 981,34 L.R.A. 161, 57 tended that their marriage was bigamous on the
Am.St.Rep. 274;Rest., Conflict of Laws, s 112, pp. ground that he had secured a Nevada divorce from
169-170; Goodrich, Conflict of Laws, 3d Ed., 1949, s his first wife but that the Nevada court lacked juris-
127, pp. 401-402. Thus, in a suit for separte mainte- diction to enter the decree. Although the court re-
nance in which the husband asserted as a defense an garded the Nevada decree as invalid, it refused to
earlier Nevada divorce secured by him, this court annul the marriage because the defendant, having
held that the plaintiff wife was estopped from con- porcured the decree, was estopped from questioning
testing the validity of the decree by virtue of her re- its validity. ‘We cannot lose sight of the fact that the
marriage in reliance upon it. *806Brugiere v. present defendant was himself the party who had
Brugiere, 172 Cal. 199, 203-204, 155 P. 988, obtained the decree of divorce which he now asserts
Ann.Cas. 1917E, 122. By the same reasoning, it has *807 to be invalid and repudiates in order that he
been held that is wife who consented to a Mexican may now disown any legal obligation to support the
‘mail order divorce’ and remarried in reliance upon it plaintiff, whom he purported to marry. To refuse to
was estopped from questioning its validity in an ac- permit this defendant to escape his obligation to sup-
tion to determine whether she or her ex-husband's port plaintiff does not mean that the courts of this
second wife was entitled to his estate. Hensgen v. State recognize as valid a judgment of divorce which
Silberman, 87 Cal.App.2d 668, 674, 197 P.2d 356; necessarily is assumed to be invalid in the case at bar,
see also Estate of Davis, 38 Cal.App.2d 579, 584- but only that it is not open to defendant in these pro-
585, 101 P.2d 761,102 P.2d 545. The doctrine of ceedings to avoid the responsibility which he volun-
estoppel has also been held applicable to cases in

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tarily incurred.’ Krause v. Krause, 282 N.Y. 355, lic purpose is served by the annulment of his mar-
359-360, 26 N.E.2d 290, 292;Matter of Lindgren's riage. The rights of his first wife are not affected
Estate, 293 N.Y. 18, 22, 55 N.E.2d 849, 153 A.L.R. thereby; she has already secured a divorce from him
936;Guilmain v. Guilmain, Sup., 58 N.Y.S.2d 662, in Florida and will not be injured by defendant's re-
666;Picciano v. Picciano, Sup., 65 N.Y.S.2d 410, maining married to plaintiff. Moreover, the state has
411;Goodloe v. Hawk, 72 App.D.C. 287, 113 F.2d already recognized the validity of defendant's mar-
753, 756;Saul v. Saul, 74 App.D.C. 287, 122 F.2d 64, riage to plaintiff by its prosecution of defendant for
70;Bowen v. Finke, D.C., 34 F.Supp. 235;Chapman bigamy because of his marriage to Miss Valle in
v. Chapman, 224 Mass. 427, 433, 113 N.E. 359, 1945. His prosecution could be maintained only on
L.R.A.1919F, 528;Mohler v. Shank's Estate, 93 Iowa the ground that his 1939 marriage to plaintiff was
273, 282, 61 N.W. 981,34 L.R.A. 161, 57 valid.
Am.St.Rep. 274.
[13] ‘It can no longer be said that public policy re-
By the same reasoning, it is clear that defendant has quires non-recognition of all irregular foreign di-
estopped himself by his conduct from contesting the vorces. We have recognized that the interest of the
suit of his wife for separate maintenance on the state in many situations may lie with recognition of
ground that they are not lawfully married. He was the such divorces and preservation of remarriages rather
moving party in the Cuban action; **8 he accepted than a dubious attempt to resurrect the original. From
the benefits of the decree therein by remarrying; and a pragmatic viewpoint, judicial invalidation of irregu-
he now seeks to assert its invalidity to avoid his obli- lar foreign divorces and attendant remarriages, years,
gations to the plaintiff by virtue of that marriage. after both events, is a less than ineffective sanction
‘One who has invoked the exercise of a jurisdiction against an institution whose charm lies in its immedi-
within the general powers of the court cannot seek to ate respectability. We think it may now be stated that
reverse its orders upon the ground of lack of jurisdic- the general public policy in this jurisdiction, as judi-
tion.’ Harlan v. Harlan, 70 Cal.App.2d 657, 662, cially interpreted, no longer prevents application in
161 P.2d 490. Defendant seeks to avoid estoppel in annulment actions of the laches and estoppel doc-
this case by reliance on his testimony that he went to trines in determining the effect to be given such di-
a lawyer to get a divorce, that he did not know any- vorce decrees.’ Vinson, J., in Goodloe v. Hawk, 72
thing further about the action until he was informed App.D.C. 287, 113 F.2d 753, 757;Harlan v. Harlan,
that the divorce had been granted, and that he did not 70 Cal.App.2d 657, 663-664, 161 P.2d 490;Krause v.
appear in the divorce proceedings. He contends that Krause, 282 N.Y. 355, 360, 26 N.E.2d 290. We con-
he was not the moving party in the action so as to be clude that the public policy of this state requires the
estopped by his conduct therein. This contention preservation of the second marriage and the protec-
overlooks the facts that he initiated the proceedings, tion of the rights of the second spouse ‘rather than a
paid for the attorney's services in connection dubious attempt to resurrect the original’ marriage.
therewith, did not disclaim the divorce when in-
formed that it was granted, and took advantage of the Since the application of the doctrine of estoppel pre-
decree by marrying the plaintiff ten months later. supposes the entry of a final decree, cases involving
remarriage after the entry of only an interlocutory
[12] Defendant contends, however, that the public decree, Sullivan v. Sullivan, 219 Cal. 734, 736, 28
policy of the state requires the annulment of biga- P.2d 914;Estate of Elliott, 165 Cal. 339, 132 P. 439,
mous marriages whenever their bigamous character is or with the first marriage unaffected by any decree,
discovered. We find no basis for such a sweeping Anderson v. Anderson, 7 Cal.2d 265, 60 P.2d
application of public policy. There is a strong pre- 290;Brandt v. Brandt, 32 Cal.App.2d 99, 89 P.2d
sumption that the second marriage is *808 valid in 171, are not in point.
the absence of positive evidence to the contrary.
Wilcox v. Wilcox, 171 Cal. 770, 774, 155 P. The trial court erred in entering a judgment of an-
95;Estate of Pusey, 173 Cal. 141, 143, 159 P. nulment of defendant's crosscomplaint. The judgment
433;Hamburgh v. Hys, 22 Cal.App.2d 508, 509, 71 is reversed *809 and the cause remanded for a new
P.2d 301;Immel v. Dowd, 6 Cal.App.2d 145, 147, 44 trial on the issues of plaintiff's complaint.
P.2d 373. Defendant does not indicate how any pub-

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221 P.2d 1 Page 9
35 Cal.2d 796, 221 P.2d 1, 20 A.L.R.2d 1152
(Cite as: 35 Cal.2d 796, 221 P.2d 1)

GIBSON, C. J., and SHENK, EDMONDS,


CARTER, SCHAUER, and SPENCE, JJ., concur.
CAL. 1950.
Rediker v. Rediker
35 Cal.2d 796, 221 P.2d 1, 20 A.L.R.2d 1152

END OF DOCUMENT

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


TAB S
802 A.2d 170 Page 1
71 Conn.App. 372, 802 A.2d 170
(Cite as: 71 Conn.App. 372, 802 A.2d 170)

Appellate Court of Connecticut. 92 Constitutional Law


Glen ROSENGARTEN 92XXVII Due Process
v. 92XXVII(E) Civil Actions and Proceedings
Peter DOWNES. 92k3961 Jurisdiction and Venue
No. 22253. 92k3967 k. Determination; Notice and
Hearing. Most Cited Cases
Argued March 28, 2002. (Formerly 92k305(4.1))
Decided July 30, 2002. When issues of fact are necessary to determination of
court's jurisdiction, due process requires that trial-like
Party to civil union filed action to dissolve foreign hearing be held, in which opportunity is provided to
same-sex civil union. The Superior Court, Judicial present evidence and to cross-examine adverse wit-
District of Stamford-Norwalk, Shay, J., dismissed nesses. U.S.C.A. Const.Amend. 14.
action. Party appealed. The Appellate Court, Flynn,
J., held that: (1) trial court was not required to hold [3] Divorce 134 59
evidentiary hearing; (2) foreign same-sex civil union
was not a “marriage” under statute providing subject 134 Divorce
matter jurisdiction over dissolution of marriage; (3) 134IV Proceedings
party had significant set of contacts with Connecticut, 134IV(A) Jurisdiction
and thus Connecticut law could be applied without 134k58 Jurisdiction of Cause of Action
violating Full Faith and Credit Clause; and (4) union 134k59 k. In General. Most Cited Cases
was not family relations matter, and thus Superior
Court did not have subject matter jurisdiction. Marriage 253 17.5(2)

Affirmed. 253 Marriage


253k17.5 Same-Sex and Other Non-Traditional
West Headnotes Unions
253k17.5(2) k. Effect of Foreign Union. Most
[1] Divorce 134 59 Cited Cases
(Formerly 253k4.1)
134 Divorce Foreign same-sex civil union was not a “marriage”
134IV Proceedings recognized under statute providing superior court
134IV(A) Jurisdiction with subject matter jurisdiction over matters affecting
134k58 Jurisdiction of Cause of Action or involving dissolution of marriage, because union
134k59 k. In General. Most Cited Cases was not entered into between a man and a woman.
Trial court was not required to hold evidentiary hear- C.G.S.A. §§ 45a-727a(4), 46b-1, 46b-21.
ing to aid in determining whether it had subject mat-
ter jurisdiction to dissolve a foreign same-sex civil [4] Marriage 253 17.5(1)
union, although complaint for dissolution did not
indicate that both parties to union were of same sex, 253 Marriage
since record before court was adequate for court to 253k17.5 Same-Sex and Other Non-Traditional
make jurisdictional determination, and statutes of Unions
state where union was granted made clear that parties 253k17.5(1) k. In General. Most Cited Cases
to civil union had to be of same sex. 15 V.S.A. §§ (Formerly 253k4.1)
1201(2, 4), 1202(2). Under Vermont law, same-sex civil union was not a
“marriage,” because union was not entered into be-
[2] Constitutional Law 92 3967 tween a man and a woman. 15 V.S.A. § 1201(4).

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


802 A.2d 170 Page 2
71 Conn.App. 372, 802 A.2d 170
(Cite as: 71 Conn.App. 372, 802 A.2d 170)

134k59 k. In General. Most Cited Cases


[5] Appeal and Error 30 842(1)
Marriage 253 54(2)
30 Appeal and Error
30XVI Review 253 Marriage
30XVI(A) Scope, Standards, and Extent, in 253k54 Effect of Informal or Invalid Marriage or
General Union
30k838 Questions Considered 253k54(2) k. Same-Sex and Other Non-
30k842 Review Dependent on Whether Traditional Union. Most Cited Cases
Questions Are of Law or of Fact (Formerly 253k66)
30k842(1) k. In General. Most Cited Statute providing Superior Court with subject matter
Cases jurisdiction over matters involving rights and reme-
Because statutory construction raises issue of law, dies arising from dissolution of marriage, legal sepa-
Appellate Court's review is plenary. ration, and annulment did not provide Superior Court
with jurisdiction over dissolution of foreign same-sex
[6] Statutes 361 181(1) civil union. C.G.S.A. § 46b-1(12).

361 Statutes [9] Divorce 134 59


361VI Construction and Operation
361VI(A) General Rules of Construction 134 Divorce
361k180 Intention of Legislature 134IV Proceedings
361k181 In General 134IV(A) Jurisdiction
361k181(1) k. In General. Most 134k58 Jurisdiction of Cause of Action
Cited Cases 134k59 k. In General. Most Cited Cases
Process of statutory interpretation involves reasoned Foreign same-sex civil union was not a family rela-
search for intention of legislature. tions matter, and thus Superior Court did not have
subject matter jurisdiction over complaint seeking
[7] Statutes 361 181(1) dissolution of that union. C.G.S.A. § 46b-1(17).

361 Statutes [10] Divorce 134 2


361VI Construction and Operation
361VI(A) General Rules of Construction 134 Divorce
361k180 Intention of Legislature 134I Nature and Form of Remedy
361k181 In General 134k2 k. What Law Governs. Most Cited
361k181(1) k. In General. Most Cases
Cited Cases Party seeking dissolution of foreign same-sex civil
In seeking to discern statutory intent of legislature, union had significant set of contacts with Connecti-
Appellate Court looks to words of statute itself, to cut, and thus Connecticut law, not law of state where
legislative history and circumstances surrounding its union was granted, could be applied without violating
enactment, to legislative policy it was designed to Full Faith and Credit Clause, because party was resi-
implement, and to its relationship to existing legisla- dent of Connecticut, party had chosen Connecticut
tion and common law principles governing same court as forum in which to seek dissolution, and nei-
general subject matter. ther party to union had any significant contact with
other state except for entering into civil union in that
[8] Divorce 134 59 other state. U.S.C.A. Const. Art. 4, § 1.

134 Divorce [11] Divorce 134 59


134IV Proceedings
134IV(A) Jurisdiction 134 Divorce
134k58 Jurisdiction of Cause of Action 134IV Proceedings

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


802 A.2d 170 Page 3
71 Conn.App. 372, 802 A.2d 170
(Cite as: 71 Conn.App. 372, 802 A.2d 170)

134IV(A) Jurisdiction 253 Marriage


134k58 Jurisdiction of Cause of Action 253k20 Marriage by Mutual Agreement
134k59 k. In General. Most Cited Cases 253k20(1) k. In General. Most Cited Cases
Rights and obligations that attend valid marriage
States 360 5(2) simply do not arise where parties choose to cohabit
without entering valid marriage relationship.
360 States
360I Political Status and Relations [15] Divorce 134 59
360I(A) In General
360k5 Relations Among States Under Con- 134 Divorce
stitution of United States 134IV Proceedings
360k5(2) k. Full Faith and Credit in 134IV(A) Jurisdiction
Each State to the Public Acts, Records, Etc. of Other 134k58 Jurisdiction of Cause of Action
States. Most Cited Cases 134k59 k. In General. Most Cited Cases
Connecticut public policy did not support conclusion
that its Superior Court had jurisdiction over dissolu- Marriage 253 60(.5)
tion of foreign same-sex civil union, and thus princi-
ples of full faith and credit did not demand that Con-
253 Marriage
necticut recognize foreign state's civil union statutes,
253k56 Annulment
although Connecticut both had amended its adoption
253k60 Jurisdiction and Proceedings
laws to allow adoptions by same-sex partners and had
253k60(.5) k. In General. Most Cited Cases
not enacted version of defense-of-marriage act.
Practice Book section setting forth necessary allega-
U.S.C.A. Const.Art. 4, § 1; C.G.S.A. § 45a-724 et
tions of complaint for dissolution of marriage, legal
seq.
separation, or annulment where jurisdiction already
exists did not confer jurisdiction on Superior Court to
[12] Pretrial Procedure 307A 674 hear such matters. Practice Book 1978, § 25-2.
**172*373Gary I. Cohen, Greenwich, for the appel-
307A Pretrial Procedure lant (plaintiff).
307AIII Dismissal
307AIII(B) Involuntary Dismissal FOTI, FLYNN and DUPONT, Js.
307AIII(B)6 Proceedings and Effect
307Ak674 k. Dismissal on Court's Own FLYNN, J.
Motion; Automatic Dismissal. Most Cited Cases
If under any facts provable under complaint, court of
law has jurisdiction to grant any one of claims for This is an appeal from the trial court's judgment dis-
relief set out in plaintiff's complaint, then plaintiff's missing an action to dissolve a same sex civil union
action should not be dismissed sua sponte for lack of for lack of subject matter jurisdiction, which union
jurisdiction. the plaintiff, Glen Rosengarten, claims was entered
into with the defendant, Peter Downes, in Vermont,
pursuant to Vt. Stat. Ann. tit. 15, § 1201 et seq.
[13] Marriage 253 20(1) (2001).FN1 Service of process over the defendant, who
apparently*374 resides in New York, was accom-
253 Marriage plished by certified mail in accordance with an order
253k20 Marriage by Mutual Agreement of notice. The trial court dismissed the action because
253k20(1) k. In General. Most Cited Cases it concluded that General Statutes § 46b-1 and
Ordinary contract principles are not suspended for Practice Book § 25-2 grant powers to the Superior
unmarried persons living together, whether or not Court to hear and decide actions for dissolution of
they engage in sexual activity. marriages between a man and a woman and the Ver-
mont civil union did not fall into the category of
[14] Marriage 253 20(1) other family relations matters set out in General Stat-
utes § 46b-1 (17).

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802 A.2d 170 Page 4
71 Conn.App. 372, 802 A.2d 170
(Cite as: 71 Conn.App. 372, 802 A.2d 170)

least one year preceding the commencement of the


FN1.Section 1202 of title 15 of the Vermont action. Pursuant to the complaint, the plaintiff sought
Statutes Annotated provides: “For a civil un- “[a]n order dissolving the civil union of the parties”
ion to be established in Vermont, it shall be and “[s]uch other and further relief to which the
necessary that the parties to a civil union sat- Plaintiff may be entitled in law or equity.” Without
isfy all of the following criteria: holding a hearing, the court ordered the action dis-
missed on August 8, 2001, holding: “There is no sub-
“(1) Not be a party to another civil union ject matter jurisdiction under **173[General Statutes]
or a marriage. § 46b-1 and the matter is hereby dismissed sua sponte
pursuant to § 25-14 of the Connecticut Practice
Book.” Practice Book § 25-14 provides: “Any claim
“(2) Be of the same sex and therefore ex- of lack of jurisdiction over the subject matter cannot
cluded from the marriage laws of this be waived; and whenever it is found after suggestion
state. of the parties or otherwise that the court lacks juris-
diction of the subject matter, the judicial authority
“(3) Meet the criteria and obligations set shall dismiss the action.” See also Figueroa v. C & S
forth in 18 V.S.A. chapter 106.” Ball Bearing, 237 Conn. 1, 4-5, 675 A.2d 845 (1996).
This appeal followed. At the time of the dismissal,
The court determined that it was not empowered with the defendant had not filed an appearance in the trial
“ ‘plenary and general subject matter’ jurisdiction,” court and he has not filed an appearance in this ap-
much less the ability to exercise its broad statutory peal.
equitable powers to dissolve a civil union. On appeal,
the plaintiff does not claim that the civil union may On February 25, 2002, this court issued two orders.
be dissolved as a marriage. Instead, he claims that the First, we ordered the parties to file supplemental
trial court improperly sua sponte dismissed the action briefs addressing the following issue: “Was it plain
for lack of subject matter jurisdiction because § 46b- error for the trial court to dismiss this action without
1 (17) grants the Superior Court subject matter juris- notice and a hearing, and should the dismissal be
diction over “all such other matters within the juris- reversed accordingly, with an order directing the trial
diction of the Superior Court concerning children or court to hold a hearing to determine whether it has
family relations as may be determined by the judges jurisdiction over this matter?” The only responsive
of said court” and that the dissolution of a Vermont brief filed was that of the plaintiff, who argued that
civil union is a matter relating to family relations. the trial court could raise the issue of subject matter
The plaintiff further claims that principles of full jurisdiction sua sponte and that no hearing was nec-
faith and credit demand that Connecticut recognize essary because jurisdictional facts were not in dis-
civil unions entered into under the laws of Vermont, pute, citing our holding in Pinchbeck v. Dept. of Pub-
and thereby the right to dissolve them in a Connecti- lic Health, 65 Conn.App. 201, 782 A.2d 242, cert.
cut forum, because Connecticut has a public policy in denied, *376258 Conn. 928, 783 A.2d 1029 (2001).
favor of recognizing civil unions and, therefore, the The plaintiff argued in his brief that “[t]here was
court improperly dismissed this action seeking a dis- simply nothing that any testimony regarding the
solution of such a union for lack of subject matter plaintiff's claim for relief, i.e., dissolution of civil
jurisdiction. We affirm the judgment of the trial union, could have added to the court's understanding
court. of the jurisdictional issue: does the Connecticut Supe-
rior Court have subject matter jurisdiction in this
The following facts and procedural history are rele- case, a complaint for dissolution of a civil union, a
vant to our resolution of this appeal. The plaintiff matter which concerns ‘family relations matters' ?”
commenced this action by writ, summons and com- The plaintiff did not mention his second prayer for
plaint, dated July 11, 2001. The complaint alleged relief, which requested that the court grant any other
that the plaintiff and the defendant were joined in a “relief to which the Plaintiff may be entitled in law or
civil union *375 in Vermont on December 31, 2000, equity.”
pursuant to the statutes of the state of Vermont, that
the civil union had broken down irretrievably and [1][2] We agree with the plaintiff that under
that the plaintiff had resided in Connecticut for at

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


802 A.2d 170 Page 5
71 Conn.App. 372, 802 A.2d 170
(Cite as: 71 Conn.App. 372, 802 A.2d 170)

Pinchbeck v. Dept. of Public Health, supra, 65 that although the plaintiff had denominated the case a
Conn.App. at 201, 782 A.2d 242, the court did not family relations matter by using a judicial branch
need to hold an evidentiary hearing to aid in deter- code, “F00,” on the summons, neither § 46b-1, the
mining whether it had jurisdiction to dissolve a civil statutory provision that defines the family relations
union. “When issues of fact are necessary to the de- matters within the jurisdiction of the Superior Court,
termination of a court's jurisdiction, due process re- nor Practice Book § 25-1,FN2*378 which provides that
quires that a trial-like hearing be held, in which an family matters within the scope of the rules are those
opportunity is provided to present evidence and to actions brought pursuant to § 46b-1, mentions the
cross-examine adverse witnesses.” Standard Tallow court's power to dissolve civil unions. The court held
Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 that “[m]atters such as this which implicate signifi-
(1983). In Pinchbeck, however, we explained that cant issues of public policy are more properly within
“[i]n the absence of any disputed facts pertaining to the domain of the legislature ... [and][a]s such, the
jurisdiction, a court is not obligated to hold an evi- legislature of a sister state cannot, in effect, make
dentiary hearing before dismissing an action for lack such a determination for the people of Connecticut.”
of jurisdiction.” Pinchbeck v. Dept. of Public Health, In support of this conclusion, the court relied on
supra at 209, 782 A.2d 242. General Statutes § 45a-727a (4), which provides that
“the current public policy of the state of Connecticut
In the present case, there are no factual issues in dis- is now limited to a marriage between a man and a
pute and the factual record before us, though sparse, woman.” It also relied on the Defense of Marriage
is sufficient to determine whether there is jurisdiction Act, Pub.L. No. 104-199, § 2(a), 110 Stat. 2419,
to dissolve the plaintiff's Vermont civil union. There codified at 28 U.S.C. § 1738C. It observed that Title
is nothing in the complaint to indicate that both par- 28 of the United States Code, § 1738C, provides: “No
ties to the purported union are of the same sex and no State, territory, or possession of the United States, or
evidence was taken on that issue. However, § Indian tribe, shall be required to give effect to any
1201(2) of title 15 of the Vermont Statutes Annotated public act, record, or judicial proceeding of any other
provides: “ ‘Civil Union’ means that two eligible State, territory, possession, or tribe respecting a rela-
persons have established a relationship pursuant to tionship between persons of the same sex that is
this chapter, and may receive the benefits and protec- treated as a marriage under the laws of such other
tions and be subject *377 to the responsibilities of State, territory, possession, or tribe, or a right or
spouses.” Section 1202(2) of title 15 of the Vermont claim arising from such relationship.”
Statutes Annotated provides that parties to a civil
union must “[b]e of the same sex and therefore ex- FN2.Practice Book § 25-1, entitled “Defini-
cluded from the marriage laws” of Vermont. In Ver- tions Applicable to Proceedings on Family
mont, pursuant to § 1201(4), marriage is defined as Matters,” provides: “The following shall be
“the legally recognized union of one man and one ‘family matters' within the scope of these
woman.” **174Vt. Stat. Ann. tit. 15, § 1201(4). Al- rules: Any actions brought pursuant to
though not specifically pleaded, it is therefore clear General Statutes § 46b-1, including but not
from the complaint that the civil union described is limited to dissolution of marriage, legal
between two persons of the same sex. We conclude separation, dissolution of marriage after le-
that the record before the trial court was adequate for gal separation, annulment of marriage, ali-
it to make a determination as to whether it had juris- mony, support, custody, and change of name
diction to dissolve a civil union and, therefore, it was incident to dissolution of marriage, habeas
unnecessary for the court to conduct an evidentiary corpus and other proceedings to determine
hearing. the custody and visitation of children except
those which are properly filed in the supe-
Second, we ordered the trial court to articulate, in a rior court as juvenile matters, the establish-
memorandum of decision, its reasons for dismissing ing of paternity, enforcement of foreign mat-
the matter for lack of subject matter jurisdiction. In rimonial judgments, actions related to pre-
its articulation dated March 4, 2002, the court again nuptial and separation agreements and to
noted that it had dismissed the matter for lack of ju- matrimonial decrees of a foreign jurisdic-
risdiction pursuant to § 46b-1. The court explained tion, actions brought pursuant to General
Statutes § 46b-15, custody proceedings

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802 A.2d 170 Page 6
71 Conn.App. 372, 802 A.2d 170
(Cite as: 71 Conn.App. 372, 802 A.2d 170)

brought under the provisions of the Uniform that the process of statutory interpretation involves a
Child Custody Jurisdiction Act and proceed- reasoned search for the intention of the legislature....
ings for enforcement of support brought un- In seeking to discern that intent, we look to the words
der the provisions of the Uniform Interstate of the statute itself, to the legislative history and cir-
Family Support Act.” cumstances surrounding its enactment, to the legisla-
tive policy it was designed to implement, and to its
[3][4] The issue raised by the trial court's dismissal of relationship to existing legislation and common law
the action involves questions about the exercise of principles governing the same general subject mat-
subject matter jurisdiction over foreign civil unions. ter.” (Citations omitted; internal quotation marks
In suggesting that jurisdiction may be found under omitted.)*380Giaimo v. New Haven, 257 Conn. 481,
subsection 17 of § 46b-1, the plaintiff himself recog- 493, 778 A.2d 33 (2001).
nizes the difficulty of fitting his claim for relief under
subsection (1) of General Statutes § 46b-1. Section Implicit in the plaintiff's argument that jurisdiction
46b-1 provides in relevant part: “Matters within the exists under § 46b-1 (17) is that we must recognize
jurisdiction of the Superior Court deemed to be fam- the validity of the Vermont civil union as a matter
ily relations matters shall be matters affecting or in- concerning family relations. If Connecticut does not
volving: (1) Dissolution of marriage....” **175 recognize the validity of such a union, then there is
Clearly this civil union is not a marriage recognized no res to address and dissolve.
under § 46b-1 because it was not entered into be-
tween a man and a woman. See General Statutes §§ We begin our construction of § 46b-1 by first exam-
45a-727a (4) and 46b-21. Nor is it a marriage under ining the text of the statute itself. Section 46b-1 pro-
*379 our sister state of Vermont's definition of mar- vides: “Matters within the jurisdiction of the Superior
riage found in § 1201(4) of title 15 of the Vermont Court deemed to be family relations matters shall be
Statutes Annotated because it too limits the definition matters affecting or involving: (1) Dissolution of
of marriage to those entered between “one man and marriage ... (2) legal separation; (3) annulment of
one woman.” marriage; (4) alimony, support, custody and change
of name incident to dissolution of marriage, legal
The court held that because the dissolution of a civil separation and annulment; (5) actions brought under
union was not a family relations matter as set forth in section 46b-15; FN3 (6) complaints for change of
either § 46b-1 or Practice Book § 25-1, it lacked sub- name; (7) civil support obligations; (8) habeas corpus
ject matter jurisdiction to dissolve such a union and and other proceedings to determine the custody and
was, therefore, required to dismiss the plaintiff's ac- visitation of children; (9) habeas corpus brought by
tion. In his appeal to this court, the plaintiff chal- or in behalf of any mentally ill person except a per-
lenges the validity of the trial court's construction of son charged with a criminal offense; (10) appoint-
§ 46b-1. He contends that jurisdiction was vested in ment of a commission to inquire **176 whether a
the court by § 46b-1, which provides in pertinent part person is wrongfully confined as provided by section
that “[m]atters within the jurisdiction of the Superior 17a-523; FN4 (11) juvenile matters as provided in sec-
Court deemed to be family relations matters shall be tion 46b- *381 121; (12) all rights and remedies pro-
matters affecting or involving ... (17) all such other vided for in chapter 815j; FN5 (13) the establishing of
matters within the jurisdiction of the Superior Court paternity; (14) appeals from probate concerning: (a)
concerning children or family relations as may be Adoption or termination of parental rights; (b) ap-
determined by the judges of said court.” Thus, the pointment and removal of guardians; (c) custody of a
court's determination that it lacked subject matter minor child; (d) appointment and removal of conser-
jurisdiction turned on its construction of § 46b-1. vators; (e) orders for custody of any child; (f) orders
of commitment of persons to public and private insti-
[5][6][7] Because statutory construction raises an tutions and to other appropriate facilities as provided
issue of law, our review is plenary. Alvarado v. by statute; (15) actions related to prenuptial and sepa-
Black, 248 Conn. 409, 414, 728 A.2d 500 (1999); ration agreements and to matrimonial decrees of a
Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d foreign jurisdiction; (16) custody proceeding brought
1221 (1995). The scope of our plenary review is gov- under the provisions of chapter 815o; and (17) all
erned by well established principles. “It is axiomatic such other matters within the jurisdiction of the Supe-

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802 A.2d 170 Page 7
71 Conn.App. 372, 802 A.2d 170
(Cite as: 71 Conn.App. 372, 802 A.2d 170)

rior Court concerning children or family relations as from dissolution of marriage, legal separa-
may be determined by the judges of said court.” tion and annulment.

FN3.General Statutes § 46b-15 (a) provides: [8] Clearly, subdivisions 2 through 16 have no appli-
“Any family or household member as de- cability to the issues in this case because those sub-
fined in section 46b-38a who has been sub- sections relate to legal separations; annulments; ali-
jected to a continuous threat of present mony, support, custody and change of name incident
physical pain or physical injury by another to a dissolution of marriage; relief from physical
family or household member or person in, or abuse; changes of name; civil support; habeas corpus
has recently been in, a dating relationship and other proceedings to determine custody and visi-
who has been subjected to a continuous tation of children; habeas corpus petitions brought on
threat of present physical pain or physical behalf of persons with psychiatric disabilities; com-
injury by the other person in such relation- missions investigating claims of wrongful confine-
ship may make an application to the Supe- ment; certain juvenile matters; proceedings concern-
rior Court for relief under this section.” ing all rights and *382 remedies brought under chap-
ter 815j; paternity matters; appeals from probate con-
FN4.General Statutes § 17a-523 provides: cerning: adoption or termination of parental rights,
“Any judge of the Superior Court, on infor- appointment or removal of guardians, custody of mi-
mation to him that any person is unjustly nor children, appointment or removal of conserva-
deprived of his liberty by being detained or tors, orders for custody of any child and orders of
confined in any hospital for psychiatric dis- commitment to institutions or other statutorily ap-
abilities, or in any place for the detention or proved facilities; actions related to prenuptial and
confinement of persons with psychiatric dis- separation agreements and to matrimonial decrees of
abilities, or in custody and control of any in- foreign jurisdictions; and custody proceedings
dividual under an order of a court of pro- brought under chapter 815o, the Uniform Child Cus-
bate, may appoint a commission of not tody Jurisdiction Act. We note, in passing, that sub-
fewer than two persons, who, at a time and division (12) concerning rights and remedies pro-
place appointed by them, shall hear any evi- vided for in chapter 815j is not claimed as a source of
dence offered touching the case. Such com- jurisdiction by the plaintiff, nor could it be, because it
mission need not summon the party claimed neither confers the right he claims nor does it author-
to be unjustly confined before it, but shall ize the remedy he seeks. We also note that
have one or more private interviews with subdivision (1) of § 46b-1 defines dissolution of mar-
him and shall also make inquiries of the riage as a family relations matter but the **177 plain-
physicians and other persons having charge tiff does not claim to have been married either under
of such place of detention or confinement, the laws of the state of Connecticut or the laws of the
and within a reasonable time thereafter re- state of Vermont. Nor does he claim entitlement to
port to such judge the facts and its opinion relief under that subdivision.
thereon. If, in its opinion, such person is not
legally detained or confined in such place, or [9] The plaintiff does claim that subdivision (17) of §
is cured, or his confinement is no longer 46b-1 permits the court to exercise jurisdiction. We
beneficial or advisable, such judge shall or- first observe that the plain words of § 46b-1 define
der his discharge; but no commission shall two categories of family matters. Subdivisions (1)
be appointed with reference to the same per- through (16) statutorily define specific kinds of fam-
son more often than once in six months. The ily matters “within the jurisdiction” of the court.
judge before whom any of the proceedings Subdivision (17) is a catchall provision “concerning
provided for in this section are had may tax children or family relations” as may be determined
reasonable costs at his discretion.” by the judges of the Superior Court. The matter be-
fore us does not involve children and, therefore, that
FN5. Chapter 815j, comprised of General part of subdivision (17) does not provide a basis for
Statutes §§ 46b-40 through 46b-87a, inclu- the exercise of jurisdiction. Additionally, the judges
sive, sets out rights and remedies arising of the Superior Court have not enacted any rule of

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


802 A.2d 170 Page 8
71 Conn.App. 372, 802 A.2d 170
(Cite as: 71 Conn.App. 372, 802 A.2d 170)

practice that would define foreign civil unions as a from a reading of Blackstone, which speaks of hus-
family matter either. We therefore find nothing in the band and wife, and his discussion of the common law
text of § 46b-1 (17) or in the rules of the Superior as applied to husband and wife, that by using terms
Court pertaining to family matters, *383Practice like husband and wife or, its Norman French equiva-
Book §§ 25-1 through 25-69, inclusive, that would lent, baron and feme, the understanding of English
support the plaintiff's claim that jurisdiction exists. common law was that marriage was a contract en-
tered into by a man and a woman. Id., at 453, 457.
We next examine the legislative history of the enact- Judge Swift, in his discussion of the common law of
ment of subdivision (17) of § 46b-1, the statutory Connecticut regarding rights **178 arising out of
provision relied on by the plaintiff in this appeal, and marital status, makes clear that this legal relation con-
the legislative policy it was designed to implement. templated a contract made between a man and a
During the senate proceedings, it was noted that the woman. 1 Z. Swift, A Digest of the Laws of the State
reason for the enactment of § 46b-1 (17), which was of Connecticut (1822), p. 18. This is also clear when
part of the court merger bill of the Connecticut Court one reads Judge Swift's discussion of limitations on
of Common Pleas and the Superior Court, was to marriage within certain degrees of kindred, which are
eliminate the waste of judicial personnel caused by prohibited on the ground “that such incestuous con-
“ill-defined jurisdictional lines causing duplication of nection is repugnant to the law of nature.” Id., at 19.
efforts” and “to provide for the unification, simplifi- The examples he gives are all of men then unable to
cation, flexibility and effective responsible control of marry women of various degrees of kindred. Id.
the administration of the courts of the state of Con-
necticut.” 19 S. Proc., Pt. 7, 1976 Sess., p. 2652, re- In determining that the legislative intent in the adop-
marks of Senator David Neiditz. Our review of the tion of subdivision (17) of § 46b-1 was not to make
legislative history of § 46b-1 revealed nothing that Connecticut courts a forum for same sex, foreign
would support the plaintiff's expansive interpretation civil unions, we, therefore, conclude that the text it-
of § 46b-1 (17). Instead, its obvious intent was to self, the rules of court, the legislative history, the
collect all matters that had previously been divided strong legislative policy against permitting same sex
between the old Common Pleas Court and the old marriages and the relationship between other statutes,
Superior Court, into the newly merged Superior legislative enactments of state policy and the com-
Court. mon law are all in accord with that view.

Finally, we examine the provisions of § 46b-1 (17) in [10] We note that the court based its determination
relationship with existing legislation and common- that it lacked jurisdiction to dissolve a civil union, in
law principles to determine whether the recognition part, on its conclusion that the Vermont legislature
of civil unions and the corresponding right to dis- cannot *385 legislate for the people of Connecticut.
solve such unions was contemplated as a family rela- We agree with the court that the statutes of Vermont
tions matter by our legislature. General Statutes §§ do not have extraterritorial effect; Olmsted v. Olm-
45a-727b and 46a-81r, both of which are discussed in sted, 216 U.S. 386, 395, 30 S.Ct. 292, 54 L.Ed. 530
greater detail later in this opinion, expressly state that (1910); and analyze this full faith and credit claim.
Connecticut does not endorse or authorize, respec-
tively, civil unions or any other relationship between The constitution of the United States, article four, §
unmarried persons. On the basis of these enactments, 1, requires that: “Full faith and credit shall be given
we conclude that because the legislature expressly in each State to the public Acts, Records, and judicial
refused to endorse or authorize such unions it could Proceedings of every other State....” “[W]here statute
not have intended civil *384 unions to be treated as or policy of the forum State is set up as a defense to a
family matters within the jurisdiction of the Superior suit brought under the statute of another State ... the
Court pursuant to § 46b-1 (17). conflict is to be resolved, not by giving automatic
effect to the full faith and credit clause and thus com-
Moreover, common-law principles left the issue pelling courts of each State to subordinate its own
about who might marry generally to the ecclesiastical statutes to those of others but by appraising the gov-
courts. See 1 W. Blackstone, Commentaries on the ernmental interest of each jurisdiction and deciding
Laws of England (5th Ed. 1773), p. 453. It is plain accordingly. That is, the full faith and credit clause,

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in its design to transform the States from independent unions and the right to dissolve them. We disagree.
sovereigns into a single unified Nation, directs that a We conclude that Connecticut public policy does not
State, when acting as the forum for litigation having support that conclusion.FN6
multistate aspects or implications, respect the legiti-
mate interests of other States and avoid infringement FN6. We note that our legislature has re-
upon their sovereignty, but because the forum State is cently had the opportunity to authorize same
also a sovereign in its own right, in appropriate cases sex marriages and civil unions and has not
it may attach paramount importance to its own le- done so. On February 6, 2002, House Bill
gitimate interests. The clause (and the comparable No. 5001, which would have authorized two
due process clause standards) obligate the forum persons to enter into marriage regardless of
State to take jurisdiction and to apply foreign law, sex, and House Bill No. 5002, which would
subject to the forum's own interest in furthering its have authorized the establishment of civil
public policy. In order ‘for a State's substantive law unions and granted the parties to a civil un-
to be selected in a constitutionally permissible man- ion the same benefits, protections and re-
ner, that State must have a significant contact or sig- sponsibilities as granted to spouses in a mar-
nificant aggregation of contacts, creating state inter- riage, were referred to the judiciary commit-
ests, such that choice of its law is neither arbitrary tee. A public hearing on that proposed legis-
nor fundamentally unfair.’ ” (Emphasis added.) Con- lation was held on February 11, 2002. No
gressional Research Service, Library of Congress, action was taken and the bills died in com-
The Constitution of the United States of America, mittee.
Analysis and Interpretation (J. Killian*386 & G.
Costello eds. 1996) Art. IV, Sec. 1, pp. 855-56, citing *387 The plaintiff first points to General Statutes §§
Allstate Ins. Co. v. Hague, 449 U.S. 302, 101 S.Ct. 46a-81a through 46a-81r, which prohibit discrimina-
633, 66 L.Ed.2d 521 (1981); Nevada v. Hall, 440 tion on the basis of sexual orientation as evidence of
U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979); Connecticut's clear public policy in favor of recogniz-
Carroll v. Lanza, 349 U.S. 408, 75 S.Ct. 804, 99 ing the right of homosexuals to enter into a marriage-
L.Ed. 1183 (1955); Alaska Packers Assn. v. Indus- like relationship and the corresponding right to dis-
trial Accident Commission, 294 U.S. 532, 55 S.Ct. solve such relationships in Connecticut courts. He
518, 79 L.Ed. 1044 (1935). claims that, in keeping with Connecticut's public pol-
icy prohibiting discrimination based on sexual orien-
We conclude that the plaintiff in the present case has tation, we should extend to homosexual citizens of
a significant set of contacts with this state because he this state all of the same relief we extend to hetero-
is a resident of Connecticut and has chosen a Con- sexual citizens when dissolving a marriage or mar-
necticut court as the forum in which he **179 seeks riage-like relationship. We disagree that the statutory
the dissolution of this civil union. The only record sections cited to by the plaintiff support his position
before us, based on the plaintiff's pleadings, is that, that Connecticut has a clear public policy in favor of
other than having entered the civil union in Vermont, the recognition of the right to enter same sex unions
neither party to the civil union has any other signifi- or the right to dissolve them in the Superior Court.
cant contact with that state.
General Statutes § 46a-81r, one of the sections of
[11] The plaintiff contends, “Connecticut public pol- Title 46a on which the plaintiff relies, provides in
icy clearly favors the conclusion that the Superior relevant part: “Nothing in sections ... 46a-81a to 46a-
Court has subject matter jurisdiction to dissolve the 81q, inclusive ... shall be ... construed ... (1) to mean
civil union entered into in Vermont.” He claims that the state of Connecticut condones homosexuality or
principles of full faith and credit demand that Con- bisexuality or any equivalent lifestyle ... (4) to au-
necticut recognize Vermont's civil union statutes thorize the recognition of or the right of marriage
unless recognition would violate some strong public between persons of the same sex, or (5) to establish
policy of Connecticut. He further claims that Con- sexual orientation as a specific and separate cultural
necticut does not have a strong public policy against classification in society.”
recognition of civil unions but, instead, that Con-
necticut public policy favors the recognition of civil One of the sources of law is custom and tradition.FN7

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When § 46a-81r, on which the plaintiff relies, clearly prospective, and the acts which may consti-
*388 states that “[n]othing in sections ... 46a-81a tute grounds for its dissolution.” Maynard v.
through 46a-81q ... shall be ... construed ... to author- Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 31
ize ... the right of marriage between persons of the L.Ed. 654 (1888).
same sex,” we fail to **180 see how those sections,
embodying custom, require Connecticut to provide a FN9. “At common law, the second marriage
forum for recognition and dissolution of a same sex was always void ... and from the earliest his-
civil union that our law does not authorize.FN8 The tory of England polygamy has been treated
trial court was entitled to rely on statutes based on as an offense against society. After the es-
that customary source of our law. It does not consti- tablishment of the ecclesiastical courts, and
tute invidious discrimination simply because a state until the time of James I., it was punished
places some restraints on who may marry. For exam- through the instrumentality of those tribu-
ple, some societies allow polygamous marriages FN9 nals, not merely because ecclesiastical rights
but Connecticut does not allow such marriages FN10 had been violated, but because upon the
and neither does Vermont.FN11 Connecticut has exer- separation of the ecclesiastical courts from
cised the power to limit by law who may marry since the civil, the ecclesiastical were supposed to
the beginning of the colony. Other than to cite title be the most appropriate for the trial of mat-
46a, which we conclude stands for the opposite rimonial causes and offenses against the
proposition of that which he argues, the plaintiff has rights of marriage; just as they were for tes-
failed to brief the issue of the Connecticut legisla- tamentary causes and the settlement of the
ture's power to restrict the right to marry or enter estates of deceased persons.” Reynolds v.
*389 into marriage-like relationships in terms of dis- United States, 98 U.S. 145, 164-65, 25 L.Ed.
crimination based on sexual orientation. Accordingly, 244 (1878).
we conclude that §§ 46a-81a through 46a-81r do not
evidence a clear public policy in favor of recognizing FN10. See General Statutes § 53a-190 (c),
same sex civil unions or the right to dissolve them. which makes bigamy a class D felony.

FN7. Blackstone wrote: “Some have divided FN11. See Vt. Stat. Ann. tit. 15, § 5, declar-
the common law into two principal grounds ing bigamous marriages “null and void for
or foundations: 1. Established customs ... all purposes,” and Vt. Stat. Ann. tit. 13, §
and 2. Established rules and maxims.... But I 206, which provides that a person who
take these to be one and the same thing. For commits the offense of bigamy “shall be
the authority of these maxims rests entirely imprisoned not more than five years.”
upon general reception and usage; and the
only method of proving, that this or that
maxim is a rule of the common law, is by The plaintiff next claims that the Connecticut legisla-
shewing that it hath been always the custom ture has evinced a willingness to recognize civil un-
to observe it.” 1 W. Blackstone, Commen- ions both by recently amending the adoption laws,
taries on the Laws of England (5th Ed. found in General Statutes §§ 45a-724 through 45a-
1773) p. 68. 737, inclusive, to allow adoptions by same sex part-
ners and by its refusal to enact its own version of the
Defense of Marriage Act. Again, we disagree.
FN8. “Marriage, as creating the most impor-
tant relation in life, as having more to do
with the morals and civilization of a people General Statutes § 45a-727a entitled “State policy re
than any other institution, has always been best interests of child; public policy re marriage,” is a
subject to the control of the Legislature. clear statement of public policy embodied in a statute
That body prescribes the age at which par- which should be enforced and upheld despite con-
ties may contract to marry, the procedure or trary statutory enactments in the state of Vermont.
form essential to constitute marriage, the du- See General Statutes § 45a-727a (4).
ties and obligations it creates, its effects
upon the property rights of both, present and Although our General Assembly has on occasion
adopted preambles to some of the enactments, it is

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802 A.2d 170 Page 11
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not the usual case. However, there have been statu- tion of civil unions in Connecticut in the manner they
tory enactments in which the legislature has expressly ascribed to the Vermont Supreme Court in Baker v.
stated a particular policy. See, e.g., General Statutes State, 170 Vt. 194, 744 A.2d 864 (1999). Members of
§§ 22a-91 and 22a-92 (a) of the Coastal Management the General Assembly in their floor debate in each
Act. Section 45a-727a of the General Statutes is un- house did not make explicit mention of Baker. It is
usual in that it is completely devoted to a declaration clear, however, *391 that several legislators were
of legislative policy. Subsection (4) of § 45a-727a concerned, as a result of the Vermont experience, that
provides: “It is **181 further found that the current in overriding the ruling in the In re Baby Z. case by
public policy of the state of Connecticut is now lim- permitting adoption of a child who already had a
ited to a marriage between a man and a woman.” natural or adoptive parent by another person of the
same sex who was not lawfully married to that par-
The legislative history of the enactment of General ent, they did not allow an appellate court to use that
Statutes § 45a-727a shows that members of the Gen- legislative enactment as a wedge to bring down the
eral Assembly were initially reacting to what had laws of Connecticut concerning who may marry. See,
become known as the Baby Z. case. In re Baby Z., e.g., 43 S. Proc., supra, p. 2451-52. The Baker court
247 Conn. 474, 724 A.2d 1035 (1999). The court in had done just that by citing the Vermont legislature's
In re Baby Z. held that General Statutes § 45a-727 of enactment of a same sex couple adoption law as one
our then existing adoption laws *390 did not permit a of the reasons why there was no proper governmental
child with a natural or adoptive legal parent to be purpose under the common benefits clause of the
adopted by a second person other than that parent's Vermont constitution to restrict marriage to unions
spouse. Id., at 498-522, 724 A.2d 1035. In response between a man and a woman. Baker v. State, supra, at
to the decision in In re Baby Z., the General Assem- 218-19, 744 A.2d 864. After discussing what it
bly enacted No. 00-228 of the 2000 Public Acts. In termed the “reality” that some persons in same sex
speaking against a proposed amendment to House relationships were conceiving children by artificial
Bill 5830, which ultimately passed without the means, the Vermont court so used the enactment by
amendment and became Public Act 00-228 and the Vermont legislature of that change in the law
which amendment he found unnecessary, Senator when it stated: “The Vermont Legislature has not
Donald Williams, the senate chair of the judiciary only recognized this reality, but has acted affirma-
committee, in floor debate said that what some had tively to remove legal barriers so that same-sex cou-
termed the “gay adoption” bill did “not change our ples may legally adopt and rear the children con-
policy on marriage in the state of Connecticut.” 43 S. ceived through such efforts. See 15A V.S.A. § 1-
Proc., Pt. 8, 2000 Sess., pp. 2456-57. In floor debate, 102(b) (allowing partner of **182 biological parent
he stated that the bill had “protections” which made to adopt if in child's best interest without reference to
that “absolutely clear.” Id., at 2457. He pointed to § 1 sex).” Id., at 218, 744 A.2d 864.
of the bill stating that “it is further found that the cur-
rent public policy of the State of Connecticut is now In the debate on the adoption of General Statutes §§
limited to a marriage between a man and a woman.” 45a-727a and 45a-727b, in answer to pointed ques-
Id. He also pointed to the last section of the bill, § 5, tions from Senator Winthrop Smith, Senator Wil-
which provided that “nothing in this act shall be con- liams agreed that (1) the “finding of fact” at the be-
strued to establish or constitute an endorsement of ginning of the bill is a statement of public policy of
any public policy with respect to marriage, civil un- the state of Connecticut and was established as such
ion or any other form of relation between unmarried by its placement in the statutes and not through a
persons or with respect to any rights of or between legislative dialogue; 43 S. Proc., supra, p. 2472; (2)
such persons other than their rights and responsibili- the language on the lines 11 through 13 in the bill
ties to a child who is the subject of an adoption.” Id. establish that the public policy of Connecticut is that
a marriage is *392 defined as being between one man
It becomes clear from a careful reading of the floor and one woman; id., p. 2473; (3) after a legislature
debate on this legislation in both houses, that a num- has established and recognized a policy like this that
ber of legislators were opposed to adoption of this a court could not alter that policy without the legisla-
legislation if it were to be used later in any way as a ture first making a change; id.; and (4) the language
wedge by appellate or trial courts to require recogni- of the bill precluded a court from reaching a conclu-
sion that Connecticut public policy would allow same

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sex marriages or unions. Id., at 2474-75. sought any relief to which he may be entitled in law
or equity. If under any facts provable under a com-
In addition, contrary to the plaintiff's assertions, the plaint, a court of law has jurisdiction to grant any one
legislative history reveals that the legislature failed to of the claims for relief set out in a plaintiff's com-
enact its own version of the Defense of Marriage Act plaint, then the plaintiff's action**183 should not be
not because it intended to evince a willingness to dismissed sua sponte for lack of jurisdiction. See
recognize civil unions but because it thought such an Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d
enactment unnecessary. During the senate debate, the 1089 (1998). In Boland, our Supreme Court adopted
following colloquy took place between Senators the holding of the California Supreme Court in
Smith and Williams. Senator Smith asked: “This Marvin v. Marvin, 18 Cal.3d 660, 665, 557 P.2d 106,
amendment is the one that we've been calling 134 Cal.Rptr. 815 (1976), that “[t]he courts should
DOMA, the defens[e][of] marriage act, and based on enforce express contracts between nonmarital part-
the language we've just talked about in the underlying ners except to the extent that the contract is explicitly
bill and the questions that we've just had, my ques- founded on the consideration of meretricious sexual
tion to you was, would the addition of this to the bill services.... In the absence of an express contract, the
in front of us now be superfluous?” 43 S. Proc., su- courts should inquire into the conduct of the parties
pra, p. 2476. Senator Williams responded: “Exactly. I to determine whether that conduct demonstrates an
believe that this amendment would be superfluous.” implied contract, agreement of partnership or joint
Id. Furthermore, section 5 of Public Act 00-228, now venture, or some other tacit understanding between
codified at General Statutes § 45a-727b, expressly the parties.” (Internal quotation marks omitted.)
provides: “Nothing in this section and sections 45a- Boland v. Catalano, supra, 202 Conn. at 340-41, 521
724, 45a-727, 45a-727a and 45a-731 shall be con- A.2d 142. The Boland court also expressly ruled, in
strued to establish or constitute an endorsement of adopting Marvin, that the court may also employ
any public policy with respect to marriage, civil un- “equitable remedies” when warranted *394 by the
ion or any other form of relation between unmarried facts of the case. Id., at 341,521 A.2d 142, If before
persons or with respect to any rights of or between or during purportedly entering the Vermont civil un-
such persons other than their rights and responsibili- ion, the parties to this action entered an implied or
ties to a child who is a subject of an adoption as pro- express contract to “share their earnings and the fruits
vided for in sections 45a-724 and 45a-727.” We of their joint labor,” the court had jurisdiction to
therefore conclude that the Connecticut legislature grant relief in law or equity as to that claim. Id., at
has not demonstrated a willingness to recognize civil 342, 521 A.2d 142, “Ordinary contract principles are
unions by either its amendment of the adoption stat- not suspended ... for unmarried persons living to-
utes or by its failure to enact its own version of the gether, whether or not they engage in sexual activ-
Defense of Marriage Act. ity.” Id., at 339, 521 A.2d 142.

*393 Finally, the plaintiff relies on Boland v. In evaluating whether the complaint here permits
Catalano, 202 Conn. 333, 521 A.2d 142 (1987), in jurisdiction to be exercised on the second claim for
support of his argument that Connecticut recognizes relief, we do not evaluate what agreements, if any,
nontraditional relationships and affords the parties to the plaintiff and defendant entered, explicitly or im-
such relationships a judicial remedy for the dissolu- plicitly, regarding the sharing of assets or income of
tion of those relationships. Specifically, he argues one with the other and whether such agreements are
that under Boland this court can offer dissolution enforceable because, unlike Marvin v. Marvin, supra,
relief to the parties of this civil union under the the- 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106, and
ory that the partners to the union entered into an ex- Boland v. Catalano, supra, 202 Conn. at 333, 521
press contract, the terms of which are defined by § A.2d 142, no such express or implied agreements are
1201 et seq. of title 15 of the Vermont Statutes Anno- alleged in the complaint. Nor has the plaintiff dis-
tated. We disagree for the reasons already stated and tinctly claimed on appeal that jurisdiction might be
because the plaintiff did not plead any express or exercised on this ground.
implied contract to share earnings or assets.
[14] Finally, Boland is not authority for the proposi-
[12][13] In his second claim for relief, the plaintiff tion that Connecticut must recognize civil unions

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802 A.2d 170 Page 13
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(Cite as: 71 Conn.App. 372, 802 A.2d 170)

between same sex partners and provide a forum for


their dissolution in the state of Connecticut. “The For all of the foregoing reasons, we conclude that a
rights and obligations that attend a valid marriage civil union is not a family relations matter and, there-
simply do not arise where the parties choose to co- fore, the court was correct in determining that it had
habit” without entering a valid marriage relationship. no subject matter jurisdiction to dissolve the civil
Boland v. Catalano, supra, 202 Conn. at 339, 521 union under § 46b-1 (17).
A.2d 142.
The judgment is affirmed.
[15] The plaintiff also cites Practice Book § 25-2FN12
as further grounds for the **184 exercise of jurisdic- In this opinion the other judges concurred.
tion. This provisionmerely *395 sets forth the neces- Conn.App.,2002.
sary allegations of a complaint for dissolution of mar- Rosengarten v. Downes
riage, legal separation or annulment where jurisdic- 71 Conn.App. 372, 802 A.2d 170
tion already exists, but does not confer jurisdiction.
END OF DOCUMENT
FN12.Practice Book § 25-2 provides: “(a)
Every complaint in a dissolution of mar-
riage, legal separation or annulment action
shall state the date and place, including the
city or town, of the marriage and the facts
necessary to give the court jurisdiction.

“(b) Every such complaint shall also state


whether there are minor children issue of
the marriage and whether there are any
other minor children born to the wife
since the date of marriage of the parties,
the name and date of birth of each, and the
name of any individual or agency pres-
ently responsible by virtue of judicial
award for the custody or support of any
child. These requirements shall be met
whether a child is issue of the marriage or
not and whether custody of children is
sought in the action. In every case in
which the state of Connecticut or any
town thereof is contributing or has con-
tributed to the support or maintenance of a
party or child of said party, such fact shall
be stated in the complaint and a copy
thereof served on the attorney general or
town clerk in accordance with the provi-
sions of Sections 10-12 through 10-17.
Although the attorney general or town
clerk shall be a party to such cases, he or
she need not be named in the writ of
summons of summoned to appear.

“(c) The complaint shall also set forth the


plaintiff's demand for relief and the auto-
matic orders as required by Section 25-5.”

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