Opinion
No. HHB CV 06 4010372 S
April 12, 2007
MEMORANDUM OF DECISION ON MOTION TO STRIKE (#107)
The court heard argument concerning the defendant Veronica Mirisola Stanek's motion to strike counts one and two of the plaintiff Kristen Birmingham's complaint at short calendar on March 26, 2007. After considering the parties' submissions and arguments, the court issues this memorandum of decision. For the reasons set forth, the motion is denied.
I BACKGROUND
The plaintiff's complaint is in two counts. As temporary conservator and as co-executrix, she seeks a judgment declaring (1) that the marriage between her deceased father, Dennis Stanek, Sr. (the decedent), and the defendant, is void; and (2) that the defendant has no claim against the estate of the decedent, except as specifically set forth in his will.
The plaintiff alleges that, in June 2005, the decedent was diagnosed with lung cancer. She further alleges that, on November 23, 2005, she was appointed temporary conservator of the person and estate of the decedent, who was then of unsound mind, incompetent, and incapable of consenting to marriage. She alleges that the defendant induced the decedent to marry her and a marriage license was issued by the Town of Southington. In count one, she alleges that the marriage is void because the decedent lacked the legal capacity and/or the mental capacity, and/or a sound mind, to consent to marriage as of November 23, 2005, the date when the marriage occurred. She alleges that the decedent died four days later, on November 27, 2005.
In count two, the allegations from count one are incorporated and realleged; the plaintiff also alleges that, at the times the defendant induced the decedent to marry her, he was a person subject to influence. In addition, she alleges that, at the time of his death, the decedent's will provided that the defendant would receive the house that the decedent owned, the value of which was less than the value of one-third of his estate.
In paragraph 17 of count two, the plaintiff alleges that, as a result of the defendant's improper exerting of influence over the decedent, the defendant wrongfully obtained for herself the opportunity to take a life estate of one-third in value of all the property passing under the will, to the detriment of the plaintiff and the decedent's other beneficiaries.
In her motion to strike, the defendant contends that counts one and two should be stricken since they fail to allege a cause of action to void the marriage, because the facts alleged could only establish that the marriage is "voidable," rather than "void." The defendant argues that a cause of action to invalidate a "voidable" marriage cannot be commenced after the death of one of the parties to the marriage.
II STANDARD OF REVIEW
The standard of review on a motion to strike is well established. "[A] motion to strike challenges the legal sufficiency of a pleading . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically . . ." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 317-18, 907 A.2d 1188 (2006).
"A motion to strike does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 694, 748 A.2d 834 (2000).
III
CT Page 7385
DISCUSSION
The court is guided by the Appellate Court's decision in Mandorff v. Dax, 13 Conn.App. 282, 535 A.2d 1324 (1988), where the court stated that, "[a]lthough in some contexts the difference between a judgment only declaring the invalidity of a marriage — a declaratory judgment — and a judgment invalidating a marriage — an annulment — may be elusive, under the circumstances presented by this case we conclude that the plaintiff seeks only declaratory relief and cannot be understood to seek a judgment of annulment." Id., 285-86. The same is true here."Our cases make clear that a court may be required to pass upon the validity of a marriage in the course of rendering a judgment in another action . . . [T]hose cases do recognize that a judicial determination regarding the validity of a marriage does not alone turn another form of action into an annulment action." (Citations omitted.) Id., 286.
In Mandorff v. Dax, supra, as is alleged here, the husband was no longer living at the time the action was commenced. See id., 283, 286. "[T]he plaintiff does not, and cannot, seek to have the defendant's marriage to the husband invalidated. Rather than seeking a change in the status of the defendant's marriage to the husband, the plaintiff seeks a declaration of the invalidity of that marriage when it was contracted and as it may have existed in the past as a basis for determining the status of the parties upon his death." Id., 286-87. The defendant's references to annulment cases are therefore inapposite.
In support of her argument, the defendant cites the Supreme Court's decisions in Hames v. Hames, 163 Conn. 588, 316 A.2d 379 (1972) and Carabetta v. Carabetta, 182 Conn. 344, 438 A.2d 109 (1980). In those cases, the Supreme Court reiterated the continued import of the common law concerning substantive defects in the validity of a marriage. In Hames v. Hames, supra, 163 Conn. 598, the Supreme Court stated, "[i]t has long been settled that unless a statute expressly declares a marriage to be void, as in the case of an incestuous marriage (General Statutes § 46-1), or one attempted to be celebrated by an unauthorized person (General Statutes § 46-3), deficiencies will render the marriage dissoluble rather than void." However, the Supreme Court also stated, immediately thereafter, that "[s]tatutory deficiencies are, of course, to be distinguished from substantive defects such as lack of the consent which, even at common law, is deemed essential to forming the relationship." Id., 163 Conn. 598.
Similarly, Carabetta v. Carabetta, supra, 182 Conn. 344-45, which concerned the issue of the validity of a marriage in the absence of a marriage license, as required by what is now General Statute § 46b-24, the Supreme Court reiterated the distinction between substantive requirements which stem from statutes and those which are derived from the common law. "The governing statutes at the time of the purported marriage between these parties contained two kinds of regulations concerning the requirements for a legally valid marriage. One kind of regulation concerned substantive requirements determining those eligible to be married. Thus General Statutes (Rev. 1949) 7301 . . . declared the statutorily defined degrees of consanguinity within which a `marriage shall be void.' As this court has indicated in Hames v. Hames, supra, [163 Conn.] 598, this substantive condition is not necessarily exclusive; lack of consent to a marriage, for example, would also be a substantive defect, derived from the common law, sufficient to avoid a marriage." (Footnote omitted.) Carabetta v. Carabetta, supra, 182 Conn. 347.
Section 46b-24 provides, in relevant part, "(a) No persons may be joined in marriage in this state until both have complied with the provisions of sections 46b-24, 46b-25 and 46b-29 to 46b-33, inclusive, and have been issued a license by the registrar for the town in which (1) the marriage is to be celebrated, or (2) either person to be joined in marriage resides, which license shall bear the certification of the registrar that the persons named therein have complied with the provisions of said sections."
Thus, the defendant's reliance on General Statute § 46b-29, to support her contention that there is no statutory authority rendering the marriage void, ignores the common law, which requires that marrying parties have the capacity to consent. See Howard v. MacDonald, 270 Conn. 111, 132, 851 A.2d 1142 (2004) (person with diminished mental capacity incapable of giving consent). Section 46b-29, which concerns marriage of persons under conservatorship, provides, in relevant part, in subsection (a), that, "[n]o marriage license may be issued to any applicant under the supervision or control of a conservator . . . unless the written consent of the conservator . . . is filed with the registrar . . ." and, in subsection (b), "[a]ny person married without the consent provided for in subsection (a) of this section shall acquire no rights by such marriage in the property of any person who was under such control or supervision at the time of the marriage."
Neither of plaintiffs' two counts mentions § 46b-29. Rather, as stated above, the plaintiff's two counts allege, respectively, the incapacity of the decedent to consent to the marriage and undue influence by the defendant. These are common-law claims. Connecticut appellate decisional law, cited above, has envisioned that common-law claims may be brought to seek "a declaration of the invalidity of [a] marriage when it was contracted and as it may have existed in the past as a basis for determining the status of the parties upon [the decedent's] death." Mandorff v. Dax, supra, 13 Conn.App. 287. In view of the clearly applicable Connecticut appellate authority, the defendant's references to decisions in other jurisdictions are unavailing.
Likewise, as noted, such claims may be brought after the death of one of the parties to the marriage. See Mandorff v. Dax, supra, 13 Conn.App. 283, 286. The defendant's reliance on O'Brien v. O'Brien, 3 Conn.Sup. 1 (1935), a Superior Court decision, which interpreted New York law, see id., 3 Conn.Sup. 2, is, therefore, also unavailing.
CONCLUSION
For the foregoing reasons, the defendant's motion to strike is denied. It is so ordered.