Opinion
HHDFA166064836S
11-21-2016
Kim P. Ngo v. Marty Lee
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Robert Nastri, Jr., Judge.
This action for an annulment of marriage was brought by writ of summons and complaint dated December 23, 2015, with a return date of February 2, 2016. The defendant was served by publication. (#108.) The court heard the matter on October 4, 2016 when the plaintiff--who was represented by counsel--testified. Thereafter, the plaintiff's counsel submitted a brief in support of her position that the marriage was void ab initio. (#117.) In addition, the plaintiff moved to amend her complaint to seek a dissolution of marriage in the alternative to the annulment. (#115.)
Findings
Based on the plaintiff's testimony, the court makes the following findings. The court finds all facts proven by clear and convincing evidence presented.
The court has listened carefully to the witness and assessed her credibility. " It is the sole province of the trial court to weigh and interpret the evidence before it and to pass on the credibility of the witnesses . . . It has the advantage of viewing and assessing the demeanor, attitude and credibility of the witnesses and is therefore better equipped . . . to assess the circumstances surrounding the dissolution action." (Citation omitted; emphasis in original; internal quotation marks omitted.) Zahringer v. Zahringer, 124 Conn.App. 672, 679-80, 6 A.3d 141 (2010).
The court takes judicial notice of all pleadings in the court's file.
The plaintiff lived in Connecticut for at least twelve months before filing the complaint.
The allegations of the complaint are proven and true.
The defendant is not in the military service of the United States.
The parties were married on April 25, 2006.
The parties never lived together.
There were no children born of the marriage.
The parties have no joint assets or liabilities.
The parties knew each other for about two years before being married.
Two days after the marriage, the defendant telephoned the plaintiff to tell her he didn't want to be married.
The plaintiff never saw or spoke to the defendant after that phone call.
The plaintiff tried unsuccessfully to find the defendant but he changed his phone number and his job.
The defendant did not intend to live with the plaintiff as husband and wife.
The defendant committed material fraud that affected the essence of the marriage contract.
Discussion
General Statutes § 46b-40(b) provides: " An annulment shall be granted if the marriage is void or voidable under the laws of this state or of the state in which the marriage was performed." Furthermore, " [i]t is the well-established law of this state that no marriage performed in this state is to be held void or voidable except for some ground recognized at common law or for some ground which a statute expressly provides shall be ground for annulment." Manning v. Manning, 16 Conn.Supp. 461, 461 (1950). Moreover, the court " must find that the conditions leading up to and surrounding the marriage have been established by clear and convincing evidence to be such as to render the marriage void or voidable." Trotta v. Trotta, 5 Conn.Supp. 218, 223 (1937). Accordingly, " [c]ourts are without power or authority to render a decree of annulment when the marriage was a valid marriage." Id., 222.
" Fraud, to vitiate a marriage contract, must relate to the very essence of the marriage relation . . . A misrepresentation, made through honest error and with a bona fide belief in its truth, is not fraudulent. This is obviously so, when the representation was made without knowledge or culpable ignorance of its falsity, and the belief in its truth was based upon adequate grounds. To constitute fraud by nondisclosure or suppression, there must be a failure to disclose known facts, and, as well, a request or an occasion or circumstance which imposes a duty to speak." (Citations omitted.) Behrmann v. Behrmann, 110 Conn. 443, 445-46, 148 A. 363 (1930). Furthermore, " the effect of fraud is far more limited when a marital status is involved than it is when applied to the run-of-the-mill contractual relations of individuals . . . A simple contract may be avoided by any material, inducing act of fraud, but the only fraud upon which an annulment may be based is that which not only is material and inducing but which affects the very essence of the marital status." (Citation omitted.) Nerini v. Nerini, 11 Conn.Supp. 361, 364 (1943). Further, " [t]o warrant the annulment of a marriage, the cause must be such as goes to the essence of the marriage contract. Consent of the participants is a necessary condition to the creation of a valid marriage relationship, and there must be an intention of the parties to enter into the marriage status . . . The fact of entry into marriage gives rise to a presumption that the parties intend to enter into a normal marital relationship." (Citation omitted.) Bernstein v. Bernstein, 25 Conn.Supp. 239, 240-41, 201 A.2d 660 (1964).
Our Supreme Court has stated that the " doctrine of essentials . . . requires the misrepresentations claimed by the party seeking an annulment to be related to the sexual obligations of the marriage, that is, the ability or willingness to have sexual relations and the ability to bear children." Fattibene v. Fattibene, 183 Conn. 433, 439, 441 A.2d 3 (1981); see also Behrmann v. Behrmann, supra, 110 Conn. 446 (marriage contract fraudulent if one party is incapable of sexual intercourse and deceitfully withholds this information from other party); Gould v. Gould, 78 Conn. 242, 250, 61 A. 604 (1905) (defendant committed " fraud in inducing a belief that he was legally and physically competent to enter into the marital relation and fulfill all its duties, when he knew that he was not"). It follows that " [n]o misconception as to the character, fortune, health or temper, however brought about, will support an allegation of fraud on which a dissolution of the marriage contract, when once executed, can be obtained in a court of justice. These are accidental qualities, which do not constitute the essential and material elements on which the marriage relation rests." (Internal quotation marks omitted.) Nerini v. Nerini, supra, 11 Conn.Supp. 365.
JUDGMENT
The foregoing findings are incorporated into the judgment. The court orders the marriage annulled due to the defendant's fraud.