Opinion
No. FA 04-4002128-S
March 18, 2005
MEMORANDUM OF DECISION ON REQUEST TO ANNUL SAME-SEX MARRIAGE
The issue before this court is whether the Connecticut Superior Court has subject matter jurisdiction to annul a "civil marriage" entered into in the state of Massachusetts by a same-sex couple who are residents of Connecticut.
BRIEF HISTORY
Two same-sex residents of Connecticut traveled to the state of Massachusetts where they filed a notice of intention to marry with the clerk in Provincetown, Massachusetts. The parties claim that they were unaware of the legal impediment to same-sex marriage in Massachusetts when the parties to the union are residents of another state. They are now seeking to annul this same-sex civil union in the state of Connecticut. This court, sua sponte has raised the question as to whether this court has subject matter jurisdiction over this case.
DISCUSSION
Connecticut has set forth grounds for the dissolution of marriage in General Statutes § 46b-40. These grounds include: "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." § 46b-40(b). An annulment "proceeds upon the theory that the marriage is void ab initio." Mazzei v. Cantales, 142 Conn. 173, 178, 112 A.2d 205 (1955). The Superior Court has subject matter jurisdiction over all family law matters as defined by General Statutes § 46b-1, including the annulment of a marriage. See Rosenfield v. Rosenfield, 61 Conn.App. 112, 116, 762 A.2d 511 (2000). A claim of lack of "subject matter jurisdiction . . . addresses the basic competency of the court [and] can be raised by any of the parties, or by the court sua sponte, at any time." (Internal quotation marks omitted.) ABC, LLC v. State Ethics Commission, 264 Conn. 812, 822-23, 826 A.2d 1077 (2003). "Jurisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy . . . [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004).
Section 46b-1 provides: "Matters within the jurisdiction of the Superior Court deemed to be family relations matters shall be matters affecting or involving: (1) Dissolution of marriage, contested and uncontested, except dissolution upon conviction of crime as provided in section 46b-47; (2) legal separation; (3) annulment of marriage; (4) alimony, support, custody and change of name incident to dissolution of marriage, legal separation and annulment; (5) actions brought under section 46b-15; (6) complaints for change of name; (7) civil support obligations; (8) habeas corpus and other proceedings to determine the custody and visitation of children; (9) habeas corpus brought by or in behalf of any mentally ill person except a person charged with a criminal offense; (10) appointment of a commission to inquire whether a person is wrongfully confined as provided by section 17a-523; (11) juvenile matters as provided in section 46b-121; (12) all rights and remedies provided for in chapter 815j; (13) the establishing of paternity; (14) appeals from probate concerning: (a) Adoption or termination of parental rights; (b) appointment and removal of guardians; (c) custody of a minor child; (d) appointment and removal of conservators; (e) orders for custody of any child; (f) orders of commitment of persons to public and private institutions and to other appropriate facilities as provided by statute; (15) actions related to prenuptial and separation agreements and to matrimonial decrees of a foreign jurisdiction; (16) custody proceeding brought under the provisions of chapter 815p; and (17) all such other matters within the jurisdiction of the Superior Court concerning children or family relations as may be determined by the judges of said court."
The law that governs the formation of a marriage in Massachusetts is set forth in chapter 207 of the General Laws. The statute is "both a gatekeeping and a public records statue" which controls entry into a civil marriage and has been construed "to mean the voluntary union of two persons as spouses, to the exclusion of all others." Goodridge v. Department of Public Health, 440 Mass. 309, 317, 343, 798 N.E.2d 941 (2003); see also Opinions of the Justices to the Senate, 440 Mass. 1201, 802 N.E.2d 565 (2004) (answering in the negative that " Senate No. 2175, which prohibits same-sex couples from entering into marriage but allows them to form civil unions with all 'benefits, rights and responsibilities' of marriage, comply with the equal protection and due process requirements of the Constitution of the Commonwealth and articles 1, 6, 7, 10, 12, and 16 of the Declaration of Rights.").
Chapter 207, § 11 is entitled: "Non-residents; marriage contrary to laws of domiciled state" and provides: "No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void."
Chapter 207, § 12 provides: "Before issuing a license to marry a person who resides and continues to reside in another state, the officer having authority to issue the license shall satisfy himself by requiring affidavits or otherwise that such person is not prohibited from intermarrying by the laws of the jurisdiction where he or she resides." "Just prior to the issuance of marriage licenses to same-sex couples in accordance with the ruling of Goodridge v. Department of Public Health, 440 Mass. 309 (2003) . . . the Department of Public Health . . . and the Registry of Vital Records and Statistics . . . issued forms and guidance that effectively interpret General Laws Chapter 207, § 11 to bar municipal clerks from issuing marriage licenses to same-sex couples who reside in any other state." Cote-Whiteacre v. Department of Public Health, Superior Court of Massachusetts at Suffolk, Docket No. 0426560 (August 18, 2004, Ball, J.) (18 Mass. L. Rptr. 190). "[T]he argument . . . that legalization of same-sex marriage in Massachusetts will be used by persons in other States as a tool to obtain recognition of a marriage in their State that is otherwise unlawful is precluded by the provisions of [General Laws chapter] 207, §§ 11, 12, and 13." Id. (citing Goodridge v. Department of Public Health, supra, 440 Mass. 348 n. 4.).
Recently, in Rosengarten v. Downes, 71 Conn.App. 372, 802 A.2d 170, cert. granted, 261 Conn. 936, 806 A.2d 1066, appeal dismissed as moot (2002), the Connecticut Appellate Court addressed the issue of a same-sex "civil union" performed in the state of Vermont. Therein, the plaintiff alleged that he and the defendant were joined in a civil union in Vermont on December 31, 2000, pursuant to the statutes of the state of Vermont, that the civil union had broken down irretrievably and that the plaintiff had resided in Connecticut for at least one year preceding the commencement of that action ". . . [T]he plaintiff sought '[a]n order dissolving the civil union of the parties' and '[s]uch other and further relief to which the [p]laintiff may be entitled in law or equity.'" Rosengarten v. Downes, supra, 374-75. The trial court dismissed the case for lack of subject matter jurisdiction to dissolve a same-sex civil union. Id., 373.
Vermont has no residency requirement for entering into a "civil union."
In its articulation dated March 4, 2002, the trial court explained that although the plaintiff had denominated the case a family relations matter by using a judicial branch code, 'F00,' on the summons, neither § 46b-1, the statutory provision that defines the family relations matters within the jurisdiction of the Superior Court, nor Practice Book § 25-1, which provides that family matters within the scope of the rules are those actions brought pursuant to § 46b-1, mentions the court's power to dissolve civil unions. The court held that '[m]atters such as this which implicate significant issues of public policy are more properly within the domain of the legislature . . . [and] [a]s such, the legislature of a sister state cannot, in effect, make such a determination for the people of Connecticut.'
Practice Book § 25-1 provides in relevant part: "The following shall be 'family matters' within the scope of these rules: Any actions brought pursuant to General Statutes § 46b-1, including but not limited to dissolution of marriage, legal separation, dissolution of marriage after legal separation, annulment of marriage, alimony, support, custody, and change of name incident to dissolution of marriage, habeas corpus and other proceedings to determine the custody and visitation of children except those which are properly filed in the superior court as juvenile matters, the establishing of paternity, enforcement of foreign matrimonial judgments . . ."
In support of this conclusion, the court relied on General Statutes § 45a-727a(4), which provides that 'the current public policy of the state of Connecticut is now limited to a marriage between a man and a woman.' It also relied on the Defense of Marriage Act. Pub.L. No. 104-99, § 2(a), 110 Stat. 2419, codified at 28 U.S.C. § 1738C. It observed that Title 28 of the United States Code, § 1738C, provides: 'No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same-sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.'" Id., 377-78.
On appeal, the plaintiff claimed "that the trial court improperly sua sponte dismissed the action for lack of subject matter jurisdiction because [General Statutes] § 46b-1(17) grants the Superior Court subject matter jurisdiction over 'all such other matters within the jurisdiction of the Superior Court concerning children or family relations as may be determined by the judges of said court' and that the dissolution of a Vermont civil union is a matter relating to family relations. The plaintiff further claim[ed] that principles of full faith and credit demand that Connecticut recognize civil unions entered into under the laws of Vermont, and thereby the right to dissolve them in a Connecticut forum because Connecticut has a public policy in favor of recognizing civil unions . . ." Rosengarten v. Downes, supra, 71 Conn.App. 374.
The constitution of the United States, article four, § 1 requires that: "Full faith and credit shall be given in each State for the public Acts, Records, and judicial Proceedings of every other State."
The Appellate Court determined that jurisdiction for the dissolution of a civil union performed in Vermont was lacking under §§ 46b-1(1), 46b-1(17), and Practice Book § 25-1. First, the court noted that "this civil union is not a marriage recognized under § 46b-1(1) because it was not entered into between a man and a woman" a requirement necessary in the state of Connecticut. Rosengarten v. Downes, supra, 71 Conn.App. 378. Second, it is not "a marriage under Vermont's definition of marriage . . . because it too limits the definition of marriage to those entered between 'one man and one woman.'" Id., 378-79. Third, it does not fall within the purview of subsection (17) which covers "all such other matters within the jurisdiction of the Superior Court concerning children or family relations as may be determined by the judges of said court." Id., 379. As to § 46b-1(17), the court noted that the matter before them did not involve children and "the judges of the Superior Court [had] not enacted any rule of practice that would define foreign civil unions as a family matter either." Id., 382. The court further concluded that "the legislative intent . . . was not to make Connecticut courts a forum for same-sex, foreign civil unions . . . [and] [that] the legislative history, the strong legislative policy against permitting same-sex marriages and the relationship between other statutes, legislative enactments of state policy and the common law are all in accord with that view." Id., 384.
With respect to the plaintiff's claim in that case that principles of full faith and credit required Connecticut to recognize Vermont's civil union unless recognition would violate some strong public policy of Connecticut, the plaintiff argued that Connecticut does not have such a public policy, and, therefore, recognition of civil unions and the right to dissolve them is favored. Rosengarten v. Downes, supra, 71 Conn.App. 386.
The Appellate Court disagreed that Connecticut's public policy supports that determination. Id. The court based its conclusion on the following: (1) provisions of General Statutes §§ 46a-81a through 46a-81r which prohibit discrimination on the basis of sexual orientation contain a clear statement that they do not authorize the recognition of a marriage between persons of the same-sex; and (2) the legislature, by amending state adoption laws, General Statutes §§ 45a-724 through 45a-737, to allow same-sex adoption and by not enacting its own version of the federal Defense of Marriage Act, has not demonstrated a willingness up to this point to recognize civil unions or any other form of marriage other than between a man and a woman. Id., 387-92.
The Appellate Court also did not dissolve the "civil union" under contract principles because the plaintiff had not expressly pleaded a contract claim. Rosengarten v. Downes, supra, 71 Conn.App. 393-95.
In the instant case, similar reasoning can be applied. Based on the rational set forth in Rosengarten v. Downes, the public policy of Connecticut and the General Laws of Massachusetts, chapter 207, § 11, this court lacks subject matter jurisdiction to annul the civil, same-sex marriage between the two parties in this case, who, as Connecticut residents, participated in a civil marriage in Massachusetts.
First, the Massachusetts marriage law applies only to residents of Massachusetts and specifically excludes non-residents in chapter 207, § 11. Because the relationship entered into between the two parties in the present case was premised on a violation of the Massachusetts marriage statute, the "civil marriage" was not valid from its inception, but null and void, and, therefore, Connecticut has nothing to dissolve or annul. Second, the court has no jurisdiction under § 46b-1, because the "civil marriage" is not a matter concerning family relations as defined in that statute. Third, Connecticut is not required to give full faith and credit to a judgment that contravenes its public policy and is a nullity in its inception. There is a public policy exception to the full faith and credit requirement that says states do not have to recognize the acts of other states if doing so would be inconsistent with the public policy of their own state. With respect to marriage, the public policy exception would permit a state to decline to honor a marriage contracted in another state if it violates the public policy of the reviewing state. See Rosengarten v. Downes, supra; Adamsen v. Adamsen, 151 Conn. 172, 176, 195 A.2d 418 (1963).
Other jurisdictions have considered this issue of a same-sex marriage. Illinois and Georgia have refused to recognize it predominately on public policy grounds and the federal Defense of Marriage Act. See Burns v. Burns, 560 S.E.2d 47 (Ga.Ct.App. 2002). One New York trial court has held that a surviving partner to a Vermont civil union met the statutory definition of a "spouse" for New York's wrongful death statute. Langan v. St. Vincent's Hospital of New York, Docket No. 11618/02, 2003 N.Y. Misc. LEXIS 673 (N.Y. Supreme Court, April 10, 2003, Dunne, J.). Another New York trial court held that same-sex couples are entitled to marry and the state marriage law, which restricts marriage to opposite-sex couples, is in violation of the state's due process and equal protection guarantees. http://pubs.bna.com/ip/BNA/flr.nsf/is/a0b0j8g9j1.
CONCLUSION
Unless and until our legislature enacts legislation that reflects a public policy favoring recognition of civil unions or marriage between same-sex couples, this court has no choice but to dismiss this case for lack of subject matter jurisdiction.
BY THE COURT,
Prestley, J.