Michelle Dunlap v. Phillip Current (2014)

MEMORANDUM OF DECISION

I. Procedural History

This action seeking an annulment comes before the court for final disposition.   A hearing was held on March 20, 2014, at which the plaintiff was present with counsel.   The defendant filed an appearance, but was not present at the hearing.   The plaintiff was the only witness.   The only additional evidence was a stipulation of the parties dated March 20, 2014 proffered by the plaintiff.   The court did not adopt the stipulation as an order of the court.

II. Factual Findings

Based upon a careful consideration of all of the evidence, arguments of plaintiff's counsel, and a review of the record, having observed the demeanor of the witness, and afforded appropriate weight and credibility to the witness and the evidence, the court finds the following facts by a preponderance of the evidence:

1. The parties were intermarried on May 7, 2012 in Middletown, Connecticut.

2. The parties have no minor children issue of their marriage, and the plaintiff is not presently pregnant.

3. The marriage has broken down irretrievably with no hope of reconciliation.

4. For at least one year prior to the filing of the action on September 9, 2013, the plaintiff has resided continuously in the state of Connecticut.   All statutory stays have expired.   The court has jurisdiction over the matter.

5. The defendant lives in the state of Minnesota.   The plaintiff testified that the defendant intended to relocate to the state of Connecticut upon finding employment in this state.   The plaintiff testified that the defendant never “officially” applied for work in Connecticut, or made any real effort to relocate to Connecticut.

6. The court finds that the defendant intended to relocate to Connecticut upon marrying the plaintiff and securing employment in this state, but that he has never lived in the state of Connecticut.

7. The plaintiff testified that the defendant abandoned the marriage on May 28, 2013 when, during the course of a visit with the plaintiff in Connecticut, the defendant left the plaintiff three days earlier than was planned, and never returned.   Since that date, the parties have had only a few telephone conversations, and those conversations related to this legal action.   The court finds that the parties have been separated since May 28, 2013.

8. The plaintiff testified that the defendant disclosed to the plaintiff prior to the marriage that he had served three years in prison for a conviction for insurance fraud.   The plaintiff testified that the defendant's criminal record was “much more severe” than what was represented, and that she was not aware of the nature and the extent of his actual criminal record.

9. The plaintiff testified that she learned after the marriage that the defendant had also been convicted of a drug offense, for which he received a sentence of one year imprisonment and five years of probation.   The drug offense predated the insurance fraud offense.   The court finds that the only criminal offense of the defendant for which the plaintiff was unaware at the time of the marriage is the drug offense.

10. The court finds that the defendant misrepresented his criminal record to the plaintiff prior to the marriage.

11. The defendant misrepresented to the plaintiff prior to the marriage that he was economically stable, and without severe debts or liabilities.   The defendant led the plaintiff to believe that he would not be a financial hardship on the plaintiff, and that he would be able to take care of the home and share the commuting expenses of the parties, particularly in terms of maintaining his own expenses.

12. The plaintiff testified that she learned after the marriage that the defendant was not economically stable, describing in her testimony the defendant's “severe economic vulnerability.”   The plaintiff testified that the defendant was not financially sound and was not able to maintain his own expenses or the parties' shared expenses.

13. The plaintiff testified that she learned about the defendant's misrepresentations regarding his financial condition as the parties proceeded in the marriage, and after the defendant abandoned the marriage on May 28, 2013.

14. The court finds that the defendant misrepresented his financial condition to the plaintiff prior to the marriage.

15. The plaintiff testified to her uncertainty as to whether or not she would have married the defendant had she known the truth about his additional criminal conviction and his true financial condition.   She testified that had she known the truth, she would have given greater consideration to the decision to marry.

16. The court finds that the defendant's misrepresentations and/or omissions to the plaintiff about his criminal convictions and financial condition were not so egregious as to amount to fraud.

17. The court finds that the defendant's misrepresentations and/or omissions to the plaintiff about his criminal record and financial condition did not induce the plaintiff to marry the defendant.

18. The evidence is insufficient for the court to find that the plaintiff would not have married the defendant had she known the truth about his criminal record and financial condition.

19. Plaintiff's counsel submitted a Stipulation dated March 20, 2014, signed by both parties and plaintiff's counsel.   The court did not adopt the stipulation as an order of the court.   Defendant's signature appears to be notarized by a notary in the state of Minnesota.   The stipulation indicates that the plaintiff and defendant were married on May 7, 2012 at Middletown, Connecticut;  no minor children were born after the date of the marriage, no children were adopted by the parties during the marriage, and the plaintiff is not presently pregnant;  both parties believe their marriage is void and/or voidable because of material misrepresentations made prior to the marriage;  and the parties request an annulment.

20. Although the complaint alleges that the parties have not consummated the marriage, no evidence of this claim was presented.   The court reasonably infers from the evidence and finds that the marriage was consummated based on the plaintiff's testimony that the parties were married for over one year before the defendant abandoned the marriage.

Additional factual findings will be set forth below as is necessary to the court's analysis.

III. Discussion

In her complaint, the only relief the plaintiff seeks is an annulment.   Pursuant to Connecticut General Statutes (C.G.S.) § 46b–40(b), “[a]n 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.”  Durham v. Miceli, 15 Conn.App. 96, 97, 543 A.2d 286 (1988) (annulment properly dismissed where marriage was previously dissolved and complaint failed to allege marriage was void or voidable);  Hames v. Hames, 163 Conn. 588, 599, 316 A.2d 379 (1972) (where parties in good faith believed their invalid marriage was legal, followed by cohabitation, marriage was voidable, rather than void);  Schibi v. Schibi, 136 Conn. 196, 198, 69 A.2d 831 (1949) (marriage not void where parties mutually consented to marry).

A void marriage is one which is invalid from the start;  a voidable marriage is valid until judicially declared a nullity.  In Re Seaton, 200 Cal.App.4th 800, 806–07, 133 Cal.Rptr.3d 50 (2011).   In addition to statutory prohibitions which render a marriage void, such as C.G.S. § 46b–21, “lack of consent to a marriage ․ [is a] substantive defect, derived from the common law, sufficient to avoid a marriage.”  Carabetta v. Carabetta, 182 Conn. 344, 347, 438 A.2d 109 (1980) (ceremonial marriage contracted without a marriage license not null and void).   A voidable marriage is legal, but one which public policy dictates should be judicially declared invalid.   See Hames v. Hames, supra, 163 Conn. at 598–99, 316 A.2d 379.

The law does not favor annulments.  Durham v. Miceli, supra.   There is a very strong presumption in the law that existing marriages are valid.   See Manndorff v. Dax, 13 Conn.App. 282, 287, 535 A.2d 1324 (1988) (stranger to a marriage may not maintain or intervene in an action affecting marital status);  Carabetta v. Carabetta, supra, 182 Conn. at 346–47, 438 A.2d 109.

It is the plaintiff's burden of proof to establish the basis for an annulment.  Fattibene v. Fattibene, 183 Conn. 433, 438, 441 A.2 3 (1981) (defendant's counterclaim of annulment denied where evidence was insufficient to establish invalidity of prior foreign divorce decree).   In considering the standard of proof to apply to the evidence, the court must adhere to the language of the statute.   When a statute is silent regarding the standard of proof, the court must apply the preponderance of the evidence standard.  Stuart v. Stuart, 297 Conn. 26, 35–36, 996 A.2d 259 (2010).¹  Section 46b–40 is silent as to the applicable standard of proof, therefore, the court has applied the preponderance of the evidence standard in considering the evidence in this case.

It is clear that the marriage is not void.   There is no evidence that the parties did not consent to the marriage, did not intend to marry, or that the marriage was prohibited by law.   Although the plaintiff alleges in the complaint that the parties did not consummate the marriage, no evidence was presented to support this allegation.   The court reasonably infers that the marriage was consummated based on the testimony of the plaintiff that the parties were married for over a year before the defendant abandoned the marriage.

The crux of the plaintiff's complaint is that the marriage is voidable because prior to the marriage, the defendant misrepresented and/or omitted aspects of his criminal record and his financial condition to the plaintiff.  “In order to make out fraudulent contract as a ground for divorce the facts misrepresented or concealed must be such as to go to the very essence of the marriage.”  “The existence or nonexistence of the fact thus concealed or misrepresented must operate, as between the parties to the marriage, to prevent some essential purpose of marriage and work a practical destruction of that relation.”   Gordon v. Gordon, 11 Conn.Sup. 302, 302 (1942) (internal quotations omitted) (action for divorce or annulment based on fraudulent contract denied where husband did not disclose prior criminal conviction for issuing fraudulent checks, and misrepresented number of children from prior marriage for whom he was providing support).²

The evidence in this case is insufficient to find fraudulent concealment.   The fact that the defendant had an additional criminal conviction for a drug offense and that he was not financially sound do not go to the very essence of the marriage contract, nor do the misrepresentations prevent the essential purpose of the marriage or work a practical destruction of the relationship.   Moreover, the evidence does not support a finding that the defendant's misrepresentations resulted in the plaintiff's decision to marry.   The plaintiff testified that, had she known the truth about the defendant, she was uncertain whether she would have married him in any event.   She testified that she would have given the decision to marry the defendant further consideration, not that she would have chosen not to marry.   Therefore, the court cannot find that the nature or extent of the misrepresentations were such that they amounted to fraud.   Moreover, the alleged misrepresentations are not so egregious that public policy dictates that the marriage be voided.

The stipulation of the parties does not inform the court's analysis, nor is it determinative of the question of whether the marriage should be voided.   The fact that the parties believe that their marriage is void or voidable is irrelevant.   Whether the marriage is void or voidable is a legal question, which the court must determine based upon the facts and the law.   Although the plaintiff clearly believes that she made a mistake by marrying the defendant, the court cannot find an otherwise valid marriage void or voidable based on a party's belief, or the agreement of the responding party.

The evidence presented is insufficient to justify the granting of an annulment.   The plaintiff's prayer for relief that the marriage be annulled is denied on the following grounds:  (1) the evidence establishes that the parties consented to the marriage;  (3) the evidence of misrepresentation or fraud is insufficient to declare the marriage void or voidable;  (4) even if the misrepresentations established sufficient evidence to declare the marriage voidable, the evidence is insufficient to establish that the plaintiff would not have married the defendant had she known the truth about him;  and (5) public policy dictates that a valid marriage not be voided based on claims of misrepresentations or omissions of the nature and extent presented in this case.

IV. Conclusion

The plaintiff has not met her burden of overcoming the strong presumption of the validity of the marriage.   The misrepresentations and/or omissions made by the defendant to the plaintiff are not a sufficient basis for this court to find that the marriage is void or voidable.   The relief sought of an annulment is denied.

THE COURT,

Goodrow, J.

FOOTNOTES

FN1. In Davis v. Davis, 119 Conn. 194, 203, 175 A. 574 (1934), the court stated that a petition for annulment of marriage requires “great caution and demands clear proof.”   In Trotta v. Trotta, 5 Conn.Sup. 218, 223 (1937), the court, in apparent reliance upon Davis v. Davis, held that the standard of proof for an annulment is the clear and convincing standard..  FN1. In Davis v. Davis, 119 Conn. 194, 203, 175 A. 574 (1934), the court stated that a petition for annulment of marriage requires “great caution and demands clear proof.”   In Trotta v. Trotta, 5 Conn.Sup. 218, 223 (1937), the court, in apparent reliance upon Davis v. Davis, held that the standard of proof for an annulment is the clear and convincing standard.

FN2. Compare Vascianna v. Vascianna, 2012 Ct.Sup. 1006, 53 Conn. L. Rptr. 619 (2012) (annulment granted where court found that defendant, a non-U.S. citizen, entered into marriage under false pretenses, never intended to cohabit with plaintiff, and offered plaintiff money to remain married);  Mayo v. Mayo, 172 N.C.App. 844, 617 S.E.2d 672 (2005) (court granted annulment where defendant hid from plaintiff five of seven prior marriages)..  FN2. Compare Vascianna v. Vascianna, 2012 Ct.Sup. 1006, 53 Conn. L. Rptr. 619 (2012) (annulment granted where court found that defendant, a non-U.S. citizen, entered into marriage under false pretenses, never intended to cohabit with plaintiff, and offered plaintiff money to remain married);  Mayo v. Mayo, 172 N.C.App. 844, 617 S.E.2d 672 (2005) (court granted annulment where defendant hid from plaintiff five of seven prior marriages).

Goodrow, Karen, J.