Roman Rota, Appellate tribunal admitting a case to an ordinary examination and adding new grounds of nullity, 2000.


A First Instance Tribunal rendered a negative decision on the grounds of nullity presented. The case was formally appealed by both parties to the appellate tribunal, which changed the grounds and opened the case to an ordinary examination at a new grade of trial. This second Tribunal rendered an affirmative decision on these new grounds. The case was then sent to the Roman Rota in accord with procedural law. The Rota did not confirm this decision and remitted the case to an ordinary examination at a new grade of trial. What is worthy of note in this entry is that the Rota pointed out difficulties in the appellate tribunal's processing of this case. According to the Rota, the appellate Tribunal, among other things, confused the grounds of intention against perpetuity with intention against the good of the spouses. What follows is the decree from the Rota in an unofficial English translation.




Before R.P.D. Aegidius Turnaturi, Ponens

Nullity of Marriage:

Preliminary: Confirmation of Sentence

Prot. N.

B.Bis 21/01

DECREE

The undersigned Fathers Auditor of the turnus, legitimately assembled in the seat of the Tribunal of the Roman Rota, on ______, for the settlement of the preliminary question, titled above, namely:

"Whether the sentence of the ______ Tribunal of ______, which, as in first instance, rendered an affirmative on the ground of an exclusion of the bonum sacramenti on the part of the Respondent, is to be confirmed or whether the case is to be remitted to an ordinary examination in new grade," have issued this decree.

THE FACTS

1. After an engagement of two years conducted by the parties, that is, (the woman), a Catholic, and (the man), a baptized Baptist but a convert to the Catholic Faith, celebrated a canonical marriage on ______, in the church of ______, in the city of ______, in ______ in the United States of America, after the first marriage of the man, celebrated on with ______, also a member of the Baptist Church, had been declared null by the ecclesiastical Tribunal of ______.

The Parties then were respectively, twenty-seven for the woman and thirty-five for the man.

This was the first marriage for the woman, the second for the man.

The conjugal life, not gladdened by the birth of a child, continued for five years, until the woman tired of the behavior of the man and therefore on account of daily troubling disagreements left the man, who then "sought a civil decree of divorce which was granted by the District Court of ______ in ______, on ______.”

2. The woman first attempted to accuse the nullity of the marriage before the ecclesiastical Tribunal of ______, but on account of a defect of competency of the aforementioned Tribunal, she then lodged the formal libellus of ______ [alleging] the exclusion of the bonum prolis (the good of children) on the part of the man with the ecclesiastical Tribunal of ______, competent according of the norm of canon 1673, 1° that is, by reason of contract.

With the libellus admitted in a decree of ______ and with the Respondent legitimately cited, on ______, the Joinder of Issue established the grounds as an exclusion of the bonum prolis on the part of the man (c. 1101, §2) and subordinately, a defect of discretion of judgment as well as an incapacity to assume the essentials of matrimony on the part of either Party (c. 1095, 2°, 3°).

3. With the instruction of the case well accomplished, on ______, a definitive sentence of first instance was given contrary to the pleadings of the Petitioner, namely, one in which it determined that proof was not had of the nullity of the marriage on any of the grounds determined in the Joinder of Issue, against which an appeal by both the Petitioner and the Respondent was made to the appellate Tribunal, that is, to the Metropolitan Tribunal of ______.

Whereupon the appellate Tribunal first concluded the Joinder of Issue in a decree of ______ and decided that the grounds to be proposed would accord with those decided in the negative and also appealed, to wit, on account of the exclusion of the bonum prolis on the part of the man Respondent, and insofar as negative to the first, on account of a defect of discretion of judgment on the part of either Party, and insofar as negative to the second, on account of an incapacity to assume the essentials of matrimony on the part of either Party, but later, that is, after a supplementary instruction of the case or attending to a wondrous suggestion which is attributed to the Defender of the Bond "that additional grounds be considered in this case" or because the Judges had in mind "that additional grounds will assist the Collegiate Tribunal in resolving the controversy," exceeding the intent of canon 1514 issued a decree in which "after having considered the gravity of the reasons adduced by the Reverend Defender of the Bond requesting the change" it decided to admit "additional grounds which will help determine the resolution of the controversy in fairness to all parties involved."

And so, in its decree of the same day the Presiding Judge of the Tribunal decided to amend the terms of the controversy under the new formula: "Whether proof of the nullity of this marriage is had on the grounds of Contra Bonum Sacramenti (Bonum Coniugum) on the part of either or both parties. Failing this ground, the ground proposed is Contra Bonum Prolis, in accord with canon 1101 on the part of the man, the Respondent. Failing this, the ground to be proposed is Lack of Due Discretion in accord with canon 1095, 2° on the part of either party. Failing this, the ground to be proposed is Lack of Due Competence, in accord with canon 1095, 3° on the part of either party."

The new Joinder of Issue was communicated to the Parties, who made no comments.

With these things having been accomplished, on ______, a definitive sentence of second grade was given, which decided affirmatively but with confusion only on the ground of an exclusion of the bonum sacramenti (the good of permanence) equating it with the bonum coniugum (the good of the spouses) on the part of the Respondent.

4. Whereupon the case was sent to our court, which convenes, in accord with the intent of canon 1682, §2, for the settlement of the first ground given an affirmative as in first instance.

Having now received the animadversions of the Deputed Defender of the bond opportunely and soberly drawn up, in accord with the intent of the aforementioned canon in the previous paragraph the determination of the preliminary question is to be decided today.

THE LAW

5. There is no doubt that the case, attentive to the aforementioned, that is after the sentence of second grade treated as in first instance and finding for the ground of an exclusion of the bonum sacramenti, is to be handled according to the norm of canon 1682, §2, from which however it differs somewhat from the established norm of article 58, §2 of the Norms of the Tribunal of the Roman Rota, to wit, "with the Parties advised and having heard the Defender of the Bond, the Turnus will give a decree, in which either it confirms the decision at once, or issues one in which the reasons that stand in the way of the finding of nullity are given distinctly and one by one and therefore it admits the case to an ordinary examination in a new grade; or accordingly it likewise determines that a necessary supplementary instruction be completed before the case is remitted to a definitive sentence."

In the next or third grade of the case – as the aforementioned article adds – the ponens, having been informed of the will of the Parties of prosecuting the trial, will see to the further grade according to §2 of this article, that is, by decree 'concerning the doubt or doubts to be adjudicated; also, with all the interventions communicated in the case, the place and time of the citation and Joinder of Issue...' (§1).

6. The first option, that is the confirmation of an affirmative sentence can happen when proof is had from the correct, that is, valid argumentation of the sentence itself, which arises from the acts and proofs, that is, when, in fact, there are congruent juridical principles of law and jurisprudence in the proofs brought forward, if and to the extent that the appellate Judges "can conclude with moral certitude, on account of the firmness of the arguments on which the dispositive part of the sentence is based, relative to the declaration nullity of the marriage (cf. c. 1608, §1); otherwise the case is bound to be admitted to an ordinary examination in new grade" (coram Stankiewicz, decision of 23 February 1988, Decreta, 1998, page 43, n. 3).

In fulfilling this duty, at the very least the Judges of the appeal are bound to make mention of the use of possibly incongruent arguments by the appellate Judges or abuses which are different from the juridical meaning of the ground of nullity easily admitted for the purpose of giving an affirmative and it really behooves the same Judges to point out the holes in the instruction of the case or the inanity of the thesis of nullity evident from the acts and the proofs.

THE FACTS

6. From the outset the undersigned Fathers were compelled to note in clear language that many grave difficulties exist in the case, not the least of which pertain to procedural usage, to wit, in the Joinder of Issue and in the instruction of the case, but especially in what pertains to the interpretation and application of substantive law, and also because of the certain undiluted and extraordinary errors arising from the personal opinion of the appellate Judges, all of which from the outset prevent the affirmative part of the appellate sentence given at the appellate level from being confirmed by decree at this preliminary stage.

Indeed it seems utterly extraordinary that the Defender of the Bond suggested the introduction in the case of "additional grounds" and that the Judge decided that there were grave reasons offered by the Defender of the Bond so that he decided to admit them in the hope of resolving the controverted question "in fairness to all parties involved."

It is not the role of the Defender of the Bond to accuse the nullity of the marriage, since this right pertains to the spouses or the Promotor of Justice in particular circumstances (c. 1674).

The Defender of the Bond, as is clear, "is bound by office to propose and expound all those things that reasonably can be adduced against the nullity of the marriage" (c. 1432); the office committed to him in the case was correctly fulfilled by the first Defender of the Bond designated in second instance not however by the second one, who dared to declare that he did not find any "canonical reason for the defense of the bond of this marriage."

Indeed the first Defender of the Bond in second instance in conducting himself in accord with the norm of law in drawing up his animadversions noted that the Parties [had not] "in any true sense actively appealed the negative decisions given on the grounds of the lack of due discretion and lack of due competence," but "have focused their energies on the ground of the man's supposed intention contra bonum prolis."

Concerning this ground the first Defender of the Bond gave his animadversions and did not omit to give his animadversions concerning the grounds of defect of discretion of judgment and incapacity to assume the obligations of matrimony on the part of either party, but the second Defender of the Bond wrote nothing relative to the newly added ground of nullity.

Therefore it is not proven from the acts that the Defender of the Bond suggested the introduction and adjudication of a new ground of nullity.

7. Having noted all these, it is clear to anyone that the Judge of the appeal did not use correct canonical procedure in drawing up a new Joinder of Issue consistent with canon 1514.

Indeed it is not a concern in the appellate grade to change the terms of the controversy once established, though a change can be made in a new decree, for a grave cause, at the initiative of the Party, and having heard the other Parties and having weighed their reasons (c. 1514), but the addition or admittance of a new ground of nullity is to be done according to the norm of canon 1683 and adjudicated as in first instance.

8. Having reported all these, what is graver arises from the fact that the appellate sentence plainly forgetting the first ground nullity decided to dismiss the subordinate and appealed grounds with a negative response, and thus with the order inverted, it gave an affirmative to the new ground of nullity, however using erroneous argumentation, which at the very least confuses the exclusion of the bonum sacramenti (the good of permanence) on the part of the Respondent with the absence of the bonum coniugum (the good of the spouses) on account of the postnuptial behavior of the man, and also offers arguments from mere presumption or from erroneous opinion which can prove neither an exclusion of indissolubility by a positive act of the will elicited by the Respondent nor a direct repudiation of the good of the spouses nor a psychic incapacity for establishing and living the good of the souses with [his] consort.

According to the law, therefore, the deputed Defender of the Bond notes that the mere power of concluding to the alleged nullity from the acts and proofs is not sufficient, but rather moral certitude is required.

Moral certitude, moreover, does not depend upon the personal opinion or the subjective interpretation of the law of the Judge.

9. Regarding the affirmative part of the appellate sentence, namely relative to the heading of the exclusion of the bonum sacramenti (the good of permanence), which in this case it equates with the bonum coniugum (the good of the spouses), at the very least it seems to be based upon the personal opinion of the judges, who since they did not sift correctly from the acts congruent arguments of law or jurisprudence, decided to give only their own mere rationale for giving the sentence.

In the aforementioned sentence there is not merely a subversion of principles, which pertain to the proof of simulated consent, but a mixing up of the bonum sacramenti (the good of permanence) with the bonum coniugum (the good of the spouses).

Thus the appellate Judges are of the opinion that there is a defect not because of exclusion, although implicit, on the part of the Man, but because of this behavior after the exchange of consent.

For anyone reading the appellate sentence it is clear that the appellate Fathers have only magnified the argument, that is, the behavior of the Man.

11. At the outset the aforementioned sentence notes that the first marriage of the man was declared null because of his defect of discretion of judgment and because of this, as noted in that sentence, "a negative factor in that relationship during courtship was extensive involvement in his employment which '...required that I travel 50% - 60% of the time, usually out of the country or offshore...' this type of separation during the two years of marriage."

And on account of this same reasoning the appellate Fathers hold that the new relationship of the Man with the Petitioner, which is now under judgment, is a model to him from the first, that is, it corresponds to the condition of the previous marriage, insofar as "His dedication to his employment and domination by his father continue.

He appears to have been incapable of a decision without consultation with and approval from his father. These facts were detrimental to the marriage under consideration."

Nevertheless it happened that they got married.

In this hypothesis, or in these circumstances, there is no one who would not see the discrepancy in the sentence of the appellate Judges who first deny that the marriage labored under nullity because of the psychic incapacity of the Man, but then on the other hand only base their premise on this, which, be it postnuptial or prenuptial, nevertheless prohibits the conclusion of a positive exclusion of the bonum sacramenti (the good of permanence) or the repudiation of the bonum coniugum (the good of the spouses) on the part of the Man.

12. The Petitioner, during the engagement or in the preparation for marriage, never saw or became acquainted with anything in the Man contrary to the perpetuity of the Bond or his intention of seeking a divorce.

In fact because the Respondent proposed marriage to the Petitioner, the Woman, if one can use the words of the appellate sentence, "was excited by his strong feelings, his strong work ethic, his good looks, his great job and his good salary."

Moreover when difficulties arose in having intimate relations, according to the desires of the Woman, because the man was accustomed to put every effort into his work, then the Respondent not only promised his complaining wife "that he would try to be home more often," but also informed her "that he didn't want to be divorced a second time."

Thus, as the deputed Defender of the Bond rightly noted in this case there is no judicial confession on the part of the Man of a defect of matrimonial consent because of an exclusion of the bonum sacramenti (the good of permanence).

Neither did the instruction of the case turn up anything for establishing the will or the intention that the Man brought into the celebration of the marriage either because the questions proposed by the Judge Instructor only referred to the time post consent, especially to the cause for the shipwreck of the marriage or to the "career and communication skills during this marriage," namely only to post consent circumstances.

Therefore, we agree with the deputed Defender of the Bond who holds "this whole investigation is scarcely congruent with the ground now under consideration."

13. Actually, as we have implied, the total method of argumentation in the appellate sentence is based upon only one argument, that is, see "evidence," that is, the testimonies of the witnesses who portray the Respondent "as having a fanatical work ethic, his job being his wife" or "a fanatical work habit and was so tired when he got home at night that the principals did not have sexual relations for over a year" or "too focused on his work and himself, even more so after he was fired from his job."

Witnesses who knew the Parties after they married offer this same opinion because of the behavior of the Respondent.

And the Respondent himself confirms it, namely, that "he spent an enormous amount of time at work, asserting that his self-esteem depended upon his success at work."

However, all of these things cannot be directly construed with an exclusion of the bonum sacramenti (the good of permanence) on the part of the Man unless it first be proven that the Respondent had a congruent reason established for repudiating the perpetuity of the Bond.

And in this case it is not clear what attention was given to the expert report on which the appellate sentence was also based.

According to the report of the expert the wives of the man were forced "to take the lead in marriage ... because the man basically is an individual who is addicted much like an alcoholic is addicted to alcohol. The man is an individual who for a while may be able to break his addiction to work, but will over time return to that addiction just as an individual who is addicted to cocaine may be able to cease the use of cocaine - unless the addiction is clearly pointed out and steps are taken to disallow that addiction."

It is not proven that this Respondent demonstrated this type of character of personality nor can it be proven that this same Respondent perpetrated simulation because of this peculiar personality.

14. Hence, the conclusion of the appellate sentence must be regarded as completely erroneous, which in replying to the doubts offers no proof regarding a positive exclusion of indissolubility on the part of the Man but in some way suggests that the Respondent was impaired from consenting rightly because of his heavy dedication to work, insofar as he was "conditioned to his career to the extent that any appreciation of marriage is obscured."

Having related the arguments of the appellate sentence, which, if they might be used for proving the consensual incapacity of the man, "cannot be used to prove the defect of consent on account of proffered simulation by the Man, that is, exclusion of indissolubility."

"This informed consent – the aforementioned sentence holds – must consider a knowledge of the spouses as apt subjects for an interpersonal relationship. The parties must be capable of receiving each other as partners in marriage. The consent must contain within it an appreciation that their lives are ordered primarily to the marriage, not to a career primarily. The commitment presupposes a decision making ability between the parties themselves, not with the inclusion of a third party, in this case, the Respondent's father."

If in the Respondent the aforementioned requirements were lacking, there is no one who can admit to the foregone conclusion, namely that "the Respondent substituted his own view of marriage for that of the Catholic Church and therefore simulated his consent."

Likewise other conclusions cannot be admitted, "that the Respondent not only neglected, but also very much was unwilling to cooperate with the Petitioner when she surfaced her concerns for the decaying union" if the Respondent according to the sentence is to be regarded as "an individual whose behaviours are urge based."

And so, having attended to the very words of the sentence itself, there cannot be a case either on the psychic incapacity of the Man Respondent or on an exclusion of indissolubility by the same Respondent, insofar as from the acts it might be proven "that the Respondent had difficulty in committing himself to marriage and particularly with the parameter of permanence," because of his opposition "to address the negative factors in this union."

15. Because of this separation of the spouses, which came about five years after the marriage was entered and on account of the decision of the petitioner, the Respondent is found to have "a very poor understanding of the essential obligation of permanence within marriage," on account of this post consent circumstance, which exists because of the shipwreck of the marriage, one cannot conclude to a pre-consent repudiation of the perpetuity of the Bond.

In a few words, attentive to the acts, mere opinions of the sentence are considered as strong affirmations according to which there existed in this case "a Respondent who intentionally excluded the good of marriage and from the beginning saw divorce as an option to resolve problems," because his "intentions were not for the good of this marriage but for the pursuit of his own happiness and his own freedom."

As we have implied, in the end the appellate sentence disturbs the order of the ground of nullity, that is, it confuses the exclusion of indissolubility with the good of the spouses, and more in the first and intends something else in the second, since it finds that "this permanent exclusion of the goods of marriage invaded the heart of the consortium itself and limited the terms of the sacramental covenant," because of a defect of true donation on the part of the Man.

But, with the aforementioned contradictions noted, there are many other elements in the acts which the appellate sentence completely dismisses but which need to be subjected to examination and surely treated in the ordinary forum.

16. Therefore, having considered all these things maturely and attentively, the undersigned Fathers Auditor of the Turnus, responding to the preliminary question posed above, state and decree:

NEGATIVE to the first; AFFIRMATIVE to the second, that is, the sentence of ______ given by the Tribunal of ______ is not to be confirmed, but rather the case is to be remitted to an ordinary examination at new grade.

All having an interest as to their rights are to be notified of this decree.

Also, the undersigned Fathers decree that the Officialis of ______ in notifying the Parties of this decree is to inquire whether they wish to prosecute the case in the ordinary examination.

At Rome, in the seat of the Tribunal of the Roman Rota, the day of ______.

Aegidius TURNATURI

Ponens

Mauritius MONIER

Vitus Pius PINTO

Pius Eheobu Okpaloka

Notary

From the Chancery of the Tribunal of the Roman Rota.

Hanricus Hadrianus Rosa

Notary




Roman Rota, Appellate tribunal admitting a case to an ordinary examination and adding new grounds of nullity, 2000, CLSA, Roman Replies and Advisory Opinions, 2002, 27-46.