Sentence of April 17, 1997 (Davenport) (c. 1095, 2 & 3)

I. The Facts

1.         Daria and Max first met in June 1979. They were soon engaged and began having sexual relations. They married in Jan. 1980 in "X-burg", NY. During the first years of their married life, the couple took part together in Bible-study meetings, first with a Protestant fundamentalist sect, and later with a Catholic charismatic group. Their married life, with the birth of five children (the last in 1988) lasted almost ten years, not certainly without difficulties due to the character and behavior of both man and woman. In December 1989, Daria initiated the separation, followed by a civil divorce in Nov. 1990. In Jan. 1991 she presented a petition to the Tribunal of Davenport, alleging the nullity of the marriage on account of "serious problems preventing rational judgments concerning matrimonial rights and duties (c. 1095, 1 and 2)", and of "psychological problems rendering [both parties] incapable of assuming the essential obligations of marriage (c. 1095, 3)".

            The respondent who from the start strongly opposed the petition, objected to the hearing of the case before the Davenport Tribunal, and asked that it be heard before the Tribunal of the Diocese of New York within whose limits the marriage had been celebrated, where most of the married life was spent, most of the witnesses lived and he himself was domiciled. The petitioner consented to this transfer. In the meantime the respondent petitioned to have the case heard by the Roman Rota. On Nov. 6, 1991 the Supreme Tribunal of the Apostolic Segnatura rejected his petition, ac remanded the whole case to New York.

            On Nov. 12, Daria presented a petition to this tribunal, asking for a declaration of nullity "on the grounds of lack of due discretion on my part" (I, 123), which the New York Tribunal rejected on Dec. 30, 1991 as lacking a minimum basis.

            The Judicial Vicar of Davenport then request leave from the New York Tribunal for the necessary competence under c. 1673, 4° ; the Judicial Vicar of the latter diocese agreed to this, without however the respondent having been heard on the matter. The petitioner's libellus was then admitted by the Davenport Tribunal. On August 24, 1992 the doubt concerning nullity was determined in the following terms: "Canon 1095, 2: Grave Lack of Discretion of Judgment on the part of the Petitioner and/or on the part of the Respondent; or: Canon 1095, 3: Incapacity to assume the essential obligations of matrimony on the part of the Petitioner and/or on the part of the Respondent". The case was instructed through the examination of the parties and seventeen witnesses together with at least three expert opinions. On July 7, 1993 an affirmative sentence, "due to the grave lack of discretion of judgment on each one's part", was handed down.

            Within the period determined by law the respondent appealed this decision to the Roman Rota. In view of the particular circumstances of the case and especially of the bitter opposition on the respondent's part, it seemed wise to grant gratuitous legal representation to both parties. The doubt, at first formulated in terms of defect of discretion on the part of both, was finally emended at the indication of the Turnus, so as to read: "Whether the nullity of the marriage has been proved on the grounds of a grave lack of discretion of judgement and/or of an incapacity for assuming the essential obligations of marriage, on the part of both parties (cc. 109, nos 2 and 3)?" the briefs of each advocate having been presented, along with the animadversions of the Defender of the Bond, today we must decide this case in the second degree of jurisdiction.

II. The Law

            Canon 1095 lays down: "They are incapable of contracting marriage: 1. who lack sufficient use of reason; 2. who suffer from a grave lack of discretion of judgment concerning the essential matrimonial rights and duties which are to be mutually given and accepted; 3. who are not capable of assuming the essential obligations of matrimony due to causes of a psychic nature".

2.         Three diverse grounds of consensual incapacity. Both doctrine and jurisprudence are agreed that three different grounds of incapacity for matrimonial consent are indicated in c. 1095. "Since the canonical Legislator appears to have distinguished, under three headings, three different grounds of nullity or incapacity..." (c. Pompedda, May 14, 1984: RRD, vol. 76, p. 275). "Three kinds of psychic incapacity are indicated in canon 1095" (c. Boccafola, June 23, 1988: vol. 80, p. 429). "If [in c. 1095] the Legislator has determined three different incapacities for contracting matrimony, ... we must conclude that the Legislator is treating of three distinct incapacities" (M.F. Pompedda: "Incapacity to assume the essential obligations of marriage", in AA.VV. Incapacity for Marriage, P.U.G., Roma, 1987, p. 195). While there is an undoubted relationship between the three grounds, any automatic subsuming of one ground into another is not warranted by the canon nor accepted by jurisprudence.

3.         Discretion and prudence. Invalidating lack of discretion must relate not to the person chosen as spouse, but (as the canon specifically states) to the essential rights and duties of the institution of matrimony itself. Nevertheless it is at times still suggested that discretion of judgment, in the juridic sense in which it is used in c. 1095, 2° , demands "a certain fundamental prudence", shown in "adequate knowledge of the subjects and of the object of matrimonial consent" (cf. the sentence under appeal that is before us today: Acts, p. 203). This leads to the idea that a "wrong" or "imprudent" choice of partner invalidates consent, as proving a grave lack of discretion. One could logically speak of a "wrong choice" only if the marriage breaks down; but then the breakdown becomes the proof of the "wrongness" of choice, which in turn offers the proof of grave and invalidating lack of discretion. Thus the breakdown of a marriage become the key element in the proof of its nullity. Jurisprudence rejects the suppositions that lead to this circular reasoning.

4.         In the vast majority of cases Dr. Samuel Johnson's observation continues to be true: "It is not from reason and prudence that people marry, but from inclination" (Boswell: Life of Dr. Johnson, vol. I, p. 368). Ecclesiastical courts are not called on to judge the wisdom of a concrete marital choice, nor can they take an apparently "unwise" choice of a particular partner as proof of consensual incapacity under c. 1095, 2º. The canon specifically relates the invalidating lack of discretion not to the [judgment about] the concrete partner chosen, nor to the "desideranda" for the particular marriage being entered, but to the essentials of the marital institution as such; it is in relation to these essentials, not to one's partner, that discretion must be adequate. Invalidity is not provoked by a mistaken judgment about the sort of person one's proposed partner is (except where the false judgment has been caused by deceit, within the terms of c. 1098), no more than it is by a false judgment about the sort of person one is oneself. The canon requires a minimum of discretionary judgment, not a high degree of psychological perception (cf. decision coram the undersigned Ponens of Nov. 25, 1993: vol 85, p. 705).

5.         Essential and non-essential matrimonial rights and duties. From the express terms of c. 1095, nos 2 and 3, it is clear that a grave lack of discretion regarding non-essential marital rights or duties, or an incapacity to assume such non-essential elements, does not render a person consensually incapable. The handing down of sound and just decisions under c. 1095 necessarily depends therefore on the determination of which in fact - from the juridic point of view - are the essential rights and duties of marriage. At the present moment, it must be said that doctrine and jurisprudence are still far from having resolved this primary question.

            It is in fact no easy task to determine "which among so many obligations inherent to marriage are essential, and which, even if important, are not essential" (U. Navarrete, Iustus Iudex, AA.VV. Münster 1990, p. 272). "Once one has defined the several obligations that derive from the conjugal alliance, one must distinguish among them those that pertain to the substance from others which are added to the substance... [hence] it seems that the essential obligations and the substance of these obligations can be defined only in reference to the possibility or otherwise of living the conjugal "consortium", in its essential properties (cf. c. 1056) and in its double natural ordination (cf. can. 1055, § 1)" (c. Pompedda, Jan. 15, 1987: vol. 79, p. 12). "It is difficult to simply, clearly, and exhaustively indicate, declare and circumscribe the essential obligations of matrimony. But there must without doubt be included among them those deriving from the essential properties of marriage, unity and indissolubility (c. 1056), and belonging to the natural ordering of the matrimonial institution, that is, to the good of the spouses and the procreation and education of children (c. 1055, § 1)..." (c. Funghini, June 23, 1993: vol. 85, p. 472). (cf. also Pavanello, P.: Il requisito della perpetuità nell'incapacità di assumere le obbligazioni essenziali del matrimonio, Roma, 1994, p. 108).

6.         Careless or loose statements in this field do not help the development of sound juridic principles. The sentence before us today invokes, as relevant under c. 1095, the conjugal "rights and duties of self-revelation, understanding, and sharing" (Acts, 212); and says that a "radical failure to appreciate" such rights and duties causes consensual incapacity (ib.).

7.         A double difficulty would have to be faced and resolved, before courts of law could treat general and unspecified rights and duties, of the type just mentioned, as pertinent for the purposes of c. 1095, nos. 2 or 3. The first is to determine their nature and meaning more precisely (it is not at all clear, for instance, what a "right of understanding" involves in practice); until this is done, they escape the possibility of proper judicial analysis. The second is to establish not only their concrete juridic nature, but also the fact that they are truly essential marital rights or duties, for only such - we repeat - are relevant to a plea under c. 1095. Without denying that the rights and duties mentioned in the sentence under review are endowed with notable moral importance, we find it hard to see how they can be made subject to legal measurement, and thus be the object of a juridic claim.

            To hand down a judicial decision of consensual incapacity, it is not enough to conclude (if this emerges as really proved) that, for instance, the husband was "arrogant" or "tyrannical", etc. The fact that one of the parties did not fulfil his or her matrimonial duties or repsect the rights of the other party, in itself, at the most, proved bad will, but not any constitutional incapacity.

8.         Incompatibility. The judges whose decision we must review today found strong corroboration of their opinion that the marriage in question was null, in that the parties' "marital problems were the natural outcome of their incompatibility which they failed to heed during the courtship" (212). "Incompatibility" is a psychological concept, intended to denote the impossibility of any close interpersonal relationship being established or maintained between two particular personalities. From the viewpoint of christian anthropology, given the basic commandment of loving everyone without exception, it seems questionable that one can ever speak of absolute incompatibility. Psychologists themselves at times express scepticism about the validity of the concept of basic incompatibility. In a rotal case coram Raad of April 14, 1975, we read the reply of a psychiatrist: "Your second question involves the concept of 'essential incompatibility'. Do you mean by this, basic, unchangeable and irrevocable incompatibility? If yes, I am not sure it exists" (vol. 67, p. 258).

9.         Whoever alleges "incompatibility" as a grounds for incapacity under c. 1095, would have to prove not only that the condition of incompatibility between the parties was already present (although no doubt hidden, at least to them) at the moment of consent, but also that at that time it was bound eventually to emerge between them. Here christian and secular psychology may well part company. It smacks of determinism to hold that two persons, in love at the time of their wedding, were unavoidably destined to end up ten or twenty years later hating each other. It is extremely hard to see (and impossible, we suggest, to prove) that such a radical change can have been inevitable from the start. If it actually takes place, it is far more likely to have been an avoidable process that, through lack of effort, self-sacrifice, humility and prayer, was simply not avoided.

10.       Strongly contrasting characters between husband and wife are not an impediment to marriage, nor a cause of consensual incapacity. No psychologist will affirm that contrasting characters between the spouses make a successful marriage impossible, although it is certainly a factor that requires them to make an extra effort to get on. If two persons of contrasting temperament or interests fall in love, and choose to marry, but subsequently one or both fail to make that special effort, the most likely result will be a gradual disappearance of love, and its substitution by a psychological sense of "incompatibility". The Pope, in his 1987 address to the Rota, particularly drew the attention of ecclesiastical judges to this possibility: "the failure of the conjugal union is never in itself a proof which shows an incapacity on the part of the contracting parties, who may have neglected, or used badly, the natural or supernatural means at their disposal, or not have accepted the inevitable limits and burdens of conjugal life... by reason of a failure to make the necessary moral effort" (AAS vol. 79, 1457). In 1988 he similarly remarked that in many such cases "while perhaps it is a case of substantially normal persons, but with difficulties that could have been overcome if they had been prepared for the necessary struggle and sacrifice" (ibid. vol. 80, 1183).

11.       It follows that jurisprudence cannot accept the thesis of a "relative lack of discretion"; i.e. of a failure to adequately size up the character of the particular person one freely marries (which is then regarded as proof of consensual incapacity). The concept of "relativity" is of course central in c. 1095. But in no. 2° no less than in no. 3° of the canon, it is in relation to the essential obligations of marriage as such, not to the character of the other party, that the operation of the person's mind or will must be shown to have been gravely deficient in the moment of consent. Consensual capacity, as considered by c. 1095, is not person to person, but person to marriage. "This capacity is and must be judged not as from subject to subject, but objectively, i.e. in regard to the essential obligations of matrimony" (c. Pompedda, Feb. 19, 1982: vol. 74, p. 90).

            Practically everyone marries with an understanding of their partner's character that can certainly not be considered complete or detached. It very seldom occurs that the person one marries turns out later to be much better in married life than he or she appeared during courtship. If a party claiming to be possessed of normal critical and volitional faculties, alleges that a different marriage (i.e. with someone else) could have worked out well, but not the particular marriage entered upon (cf. the petitioner's affirmation in the present case: "I think I would have been ok under normal circumstances, but I was not ready for marriage with this man": Acts, 3), this claim of a mistaken judgment (which of course could also be an admission of a simple lack of the effort or dedication necessary in married life) gives no support to a claim of consensual incapacity on that person's part under c. 1095, 2° (without prejudice to the possibility that the other party might be found incapable under c. 1095, 3° . or that the marriage might be found invalid by reason of deceit, under c. 1098).

12.       It is not often that medical practitioners, when called upon to make a diagnosis in a case of possible organic or physiological pathology, traumatology, etc., disagree radically with one another about the ailment or condition in question. Disagreement among psychiatric or psychological experts, in contrast, is frequent enough. This certainly reflects the fact that, from the scientific viewpoint, psychiatry and psychology are much less exact than other sciences which study and treat human pathology. At any rate, when several psychological experts are not in clear agreement in the information they are asked to give to the Court in a concrete case, this poses the judge with special difficulties. "If the experts differ in their opinions, it is evident that the examination of their conclusions must be more painstaking" (c. Agustoni, Feb. 28, 1984: vol. 76, p. 130). The judge certainly cannot choose to follow a minority opinion rather than others, unless the weighing of the evidence provides convincing factual substantiation of that particular opinion.

III. The Argument

13.       The tribunal in this case is to be commended for having dealt patiently with a difficult respondent. The advocate "ex officio" assigned to him seems very competent; in fact, as the Judges note, he argues better than Defender of the Bond for the validity of the marriage. However the first instance decision proposes an unacceptable way of dealing with the different grounds of consensual incapacity; and reaches a conclusion which we do not find supported by the evidence.

14.       In the sentence, the judges write: "On the theoretical level there appear to be four separate grounds of nullity, but in the practical order the latter two can be subsumed into the former as a logical change in formulation which leaves the terms of the controversy intact. Thus the argument is framed by the question of whether one or both parties suffered from a grave lack of discretion of judgment at the time of consent" (Acts, 206).

            Following what we have set forth in our In Iure principles, it is clear that the judges were not justified in absorbing the claims being heard before them under c. 1095, 3° , into those under 1095, 2° . Moreover, while the dispositive part of the sentence simply refers to a lack of discretion on the part of petitioner and respondent, the Tribunal forwarded the decision to the Rota as an Affirmative both on c. 1095, 3° and on c. 1095, 2° , regarding each of the two parties. In fact the doubt concorded before the Davenport tribunal referred to the four hypotheses involved here; and the judicial weighing of the case covers all four. It seemed proper to us therefore to reformulate the doubt, so as to make it clear that the four grounds concorded at the start were and are the object of these judgments.

15.       Character and credibility of the parties. The first judges present a picture of the petitioner as a fragile person of submissive character who, without thought, found herself drawn reluctantly into marriage, under the sway of a domineering man incapable of appreciating or living the essential obligations of marriage. They find this picture more than sufficiently corroborated by the petitioner's own evidence, supported consistently by the witnesses, especially her parents. For them, the petitioner is altogether credible, while the respondent merits almost no credibility. To us, the character of both parties shows no small degree of stubbornness and intolerance, with the woman giving little more sense of objectivity than the man. Let us consider the evidence more in particular.

16.       The petitioner a submissive type, controlled by the respondent? The Judges accept the petitioner's assertion that in the face of the respondent's "controlling personality... she was too timid or too weak to assert herself" in her reluctance to marry (208). Our reading of the Acts leads to a different conclusion. The petitioner was by no means a pliable personality; she herself says she was "always a very strong-willed person" (34). The Acts in fact suggest that she too, and not just the respondent, was of an uncompromising character.

            Her father, stating that he and his wife were opposed to the wedding, recalls his doubts: "How can I get her not to marry him? If I suggest that she shouldn't, of course, she being a young girl, and me being a parent, this will have the opposite effect. I think her mother and I both felt that it would be a mistake for her to marry him. But we couldn't think of any way to get her to not marry him" (123). This certainly suggests a person of independent ways.

            The petitioner herself confirms that her parents were afraid that any objection might prove counterproductive: "My father did tell that he didn't think my former spouse was right for me... Other than what I mentioned regarding my father's objection, neither parent said anything much. Since the breakup, both have said that they objected but realized that if they voiced their objection, I may have been more determined to marry..." (2).

            When her father is asked "did Daria and Max... build a togetherness in their marriage", he replies: "There was certainly a degree of collaboration as long as things were done his way" (125). However, the petitioner's mother suggests that this was not altogether so, for her daughter knew how to get her way. Asked whether "communication was not good between them in that he more or less had to have his own away all the time and that Daria did not enter into decision making with him?", she answers: "Well, I won't say that it was totally, she was able sometimes to bend him. And she was able to by letting time go on until it was her ideas that prevailed by default" (118). Her mother gives other details which may be noted: "neither one of them was much of a Catholic at the time of the marriage... [later] they joined a sort of a brotherhood [which] was not part of any recognized religion. But it was a community where they evidently liked the warmth of it. Then after that, they went into another... they seemed to be Catholics in this second one... The whole thing was very close. It was their whole life. They did all their socializing together and they laid down rules for one another which were far more stringent that the ones that the Church asks you to live with" (116). Therefore the extent to which the testimony of the petitioner's parents corroborates her weak-willedness seems questionable.

17.       In the judicial interrogation of the two parties together, the respondent contests the suggestion that the pregnancy forced the marriage on the petitioner, and insists she was not the sort of person to be influenced by fear in such a context: "Daria, you've always been independent. A very strong-willed person"; to which she replies: "That's true" (34).

            VR, the respondent's sister, is very definite that the petitioner was "far from fragile"; she is rather "very smart and very intelligent", and manipulative: "It got to the point where Daria had to have her way or she would get angry. Max would bend over backwards to please her" (134-135).

            JGW says, "Daria is the type of person who must have things a certain way (usually hers) and there is no in-between. If things are not exactly the way she wants, she'd rather not have it at all than to compromise" (186).

18.       Re the parties' understanding of marriage. The judges make the issue of a "wrong or "poor" marital choice central to their conclusion regarding the petitioner's invalid consent. This, as we have remarked in our theoretical considerations, confuses a possible lack of prudence in the choice of one's partner with the juridic concept of an invalidating defect of discretion of judgment. The respondent's advocate showed a sounder grasp of jurisprudential principles, but the judges disagreed with him: "The Advocate's third argument is that Daria's poor choice of a marriage partner does not invalidate her consent. This assessment is misleading, in the Court's view, because in reality the "poor choice" is often times the result of inadequate discretion, which was verified in this case" (211).

19.       In relation to both parties, the judges say: "In terms of the specific object of discretion, the parties radically failed to appreciate the rights and duties of self-revelation, understanding, and sharing" (211-212). In our In Iure section we recalled the difficulty of measuring such duties in juridic terms. All we need to add here is that such a "radical failure of appreciation" at the moment of consent is in no way proved from the Acts.

            The petitioner testifies that before marriage the parties discussed together its essential properties (4/9), and later specifically adds that she wanted children (90). Asked, "in what way do you believe that you were not ready to marry?", she replies: "I think I would have been ok under normal circumstances, but I was not ready for marriage with this man" (3). Such a relative "lack of readiness" cannot be identified with a grave lack of discretion about the essential rights/obligations of marriage.

20.       A marriage unwillingly entered? The expert opinion of RE, which the Sentence follows, is based on this presupposition: the parties "married because Daria was pregnant. This factor affected their marriage relationship from the beginning" (85). But the acts offer no proof (rather the contrary) that when the petitioner took her matrimonial decision, she was aware of being pregnant. All the evidence is that the pregnancy was discovered quite some time after the wedding was arranged. Her own mother says that "it can't have been any more than a couple of weeks before the wedding date when she found out [that she was pregnant]" (108).

            VR, the older sister of the respondent who was always very close to the petitioner, is emphatic that the wedding was arranged before there was any suspicion of a pregnancy: "when she ordered her gown [after engagement] she wasn't pregnant yet... I went with her to get her gown and then between the time she got her gown and the wedding, is when she got pregnant. So she did not have to set up the wedding because she was pregnant. It happened after" (131). The initial rejection of the "libellus" by the New York tribunal was based among other reasons on "evidence that you had already decided to marry prior to the pregnancy" (127-128).

            We would also note the point stated by LJS, who knew the couple from 1982 on: "Strangely enough, it was Daria who insisted on trying to have their 5th child... If she was in an unwanted marriage, this did not seem like a logical thing to do" (187).

21.       A possible change in the petitioner's mentality. HS, with whom Daria worked for some time from 1985 as a "volunteer in the Birthright [Pro-life] office", testifies: "She seemed to be... very much a normal housewife. She was not working at the time and it was her strong feelings that she should not work...: a wife and mother was what she was saying she wanted in life" (177).

            Rev. JD, who was the couple's parish priest in N.Y., believes that she went through a radical post-matrimonial change: "I also believe that there has been some type of nervous breakdown on Daria's part as evidenced by her present behavior [extra-marital relationships with another man]. This is not the Daria I first knew" (192).

            HS confirms the change in the petitioner which became the root of further difficulties: "the fundamental problem developed rather rapidly in Daria. She became dissatisfied with the ideals that she had developed" (180).

22.       The character and mentality of the respondent. The respondent, so it seems, requested that the parties be interrogated together. This dual interrogation led to some heated exchanges between the parties; one wonders if it was prudent to allow it.

            The respondent undoubtedly appears as someone of very rigid principles. He firmly holds that the man is the head in marriage, though the parties have equal dignity. According to him she shared this belief for 9 years, and then rejected it. He blames her for not continuing to "work out" the inevitable difficulties (50-51; 55). But clearly his "working out" is according to his terms, for he later clarifies that, despite any "input" from her, important decisions were ultimately to be his: "I did claim that if I wanted to do something different than what she wanted to, if I thought it was important enough, we would do it" (69). DC, the petitioner's father: "Max was and is an extremely rigid individual". MF describes how "verbally abusive" he could become (153).

23.       However the evidence about him is by no means altogether negative. Her father states: "I'll say one thing for Max. Most of the time, certainly when other people were around, he's a very good father. He did spend a lot of time playing with the kids and seemed really very fond of the kids" (126). MF, who is one of the petitioner's witnesses, asked about his maturity, replies: "I would say with Max he showed some maturity and responsibility in the fact that he was pursuing his chiropractic career in order to provide for his family" (162). JGW, a friend of both: "she admits that he never physically hurt her or the children... He worked hard... He did not spend spare time with friends, or watching sports on T.V. He did not drink or gamble. His spare time was always spent with the children... I don't believe Max was less able to be a good husband and father than my own husband" (186). The petitioner's mother says that he was responsible as a parent, perhaps excessively so (117).

            The petitioner herself says that there were no problems with overspending on either part; "He was irresponsible in minor things" (5). She also recalls: "There were no serious fights at all during our courtship. I only saw him angry one time. I do not recall the circumstances, but I do recall that I didn't like the way he acted at all - it frightened me" (2). Insofar as one should attach importance to this one, unspecified, episode, it rather points in the direction of an exercise of discretion by the petitioner, who self-confessedly was aware of defects in the character of the man she chose to marry.

            VR is emphatic that "as far as being an abusive person, Max is not that type of person. He might get loud and boisterous... He was just totally dedicated to his family and he loved his wife" (136). HS, a friend of both from 1984, says that, more than "unyielding", the respondent was demonstrative; he was also mature (177).

            We agree with the judges that the respondent appears as "eccentric, dominating and idealistic". When they add that these traits "are long-standing and surely acted as impairments to the Respondent's ability to exercise due discretion [at the moment of consent]" (211), we think little judicial weight can be given to this weakly based inference, all the more so in that no support for it comes from the expert opinions.

24.       A combination of two persons of unbending character. LDS affirmat: "Daria was someone who would be the first to indicate it if someone was being sinful, or going against church teaching in a given situation... [re their faith] "in my opinion both could have at one time been considered fanatics" (187). HS: "We had considerable interaction in the year before they left for Iowa... Since the time that Daria and Max started to separate and actually did so, I have spent a great many hours with each one individually most as a friend but also as a non-professional counselor. Problems in their marriage after the move to Iowa were present but not overwhelming. Max's love - although doting and constant - was superficial. His understanding of the relationship between spouses was rigid and not entirely realistic for the modern world, particularly in the area of protecting equal dignity; but his understanding was not dysfunctional either. Daria's understanding was equally rigid and to a minor extent unrealistic. While she committed herself to a role of supportive and somewhat subservient wife (which only aggravated the problems in their relationships), she hedged her commitment to the relationship. Some minor friction was inherent in the different social-financial status of the inlaw families. Notable frictional differences in the areas of religion, sexual relations, etc. showed only late in their former relationship". He considers the real precipitating cause of the breakup to be on Daria's part: a new reaction or interpretation of her possibilities of fulfilment (172). VR suggests Daria began to change - particularly in her judgmental attitude - as a result of involvement in a charismatic group (134).

25.       The capacity of the parties: expert opinions. RTH, a psychotherapist from whom the petitioner sought treatment in 1989 and whose report she sent to the New York tribunal along with her "libellus", writes: "In retrospect, I believe [Daria] was basically prepared to enter the marriage. Throughout the marriage turbulence she remained emotionally and psychologically sound. On several occasions I was impressed with her solid mental health, given her situation. I believe she had the ability to be a good spouse upon entering said marriage" (105).

            Dr. GO, MD, psychiatrist: the respondent came to see him in 1989, "stating he was here to be evaluated because of manic depressive illness". The doctor notes: "he admits to be being moody, lonely and angry"; "showed mild paranoia", and had "a very fundamentalist approach to religion" (98). "I find no evidence that this individual exhibited pathology that would be indicative of manic depressive illness" (99).

            Dr. DV, Psy. D., to whom Dr. GO referred the respondent for evaluation and tests, reported in 1989: "I estimate his intelligence to be above average" (101); he "is obviously a very idealistic individual and has a somewhat "eccentric" way of using concepts at times"; "It is also clear that he has a high need to maintain control in his close interpersonal relationships". He finds nothing grave. "I believe that [Max] is manifesting an adjustment disorder at this time related to the marital conflicts" - which shows itself in "mixed emotional features" (102).

26.       The sentence passes quickly over this unsupportive evidence from the first experts involved, and turns to a fourth opinion which it cites at length (210-212). This report was given by one RE, who is described simply as a "counselor", with no indication of professional qualifications other than the initials CHM. It refers specifically to the period when the marriage was already in crisis (1988), and ventures no restrospective judgment about the parties' capacities at the moment of consent. It simply concludes: "In 1988, there was no indication of a friendship and partnership of sharing love and parental responsibility in the marriage of Daria and Max" (96-97).

            Therefore a judicial scrutiny of the expert opinions offers no grounds to conclude to the presence of any grave psychic anomaly in either party at the time of consent.

27.       Indications that grave problems arose only at the end of the married life. When the petitioner's father is asked, "Were you aware of any arguments, fighting, dissensions in their relationship as the marriage progressed?", he replies: "Not very specifically, but every once in a while I kind of suspected that she was disturbed and not as happy as she wanted us to believe" (125). Her mother says: "I didn't see any signs of any problem" prior to 1989 (144).

            HS states: "During those years [in New York] it was my observation that Max was a doting husband and father and Daria an attentive wife and mother" (172). In their m'd life in "X-burg", he saw ordinary small problems: "Certainly there was no sense of fear, no sense of serious trouble" (179); what problems they had "had to do with the experience of the religious community they were in and their religious sense... [that] the relationship between the two of them had to be ideal" (180). VR, "The first time I knew of a problem was in August 1989" (140).

28.       It therefore seems to us that we are dealing with a case of two rigid and somewhat radical persons who, in accordance with their fundamentalist principles, lived a fairly normal married life, of a rather "traditional" nature, for at least six or seven years. About 1987, after the birth of their fourth child, they moved to Davenport so that the husband could qualify as a chiropractor (132). Pressures became much stronger, with his full-time study, their getting financial support from her family, and the arrival of the fifth child. When he finally qualified and they were about to return to New York, the petitioner, whose ideas seem to have gradually undergone a change, suddenly broke the union and left the home, to seek her own professional "self-realization", at the same time as she entered an illicit relationship with another man.

29.       Having therefore considered all the aspects of the law and the facts, we Auditors of this Turnus... answer the proposed doubt:

            "IN THE NEGATIVE", that is, "the nullity of the marriage has not been proved in the case before the Court".

            Given in the Tribunal of the Roman Rota, April 17, 1997.

            Cormac BURKE, Ponens

            Kenneth E. BOCCAFOLA

            Daniel FALTIN