Certiorari Denied, October 13, 2010, Docket No. 32,601
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2010-NMCA-106
Filing Date: August 13, 2010
Docket No. 29,511
HEIDI CAROLINE BARTON RIVERA,
Petitioner-Appellee,
v.
JAIME RIVERA,
Respondent-Appellant.
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
J. Richard Brown, District Judge
Max Houston Proctor
Hobbs, NM
for Appellee
Reagan & Sanchez, P.A.
Mark Terrence Sanchez
Hobbs, NM
for Appellant
OPINION
FRY, Chief Judge.
{1} This appeal stems from divorce proceedings initiated in 2008 by Wife, Heidi Rivera,
against Husband, Jaime Rivera. Prior to trial, Wife filed a motion to dismiss the case for
lack of jurisdiction, arguing that the marriage was void due to the fact that the parties were
married in New Mexico but had only a Texas marriage license. The district court agreed and
dismissed the divorce proceedings. Prior to the dismissal, Husband had sought to invalidate
a premarital agreement he signed shortly before the wedding on the ground that the
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agreement was unconscionable due to the terms of the agreement and his inability to
understand what he was agreeing to. In its dismissal order, the district court noted that if the
marriage had been valid, the court would have ruled that the premarital agreement was valid
and enforceable. Husband appeals the district court’s dismissal of the divorce proceedings
and its conclusion that the premarital agreement was enforceable. For the following reasons,
we reverse the judgment of the district court.
BACKGROUND
{2} Husband and Wife met while Wife was on vacation in Mexico where Husband
resided. A romantic relationship ensued, and Husband and Wife dated for over a year. The
parties decided to get married, and Husband moved to the United States to marry Wife. A
few days prior to the wedding, Husband and Wife went to Wife’s attorney’s office in Hobbs,
New Mexico, to sign a prenuptial agreement that Wife had asked her attorney to prepare.
According to Husband, he was under the impression that the agreement was a formality
required for the marriage, and he did not understand English well enough to know exactly
what he was signing. The district court’s uncontested findings, however, indicate that
Husband declined an offer to have the document interpreted.
{3} On February 14, 2000, Husband and Wife were married during a ceremony before
the Reverend Jothen Kinney in Hobbs. Prior to the ceremony, the parties had obtained a
marriage license from the Gaines County clerk’s office in Seminole, Texas, which is located
approximately thirty miles from Hobbs. The marriage license issued to the parties granted
“authoriz[ation] to solemnize the rites of matrimony between Mr. Jaime Armando Rivera
and Miss Heidi Caroline Barton” to “any person authorized by the laws of the state of Texas
to celebrate the rites of matrimony in the state of Texas.” The parties took this license to
Rev. Kinney, who was authorized to perform marriage ceremonies in both New Mexico and
Texas, and who performed the marriage ceremony and filled out the information required
on the license. Under the “county of marriage” section, “Lea” was written in, “Texas” was
crossed out, and “New Mexico” was written in its place. The license was then returned to
the Gaines County clerk, who accepted the returned license and recorded it in the county
records on March 17, 2000.
{4} Following the marriage, the couple resided in Hobbs and had two children. In April
2008, after eight years of marriage, Wife filed a petition for dissolution of marriage, citing
incompatibility between herself and Husband. In November 2008, despite having filed
numerous pleadings presuming the validity of the marriage, Wife filed a motion to dismiss
her petition, arguing that the district court lacked jurisdiction. Wife contended that her
petition was premised on her belief that the parties were lawfully married in the State of New
Mexico when in fact the parties were not lawfully married in New Mexico. Wife argued that
she and Husband had failed to obtain a marriage license and medical certificate as required
by New Mexico law and that their marriage was therefore invalid. Wife noted that while she
had obtained and recorded a marriage license in Texas, she had not met Texas’ statutory
requirements for a valid marriage because she did not have a ceremony in Texas. Wife also
contended that the ceremony in New Mexico was invalid because the pastor who officiated
had no authority to perform the marriage ceremony in New Mexico without a valid New
Mexico marriage license.
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{5} The district court agreed with Wife and found that it did not have jurisdiction over
the parties’ divorce. Specifically, the court found that “the parties celebrated a marriage
ceremony in the State of New Mexico that was never authorized by the laws of New
Mexico” and that the marriage was therefore invalid. The court concluded that “the laws of
Texas are irrelevant to any decision necessary to a resolution of th[e] matter.” The court
explained that New Mexico law requires couples desiring to marry to obtain a license in New
Mexico and present the license to the person officiating at the ceremony and that without a
valid license, the marriage ceremony has no legal effect. Based on this conclusion, the
district court dismissed the divorce action. Because Husband had also contested the validity
of the premarital agreement, the court concluded that “[i]f the marriage had been valid, the
prenuptial agreement would have likewise been valid and enforceable.” Husband appeals
the district court’s dismissal of the divorce proceedings and its conclusion that the premarital
agreement was valid.
DISCUSSION
Standard of Review
{6} The facts in this case are generally undisputed. At issue is whether a marriage
performed in New Mexico without a New Mexico license is valid. Because this involves a
question of law, we review the district court’s conclusions of law de novo. Jacob v. Spurlin,
1999-NMCA-049, ¶ 7, 127 N.M. 127, 978 P.2d 334.
Choice of Law
{7} Because the marriage was celebrated in New Mexico but licensed in Texas, we
briefly address the conflict-of-law issue that this case appears to present. According to
Texas law, the “validity of a marriage is generally determined by the law of the place where
it is celebrated.” Husband v. Pierce, 800 S.W.2d 661, 663 (Tex. App. 1990). New Mexico,
like Texas, “applies the rule of comity, that the law of the place of contract governs the
validity of a marriage.” In re Bivians’ Estate, 98 N.M. 722, 726, 652 P.2d 744, 748 (Ct.
App. 1982). Because the place of the marriage ceremony is the place of the contract, see
Restatement (First) of Conflict of Laws § 121 comment c (1934) (explaining that “[t]he
contract of marriage comprises any form of mutual consent from a formal ceremony to a
mere exchange of written or oral promises, which may be required by the law of the place
where the ceremony takes place”), and because the marriage ceremony was performed in
New Mexico, New Mexico law governs the validity of Husband’s and Wife’s marriage
whether we look at Texas’ or New Mexico’s choice-of-law laws. We thus address whether
the marriage was valid under New Mexico’s substantive law.
The Marriage Was Valid Even Though No New Mexico License Was Obtained
{8} Our Supreme Court has stated that “[f]or a marriage to be valid, it must be formally
entered into by contract and solemnized before an appropriate official.” Merrill v. Davis, 100
N.M. 552, 553, 673 P.2d 1285, 1286 (1983). The purpose of the requirements that a marriage
be formal and solemnized are based on our State’s rejection of common law marriage and
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the need to avoid “the possibility of fraud arising from claims of common [] law marriage.”
Id. (internal quotation marks and citation omitted). Because New Mexico does not recognize
common law marriage, something more than mere cohabitation and reputation as husband
and wife is required to create a valid marriage in this state. See In re Bivians’ Estate, 98
N.M. at 726, 652 P.2d at 748.
{9} Thus, our case law requires that for a New Mexico marriage to be valid, it must be
solemnized before an appropriate official and be formally entered into by contract. While
this Court has noted on a number of occasions that “[m]arriage is a civil contract requiring
a license,” see, e.g., State v. Lard, 86 N.M. 71, 74, 519 P.2d 307, 310 (Ct. App. 1974)
(internal quotation marks omitted), and In re Bivians’ Estate, 98 N.M. at 726, 652 P.2d at
748, and that a marriage “is also a contract in which the public is interested and to which the
state is a party,” id., we have never directly addressed the issue of whether a couple who has
a marriage ceremony but fails to obtain a New Mexico license has a valid marriage.
{10} NMSA 1978, Section 40-1-10 (1973) provides that “[e]ach couple desiring to marry
in New Mexico shall obtain a license from a county clerk and file the same for recording in
the county issuing the license, following the marriage ceremony.” In addition to the
requirement that the couple desiring to be married obtain a license, NMSA 1978, Section 40-
1-14 (1905), provides that “[a]ll persons authorized to solemnize marriage shall require the
parties contemplating marriage to produce a license signed and sealed by the county clerk
authorizing said marriage.” After the completion of the marriage ceremony, the “person[]
performing the marriage ceremony” has “the duty . . . to certify said marriage to the county
clerk within ninety days from the date of marriage.” NMSA 1978, § 40-1-15 (1905).
{11} In the event that the person authorized to solemnize the marriage “neglect[s] or fail[s]
to comply with the provisions” requiring the parties to produce a license or fails to certify
the marriage, he or she “shall be deemed guilty of a misdemeanor.” NMSA 1978, § 40-1-19
(1905). In addition, a person who “willfully violate[s] the law by deceiving or attempting
to deceive or mislead any officer or person authorized to perform the marriage ceremony in
order to obtain a marriage license or to be married, contrary to law,” is also guilty of a
misdemeanor. Id.
{12} Based on the text of NMSA 1978, Sections 40-1-1 to -20 (1859-1860, as amended
through 2001), it is clear that a license from a New Mexico county clerk is required in order
for a couple to be married within this state. The question before us, however, is whether the
parties’ marriage in this case was valid even though their marriage ceremony was performed
in a New Mexico county but the license was obtained in another state. Other courts
considering this question have hinged the validity of an unlicensed marriage on whether the
licensing aspect of the statute is viewed as mandatory or directory. If the statute is directory,
then an unlicensed marriage is valid. See, e.g., De Potty v. De Potty, 295 S.W.2d 330, 330-
31 (Ark. 1956). If the statute is mandatory, then any marriage performed without a license
is automatically void. See, e.g., Moran v. Moran, 933 P.2d 1207, 1211-12 (Ariz. Ct. App.
1996).
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{13} In De Potty, the Arkansas Supreme Court was confronted with a question identical
to the one before us today—“whether residents of [Arkansas] may legally contract marriage
in [Arkansas] with a license issued by a foreign state.” 295 S.W.2d at 330 (internal
quotation marks omitted). The parties in De Potty lived in Texarkana, Arkansas, which
apparently borders Texas to such an extent that a portion of the city is in Texas. Id. The
parties obtained a Texas marriage license on the Texas side of Texarkana, but they were
married by a duly ordained minister on the Arkansas side of the city. Id. In determining that
its licensing statute was directory and that an Arkansas marriage performed without an
Arkansas license was therefore not void, the court noted that generally “a statutory provision
for a license to marry shall not be regarded as mandatory, and vital to the validity of a
marriage, in the absence of a clear indication of a legislative purpose that it should be so
construed.” Id. at 331 (internal quotation marks and citation omitted).
{14} The Connecticut Supreme Court made a similar holding in a case where it addressed
whether a ceremonial marriage performed by an authorized person but without a license was
void. See Carabetta v. Carabetta, 438 A.2d 109, 110 (Conn. 1980). In concluding that such
a marriage was not void, the court noted that “[i]n the absence of express language in the
governing statute declaring a marriage void for failure to observe a statutory requirement .
. . such a marriage, though imperfect, is dissoluble rather than void.” Id. at 112. More
recently, the Washington Court of Appeals determined that because “Washington does not
have a statute plainly making an unlicensed marriage invalid[,] . . . the purpose of the license
requirement is purely regulatory.” State v. Denton, 983 P.2d 693, 696 (Wash. Ct. App.
1999). The court explained that “[t]he regulatory purpose cannot be enforced by the radical
process of rendering void and immoral a matrimonial union otherwise validly contracted and
solemnized” and that an “[i]ntentional failure to procure a license is punishable as a
misdemeanor, but it does not render a marriage void or even voidable.” Id. (internal
quotation marks and citations omitted); see also Boysen v. Boysen, 23 N.E.2d 231, 234 (Ill.
App. Ct. 1939) (noting that an unlicensed marriage is not void unless the legislature
expressly declares it so); McPeek v. McCardle, 888 N.E.2d 171, 174-75 (Ind. 2008) (noting
that under Ohio law, a marriage performed without a license would likely be valid because
there is no directive that an unlicensed marriage is automatically void).
{15} Jurisdictions holding that marriage ceremonies performed without a license are
invalid typically base their decisions on the fact that the statutory licensing scheme expressly
states that a marriage performed without a license is invalid or void. In Arizona, for
example, a license is mandatory and, therefore, any marriage performed without one is
invalid because Arizona’s licensure statute provides that “[a] marriage contracted [in
Arizona] is not valid unless . . . [a] license is issued.” Moran, 933 P.2d at 1211 (quoting
Ariz. Rev. Stat. Ann. § 25-111(B)[(1) (1999)]). In holding that this language made an
unlicensed ceremony invalid, the court explained that the express language invalidating the
marriage indicated that the statute is mandatory, not directory. Id. at 1211-12. Other
jurisdictions interpreting their marriage licensing statutes as mandatory base their holdings
on similar express language that voids or invalidates marriages performed without a license.
See, e.g., Nelson v. Marshall, 869 S.W.2d 132, 134 (Mo. Ct. App. 1993) (explaining that a
statute which provided that “no marriage hereafter contracted shall be recognized as valid
unless the license has been previously obtained” was mandatory and made any unlicensed
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marriage void (emphasis omitted) (internal quotation marks and citation omitted)). Thus,
the general consensus among jurisdictions is that in the absence of express statutory
language invalidating an unlicensed marriage, ceremonial marriages performed without a
license are valid. But see Beverlin v. Beverlin, 3 S.E. 36, 39-40 (W. Va. 1887) (holding that
language implying that an unlicensed marriage is invalid is sufficient). We agree with the
view expressed by the majority of jurisdictions considering the question that in order for an
unlicensed marriage to be invalid, the licensure statute must expressly state that an
unlicensed marriage is invalid.
{16} Here, while the district court determined that the marriage of the parties in this case
was void and therefore “not recognizable in the State of New Mexico,” there is no express
statement in Sections 40-1-1 to -20 that our Legislature intended that marriages properly
solemnized in New Mexico were void based on the absence of a New Mexico license alone.
In fact, the only type of marriages our Legislature has expressly declared to be void are
incestuous marriages and marriages between or with infants under the age of majority. See
§§ 40-1-5, -7, -9. Because our Legislature has demonstrated the ability to expressly make
certain types of marriages void and because our Legislature has declined to do so in the case
of marriages performed without a New Mexico license, we conclude that our Legislature did
not intend to make such marriages void.
{17} We also note that although Section 40-1-20 could be viewed as implying that an
unlicensed marriage is void, we are not persuaded that it does. That statute provides that
[a]ll marriages celebrated or contracted in the territory of New Mexico,
during the year A.D. 1905, without the persons entering into the marriage
relation, having first obtained a license . . . but which marriages were valid
according to the law as it existed prior to April 13, 1905, are hereby validated
and legalized and shall have the same force and effect as if . . . the parties
contracting such marriage had first obtained a license to marry from the
probate clerk of the county wherein such marriage occurred.
Id. But see Beverlin, 3 S.E. at 39-40 (holding that similar language in a marriage license
statute created the inference that marriages conducted without a license are void). We
conclude that this section serves merely to clarify the status of those individuals who were
married during the first year that licenses were required in this state, 1905. We follow the
reasoning of those states requiring express statutory language “plainly making an unlicensed
marriage invalid” before holding an unlicensed ceremonial marriage invalid. See, e.g.,
Denton, 983 P.2d at 696. Because there is no express language in Sections 40-1-1 to -20
invalidating a marriage performed without a license, we conclude that our marriage licensure
statute is merely directory, that ceremonial marriages performed without a license are valid,
and that the district court erred in dismissing the case for lack of jurisdiction.
{18} We are mindful that the case before us is limited to the question of whether a
marriage can be deemed valid when a marriage ceremony is performed but the parties fail
to obtain a New Mexico license. This was not an attempt to circumvent the laws of this state
by engaging in a marriage that would otherwise be contrary to New Mexico’s statutory
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scheme that prohibits incestuous marriages and marriages between or with minors without
parental consent. Neither party disputes that they intended to be married in February 2000.
They obtained a marriage license from a county clerk, they participated in a marriage
ceremony before an ordained and authorized minister, and they recorded their marriage
license with the same county clerk’s office from which they obtained the license. The
couple lived together as husband and wife and had children together. Wife changed her last
name to reflect her marriage to Husband, and the parties filed joint tax returns for the eight
years that they were married. In addition, Wife filed two petitions for dissolution of
marriage in which she stated her understanding and belief that she and Husband were validly
married. Perhaps due only to the proximity of the marital residence to Seminole, Texas,
where the Gaines County clerk’s office is located, the parties obtained their marriage license
from and filed it with a Texas county clerk and not a New Mexico county clerk. However,
this is not a case where one of parties denies that a marriage ever took place, nor is there
evidence that the marriage was somehow contrary to New Mexico’s statutory prohibition
against incestuous marriages and marriages between or with minors without parental
consent.
{19} We emphasize that our decision today does not in any way render the marriage
license meaningless. Marriage licenses continue to be required under New Mexico law as
evidence that a marriage fully complies with all requirements of the law. The parties in this
case applied for the issuance of a marriage license although they did so in another state.
They held a valid ceremony and intended to enter into a contract of marriage. We conclude
that given the facts in this case, the couple met the legal requirements of a marriage in this
state despite their failure to obtain a New Mexico marriage license. See Merrill, 100 N.M.
at 553, 673 P.2d at 1286 (explaining that “[f]or a marriage to be valid, it must be formally
entered into by contract and solemnized before an appropriate official”). We also note that
our decision today has no effect on our state’s prohibition of common law marriages.
Common law marriages and marriages in which no ceremony is performed and no contract
is entered into continue to be unlawful in this state.
The Premarital Agreement Executed by the Parties Is Unconscionable
{20} Because we conclude that the marriage between Husband and Wife was valid, we
also address whether the district court erred in determining that the prenuptial agreement
signed by Husband is valid and enforceable. The district court concluded that “[i]f the
marriage had been valid, the prenuptial agreement would have likewise been valid and
enforceable.” On appeal, Husband argues that the prenuptial agreement he signed is
unenforceable because he was told that it was just a formality, he did not understand the
content of the agreement, and the terms of the agreement are unconscionable.
{21} We have not previously considered the applicable standard of review when reviewing
a district court’s conclusion that a premarital agreement is valid. The Uniform Premarital
Agreement Act, NMSA 1978, §§ 40-3A-1 to -10 (1995), provides that the “issue of
unconscionability or voluntariness of a premarital agreement shall be decided by the court
as a matter of law.” Section 40-3A-7(B). Because the issue is decided as a matter of law,
our review is de novo. See Truong v. Allstate Ins. Co., 2010-NMSC-009, ¶ 27, 147 N.M.
7
583, 227 P.3d 73 (noting that “[w]e review these questions of law de novo, without
deference to the district court’s legal conclusions” (internal quotation marks and citation
omitted)). Underlying this question of law are factual determinations regarding the
circumstances surrounding the execution of the agreement. We review the district court’s
findings regarding these circumstances for substantial evidence. Calkins v. Stearley, 2006-
NMCA-153, ¶ 2, 140 N.M. 802, 149 P.3d 118.
{22} The Uniform Premarital Agreement Act provides in part that
[a] premarital agreement is not enforceable if the party against whom
enforcement is sought proves that:
(1) that party did not execute the agreement voluntarily; or
(2) the agreement was unconscionable when it was executed and,
before execution of the agreement, that party:
(a) was not provided a fair and reasonable disclosure of
the property or financial obligations of the other party;
(b) did not voluntarily and expressly waive, in writing,
any right to disclosure of the property or financial obligations of the other
party beyond the disclosure provided; and
(c) did not have, or reasonably could not have had, an
adequate knowledge of the property or financial obligations of the other
party.
Section 40-3A-7(A). We conclude that Subsection (2) is dispositive.
{23} With respect to the requirements listed as (a), (b), and (c) above, Wife does not
dispute Husband’s assertion that she did not disclose the extent of her assets prior to the
execution of the agreement, and there is no evidence that Husband either waived his right
to disclosure of Wife’s property or that he had or could have had an adequate knowledge of
her property and financial obligations. See § 40-3A-7(A)(2). Thus, the sole issue before us
is whether the agreement was unconscionable.
{24} Husband argues that the agreement was unconscionable because (1) it conflicts with
New Mexico’s public policy, and (2) he had a limited understanding of the English language
at the time he executed the agreement and he “had been given to understand that the
premarital agreement was a formality associated with marriage.” Unconscionability has “two
prongs: substantive unconscionability and procedural unconscionability.” Fiser v. Dell
Computer Corp., 2008-NMSC-046, ¶ 20, 144 N.M. 464, 188 P.3d 1215. “Substantive
unconscionability relates to the content of the contract terms and whether they are illegal,
contrary to public policy, or grossly unfair,” while “[p]rocedural unconscionability is
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determined by analyzing the circumstances surrounding the contract’s formation, such as
whether it was an adhesive contract and the relative bargaining power of the parties.” Id.
{25} Husband contends that the premarital agreement is substantively unconscionable
because it “affects . . . the right to seek spousal support after divorce or separation,” in
violation of Section 40-3A-4(B). Wife makes no response to this argument and contends
only that “[t]here is no evidence in the record, whatsoever, that the [premarital a]greement
was unconscionable.” Section 40-3A-4(B) provides that “[a] premarital agreement may not
adversely affect the right of a child or spouse to support.” In violation of this requirement,
the agreement provides that Husband and Wife “waive any right to be supported by the other
from the other’s property, including but not by way of limitation, any claim for support,
maintenance, medical expenses or otherwise, after the death, divorce or permanent
separation of the parties.” The paragraphs of the agreement in which the parties agree that
their separate property will remain separate also provide that the parties “shall have no claim
for support, maintenance or claim, of any kind.” Because these provisions of the premarital
agreement adversely affect the right of the spouses to support, the agreement is contrary to
the public policy expressed in Section 40-3A-4(B) and is therefore unconscionable. See
Fiser, 2008-NMSC-046, ¶ 20.
{26} While we conclude that the provisions of the agreement that violate Section 40-3A-
4(B) are unconscionable, we must determine the effect the unconscionability of these
provisions has on the agreement as a whole. The agreement does not contain a severability
clause, and Wife makes no argument that the remainder of the agreement should not be
affected by the invalidity of the support provisions. Because Wife makes no argument and
because we are unable to discern whether the parties bargained for the waiver of spousal
support in exchange for other benefits or concessions, we are unable to conclude that any
portion of the agreement is valid without the unconscionable provisions. Thus, we conclude
that the entire agreement is unconscionable and reverse the district court’s conclusion that
the agreement is valid and enforceable.
CONCLUSION
{27} For the foregoing reasons, we reverse the judgment of the district court.
{28} IT IS SO ORDERED.
____________________________________
CYNTHIA A. FRY, Chief Judge
WE CONCUR:
____________________________________
JONATHAN B. SUTIN, Judge
____________________________________
LINDA M. VANZI, Judge
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Topic Index for Rivera v. Rivera, Docket No. 29,511
AE APPEAL AND ERROR
AE-SR Standard of Review
CP CIVIL PROCEDURE
CP-CL Conflict of Laws
CP-MD Motion to Dismiss
CN CONTRACTS
CN-CO Contracts Against Public Policy
CN-UC Unconscionable
DR DOMESTIC RELATIONS
DR-ML Marriage License
DR-UP Uniform Premarital Agreement Act
DR-VM Validity of Marriage
ST STATUTES
ST-LI Legislative Intent
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