Kelderhaus v. Kelderhaus

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia

LENA VICTORIA KELDERHAUS

v. Record No. 0569-95-1 OPINION BY
JUDGE RICHARD S. BRAY
BRUCE LYNN KELDERHAUS FEBRUARY 27, 1996

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Richard F. Popp (John Max Barger, Third-Year
Student Practice; Davis, Irwin & Brynteson,
P.C., on brief), for appellant.

No brief or argument for appellee.

These proceedings were initiated upon the bill of complaint

of Lena Victoria Kelderhaus (wife) praying for a divorce from

Bruce Lynn Kelderhaus (husband) and attendant relief, including

spousal support. In response, husband challenged the validity of

the marriage. Following an ore tenus hearing, the trial court

concluded that the parties were not married and dismissed wife's

bill. On appeal, wife complains that the trial court erroneously

declined to recognize her common-law marriage to husband or, in

the alternative, award her relief as a "putative spouse." We

disagree and affirm the judgment of the trial court.

Under familiar principles, "'we view [the] evidence and all

reasonable inferences in the light most favorable to the

prevailing party below[,]'" husband in this instance. Pommerenke

v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988)

(citation omitted). The judgment of the trial court is presumed
to be correct, Broom v. Broom, 15 Va. App. 497, 504, 425 S.E.2d

90, 94 (1992), and will not be disturbed unless plainly wrong or

without evidence to support it. Dodge v. Dodge, 2 Va. App. 238,

242, 343 S.E.2d 363, 365 (1986). "The burden is upon the party

appealing to point out the error in the decree and to show how

and why it is wrong." Kaufman v. Kaufman, 7 Va. App. 488, 499,

375 S.E.2d 374, 380 (1988).

Bruce and Lena Kelderhaus obtained a marriage license in

California on December 21, 1992. When applying for the license,

husband knowingly misrepresented that his marriage to another had
1
been previously dissolved. Several days later, the parties

ostensibly married in California, then traveled to Flagstaff,

Arizona, residing together there as husband and wife. On July

26, 1993, an Arizona decree divorced husband from his former wife

and, on August 1, 1993, husband and wife participated in a second

marriage "ceremony." 2 The parties thereafter continued to reside

together and represented themselves as husband and wife in

Arizona until early August, 1993, when they relocated to

Virginia. In driving from Arizona to Virginia, the parties

"travers[ed] the country" as "husband and wife," stopping

"overnight" in Texas and Oklahoma.
THE MARRIAGE

1
Wife claimed no knowledge of this circumstance, but husband
testified otherwise.
2
For reasons unspecified in the record, it is uncontroverted
that this was not a "legal ceremony."

- 2 -
 "A marriage's validity is to be determined by the law of the

state where the marriage took place, unless the result would be

repugnant to Virginia public policy." Kleinfield v. Veruki,

7 Va. App. 183, 186, 372 S.E.2d 407, 409 (1988); Hager v. Hager,

3 Va. App. 415, 416, 349 S.E.2d 908, 909 (1986). "A marriage

entered into prior to the dissolution of an earlier marriage of

one of the parties is [bigamous, and consequently,] a void

marriage in . . . Virginia." Kleinfield, 7 Va. App. at 186, 372

S.E.2d at 409 (citing Code §§ 20-38.1 and 20-45.1(a)). Bigamous

marriages "confer[] no legal rights" and are "contrary to the

laws of Virginia and [its] public policy." Id. at 190, 372

S.E.2d at 411. Thus, when the parties purportedly married in

California, the union was bigamous and void as a matter of law. 3

See Code § 20-43.

Wife, however, argues that this impediment to husband's

remarriage was removed by the subsequent Arizona divorce decree,

and, therefore, the ensuing relationship as husband and wife

during their passage through Texas and Oklahoma, states which

recognize common-law marriages, resulted in marriage. See

Metropolitan Life Ins. Co. v. Holding, 293 F. Supp. 854, 858

(E.D. Va. 1968). Although Virginia does not recognize domestic

common-law marriages, Offield v. Davis, 100 Va. 250, 253, 40 S.E.
3
We note that the marriage entered into by the parties in
California would also be considered void ab initio under
California law. See Cal. Fam. Code § 2201 (West 1995) ("A
subsequent marriage contracted by a person during the life of a
former husband or wife of the person, with a person other than
the former husband or wife, is illegal and void from the
beginning.").

- 3 -
910, 911 (1902), it does extend comity to such unions "valid

under the laws of the jurisdiction where the common-law

relationship was created." Farah v. Farah, 16 Va. App. 329, 334,

429 S.E.2d 626, 629 (1993).

TEXAS

By statute, Texas provides that ". . . the marriage of a man

and woman may be proved by evidence that . . . they agreed to be

married, and after the agreement they lived together in this

state as husband and wife and there represented to others that

they were married." Tex. Fam. Code Ann. § 1.91(a)(2) (West

1996). The parties must represent to others while in the state
of Texas that they are husband and wife. Winfield v. Renfro,

821 S.W.2d 640, 648 (Tex. Ct. App. 1991). Residing together as

husband and wife in another state does not satisfy the Texas

statute. See Williams v. Home Indem. Co., 722 S.W.2d 786, 788

(Tex. Ct. App. 1987). "Strict compliance with these requirements

is a necessity, and each one must be established by sufficient

proof before [Texas] courts will lend judicial sanction to any

assertion . . . that . . . a [marital] relationship exists."
Middlebrook v. Wideman, 203 S.W.2d 686, 688 (Tex. Civ. App.

1947).

Here, the record does not support the requisite finding that

the parties "lived together . . . as husband and wife" in Texas

and "there represented to others that they were married." See

Tex. Fam. Code Ann. § 1.91(a)(2) (emphasis added). The limited

testimony that they migrated through Texas as "husband and wife"

- 4 -
establishes only a brief, transitory contact with the state which

clearly does not constitute "strict compliance" with the

statutory requirements. Hence, wife's claim to a valid

common-law Texas marriage is without merit.

- 5 -
 OKLAHOMA

A party asserting common-law marriage in Oklahoma must

prove: (1) an actual and mutual agreement between spouses to be

husband and wife, (2) a permanent relationship, (3) an exclusive

relationship, accompanied by cohabitation as man and wife, and

(4) a mutual representation to the public as husband and wife, 4

Estate of Stinchcomb, 674 P.2d 26, 28-29 (Okla. 1983), all by

clear and convincing evidence. Maxfield v. Maxfield, 258 P.2d

915, 921 (Okla. 1953). Although Oklahoma courts have not

determined that the requisite mutual representation must occur
within the state, several jurisdictions have addressed the issue

relative to other common-law jurisdictions, and we are persuaded

by their conclusion that this element must be satisfied within

the common-law state. See Kennedy v. Damron, 268 S.W.2d 22

(Ky. Ct. App. 1954); Laikola v. Engineered Concrete, 277 N.W.2d

653 (Minn. 1979); Andrews v. Signal Auto Parts, Inc., 492 S.W.2d

222 (Tenn. 1972).

In Kennedy, the Kentucky court declined to recognize mere
visits to Ohio, a common-law state, by persons as sufficient to

support a common-law marriage in that jurisdiction. 268 S.W.2d

at 24. The court found "[i]t . . . obvious that if . . . conduct

and reputation of . . . parties as man and wife are to be

accepted as evidence of a contract of marriage entered into in a

state which recognizes common-law marriages, the conduct must be
4
Because we find insufficient evidence of this indispensable
element to an Oklahoma common-law marriage, we decline to
consider the remaining prerequisites.

- 6 -
carried on and the reputation acquired . . . [as] established

members of a community." Id. at 23-24. Citing Kennedy with

approval, the Supreme Court of Minnesota reached a similar

conclusion in reviewing a Montana relationship, noting that

"[t]he general . . . rule . . . is that the . . . holding out as

husband and wife must be of sufficient duration in the common-law

state to create a public reputation of husband and wife."

Laikola, 277 N.W.2d at 658.
Here, the record reveals only minimal contact with Oklahoma

and no evidence of specific conduct or representations by the

parties, as husband and wife, in that jurisdiction. To sanction

marriage arising from such an insignificant nexus with the

common-law state would at once distort and trivialize the concept

of common-law marriage and ignore the principles which govern

such unions in Oklahoma. We, therefore, find the evidence

insufficient to prove a common-law marriage in Oklahoma.

PUTATIVE SPOUSE
Lastly, wife claims that the trial court, after finding her

marriage to husband either "void or voidable," should have

awarded putative spousal support in accordance with California

law. See Cal. Fam. Code §§ 2251, 2254 (West 1995). Assuming,

without deciding, that these provisions are relevant to the

instant proceeding, relief as a putative spouse requires that he

or she "believed in good faith that the marriage was valid."

Id. at § 2251. Here, husband testified that wife was aware that

he remained married to another at the time of the void California

- 7 -
nuptials. Consequently, wife could not have entertained the

requisite good faith belief that the California marriage was

valid and, therefore, was not a putative spouse within the

intendment of the California statute.

Accordingly, we find that the trial court correctly

concluded that the parties were not married to one another and

affirm the decree dismissing the bill of complaint.

Affirmed.

- 8 -