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."
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"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.").
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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"
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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.
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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.
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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
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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.
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