ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE
Leanna Weissmann Alison T. Frazier
Lawrenceburg, Indiana Dupont, Indiana
______________________________________________________________________________
In the FILED
Indiana Supreme Court Jun 10 2008, 3:06 pm
_________________________________
CLERK
of the supreme court,
court of appeals and
tax court
No. 58S01-0708-CV-305
EMMA MCPEEK (Petitioner Below),
CAROLL VANTYLE, AND BRENDA ALLEN,
Appellants (Plaintiffs below),
v.
CHARLES MCCARDLE,
Appellee (Defendant below).
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Appeal from the Ohio Circuit Court, No. 58C01-0412-PL-0005
The Honorable James Humphrey, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 58A01-0609-CV-400
_________________________________
June 10, 2008
Rucker, Justice.
Summary
The question raised in this opinion is whether a marriage solemnized in another state in
violation of that state’s law may be recognized as valid in this state if the marriage complies with
this state’s law. The answer is yes.
Facts and Procedural History
As a result of her first husband’s death, Edwina VanTyle became the sole owner of the
family farm located in Ohio County and Switzerland County, Indiana. On June 30, 1994, armed
with a marriage license obtained from the clerk of the circuit court in Ohio County, Indiana,
Edwina and Charles McCardle, both residents of Indiana, traveled across state lines and were
ostensibly married in the state of Ohio. The Reverend Donald S. Campbell performed the
wedding ceremony and filled out the marriage certificate. Although Rev. Campbell was
apparently authorized by his church to solemnize marriages in the state of Ohio, no marriage
license was issued by the state of Ohio. Further, no ceremony took place in the state of Indiana.
On July 1, 1994, the clerk of the circuit court in Ohio County, Indiana filed and recorded the
marriage license and certificate. Shortly thereafter, in August 1994, Edwina executed a warranty
deed transferring ownership of the farm to Charles McCardle and herself as husband and wife.
On July 26, 2004, Edwina died intestate. In December 2004, Edwina’s two daughters
and one son from her first marriage – Emma McPeek, Brenda Allen, and Caroll VanTyle
(referred to collectively as “McPeek”) – filed a complaint for declaratory judgment. In the
complaint McPeek contended that the marriage between her mother and McCardle was void, and
therefore she and her siblings were the proper owners of one-half the farm, which had been in the
family for three generations. McPeek also filed a motion for summary judgment.
McCardle responded with a motion to dismiss the declaratory judgment action,
contending McPeek was not a party to the marriage and therefore lacked standing to challenge its
validity. McCardle also filed a motion seeking attorney fees, contending McPeek’s complaint
was frivolous and brought in bad faith. After a hearing based on certain stipulated facts alleged
in the complaint, the trial court granted the motion to dismiss. In so doing, the trial court agreed
that McPeek lacked standing. However, the trial court concluded that the marriage was voidable
under Indiana law and the weight of legal authority indicated that such marriages may not be
attacked after the death of one of the parties. Noting the significant legal issues in this case, the
trial court denied McCardle’s request for attorney fees.
2
McPeek appealed the dismissal of her complaint, and McCardle cross-appealed the denial
of his request for attorney fees. The Court of Appeals affirmed the judgment of the trial court.
McPeek v. McCardle, 866 N.E.2d 387, 391 (Ind. Ct. App. 2007). Having previously granted
McPeek’s petition to transfer, we also affirm the judgment of the trial court. We summarily
affirm the Court of Appeals’ disposition of McCardle’s cross-appeal.
Standard of Review
A claim of lack of standing is properly treated as a motion to dismiss under Indiana Trial
Rule 12(B)(6) for failure to state a claim upon which relief can be granted. Huffman v. Office
of Envtl. Adjudication, 811 N.E.2d 806, 813 (Ind. 2004). Such a motion tests the legal
sufficiency of a claim, not the facts supporting it. Charter One Mortgage Corp. v. Condra, 865
N.E.2d 602, 604 (Ind. 2007). We review de novo the trial court’s dismissal pursuant to Indiana
Trial Rule 12(B)(6). Id. Viewing the complaint in the light most favorable to the non-moving
party, we must determine whether the complaint states any facts on which the trial court could
have granted relief. If a complaint states a set of facts that, even if true, would not support the
relief requested, we will affirm the dismissal. Id. at 605. And we may affirm the grant of a
motion to dismiss if it is sustainable on any theory. Right Reason Publ’n v. Silva, 691 N.E.2d
1347, 1349 (Ind. Ct. App. 1998).
Discussion
McPeek argues that her mother’s marriage to McCardle is void because it was
solemnized in the state of Ohio without the benefit of an Ohio marriage license in violation of
Ohio Revised Code section 3101.05.1 McCardle does not respond to this argument head on.
1
McPeek also contends that the marriage was conducted by a minister not authorized to solemnize
marriages in the state of Ohio in violation of Ohio Revised Code section 3101.09. To support this
contention, McPeek relies on her own affidavit submitted in support of her motion for summary
judgment. Appellant’s App. at 29-30. McCardle challenged the accuracy of the allegations claiming they
were false, and this in part formed the bases for his request for attorney fees. In any event, the trial court
did not rule on McPeek’s summary judgment motion. Rather, relying on the parties’ stipulated facts,
which did not include those alleged in the affidavit, the trial court ruled on McPeek’s complaint for
declaratory judgment, which it dismissed. Accordingly, the McPeek affidavit is not properly before us.
3
Instead he makes the same argument made before the trial court, namely, “once a party to a
marriage is dead, her marriage may not be challenged by anyone other than the other party to the
marriage.” Resp. to Pet. to Trans. at 4. As recounted above, the trial court had a slightly
different view. The Court of Appeals pursued a different analysis altogether, ultimately
concluding that the judgment of the trial court should be affirmed. We agree with the Court of
Appeals’ ultimate conclusion. However, our analysis is slightly different than our colleagues.
Unless strong public policy exceptions require otherwise,2 the law of the place where a
marriage occurs generally determines the validity of a marriage. Bolkovac v. State, 229 Ind.
294, 98 N.E.2d 250, 254 (1951); Sweigart v. State, 213 Ind. 157, 12 N.E.2d 134, 139 (1938);
Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App. 2002); Gunter v. Dealer’s Transp. Co.,
120 Ind. App. 409, 91 N.E.2d 377, 379 (1950). As a corollary, the general rule of law is that a
marriage valid where it is performed is valid everywhere. Loughran v. Loughran, 292 U.S.
216, 223 (1934). The converse of this proposition is equally well settled: a marriage void
where it is performed is void everywhere.
McPeek insists that her mother’s Ohio marriage to McCardle is void. More specifically,
according to McPeek, “[b]ecause the McCardle union which took place in Ohio did not meet the
legal requirements for a lawful marriage to exist under Ohio law, Indiana must give Full Faith
and Credit to the Ohio law and recognize that a lawful marriage did not occur and that their
relationship was nothing more than a void common law marriage.” Pet. to Trans. at 7. However,
our research reveals no authority declaring that a marriage solemnized in the state of Ohio
without the benefit of a marriage license obtained from that state is considered a void marriage.
Instead Ohio, like Indiana, draws a distinction between marriages that are void in contrast to
those that are merely voidable. See 19 I.L.E., Marriage § 16 at 245-46 (2003). According to
Ohio law, “There are major conceptual differences between void and voidable marriages. A
voidable marriage is one which is valid when entered and which remains valid until either party
secures a lawful court order dissolving the marital relationship.” Darling v. Darling, 335 N.E.2d
708, 710 (Ohio Ct. App. 1975). Conversely, “a void marriage is invalid from its inception, and
2
See e.g., Ind. Code § 31-11-1-1(b) (“A marriage between persons of the same gender is void in Indiana
even if the marriage is lawful in the place where it is solemnized.”).
4
the parties thereto may simply separate without benefit of a court order of divorce or annulment.”
Id. at 710-11. The policy of Ohio is to sustain marriages “where they are not incestuous,
polygamous, shocking to good morals, unalterably opposed to a well defined public policy, or
prohibited.” Mazzolini v. Mazzolini, 155 N.E.2d 206, 208 (Ohio 1958). Thus, Ohio appears to
label a defective marriage voidable rather than void, unless such a label is against policy
considerations. “A marriage contract is a nullity ab initio only where expressly so declared by
statute. In such a case it is absolutely void, requiring no judicial decree for its dissolution.” Id.
at 209 (emphasis added). This jurisdiction has embraced a similar view. See Mason v. Mason,
101 Ind. 25, 27 (1885) (“[A] marriage, contracted in violation [of the statute] . . . is not
absolutely void unless declared to be so by the statute under which the order was made.”).
Our review of Ohio case and statutory authority has not revealed that a marriage
solemnized in that state without the benefit of an Ohio marriage license is void as against public
policy. It therefore appears that the Ohio marriage, although defective, was nonetheless valid
from its inception under the laws of Ohio and remained so at least until Edwina’s death because
the parties did not seek dissolution. As indicated earlier, unless strong public policy exceptions
require otherwise, the law of the place where a marriage occurs generally determines the validity
of a marriage. Bolkovac, 98 N.E.2d at 254.
We acknowledge however that Ohio’s court of last resort has not spoken on this subject
in fifty years. And the latest reported decision by its intermediate Appellate Court occurred over
thirty years ago. We are therefore hesitant to ground the resolution of this case solely on what
may or may not be the current law of our sister state. We thus advance an alternative ground as
well.
Not all jurisdictions adhere to the general rule that the law of the place where the
marriage occurs determines the validity of the marriage. The Restatement (Second) Conflict of
Laws § 283(1) (1971) advises, “The validity of a marriage will be determined by the local law of
the state which, with respect to the particular issue, has the most significant relationship to the
spouses and the marriage . . . .” And following the Restatement’s guidance several jurisdictions
have determined that even if invalid where solemnized, a marriage can be recognized as valid
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under the law of the forum state. See e.g., Donlann v. Macgurn, 55 P.3d 74, 77-79 (Ariz. Ct.
App. 2002) (Applying Arizona law to recognize an invalid marriage under the law of Mexico,
the court declared that a marriage invalid under the law where the ceremony occurred was valid
in Arizona if it would have been valid had the ceremony been performed in Arizona.); Matter of
Estate of Murnion, 686 P.2d 893, 898-99 (Mont. 1984) (Applying Montana law, the court
recognized a marriage which was invalid in the state of Washington because Washington
retained no interest in the case.); In re Estate of Shippy, 678 P.2d 848, 851-52 (Wash. Ct. App.
1984) (Applying Washington law, the court recognized as valid a marriage that was invalid in
the state of Alaska and declared that, although the validity of a marriage is generally governed by
the law of the state where it is contracted, the state of Washington had a dominant interest in the
validity of the decedent’s marriage because decedent and wife were domiciled in Washington,
decedent’s property was located in Washington, and probate proceedings were pending there.).
See also John C. Williams, Recognition by Forum State of Marriage Which, Although Invalid
Where Contracted, Would Have Been Valid if Contracted Within Forum State, 82 A.L.R.3d 1240
(1978) (collecting cases).
We think the foregoing authorities express the better view as applied to this case. Before
and after their marriage, Indiana was the domiciliary of both McCardle and Edwina, and both
owned real and personal property in the state of Indiana. It appears that the only contact the
parties had with Ohio is that the ceremony was conducted in that state. In essence any interest
Ohio may have in the McCardles’ marriage is overcome by the more substantial interest this
state has in recognizing the marriage of the parties who, after all, obviously anticipated that their
marriage would be valid. See Restatement § 283 cmt. i (noting that the basic policy underlying
the rule recognizing a marriage even where invalid where contracted is “protection of the
justified expectations of the parties”).
Accordingly, we measure the McCardles’ marriage against Indiana’s solemnization
provisions. Before two people may marry in Indiana they must negotiate a multi-step process.
The parties must first obtain a marriage license from the clerk of the circuit court of either
person’s county of residence. I.C. §§ 31-11-4-1, -3. The marriage license issued by the circuit
court is the legal authority for an authorized person to marry the betrothed couple. I.C. § 31-11-
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4-14. The parties must then present the marriage license to a person who is authorized to
solemnize marriages. I.C. § 31-11-4-13. Marriages may be solemnized by, among others, a
member of the clergy of a religious organization. I.C. § 31-11-6-1(1). The person solemnizing
the marriage must complete a marriage certificate and file the certificate and license with the
clerk of the circuit court that issued the license; the clerk must then record the certificate and
license. I.C. § 31-11-4-16.
It is undisputed that Edwina and McCardle complied with the requisite statutes in
obtaining and filing their Indiana marriage license and certificate of marriage with the clerk of
the Ohio County Circuit Court. And there was no evidence presented to the trial court, and no
argument made on appeal, that the couple were married in Ohio with the intent of evading the
laws of this state.3 We conclude that where, as here, a couple has complied with Indiana’s
statutory requirements regarding marriage licenses, certificates, and solemnization, such that the
marriage would have been valid if solemnized in this state, we will recognize the marriage as
valid even if the marriage ceremony took place in another state and did not comply with that
state’s law or public policy.4 It is worth emphasizing however that a couple intending to use or,
3
Indiana Code section 31-11-8-6 provides:
A marriage is void if the parties to the marriage:
(1) are residents of Indiana;
(2) had their marriage solemnized in another state with the intent to
(A) evade IC 31-11-4-4 or IC 31-11-4-11 (or IC 31-7-3-3 or IC 31-
7-3-10 before their repeal); and
(B) subsequently return to Indiana and reside in Indiana; and
(3) without having established residence in another state in good faith,
return to Indiana and reside in Indiana after the marriage is
solemnized.
4
We acknowledge that the Indiana Attorney General concluded that “compliance with Indiana’s statutory
requirements has no effect if the marriage does not comply with the legal requirements of the jurisdiction
in which the marriage actually occurs.” Solemnization of Marriages under Indiana Law, 2004 Ind. Op.
Att’y Gen. No. 3 (2004), available at http://www.in.gov/attorneygeneral/legal/advisory/opinions.html.
However, Attorney General opinions are not binding on the Court. Illinois-Indiana Cable Television
Ass’n v. Pub. Serv. Comm’n, 427 N.E.2d 1100, 1111 (Ind. Ct. App. 1981). We do agree however with
the following conclusion:
[A] couple obtaining an Indiana marriage license but intending to be
married outside of Indiana should be advised to check the legal
requirements of the jurisdiction in which they will be married to
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as occurred here, has already used an Indiana marriage license for an out-of-state marriage
should take the additional step of re-solemnizing their marriage in Indiana in order to avoid
future questions about its validity. See fn. 4.
Conclusion
The trial court granted McCardle’s motion to dismiss based on the lack of standing. We
affirm the judgment of the trial court albeit on a different theory.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
determine what is necessary for a legally binding marriage in that
jurisdiction. If a couple intends to use (or has used) an Indiana marriage
license for an out-of-state marriage, it is advisable to recommend that the
marriage be re-solemnized in Indiana to avoid future question about its
validity.
2004 Ind. Op. Att’y Gen. No. 3 (2004).
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