Candelaria v. Kelly

535 P.3d 234

Richard L. CANDELARIA, Appellant,

v.Michael Edward KELLY, Respondent.

No. 83859

Supreme Court of Nevada.

Filed September 14, 2023

Greenberg Traurig, LLP, and Tami D. Cowden and Elliot Anderson, Las Vegas, for Appellant.

The Dickerson Karacsonyi Law Group and Robert P. Dickerson and Sabrina M. Dotson, Las Vegas, for Respondent.

BEFORE THE SUPREME COURT, EN BANC.

OPINION

By the Court, STIGLICH, C.J.:

In this appeal, we determine the date of a same-sex marriage for the purposes of property division in divorce. Appellant Richard Candelaria and respondent Michael Kelly formally married in California in 2008. At that time, Nevada did not permit same-sex marriage or recognize out-of-state same-sex marriages. In 2015, the United States Supreme Court held in Obergefell v. Hodges that same-sex couples have the fundamental right to marry on the same terms and conditions as opposite-sex couples and that states must recognize same-sex marriages lawfully performed in states that already permitted such marriages. 576 U.S. 644, 675-76, 681, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015). In their 2021 divorce, Richard argued that the district court should backdate the start of the parties’ marriage to either 1991 or 1992—when his relationship with Michael became serious—because they would have married then but for Nevada's unconstitutional ban on same-sex marriage. The district court declined to backdate the marriage, finding no law to support such an action, and relied on 2008 as the date of the marriage. Richard now urges this court to adopt a factor-based test to make such a determination.

As an issue of first impression, we examine Obergefell ’s retroactive effect. We hold that Obergefell requires Nevada courts to recognize same-sex marriages performed in other states even if, at the time of the out-of-state marriage, Nevada did not permit or recognize such marriages. Accordingly, here, we recognize 2008 as the date of the marriage. Obergefell , however, does not require Nevada courts to backdate a marriage. Without a mandate from Obergefell , we consider whether to craft a judicial remedy. Nevada enacted a statutory prohibition on common-law marriage in 1943. To adopt a "but for" factor-based test is akin to recognizing a common-law marriage formed in Nevada, and we decline to craft a judicial exception to this long-standing and express ban. Because the district court order accords with our holdings, we affirm.

FACTS AND PROCEDURAL HISTORY

Appellant, Richard Candelaria and respondent Michael Kelly met in July 1991 and began dating. They moved in together in November 1991 and, over the following years, relocated to various states for lucrative work opportunities for Michael. In July 1992, the couple exchanged rings. When California legalized same-sex marriage in 2008, the couple purchased new rings, traveled to California, and married.

In 2020, Michael filed for divorce. Richard counterclaimed for quantum meruit and breach of an implied contract, arguing that they had an agreement to hold property acquired since November 1991 or July 1992 as community property. Eventually, Michael and Richard agreed to divide most assets evenly. But they did not resolve the character of two assets: (1) Michael's 401(k) account, which he opened in 1984 and did not contribute to after 2008; and (2) Michael's shares of stock acquired as part of his employment between 1996 and 2004.

At a bench trial, Michael argued that because he acquired these assets before the 2008 marriage and did not contribute to the 401(k) account afterward, they are his separate property and not subject to division in the divorce. According to Richard, however, the marriage actually began in either November 1991 or July 1992, and thus the 401(k) account and shares of stock were acquired or funded during marriage and are community property subject to division in divorce. Richard testified that he and Michael would have officially married in November 1991 or July 1992 but for Nevada's unconstitutional prohibition on same-sex marriage. Michael, on the other hand, testified that he did not consider himself married until 2008.¹

The district court entered a divorce decree rejecting Richard's claims and characterizing the 401(k) account and shares of stock as Michael's separate property. Specifically, the court found that Richard and Michael married in 2008 and that no law supported backdating the start of the marriage to the beginning of the relationship to remedy the unconstitutional ban on same-sex marriage. Richard appeals.²

DISCUSSION

We review the disposition of community property for an abuse of discretion. Kogod v. Cioffi-Kogod, 135 Nev. 64, 75, 439 P.3d 397, 406 (2019). However, we review the interpretation of caselaw and statutes de novo. Liu v. Christopher Homes, LLC, 130 Nev. 147, 151, 321 P.3d 875, 877 (2014) (caselaw); Zohar v. Zbiegien , 130 Nev. 733, 737, 334 P.3d 402, 405 (2014) (statutes).

When Richard and Michael began dating, Nevada did not recognize same-sex marriages as a matter of statutory law. NRS 122.020(1) (1991). In 2002, Nevada voters amended the state constitution to provide "[o]nly a marriage between a male and a female person shall be recognized and given effect in this state." Nev. Const. art. 1, § 21 (repealed 2020). In 2014, the Ninth Circuit Court of Appeals held that Nevada's ban on same-sex marriage was unconstitutional and that Nevada must recognize same-sex marriages. Latta v. Otter, 771 F.3d 456, 476-77 (9th Cir. 2014). In 2015, the United States Supreme Court in Obergefell held that "the right to marry is a fundamental right," in part because of the "constellation of benefits" that attach to marriage. Obergefell , 576 U.S. at 670, 675, 135 S.Ct. 2584. The court then held that "same-sex couples may exercise the right to marry" on the same terms and conditions as opposite-sex couples (right-to-marry holding) and that states must "recognize a lawful same-sex marriage performed in another State" (recognition holding). Id. at 665, 681, 135 S.Ct. 2584. In 2020, Nevada voters amended the state constitution to provide "[t]he State of Nevada ... shall recognize marriages and issue marriage licenses to couples regardless of gender." Nev. Const. art. 1, § 21.

Obergefell's recognition holding applies retroactively to require Nevada-courts to recognize out-of-state same-sex marriages licensed and performed before 2014

The Supreme Court has "recognized a general rule of retrospective effect for the constitutional decisions of th[e Supreme] Court." Harper v. Va. Dep't of Taxation , 509 U.S. 86, 94, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (internal quotation marks omitted). When a new constitutional rule is applied, "that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate [the] announcement of the rule." Id. at 97, 113 S.Ct. 2510. We join many jurisdictions in concluding that Obergefell applies retroactively. See, e.g., LaFleur v. Pyfer , 479 P.3d 869, 874 (Colo. 2021) ("[W]e conclude that [ Obergefell ] applies retroactively to marriages (including common law marriages) predating that decision."); In re J.K.N.A., 398 Mont. 72, 454 P.3d 642, 649 (2019) (" Obergefell ’ s holding that state prohibitions against same-sex marriage violate the United States Constitution operates retroactively in relation to [a party's] claim that a common law marriage existed with [her same-sex partner] ...."). Here, Obergefell ’ s holding that states must recognize same-sex marriages lawfully licensed and performed in another state applies retroactively so that we must recognize the 2008 California marriage despite Nevada's prohibition at that time. See LaFrance v. Cline, No. 76161, 2020 WL 7663476, at *2 (Nev. Dec. 23, 2020) (Order Affirming in Part, Reversing in Part, and Remanding) (holding that Obergefell ’s recognition holding applies retroactively so that Nevada courts must recognize a 2003 marriage between a same-sex couple).

Obergefell's right-to-marry holding cannot be given pre-marriage retroactive effect in this case

While recognition may apply retroactively, Obergefell does not say that same-sex couples in committed relationships will be deemed married before they meet the legal requirements of marriage—which Richard and Michael did when they married in 2008 in California. Rather, Obergefell demands that same-sex couples be afforded the opportunity to marry and the benefits attached to marriage on the same terms and conditions as opposite-sex couples. Obergefell, 576 U.S. at 675-76, 135 S.Ct. 2584. Accordingly, in states recognizing common-law marriages, Obergefell 's right-to-marry holding has retroactive effect because in those states opposite-sex couples may prove a common-law marriage formed before the Obergefell decision, so same-sex couples must be afforded the same opportunity See, e.g., LaFleur , 479 P.3d at 882 ("Because a different-sex couple may prove a common Jaw marriage in Colorado predating 2014, a same-sex couple must also have that opportunity."); In re J.K.N.A. , 454 P.3d at 649 (holding that Obergefell applies retroactively for a claim that a common-law marriage existed).

In contrast, the right-to-marry holding has no retroactive effect here because Nevada does not recognize common-law marriages. In Nevada, "[c]onsent alone will not constitute marriage; it must be followed by solemnization as authorized and provided by [NRS Chapter 122]." NRS 122.010(1). Solemnization requires the parties to declare, in the presence of an authorized official and at least one witness, that "they take each other as spouses." NRS 122.110(1), (2). Nevada does not recognize common-law marriages formed after March 29, 1943, NRS 122.010(2), and this court has consistently reaffirmed that Nevada does not recognize such marriages, Gilman v. Gilman, 114 Nev. 416, 421 n.1, 956 P.2d 761, 764 n.1 (1998) ; Watson v....