Porter v. Porter

Re: Porter v. Porter

Case No. CL-2017-6780

NINETEENTH JUDICIAL CIRCUIT OF VIRGINIA COUNTY OF FAIRFAX CITY OF FAIRFAX

October 11, 2017

BRUCE D WHITE, CHIEF JUDGE RANDY I BELLOWS ROBERT J SMITH JAN L BRODIE BRETT A KASSABIAN MICHAEL F DEVINE JOHN M TRAN GRACE BURKE CARROLL DANIEL E. ORTIZ PENNEY S AZCARATE STEPHEN C SHANNON THOMAS P MANN RICHARD E GARDINER DAVID BERNHARD JUDGES

THOMAS A FORTKORT JACK B STEVENS J HOWE BROWN F BRUCE BACH M LANGHORNE KEITH ARTHUR B VIEREGG KATHLEEN H MACKAY ROBERT W WOOLDRIDGE, JR MICHAEL P McWEENY GAYLORD L FINCH JR STANLEY P KLEIN LESLIE M ALDEN MARCUS D WILLIAMS JONATHAN C THACHER CHARLES J MAXFIELD DENNIS J SMITH LORRAINE NORDLUND DAVID S SCHELL RETIRED JUDGES

LETTER OPINION

Daniel B. Schy, Esq.

ShounBach

4000 Legato Road, Suite 400

Fairfax, Virginia 22033

Counsel for the Plaintiff

Valerie E. Hughes, Esq.

The Bowen Law Firm

10521 Judicial Drive, Suite 110

Fairfax, Virginia 22030

Counsel for the Defendant

Dear Counsel:

Before the Court is the Defendant's Motion for Declaration of Marriage Status. The motion presents two legal issues. First, is a marriage void where the parties obtained a valid Virginia marriage license and subsequently held a marriage ceremony conducted by a Virginia-licensed marriage celebrant, but the ceremony took place outside the geographic confines of the Commonwealth? Second, do the facts support a finding that the parties entered into a common law marriage in the foreign jurisdiction? The Defendant's position is that no valid marriage was formed either through the Virginia license or through a common law marriage in the District of Columbia. Plaintiff's position is that if the Court finds no valid marriage was created through the Virginia license, a common law marriage was still formed under District of Columbia law.

With regard to the first question presented in Defendant's Motion, the Court holds that the ceremony contemplated by Virginia's statutes must take place within the Commonwealth and that a ceremony that takes place outside the Commonwealth - even if performed by a Virginia-licensed celebrant - has no legal effect in terms of creating a valid Virginia marriage. Second, the facts do not support a finding that the parties entered into a valid common law marriage under the laws of the foreign jurisdiction.

FACTS

The facts pertinent to the resolution of the matter are not in dispute, and are set forth in a Joint Stipulation. The Court quotes from, and adopts as established facts, the following statements from the Joint Stipulation in Plaintiff's Exhibit 1:

1. The parties scheduled a wedding ceremony for February 25, 2006, in Washington, D.C. (hereinafter as "D.C.");

2. Neither party obtained a marriage license from D.C.;

3. The parties obtained a marriage license from Virginia, but no ceremony was conducted in Virginia;

4. The officiant indicated on the marriage license that a ceremony was conducted in Arlington, Virginia, on February 25, 2006;

5. No such ceremony took place;

6. On February 25, 2006, the parties participated in a wedding ceremony at the New York Avenue Presbyterian Church, located in D.C.;

7. The officiant indicated he was licensed by the Circuit Court of the City of Alexandria, Virginia, to perform marriages in Virginia;

8. At the time of the ceremony, Ms. Porter lived in Virginia, and she has never lived in D.C.;

9. At the time of the ceremony, Mr. Porter lived in D.C.;

10. Approximately thirty to forty friends and relatives of the parties attended the wedding ceremony;

11. During the ceremony, the parties exchanged vows of marriage, thereby stating their intention to be married to each other;

12. At the conclusion of the ceremony, the parties were introduced to those in attendance as Mr. and Mrs. Porter;

13. Following the ceremony, the parties hosted a reception at the church for those in attendance;

14. At the reception, the parties were introduced as husband and wife;

15. At the reception, they participated in the traditional first dance as husband and wife;

16. At the reception, the best man gave a toast to the couple;

17. Following the reception, the parties stayed at a hotel in Washington, D.C. The hotel stay was a gift from Mr. Porter's's [sic] sisters;

18. As a result of both parties being too tired (and Ms. Porter being approximately five months pregnant), the parties elected not to engage in sexual intercourse on the night of the ceremony or the morning thereafter, while in D.C.;

19. From the day immediately following the ceremony until May 2006, the parties did not live in the same residence;20. Since approximately May 2006, the parties have lived together in the same residence;

21. Since approximately May 2006, the parties have lived together in Virginia;

22. Since February 25, 2006, through the parties' separation in September 2015, they both considered themselves to be married, and regularly held themselves out to friends, family, and the community as such;

23. Since February 25, 2006, the parties' [sic] have filed joint tax returns on which they've listed themselves as married;

24. Since February 25, 2006, the parties' [sic] have purchased a home on which they are titled as tenants by the entirety. Said home is located in Virginia;

25. Ms. Porter's daughter, [Redacted] believed the parties to be married, but is aware of the current controversy;

26. The parties' son [] believes the parties to be married;¹

Pl.'s Ex. 1, 1-3 (July 27, 2017).

The parties obtained their license from Fairfax County on February 24, 2006. Def.'s Opening Br. Regarding Decl. of Marriage Status at 2 (hereinafter Def.'s Open. Br.). The Marriage Register was filed with Fairfax County Circuit Court on March 08, 2006. Def.'s Br. Ex. A.

I. Is a marriage void if the parties obtained a valid Virginia marriage license and subsequently held a marriage ceremony conducted by a Virginia-licensed marriage celebrant, but the ceremony took place outside the geographic confines of the Commonwealth?

This is a matter of first impression in Virginia. While Virginia courts have looked at whether a license must be obtained before or after solemnization, see MacDougall v. Richard S. Levick, 66 Va. App. 50 (2016), Virginia courts have not yet decided the issue as to whether a marriage can be considered valid where the solemnization takes place outside the Commonwealth Virginia's Attorney General has, however, dealt with an issue virtually identical to the matter now before the Court.²

A. Relevant Virginia Statutes

Certain sections in Title 20 describe the requirements for a valid marriage to be created under Virginia law.

i. Virginia Code § 20-13

In pertinent part, Virginia Code § 20-13 states that:

Every marriage in this Commonwealth shall be under a license and solemnized in the manner herein provided.

Va. Code Ann. § 20-13 (emphasis added). The license and solemnization requirements are mandatory. See, e.g., Offield v. Davis, 100 Va. 250 (1902) and Eldred v. Eldred, 97 Va. 606 (1899) (finding the statute is mandatory, not merely directory). The phrase "in this Commonwealth" supports the conclusion that the solemnization requirement must occur within the geographic confines of the Commonwealth.

ii. Virginia Code § 20-23

In pertinent part, Virginia Code § 20-23 states as follows:

When a minister of any religious denomination produces before the circuit court of any county or city in the Commonwealth, or before the judge of such court or before the clerk of such court at any time, proof of his ordination and of his being in regular communion with the religious society of which he is a reputed member, or proof that he is commissioned to pastoral ministry or holds a local minister's license and is serving as a regularly appointed pastor in his denomination, such court, or the judge thereof, or the clerk of such court at any time, may make an order authorizing such minister to celebrate the rites of matrimony in the Commonwealth. Any order made under this section may be rescinded at any time by the court or by the judge thereof. No oath shall be required of a minister authorized to celebrate the rites of matrimony, nor shall such minister be considered an officer of the Commonwealth by virtue of such authorization.

Va. Code Ann. § 20-23 (emphasis added).

The critical phrase, for purposes of the issue now before the Court, is "in the Commonwealth." It is not surplusage. Rather, it emphasizes the geographical limitations of the statute. In other words, a Virginia Circuit Court may only authorize a minister to celebrate the rites of matrimony in the Commonwealth.

iii. Virginia Code § 20-31

Virginia Code § 20-31, sometimes referred to as the "curative statute," does not apply tomarriages in the Commonwealth which would be considered void ab initio. See In re Ejigu, 79 Va. Cir. 349, 350 (2009). The text of Virginia Code § 20-31 reads as follows:

No marriage solemnized under a license issued in this Commonwealth by any person professing to be authorized to solemnize the same shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected on account of any want of authority in such person, or any defect, omission or imperfection in such license, if the marriage be in all other respects lawful, and be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.

Va. Code Ann. §20-31.

Thus, Virginia Code § 20-23 addresses two problems: (1) a "want of authority" in the marriage celebrant; and (2) a "defect, omission or imperfection" in the marriage license. Under either circumstance, the marriage must be "in all other respects lawful." In the instant case, there was neither a "want of authority" in the marriage celebrant or a "defect, omission or imperfection" in the license itself. The fact that the marriage license incorrectly stated that the marriage ceremony was conducted in Arlington, Virginia, when it was actually conducted in the District of Columbia, is not a "defect, omission or imperfection," but,...