PATRICIA BATES v. MICHELLE N. BATES; JAMES L. BATES; AND JOHN HANES
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RENDERED: September 10, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-003000-MR
PATRICIA BATES
v.
APPELLANT
APPEAL FROM WOODFORD CIRCUIT COURT
HONORABLE DAVID L. KNOX, JUDGE
ACTION NO. 96-CI-000043 & 96-CI-000087
MICHELLE N. BATES; JAMES L.
BATES; AND JOHN HANES
APPELLEES
OPINION AND ORDER
AFFIRMING IN PART, REVERSING IN PART
AND REMANDING WITH DIRECTIONS
** ** ** ** **
BEFORE: BUCKINGHAM, JOHNSON, and KNOPF, JUDGES.
JOHNSON, JUDGE: Patricia Bates (Patricia) has appealed from the
judgment of the Woodford Circuit Court entered on September 25,
1997, which determined that a valid common-law marriage existed
between her husband, the appellee, James L. Bates (James), and
the appellee, Michelle N. Bates (Michelle).
Patricia has also
appealed various interlocutory rulings entered prior to the trial
court’s final order on the issue of the existence of the
James/Michelle marriage.
remand with directions.
We affirm in part, reverse in part and
The facts and procedural history of this case are both
vexatious and bizarre.
James and Michelle entered into a
statutory ceremonial marriage in Kentucky on November 21, 1980.
Kentucky Revised Statutes (KRS)402.050.
This was James’ second
marriage and Michelle’s first marriage.
James and Michelle moved
to Georgia and, in 1982, their son, James Landon Bates, Jr.
(Landon), was born.
James and Michelle had marital problems and,
in 1984, Michelle sought a dissolution of the marriage.
25, 1985, their marriage was dissolved by decree.1
On June
Although
their marriage had been dissolved, James and Michelle continued
to cohabit.
Nevertheless, the parties carried out the provisions
for distributing property contained in their settlement
agreement.
While the parties dispute that James paid Michelle
all the amounts required as maintenance under the agreement,
James’ income tax returns after the divorce contain deductions
for alimony.
returns:
Further, James and Michelle no longer filed joint
James filed as head-of-household; the only return in
the record filed by Michelle after the dissolution, her 1985
return, listed her as a single person.
1
Under the terms of their property settlement agreement,
incorporated into the decree, Michelle was awarded custody of
Landon, James was required to pay child support in the amount of
$400 per month (to increase to $500 per month in 1990).
Additionally, James was required to maintain health insurance on
Landon, pay half of his medical bills not covered by insurance,
maintain a life insurance policy with Landon as the beneficiary,
and pay one-half of Landon’s college expenses. Michelle was
ordered to convey her interest in the real property in exchange
for $8,000, her share of its equity, and she was awarded $18,000
in lump-sum maintenance to be paid over four years. Michelle was
also allowed to remain in the marital residence until September
1, 1985.
-2-
In 1987, James’ job required that he relocate to
Minnesota.
Michelle and Landon moved with James and they
continued to live together in that state until 1988.
In that
year, after a trip to Europe, Michelle and Landon moved to
Kentucky and established a residence in Lexington.
on weekends.
James visited
At some point, Michelle learned that James was
dating Patricia and the intimate relationship of James and
Michelle ended.
In September 1989, Michelle filed a petition in the
Franklin Circuit Court seeking modification of the Georgia
divorce decree.
She alleged in that petition that
notwithstanding the proceedings in Georgia, she and James did not
separate until August 1988.
In a memorandum submitted in that
case, she argued as follows:
The Court should view this arrangement as a
common law marriage which is recognized under
Georgia law. Under the law of that
jurisdiction [ ] the parties [met the]
threefold marriage test; they were able to
contract, held themselves out to the world as
married, and were reputed by all who knew
them to be married. The divorce was a sham
engineered by [James] when he sold his
valuable company.
In his response to her memorandum, James argued that in order for
a valid common-law marriage to exist under Georgia law, there
must have been a contract predicated on a “meeting of the minds.”
The response further provided:
Finally, Petitioner [Michelle] alleges a
common law marriage between the parties. . .
. Unfortunately, the three part test she
cites is not the test as recognized by the
State of Georgia. OCGA § 19-3-1 gives the
three prerequisites to a valid marriage:
(1) Parties able to contract;
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(2) An actual contract; and
(3) Consummation according to law.
. . . To have a contract there must be a
meeting of the minds. The Respondent [James]
most emphatically maintains there was never a
meeting of the minds between the parties in
contemplation of a common law marriage.
Thus, according to Georgia law, the action
for a modification for spousal support should
be dismissed.”
The Franklin Circuit Court declined to modify the maintenance
provisions of the Georgia decree finding that “a sum certain has
been paid to [Michelle] and maintenance is not now modifiable.”
Although that court did not specifically address Michelle’s claim
of entitlement to maintenance based on her claim that she and
James had entered a common-law marriage after the dissolution,
that claim was clearly rejected by implication.
Michelle did not
appeal that ruling.
On October 11, 1990, James married Patricia in a
statutory ceremony in Minnesota.
Although she testified that she
believed herself to be still married to James, Michelle testified
that she did not alert Patricia to that fact.2
2
James continued
In a pretrial deposition, Michelle testified as follows:
Q. Michelle, you indicated that when you
purchased your home in 1990 that Jim had
already gotten married and you knew by the
time that you purchased that home that they
were married? . . . Did you present yourself
on Jim’s doorstep to let Patty know that you
were already married to him?
A. I wouldn’t come to her doorstep to talk
to her about anything. I had nothing to
discuss with her.
Q. So you did not let her know that you were
married to him?
(continued...)
-4-
to support Landon per the Georgia divorce decree.
A few days
after James and Patricia married, Michelle purchased a house in
Lexington.
The deed, which as a grantee she was required to
execute, described Michelle as a single person.
KRS 382.135.
She testified that the reason she represented herself as a single
person was because to do otherwise “would have opened up a can of
worms and I couldn’t have got the house.”
married in January 1992.
Michelle herself re-
That marriage, to John Hanes, was
dissolved by the Franklin Circuit Court in May 1993.
In 1992,
James and Patricia moved to Kentucky and built their marital
residence on a 65-acre farm in Woodford County purchased by James
prior to their marriage.
James and Patricia, who had no children together,
separated in January 1996. Patricia commenced this action on
2
(...continued)
A. We don’t have anything to discuss.
Q. That’s not my question. Did you let her
know that you were married to Jim Bates?
A.
Patty and I do not talk.
Q. Okay. Can you be responsive to the
question I ask you?
A.
I can’t answer it.
[Q.] I mean, it’s a simple yes or no
question.
A.
We did not talk.
Q. Yeah. But did you communicate with her
some other way?
A. No, I did not communicate. We do not
have any communications. We never have.
-5-
February 7, 1996.
By agreement, Patricia was allowed to reside
in a trailer located on the farm during the pendency of the
dissolution action and received $1,200 per month for her living
expenses.
James moved to Florida soon after the dissolution
proceedings were commenced.
With two minor exceptions not
relevant to the issues in this appeal, James admitted the
allegations contained in Patricia’s petition for dissolution.
He
also asked the court for a decree dissolving his marriage and for
the restoration of each party’s non-marital property and a
equitable division of the marital estate.
The complexion of the dissolution action changed on
March 21, 1996, when Michelle filed a petition for dissolution
against James in the Woodford Circuit Court, naming Patricia and
John Hanes3 as additional respondents.
Michelle claimed that
“from and after June 25, 1985, [she and James] entered into a
common law marriage, valid and recognized by law in the state of
Georgia.”
Because that marriage had never been dissolved, she
alleged that the marriage between James and Patricia, and her own
marriage to John, were “void and must be disregarded and declared
void” by the trial court.
Michelle asked for a jury trial on the
issue of the validity of her common-law marriage to James, that
the trial court enter a judgment annulling the marriage of James
and Patricia, that her marriage to James be dissolved, and that
the court make a “fair, reasonable and equitable division of the
marital property and marital debts which accumulated during the
3
Mr. Hanes has never responded to the petition or
participated in this litigation in any manner.
-6-
marriage.”
Patricia raised several defenses in her answer
including estoppel4, laches, standing and statute of limitations.
On May 31, 1996, Patricia moved the trial court to dismiss
Michelle’s case, or in the alternative, to consolidate
Michelle’s’s case with her own action for dissolution.
James’ response to Michelle’s complaint and petition
for dissolution was quite different from the one he had made to
the same allegations raised by Michelle in the 1989 Franklin
Circuit Court modification action.
This time, James alleged that
he was
without sufficient knowledge to determine
whether his cohabitation with [Michelle]
subsequent to their dissolution of marriage
in June, 1985, in Georgia, constitute[d] a
common law marriage as recognized in the
state of Georgia.
James acknowledged that he and Michelle continued to cohabit
after their divorce, but he alleged that he was “unable to affirm
or deny the allegation” in Michelle’s complaint as it pertained
to the validity of the common-law marriage between himself and
Michelle, and thus, denied the allegation “reserving the right to
amend his answer upon obtaining additional information.”
4
In his
The allegations underpinning this argument are that
Michelle knew that Patricia married James in 1990, and that
Michelle took “no step[s] to dissuade [Patricia] from the belief
that she had entered into a valid marriage”, that Michelle had
never notified Patricia of Michelle’s claim, that by failing to
seek a dissolution of her alleged common-law marriage after
learning of James’ and Patricia’s 1990 statutory ceremonial
marriage and by herself entering into a statutory ceremonial
marriage with John in 1992, Michelle “create[d] the impression”
that she was not married to James. Patricia alleged that
Michelle’s actions were “inconsistent” with those of a person who
believes she is married and those actions encouraged Patricia to
“change her position to her detriment” and should estop Michelle
from claiming that she was married to James.
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answers to interrogatories executed the same day as his response,
James stated, “[I] can not speculate as [to] why Michelle N.
Bates believes that a contract to marry was made, nor when or
where such belief occurred.”
He asked the court to enter a
dissolution of marriage to whichever of the petitioners it
determined was his legal spouse, and if that were Michelle, to
declare his marriage to Patricia void.
James, however, did not
join Patricia’s motion to dismiss Michelle’s complaint/petition,
and in fact, took the position that any financial obligations to
Patricia arising from their marriage would be avoided if Michelle
prevailed in establishing the validity of the common-law
marriage.
In its order of October 1, 1996, the trial court determined
that Michelle had no standing to challenge the validity of the
marriage of James and Patricia, however, it held that she could
seek a determination of the validity of her own marriage with
James.
The order provided as follows:
In her Complaint, Michelle requests this
Court to declare that she had a valid commonlaw marriage with James; she then petitions
the Court to dissolve that marriage. This
Court concludes that KRS 402.250 authorizes
Michelle to petition the Court to affirm her
marriage with James.
With respect to the existence of any
common-law marriage between Michelle and
James, 52 AmJur2d Marriage, Section 166
(1970) provides that the existence of a valid
marriage is a question of fact to be decided
by the jury, whether a ceremonial or commonlaw marriage is alleged, except where the
facts are not in dispute. From the record,
this Court cannot conclude with certainty
whether or not a valid common-law marriage
existed between Michelle and James.
Therefore, it appears to this Court that the
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issue as to the existence of the marriage
must be decided by a jury.
If Michelle’s common-law marriage with
James is affirmed, then it would appear to
render James’s marriage with Patricia
prohibited and void pursuant to KRS
402.020(2). If Patricia’s marriage is void,
it would seem to this Court that it is
without authority to grant her petition for
dissolution of her marriage, since a Court
can only make such Orders in favor of a
lawful wife, see Rose v. Rose, Ky., 118
S[.]W[.]2d 529, 532 (1938) (Court without
power to award alimony since marriage was
void). From that, it seems to this Court
that the issue as to the existence of the
common-law marriage must be resolved before
this Court can proceed with the other matters
before it relating to the dissolution of the
marriage of Patricia and James.
The trial court denied Patricia’s motion to dismiss.
It rejected
her defenses of equitable estoppel, laches, and statute of
limitations for the reason that to bar Michelle from asserting
the existence of a valid common-law marriage regardless of the
time that had passed or any actions inconsistent with her status
as James’ wife “would be sanctioning a void and bigamous
marriage.”
Finally, the trial court consolidated the two actions
pursuant to Kentucky Rules of Civil Procedure (CR) 18.02.
On May 1, 1997, after further discovery, Patricia moved
the trial court for permission to amend her pleadings to assert a
counterclaim against Michelle and a cross claim against James for
fraud, and alternatively, a claim against James for dissolution
of the partnership between herself and James, the principal asset
of which was the corporation known as First Technology Capital,
Inc. of Minnesota, allegedly worth $0 at the commencement of
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their relationship and $14 million at the time of the
dissolution.5
In his response to the motion to amend, James argued
that the trial court lacked jurisdiction to entertain the
counterclaim and/or cross claim as “any inducement to marry,
fraudulently or not, occurred in Minnesota.”
On May 9, 1997,
Patricia again moved the trial court to dismiss Michelle’s
complaint on the grounds that the suit was collusive and barred
by the doctrine of collateral estoppel.
Patricia made these
allegations based on James’ failure to raise the 1989 Franklin
Circuit Court judgment as a bar to Michelle’s 1996 action to
validate her alleged common-law marriage, and on James’ actions
in reaching a property settlement agreement with Michelle in the
action filed by her in Woodford Circuit Court in 1996.
Patricia
argued that although James had, in 1989, vehemently denied that
he and Michelle had contracted to marry after their divorce and
was successful in avoiding paying further alimony to Michelle,
James became equivocal on the issue and did not attempt to use
5
Relevant portions of the amended complaint read as follows:
5. James Bates did knowingly, intentionally
and with reckless disregard for Patricia
Bates, fraudulently represent his status to
Patricia K. Bates, in an effort to obtain the
benefits of marriage from Patricia Bates,
including financial support, sexual contact,
services both familial and professional;
. . .
2. Mrs. Michelle Bates concealed [the act of
her common-law marriage] with the express
knowledge that Patricia Bates was providing
substantial monies, services and sexual
contacts to Mr. James L. Bates as an incident
of her belief that she was lawfully married
to Mr. James L. Bates.
-10-
collateral estoppel as a bar to Michelle’s suit in this action.
Further, she alleged that James and Michelle had entered into a
property settlement agreement on August 31, 1996, which provided
that James would pay Michelle $8,000, upon the execution of the
agreement and $48,000 ($800 per month for 60 months), if the
trial court found that they were validly married.
Patricia
alleged that James and Michelle “and their respective attorneys”
were “acting collusively” to deprive her of her equitable share
of the estate amassed during her marriage to James.
Patricia
also moved the trial court for summary judgment on the issue of
the existence of a common-law marriage between Michelle and
James.6
In the meantime, James and Michelle agreed to waive
their right to a jury trial on the issue of whether they had a
valid marriage.
On May 23, 1997, the trial court entered an order holding
Patricia’s motion to amend her pleadings and her motion for
summary judgment in abeyance pending a hearing concerning the
common-law marriage between James and Michelle.
The trial court
also made the following ruling which is challenged in this
appeal:
In addition, the Defendant, Patricia Bates,
shall not be permitted to put on evidence or
cross-examine any witnesses concerning the
alleged common law marriage of James Bates
and Michelle Bates at the hearing on common
6
In making this motion, Patricia relied on the deposition
testimony of the Hon. Judge Thomas Cauthorn, formerly a Superior
Court Judge in Cobb County, Georgia, who, after familiarizing
himself with the evidence of record, opined that Michelle’s claim
that she and James had a common-law marriage would not survive a
motion for summary judgment in Georgia. This deposition is not
included in the record on appeal.
-11-
law marriage on May 26, 1997. Nor shall the
Court consider any in limine or pretrial
Motions of Patricia Bates concerning the
issue of James[’] and Michelle’s alleged
common law marriage.
On May 26, 1997, an evidentiary hearing was conducted
before the trial court.
Patricia’s counsel was permitted to
attend; however, his participation was severely restricted as
provided by the pre-trial order.
At the conclusion of the
hearing, post-trial memoranda were submitted by all three
parties.
Both James and Michelle argued that they had
established a valid common-law marriage under Georgia law and
both asked the trial court to enter a judgment declaring their
marriage valid and declaring the marriage between James and
Patricia void ab initio.
In its order of September 25, 1997, the trial court held as
follows:
In this case, this Court believes that the
proof is beyond dispute but that Jim and
Michelle cohabited and held themselves out to
the world as husband and wife. While Jim and
Michelle give somewhat varying testimony as
to the method of agreement or the words of
agreement used to establish a common law
marriage, it appears that Michelle believed
in good faith during the time that the
parties cohabited together that they were
married. It further appears that, based upon
Jim’s testimony, he furthered and encouraged
that belief by re-establishing the same
family relationship as existed before the
divorce decree. This Court believes that the
fact that the parties had an existing
previous ceremonial marriage and the fact
that they do not appear to have altered the
marital lifestyle and arrangement they
enjoyed prior to the entry of the 1985
divorce decree confirms that Jim and Michelle
did enter into an agreement to continue their
marital relationship until their 1989
separation.
-12-
Since this Court believes that the
evidence heard by the Court, not only from
the parties, but from their friends and
family, is sufficient direct evidence that
the parties established a common law
marriage, then, considering the Evans [v.
Marbut, Ga.Ct.App., 231 N.E.2d 94 (1976)]
case, this Court believes the issue is
whether the circumstances subsequent to their
1989 separation cited by Patricia are
sufficient to overcome the direct proof of
the existence of the common law marriage.
First, with respect to the fact that
Michelle filed a 1985 tax return in a single
capacity, this Court notes that the Georgia
Courts have held that, while such evidence
should be considered, it does not necessarily
overcome direct proof of the existence of a
common law marriage, Beals v. Beals, Ga.
App., 416 S[.]E[.]2d 301 (1982).
Second, the record confirms that,
subsequent to their final separation, and in
the Franklin Circuit Court action, both
parties engaged in acts and made allegations
inconsistent with their position that a
common law marriage was established.
Further, in the context of this action, Jim
has either denied the existence of a common
law marriage, or has taken a somewhat
equivocal position as to whether one was
established. And finally, both parties
entered into ceremonial marriages with other
parties prior to Michelle’s filing of this
dissolution action.
However, this Court again expresses the
belief that, based upon the Evans case, since
clear and persuasive evidence exists that the
parties, subsequent to their 1985 divorce,
re-established their marriage as a common law
marriage, those subsequent events are not
sufficient to overcome that direct evidence.
On October 6, 1997, Patricia moved the trial court to
alter, amend or vacate the judgment.
Patricia again argued that
Michelle’s claim was barred by the doctrine of collateral
estoppel, that the trial on the issue of the alleged common-law
marriage was “collusive and not truly adverse,” that she did not
-13-
lack standing to participate in the trial and should have been
allowed to fully participate, particularly as the trial was not
adversarial.
She also argued that Michelle failed to present
evidence sufficient to fulfill her burden of proof in light of
the “presumption of the validity of the last-in-time marriage.”
Again, she asked to be allowed to amend her pleadings to allege
fraud.
On October 15, 1997, the trial court entered a decree
dissolving the common-law marriage of James and Michelle which
incorporated the property settlement agreement entered into by
those parties the previous August.
See p.12, supra.
It denied
Patricia’s CR 59 motion on November 13, 1997, without
elucidation.
In a separate order entered the same day, the trial
court held Patricia’s motion to amend her pleadings in abeyance
indefinitely.
Patricia filed her notice of appeal on November
14, 1997.
Before addressing the issues raised in this appeal, it
is necessary to dispose of the motions made by James and Michelle
to dismiss the appeal for lack of finality.
these motions.
We find no merit to
Both appellees insist that the judgment entered
on September 27, 1995, is not final as it does not contain the
recitals pursuant to CR 54.02 that are necessary to confer
jurisdiction on this Court to entertain an appeal of a judgment
resolving less than all the claims in a case involving multiple
parties and/or claims.
The appellees are correct that the
judgment does not state that it is final and appealable, or that
there is no cause for delay.
However, there is no necessity for
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the recitals if the judgment of the trial court resolves
directly, or by implication, all the issues pending before it.
CR 54.01.
It is abundantly clear that the trial court’s order of
October 1, 1996, in which it concluded that the void marriage
doctrine would govern Patricia’s dissolution proceeding if her
marriage were a bigamous marriage, combined with its judgment of
September 27, 1995, in which it found a valid common-law marriage
to exist between James and Michelle, and finally, its order of
November 13, 1997, denying Patricia’s motion for a new trial, or
in the alternative, to alter, amend or vacate the judgment,
adjudicated all the claims of all the parties pending before it.
The trial court had, as noted above, previously determined that
if James and Michelle had a valid common-law marriage, Patricia’s
marriage was void ab initio, leaving it without the authority to
further adjudicate the claims raised in her petition for
dissolution.
There is not doubt, as we glean from the record,
that both James and Michelle interpreted the judgment as final in
all aspects and argued as such in to the Woodford Circuit Court
in response to various post-judgment motions.7
7
Having argued to
For example, in his response to Patricia’s renewed motion
to amend her pleadings, James stated:
On September 25, 1997, this Court entered its
order recognizing the valid common law
marriage between Jim and Michelle, and
thereby, necessarily determining that Jim and
Patty were not and never have been married.
Realizing her petition for dissolution of
marriage is no longer viable, Patty now seeks
to amend her petition to allege new causes as
action....[T]his Court’s September 25, 1997
Order serves to effectively dismiss Patty’s
(continued...)
-15-
7
(...continued)
petition for dissolution of marriage filed in
Civil Action 96-CI-000043.`
In a similar vein, James made the following response to
Patricia’s motion for a temporary injunction on October 8, 1997,
seeking an order requiring James to continue to pay her support
and maintain medical insurance until the matter was concluded:
[Patricia] is not entitled to a temporary
injunction on the basis that this is no
longer a pending action, but rather an action
wherein a final opinion has been
rendered....After memoranda were filed by
counsel for all parties, this Court rendered
an Opinion, Conclusions of Law and Judgment
on September 25, 1997, determining that there
was a valid common law marriage between James
L. Bates and Michelle N. Bates, and in effect
rendering the marriage between James L. Bates
and Patricia K. Bates void abinitio [sic].
It is therefore the position of [James] that
this matter is no longer a pending action, a
final judgment having been entered, and
therefore pursuant to CR 65.04 [Patricia] is
not entitled to a temporary injunction.
Likewise, Michelle argued that there were no pending matters, and
that the September 25, 1997, judgment adjudicated all the claims
raised in Patricia’s petition for dissolution, as follows:
This Court has ruled that a common-law
marriage existed between James and Michelle
bates, therefore Patricia Bates had no
marriage relationship with James and cannot
suffer from any such loss by any actions on
the part of James Bates. On the contrary,
Patricia Bates has financially benefitted
[sic] from the marital estate of James and
Michelle Bates during the five years that she
co-habited with James Bates. In [an] effort
to bring this matter to a conclusion and
avoid further embarrassment for all
concerned, Michelle Bates had elected not to
attempt to recover from James her share of
the marital funds expended on behalf of
(continued...)
-16-
the trial court that Patricia should be denied any further relief
pendente lite, and that she should not be allowed to amend her
pleadings to assert other claims after a “final” order was
entered, we find James’ and Michelle’s contentions in this Court
that the appeal should be dismissed for lack of finality to be
somewhat disingenuous.
See Kennedy v. Commonwealth, Ky., 544
S.W.2d 219, 222 (1976) (a party to an appeal may not “be
permitted to feed one can of worms to the trial judge and another
to the appellate court”).
In any event, it is this Court’s duty
to “determined for itself whether it is authorized to review the
order appealed from.”
(1978).
Hook v. Hook, Ky., 563 S.W.2d 716, 717
Having reviewed the entire record, it is apparent that
the September 27, 1995, judgment is a final judgment, that all
the claims pending before the trial court were disposed of, and
that the issues resulting from the judgment are now ripe for our
review.
The other ground asserted for lack of finality is that
the trial court’s order of November 13, 1997, abating
indefinitely Patricia’s motion to amend her pleadings, left
matters pending before the Woodford Circuit Court so as to
7
(...continued)
Patricia Bates during that period.
Michelle asked that the trial court overrule the motion for
temporary injunction and terminate any maintenance to Patricia as
“Patricia Bates ... is not nor has she ever been a legal spouse
of James Bates.”
-17-
preclude our review.
Obviously, since the trial court did not
allow Patricia to amend her pleadings to assert various tort
and/or contract claims against James and Michelle, those claims
were not pending so as to affect the finality of the judgment.
Accordingly, the motion to dismiss is denied.
In her appeal, Patricia makes the following arguments:
(1) the trial court erred in its determination that she had no
standing to participate in the trial on the issue of whether
James and Michelle had a valid common-law marriage; (2) the trial
court erred in declining to dismiss Michelle’s claim on the basis
of collateral estoppel; and, (3) the trial court erred in
refusing her demand for a jury trial on the issue of the
existence of a common-law marriage.
Patricia first argues that the trial court erred to her
prejudice by restricting her participation at the trial on the
issue of whether James and Michelle had a valid common-law
marriage by prohibiting her from introducing evidence or crossexamining witnesses.
Both James and Michelle contend that there
was no error as the trial court had “severed” the issue of the
existence of the common-law marriage from the issues contained in
Patricia’s dissolution petition.
They further argue that since
Patricia was not present from 1985 to 1988, the years the commonlaw relationship occurred, Patricia would not have any
“information concerning the relationship or transactions between
James and Michelle during that time period.”
If we agreed with the trial court’s ruling of October
1, 1996, that the validity of Patricia’s marriage to James,
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and/or her rights upon dissolution, were dependent upon or
affected by its resolution of the issue of the existence of the
James/Michelle common-law marriage, we would not hesitate to
reverse and remand the matter for a new trial with Patricia’s
full participation.
Michelle’s petition.
Patricia was, after all, named as a party in
More importantly, if, as the trial court
determined, a finding in favor of Michelle required the
determination that Patricia’s marriage was void ab initio, there
would be no question that Patricia had “a real, direct, present
and substantial right in the subject matter of the controversy.”
Williams v. Phelps, Ky.App., 961 S.W.2d 40, 41 (1998).
However, we find no error in the trial court’s ruling that
Patricia lacked standing to participate in the common-law
marriage issue, but for reasons different than those proffered by
the trial court.
First, KRS 402.250, the statue under which
Michelle was proceeding provides as follows:
Where doubt is felt as to the validity of
a marriage, either party may, by petition in
Circuit Court, demand its avoidance or
affirmance; but where one (1) of the parties
was within the age of consent at the time of
marriage, the party who is of proper age may
not bring such a proceeding for that cause
against the party under age.
Clearly, the only persons with standing to seek “avoidance or
affirmance” of a doubtful marriage are the parties themselves.
Second, while Michelle had standing to seek a determination of
the validity of her own marriage, she cannot use that
determination to collaterally attack Patricia’s marriage to
James.
In other words, the legal conclusion of the trial court
that James and Michelle had a valid common-law marriage has no
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preclusive effect on the issues involved in Patricia’s
dissolution action, negating any standing on Patricia’s part to
contest the action between James and Michelle.
The trial court erred as a matter of law early in this
litigation by its determination that a finding that James and
Michelle had a valid common-law marriage would deprive it of
“authority to grant [Patricia’s] petition for dissolution of her
marriage,” or divide the marital estate, or award maintenance.
The trial court’s reliance on the void marriage doctrine and the
1938, Rose case was misplaced.
The law concerning void marriages
was dramatically changed in 1972 by the passage of KRS 403.120,
which, in pertinent part, provides:
(1) The Circuit Court shall enter its decree
declaring the invalidity of a marriage
entered into under the following
circumstances:
. . .
(C) The marriage is prohibited.8
(2) A declaration of invalidity under
paragraph (a), (b) or (c) of subsection (1)
may be sought by any of the following persons
and must be commenced within the times
specified, but only for the causes set out in
paragraph (a) may a declaration of invalidity
be sought after the death of either party to
the marriage:
. . .
(b) For the reason set forth in
paragraph (c) of subsection (1), by either
party, no later than one (1) year after the
petitioner obtained knowledge of the
described condition.
8
Prohibited marriages are defined in KRS 402.020 to include
one “[w]here there is a husband or wife living, from whom the
person marrying has not been divorced[.]”
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It is clear from the plain words of the statute that
the only persons who can seek to declare a bigamous marriage void
or invalid, are the parties themselves.
Patricia, of course,
does not want such a declaration-- she wants a dissolution and an
equitable distribution of the marital estate.
James, the only
other person with standing to seek such a determination, is
prevented by the one-year time limitation from seeking a
declaration of invalidity.9
Had the trial court not failed to
recognize that these statutory provisions altered the common-law
concerning void marriages, the litigation between James and
Michelle and Patricia would have taken a much different course.
There have been very few cases since 1972 requiring the
application of KRS 403.120.
However, this Court’s holding in
Ferguson v. Ferguson, Ky.App., 610 S.W.2d 925 (1980), makes it
clear that Michelle cannot directly attack the James/Patricia
marriage, or collaterally attack the marriage by virtue of her
KRS 402.250 proceeding.
In that case, the only child of the
decedent attempted to challenge the appointment of his father’s
second wife as the administratrix of his father’s estate.
There
was no question that the marriage between the father and his
second wife was a bigamous marriage as the father had married his
second wife prior to a divorce from his former wife, the mother
of the appellant.
In affirming the circuit court’s determination
9
If he did not know of the existence of his common law
marriage to Michelle before 1989, James was certainly made aware
of the “described condition” in 1989, before his marriage to
Patricia, by the pleadings filed in the Franklin Circuit Court.
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that the son/appellant lacked standing to contest the appointment
of the second wife, this Court held as follows:
Clearly, it is within the power of the
legislature to enact statutes governing both
marriage and the invalidation of certain
marriages. Enacted in 1972, KRS 403.120 was
in effect seven years before the decedent’s
death. Furthermore, the enactment of KRS
403.120 represented a conscious recognition
on the part of the legislature that a
previous policy of allowing a collateral
attack on marriages created unfair, economic
penalties for the surviving spouse. See
Petrilli, Family Law, §§ 10.2-10.7 (1977
Supplement). In effect, the legislature
determined that the only effect of
invalidating marriages such as that between
the decedent and the appellee would be to
create unexpected hardship for the appellee
by denying her her dower rights, as well as
her expectations of social security and other
benefits. See Uniform Marriage and Divorce
Act, (U.L.A.), Commissioners Prefatory Note,
p.92 in s 208, p. 113.
Id. at 927.
This Court soundly rejected the son’s argument that
a bigamous marriage is void ab initio and “subject to collateral
attack at any time by any person.”
The fact, in the instant case, that both parties remain
alive does not alter the policy considerations underlying the
statute, thus the result should be no different.
The trial
court’s pre-trial ruling, that a decision in favor of Michelle
would automatically result in Patricia’s marriage being void,
created “unfair, economic penalties” for Patricia, who the record
reveals, had no idea that there was any impediment to her
marriage.
The trial court’s concern that any other result “would
be sanctioning a void and bigamous marriage,” should have given
way to the Legislature’s policy, expressed in KRS 403.120, to
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prevent the harsh penalties that would otherwise befall an
innocent spouse under the void marriage doctrine.
Thus, it is our holding that the trial court erred in
consolidating these cases and in allowing Michelle to do
indirectly what she is statutorily precluded from doing directly,
that is, to have Patricia’s marriage to James declared invalid
and void.
The trial court should proceed with Patricia’s
petition to dissolve her marriage without reference to the
proceedings commenced by Michelle.
All issues raised in
Patricia’s petition and in James’ response to that petition,
including entitlement to maintenance, amount of maintenance and
division of marital property, should be resolved by the trial
court without consideration of those sums paid by James to his
common-law wife, Michelle.
The determination of the value of the
marital estate to which Patricia has a claim should not be
diminished by those sums paid by James to Michelle under the
terms of their property settlement agreement.
Rather, such sums
should be deemed to have been paid from James’ nonmarital assets.
Finally, we note that Patricia had made a compelling
argument that the trial court erred in failing to dismiss
Michelle’s complaint based on the doctrine of collateral
estoppel, a “subdivision of res judicata.”
Ky.App., 925 S.W.2d 193, 195 (1996).
Napier v. Jones,
There is no question that
although the Franklin Circuit Court did not specifically
determine there to be no common-law marriage in the 1989 action,
that ruling was made by implication.
Michelle testified that she
did not pursue the matter any further because her attorneys were
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not familiar with Georgia law.
When asked why she did not file
for dissolution in 1989, instead of a modification of her Georgia
divorce decree, she responded: “I don’t know why the lawyer did
it that way.”
Nevertheless, the issue was raised and responded
to and, by implication, disposed of in the Franklin Circuit
Court.
Michelle failed to appeal that adverse judgment.
Thus,
the doctrine of collateral estoppel should have prevented her
attempt from litigating the issue again in 1996.
See Moore v.
Commonwealth, Cabinet for Human Resources, Ky., 954 S.W.2d 317
(1997), and Sedley v. City of West Buechel, Ky., 461 S.W.2d 556
(1970).
James’ motive for failing to raise the doctrine of res
judicata in light of the trial court’s October 1, 1996 order, is
obvious.
Unfortunately, the Woodford Circuit Court conducted an
evidentiary hearing on an issue that had already been litigated
between two persons, who apparently only considered themselves
married when it was convenient or advantageous for them to do so.
In any event, because the judgment from which Patricia has
appealed can have no preclusive effect on her own petition for
dissolution, that issue, and others raised in her brief are moot.
Accordingly, that portion of the judgment of the
Woodford Circuit Court which validated the common-law marriage of
James and Michelle is affirmed.
However, the trial court’s order
declaring the marriage of Patricia to James void ab initio, is
reversed.
The matter is remanded and the trial court is
instructed to proceed with Patricia’s dissolution action in a
manner consistent with this Opinion.
ALL CONCUR.
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ENTERED: September 10, 1999
/s/ Rick A. Johnson
Judge, Court of Appeals
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, MICHELLE
BATES:
Hon. Tavner B. Dunlap
Versailles, KY
Hon. Stephen C. Sanders
Frankfort, KY
Hon. Glen Bagby
Hon. Robert Lyons
Lexington, KY
BRIEF FOR APPELLEE, JAMES L.
BATES:
Hon. Martha A. Rosenberg
Lexington, KY
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