Clark v. Clark

----ooOoo----

Linda Kay Clark,
Plaintiff and Appellee,

v.

Cecil E. Clark,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971635-CA

F I L E D
March 2, 2000
  2000 UT App 54 -----

Third District, Salt Lake Department
The Honorable J. Dennis Frederick

Attorneys:
Mary C. Corporon and Brian J. Gardner, Salt Lake City, for Appellant
Suzanne Marelius, Salt Lake City, for Appellee -----

Before Judges Bench, Davis, and Orme.

DAVIS, Judge:

Linda Kay Clark (Linda) and Cecil E. Clark (Cecil) brought separate appeals from the trial court rulings during Linda's action to establish a common law marriage and receive a divorce. Both appeals were consolidated and we render the instant decision disposing of them.

The trial court's interpretation of a statute and its ultimate determination of whether it has subject matter jurisdiction are questions of law that we review for correctness. See Schwenke v. Smith, 942 P.2d 335, 336 (Utah 1997).

Subsequent to oral argument in this case, a majority of the Utah Supreme Court decided In re Marriage of Gonzalez, 2000 UT 28, ¶30 (plurality opinion); id. at ¶48 (Zimmerman, J., concurring). Notwithstanding the plain language of Utah Code Ann. § 30-1-4.5(2) (1998), see Gonzalez, 2000 UT 28 at ¶52
(Russon, J., dissenting),(1) and this court's decision in Bunch v. Englehorn, 906 P.2d 918, 920-21 (Utah Ct. App. 1995) (holding that a common law marriage must be established by court or administrative order entered within one year of the relationship's termination), the Gonzalez court concluded that section 30-1-4.5's time restriction "requires only the filing of a petition for adjudication of marriage within one year after the termination of the relationship." Gonzalez, 2000 UT 28 at ¶30. Because Linda filed her action October 1, 1996, well within one year following the August 28, 1996 termination of the relationship,(2) under Gonzalez, it was timely and the trial court had jurisdiction to enter the Declaration of Marriage and Decree of Divorce (Declaration). Likewise, the trial court erred when it subsequently concluded that it was without jurisdiction to enter the order later than the one-year anniversary of the relationship's termination, and granted Cecil's Rule 60(b)(3) motion and vacating the Declaration on that basis.(4) Accordingly, we reverse those orders.(5)

Cecil further argues on appeal from the Declaration that the trial court erred in determining that the statutory requirements for a common law marriage, specifically Cecil's consent, had been fulfilled. Because this determination required the court to apply the statutory requirements to the facts, it is a mixed question of law and fact. See Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997). This court will not reverse the trial court's factual findings unless they are clearly erroneous, or the court's application of the statute to those findings, absent an abuse of discretion. See Utah R. Civ. P. 52(a); Platts, 947 P.2d at 661.

Our supreme court has explained that "what must be shown by the party claiming the benefit of an unsolemnized marriage is that at some point mutual consent was given," Whyte v. Blair, 885 P.2d 791, 794 (Utah 1994), and consent can be established through acquiescence. See id. at 794 n.3. There was considerable evidence adduced at trial supporting the court's conclusion that Cecil consented to an unsolemnized marriage. For example, Cecil and Linda cohabited since 1985,(6) established joint credit and checking accounts, mutually contributed to household expenses, purchased a residence together, and filed joint tax returns. Further, Linda continued to use the common surname and Cecil designated Linda as the primary beneficiary on his life insurance policy. These facts support the determination that Linda and Cecil consented to enter into a common law marriage. See id. at 795. Consequently, we cannot say the trial court abused its discretion and we therefore affirm its determination.

In sum, regarding Cecil's appeal from the Declaration, because the time restriction of Utah Code Ann. § 30-1-4.5 (1998) is not jurisdictional and the court did not abuse its discretion in applying that section to the facts here, we affirm. Further, regarding Linda's appeal, we conclude the court erred in granting Cecil's motion for relief from the judgment and vacating the Declaration of Marriage and Decree of Divorce. Accordingly, we reverse those orders, returning this case to its status before the court granted Cecil's motion, and remand so the trial court may complete the proceedings governing property distribution.(7)

Affirmed in part, reversed in part, and remanded.
 
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
Gregory K. Orme, Judge

1. Justice Russon stated: [T]he trial court did not err in dismissing Gonzalez's petition for failure to meet the jurisdictional time limitation set forth in Utah Code Ann. § 30-1-4.5. Justice Durham's opinion does not even attempt to read the statute on the basis of its plain language, but instead simply rewrites its provisions by attributing motives to the legislature. Although the requirement relating to conclusion, rather than commencement, of legal proceedings is unusual and could potentially raise constitutional concerns in certain hypothetical scenarios, this case is not one of them. Gonzalez, 2000 UT 28 at ¶52 (Russon, J., dissenting).

2. The court's finding that the relationship terminated on this date is supported by the facts that when the final separation occurred, Cecil changed the locks on the common residence, and Linda moved to a separate home. Consequently, Cecil has not shown this finding to be clearly erroneous.

3. Although Cecil termed his motion as a motion to dismiss, "we look past a motion's label to its substance and treat it accordingly." Grossen v. DeWitt, 1999 UT App 167, ¶6, 982 P.2d 581; accord In re Adoption of Baby K., 967 P.2d 947, 948 n.1 (Utah Ct. App. 1998). Because the substance of Cecil's motion was for relief from a judgment that is void for lack of subject matter jurisdiction, it is properly considered as a motion under Rule 60(b)(4) and we treat it accordingly. See In re Baby Boy Doe, 894 P.2d 1285, 1288 (Utah Ct. App. 1995).

4. Because we conclude that under Gonzalez the Declaration was properly entered and should not have been later set aside on Cecil's motion, we have no occasion to address Linda's alternate asserted grounds for reversal, including the constitutionality of Utah Code Ann. § 30-1-4.5 (1998).

5. In dicta, the Gonzalez court purported not to overrule this court's decision in Bunch, instead distinguishing it because, unlike in the instant case and in Bunch, no divorce was sought in Gonzalez. See Gonzalez, 2000 UT 28 at ¶29 n.7. However, we can find no support for the proposition that in enacting Utah Code Ann. § 30-1-4.5, the Legislature intended to create different rules and results for cases in which an establishment and a divorce is sought, and cases in which an establishment alone is sought. Consequently, we conclude that Gonzalez overruled Bunch and applies here notwithstanding that Linda sought to establish the marriage and obtain a divorce.

6. We reject Cecil's further argument that the court made no finding of cohabitation after the 1987 effective date of section 30-1-4.5 and therefore the Declaration is invalid. Although the court found that cohabitation commenced in 1985, the court also found that it continued until August 1996. Hence, the nine years of continued cohabitation after enactment of the statute is sufficient for recognition of the unsolemnized marriage under the statute.

7. Because Cecil did not prevail on Linda's appeal, we deny Cecil's request for costs under Rule 34, Utah Rules of Appellate Procedure.