Crane v. Taliaferro
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ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA08-1216
Opinion Delivered APRIL
HAROLD CRANE
29, 2009
APPELLANT
V.
APPEAL FROM THE SEARCY
COUNTY CIRCUIT COURT,
[NO. DR2008-29]
MELISSA TALIAFERRO
HONORABLE DAVID MARION
CLARK, JUDGE
APPELLEE
AFFIRMED
RITA W. GRUBER, Judge
The question before us is whether appellant Harold Crane and appellee Melissa
Taliaferro are legally married for purposes of Arkansas law. The Searcy County Circuit Court
found that the parties were not married and therefore dismissed appellant’s complaint for
divorce for lack of subject-matter jurisdiction. Appellant contends that a common-law
marriage exists between the parties and that the circuit court erred in finding otherwise. We
find no error and affirm the circuit court’s order dismissing appellant’s complaint.
I. Facts
Appellant and appellee met in either 1981 or 1982 in Texas while appellee was
completing her residency after graduation from medical school. In 1982 they moved to
Leslie, Arkansas, where they both continue to live, and appellee set up the Leslie Medical
Center. In April 1984, the parties were married in a ceremony at the home of appellee’s
parents in Mount Pleasant, Texas. Neither of the parties resided in Texas at this time. They
did not obtain a marriage license or certificate of marriage in either Texas or Arkansas. At a
hearing on appellee’s motion to dismiss, appellee testified that their decision not to obtain a
license was purposeful under the belief that their marriage was a contractual arrangement and
“the government cannot interfere with the right to contract.” Appellant testified that they
did not obtain a license because it is a “God given right for a man and a woman to get
married, without asking the government.”
In 1984, after the ceremony, appellee accepted an offer from a doctor in Texas, Dr.
Sessions, to enter into a six-month apprenticeship in alternative medicine. Appellee testified
that she stipulated in the contract that she would not move to Texas because Dr. Sessions was
concerned about revealing his methods to someone who might compete with him. She
maintained her residence in Leslie and lived in Dr. Sessions’s basement in Texas during the
six-month apprenticeship. She returned to Leslie after the apprenticeship and continued her
practice in Leslie.
During appellee’s testimony, her voter-registration card for Searcy County dated
October 1984 was introduced, indicating that her residence was Leslie and that she had been
a resident of Leslie for two years. Her tax returns for the years 2003, 2005, 2006, and 2007
were also introduced, in which appellee filed as a single person with no dependents. She
testified that appellant prepared her returns. Appellant never filed any returns for himself.
This case arose from an amended complaint for divorce filed by appellant on April 3,
2008. To establish jurisdiction, he alleged that the parties had been residents of Searcy
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County for more than six months and that the parties were lawfully married in Mount
Pleasant, Texas, on April 14, 1982. Appellee filed a motion to dismiss the complaint for lack
of subject-matter jurisdiction, alleging that the parties had never been, nor intended to be,
lawfully married. She alleged the following: no certificate of marriage was filed in the State
of Texas, Arkansas does not recognize common-law marriages, and the elements for a valid
common-law marriage in Texas were not present in this case. The circuit court held a
hearing, took testimony and other evidence, and entered an order granting appellee’s motion
to dismiss, finding “that there is no basis for which this Court can find that a common-law
marriage existed between [the parties]” and dismissing the case for lack of jurisdiction. The
court noted in its order that a marriage ceremony was conducted but that the basis for the
ceremony was to legitimize the marriage in the eyes of God and not in the eyes of the
government. The court further found that there never was, and never could be, a valid
marriage under the laws of the State of Texas because the parties were not residents of the
State of Texas while holding themselves out to be husband and wife.
II. Standard of Review
We review a circuit court’s findings of fact from a bench trial for clear error, giving
due regard to the opportunity of the circuit court to judge the credibility of the witnesses.
See Ark. R. Civ. P. 52(a); see also Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771
(1999). A finding is clearly erroneous when, although there is evidence to support it, the
reviewing court on the entire evidence is left with a definite and firm conviction that a
mistake has been committed. 338 Ark. at 261, 992 S.W.2d at 776.
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III. Validity of Common-Law Marriage
Appellant’s first point on appeal is that the circuit court erred as a matter of law in
determining that he and appellee did not have a valid common-law marriage under Texas law.
He argues that they were married in a ceremony in 1984 and lived together as husband and
wife from 1984 until they separated in 2008. We turn to the applicable law.
Under Arkansas law, marriages that “would be valid by the laws of the state or country
in which the marriages were consummated and in which the parties then actually resided shall be
valid in all courts in this state.” Ark. Code Ann. § 9-11-107(a) (Repl. 2008) (emphasis
added). It is undisputed that no legal document of marriage—either an Arkansas marriage
license or a Texas certificate of marriage—exists. Further, common-law marriages may not
be created by law in Arkansas, although our courts do recognize marriages contracted by law
in other states. Brissett v. Sykes, 313 Ark. 515, 517, 855 S.W.2d 330, 332 (1993). So, did a
common-law marriage exist between the parties under Texas law? “A party seeking to
establish the validity of a common law marriage must show a substantial relationship of long
duration in the common law marriage state.” Id. (citing Standridge v. Standridge, 298 Ark. 494,
769 S.W.2d 12 (1989)).
At the time the parties were married in 1984, proof of a common-law marriage under
Texas law required “1) an agreement presently to be married; 2) living together in this state
as husband and wife; and 3) holding each other out to the public in this state as husband and
wife.” Texas Employers’ Ins. Ass’n v. Borum, 834 S.W.2d 395, 399 (Tex. Ct. App. 1992)
(emphasis in original). The court indicated that the highlighted language in sections (2) and
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(3) precluded proof of a common-law marriage “when the acts occurred in a state other than
Texas.” Id. The court in Borum affirmed an order granting summary judgment finding that
no common-law marriage existed because all of the evidence supporting the alleged commonlaw marriage occurred in Kentucky, not Texas. Like Arkansas, Kentucky did not recognize
common-law marriage.
Turning to the facts in this case, there was no evidence presented that the parties lived
together in Texas after 1982, much less after the ceremony in 1984. The ceremony was held
at the home of appellee’s parents in Texas; however, both appellee and appellant lived in
Leslie, Arkansas, at the time. The only evidence that either party spent time in Texas after
the ceremony was the testimony regarding appellee’s apprenticeship with Dr. Sessions.
Moreover, it was undisputed that appellee maintained her residence in Leslie during the
apprenticeship and stayed in Dr. Sessions’s basement during the six-month period. While
appellant argues in his brief that he and appellee cohabitated in Texas for six months shortly
after their marriage ceremony, his citation is to the argument of appellee’s counsel at the
hearing that, during appellee’s “internship” with Dr. Sessions, appellant “came and went” and
“they lived together in the basement as husband and wife.” However, we find no testimony
or other evidence to suggest that appellant was ever in Texas during the apprenticeship, much
less living with appellee as husband and wife.
Counsel’s argument is not evidence.
Accordingly, we hold the circuit court did not clearly err in finding that no common-law
marriage existed between the parties and, therefore, in dismissing the complaint for lack of
subject-matter jurisdiction.
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IV. Judicial Estoppel
For his second point on appeal, appellant asserts that appellee’s contention that she was
never legally married to appellant violates the doctrine of judicial estoppel by inconsistent
positions. We decline to address this argument as appellant neither raised this issue nor
obtained a ruling in circuit court, and we will not consider arguments raised for the first time
on appeal or when a party has failed to obtain a ruling from the circuit court. See, e.g., Beverly
Enterprises-Arkansas, Inc. v. Thomas, 370 Ark. 310, 316, 259 S.W.3d 445, 449 (2007) (holding
failure to argue elements or obtain ruling on judicial estoppel precluded review).
Affirmed.
P ITTMAN and R OBBINS, JJ., agree.
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