Valdez v. Landin

----ooOoo----

Suesan Valdez
aka Suesan Landin,
Petitioner and Appellant,

v.

Rene Landin,
Respondent and Appellee.

AMENDED MEMORANDUM DECISION1
(Not For Official Publication)
 
Case No. 981762-CA

F I L E D
June 28, 2001 2001 UT App 197 -----

Fifth District, St. George Department
The Honorable James L. Shumate

Attorneys:
Suesan Valdez aka Suesan Landin, Layton, Appellant Pro Se
Rene Landin, Las Vegas, Nevada, Appellee Pro Se

-----

Before Judges Jackson, Davis, and Thorne.

PER CURIAM:

Appellant appeals the trial court's dismissal of her complaint to establish the validity of an alleged unsolemnized marriage between herself and appellee.

Utah Code Ann. § 30-1-4.5(1) (1998) provides that an unsolemnized marriage may be recognized as a valid marriage if it "arises out of a contract" between consenting parties who are capable of giving consent and of entering into a solemnized marriage, who have cohabited, who mutually assume marital rights, duties, and obligations, and who hold themselves out as and have acquired a uniform and general reputation as husband and wife. Id.

The evidence adduced at trial did not establish the existence of a valid common-law marriage. First, the evidence did not demonstrate by a preponderance that the parties acquired  a uniform and general reputation as husband and wife. Defendant testified that he did not introduce plaintiff as his wife. He produced witnesses who testified that they did not hear him refer to plaintiff as his wife and that they did not regard the parties as married. Plaintiff presented no witnesses other than herself to testify that others considered the parties to be husband and wife.

Parties to a common-law marriage must consent to be married. See Whyte v. Blair, 885 P.2d 791, 794 (Utah 1994). "[W]hat must be shown by the party claiming the benefit of an unsolemnized marriage is that at some point mutual consent was given." Id. Defendant was adamant that he never consented to enter into a marital relationship and that he did not regard plaintiff as his wife. He stated that he refused to marry plaintiff when she demanded that he either do so or break off the relationship. Although consent may be demonstrated by acquiescence, see id. at 794, n.3, the evidence did not show that defendant acquiesced.

We find no error in the trial court's decision. Accordingly, we affirm.
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 

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

I DISSENT:
 
 

______________________________
William A. Thorne, Jr., Judge

1. This Amended Memorandum Decision replaces the Memorandum Decision in Case No. 981762-CA, issued on June 1, 2001.