Poulos v. Poulos

Poulos v. Poulos (98-420); 169 Vt. 607; 737 A.2d 885

[Opinion filed 24-Jun-1999]
[Motion for Reargument denied 13-Jul-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-420

                               MAY TERM, 1999

James Poulos	                       }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Rutland Superior Court
                                       }	
Vicki Poulos	                       }
                                       }	DOCKET NO. S0010-98RcC

             In the above-entitled cause, the Clerk will enter:


       Appellant James Poulos appeals a declaratory judgment action ruling
  that his marriage to appellee  Vicki Poulos is not void despite the fact
  that they married before the nisi period in appellee's prior  divorce had
  expired.  We affirm.  

       Appellee was divorced from her first husband in Massachusetts on
  October 31, 1977.  The  Massachusetts court issued a decree nisi, which did
  not become absolute until six months later, on  April 30, 1978.  The
  parties married on January 7, 1978, in the State of New York, more than
  three  months prior to the expiration of the nisi period.  When the parties
  applied for a New York marriage  license, neither party disclosed any
  previous marriage.  The court found, and the parties do not  dispute, that
  appellant and appellee held themselves out as husband and wife for almost
  twenty years,  and that four children were born of the marriage.   

       On January 8, 1998, appellant filed a request for declaratory judgment
  in the Rutland Superior Court  that his marriage to appellee was void
  because appellee was still married to her former husband at  the time of
  her marriage to appellant.  The superior court applied both New York and
  Massachusetts  law and determined that, pursuant to either state's law, the
  parties' marriage was legal and not void.  It also concluded that appellant
  was estopped from raising any claim of voidness because the parties  were
  married for almost twenty years, they held themselves out as husband and
  wife, and because  appellee acted in good faith when she married appellant
  during the nisi period.	

       On appeal, appellant argues that because the parties were divorced in
  Massachusetts, the State of  Vermont is required to give the Massachusetts
  judgment of divorce nisi full faith and credit and  interpret it as would
  Massachusetts; likewise, because the parties married in New York, Vermont 
  must interpret the New York marriage under the laws of the State of New
  York.  Appellant argues  that, although the trial court indicated that it
  would apply New York law as to the validity of the New  York marriage and
  Massachusetts law as to the validity of the Massachusetts divorce decree,
  in fact  it did not do so.  Had the court properly applied New York law to
  the validity of the parties'  marriage, appellant contends it would have
  determined that the marriage was void.  Appellant also  argues that: (1)
  the court erred in ruling that at most, the parties' marriage prior to the
  expiration of  the nisi period would render the divorce "voidable but not
  void"; (2) a 1979 Rutland Superior Court  decision holding that a marriage
  during the nisi period is void is binding on this Court; (3) the court 
  erred in characterizing the nisi period as "ministerial"; (4) the court
  erred in finding that appellant  was aware of appellee's divorce and
  counseled her not to disclose it and (5) the court erred in finding  that
  prior to the commencement of the declaratory judgment action, two relief
  from abuse  proceedings were commenced in Rutland Family Court.  We address
  these arguments in turn.   

       A marriage contract will be interpreted here according to the law of
  the state of its

 

  making, so long as to do so will not violate the public policy of the State
  of Vermont.  See Rogers  v. Rogers, 135 Vt. 111, 112, 373 A.2d 507, 509
  (1977); Lariviere v. Lariviere, 102 Vt. 278, 147 A. 700 (1929) (validity
  of marriage is determined by law of place of contract).  Because the
  parties were  married in New York, we agree that we are required to examine
  the law of New York to determine  the validity of the parties' marriage. 
  New York domestic law provides: "A marriage is absolutely  void if
  contracted by a person whose husband or wife by a former marriage is
  living, unless . . .  [s]uch former marriage has been annulled or has been
  dissolved . . . ."  N.Y. Dom. Rel. Law § 6.  

       Our examination of the applicable case law indicates that there is a
  strong presumption in New York  in favor of the validity of second
  marriages.  In Grabois v. Jones, 89 F.3d 97 (2d Cir. 1996), for  example,
  the court of appeals noted the district court's recognition that the New
  York domestic  relations law states unambiguously that a second marriage is
  invalid if either of the parties to that  marriage is already married.  See
  id. at 100.  The court went on to state:

     What the district court does not appear to have considered, however,
     is that it is also well established New York law that when a court 
     is confronted with the claim that a formal second marriage is invalid 
     because of the existence of a valid first marriage, a strong presumption
     of validity attaches to the second marriage.

  Id. (citations omitted).  

       In Application of Avery, 445 N.Y.S.2d 672 (1981), the husband
  challenged his second marriage on  the grounds that the marriage had
  occurred after the final divorce hearing was held, but before a  formal
  judgment was rendered.  During the final divorce hearing, which the husband
  attended, the  trial court stated that the divorce would be granted.  The
  formal judgment was not signed or entered,  however, until after the
  husband remarried.  The reviewing court held that the husband was granted 
  a divorce prior to his remarriage, and all that remained was the entry of
  the decree of divorce.  The  court concluded that the entry of the decree
  was a "ministerial act" and an application for and grant  of a nunc pro
  tunc order was appropriate.  See id. at 676.  
 
       Our review of Massachusetts law also indicates that the court was
  correct in its ruling that  Massachusetts law would also uphold the
  validity of the parties' marriage.  The parties agree that the  general
  rule in Massachusetts is that "a marriage contracted while either party
  thereto has a former  wife or husband living, except as provided in section
  six . . . shall be void."  Mass. Gen. Laws ch.  207, § 4.  Appellant,
  however,  fails to acknowledge the exception to this rule which provides:

     If a person, during the lifetime of a husband or wife with whom the
     marriage is in  force, enters into a subsequent marriage contract with 
     due legal ceremony and the  parties thereto live together thereafter 
     as husband and wife, and such subsequent  marriage contract was entered
     into by one of the parties in good faith, in the full  belief that . . . 
     the former marriage had been annulled by a divorce . . . they shall,
     after the impediment to their marriage has been removed by the . . .
     divorce of the other party to the former marriage, if they continue to
     live together as husband and  wife in good faith on the part of one of 
     them, be held to have been legally married  from and after the removal 
     of such impediment, and the issue of such subsequent  marriage shall be 
     considered as the legitimate issue of both parents.  

 

  Id. § 6.  In his reply brief, appellant argues that appellee and the trial
  court erred in applying  Massachusetts law on second marriages.  He argues
  that the parties were not married in  Massachusetts, and that Massachusetts
  law is relevant only on the issue of the nisi period in the  Massachusetts
  divorce, not on the validity of the second marriage.   Additionally, he
  argues that the  Full Faith and Credit Clause of the United States
  Constitution requires that we uphold the validity  of the Massachusetts
  divorce nisi.  

       Appellant fails to recognize that an application of § 6 of the
  Massachusetts domestic relations law  directly addresses the validity of
  the Massachusetts divorce decree.  Specifically, it provides that  where at
  least one of the parties to a subsequent marriage enters into it in good
  faith that the former  marriage ended in divorce, once the impediment to
  the marriage has been removed the parties will  be held to have been
  legally married from the date of the removal of the impediment.  Thus, 
  Massachusetts law governs the legal effect of the impediment: here, the
  nisi period.  As applied to  the instant facts, the court found appellee to
  be a credible witness who entered into her second  marriage in good faith
  that she was legally divorced.  It also found, and the parties do not
  contest,  that appellant and appellee lived together as husband and wife,
  had four children together, bought  property together, and filed joint
  income tax returns.  Pursuant to § 6, therefore, once the impediment  was
  removed from their marriage - that is, once the nisi period ended -
  Massachusetts law deems  the parties' divorce final and the marriage valid
  and lawful.  Our analysis gives full faith and credit  to the Massachusetts
  divorce decree as well as Massachusetts domestic relations law which
  explicitly  elevates a subsequent marriage, entered into in good faith that
  the former marriage ended in divorce,  over an impediment to the validity
  of the subsequent marriage.  See id.

       Appellant argues, however, that the court erred in finding that
  appellee was unaware of the six-month waiting period.  He contends that
  appellee testified that she was represented by counsel  throughout the
  Massachusetts divorce proceedings, that she was aware she had obtained a
  divorce  nisi, and that it is therefore "questionable" for the court to
  have found that she was unaware of the  six-month waiting period.  We view
  factual findings in a light most favorable to the prevailing party, 
  disregarding modifying evidence.  See Jarvis v. Gillespie, 155 Vt. 633,
  637, 587 A.2d 981, 984  (1991).  Here, appellee testified that she was not
  aware of any issue with regard to the nisi period that  would prohibit her
  from remarrying when she did.  She also testified that to her knowledge,
  the only  issue raised by her first marriage was whether she would comply
  with appellant's request that she  not indicate on the marriage application
  that she had been previously married.  Although the  transcript indicates
  that appellee was represented by counsel during the divorce proceeding, the 
  court's finding regarding her credibility on this issue was not clearly
  erroneous.  See Peckham v.  Peckham, 149 Vt. 388, 390, 543 A.2d 267, 269
  (1988) (as trier of fact, trial court is in best position  to assess
  credibility of witnesses and weight to be accorded to evidence).

       Appellant's second claim of error concerns the trial court's use of
  the phrase, "At most, this would  render the divorce voidable, but not
  void."  Here, again, appellant argues that the trial court erred in  its
  application of the laws of New York and Massachusetts.  He argues that
  under the plain meaning  of the statutes of both states, the intent is to
  declare marriages under the circumstances of this case  void.  As detailed
  above, we disagree.  Furthermore, we agree with appellee that even if the
  court's  statement that the parties' marriage was at most voidable, the
  error is harmless: our conclusion that  the parties' marriage was valid
  rests on an application and analysis of the relevant statutory and case 
  law, not on a holding that the parties' marriage was voidable.  

       Appellant's third claim of error is that the trial court should have
  relied upon the decision in Phillips  v. Phillips, Rutland Superior Court
  Docket No. s-275-79 RcC (1979).  Phillips involved a couple  who were
  married and divorced in Vermont.  The parties married during the Vermont
  nisi period and  the superior court, interpreting Vermont law, held that
  the marriage 

 

  was void.  Appellant appears to be arguing that Phillips is binding
  authority for the proposition that  under the instant circumstances, the
  marriage is void.  As appellant argued earlier in his brief,  however, New
  York law, not Vermont law, determines the validity of the parties'
  marriage.  Even  if a superior court decision were binding upon us, we find
  that decision inapplicable because it  addressed the validity of a Vermont
  marriage.  

       Appellant next argues that the court erred in characterizing the nisi
  period as "ministerial."  He  contends that based on that characterization,
  the court found that appellant failed to meet his burden  of proof.  As
  appellee indicates, the court's use of the word "ministerial" was a direct
  quote from a  passage in appellee's trial memorandum of law.  The court did
  not base its conclusion on an analysis  of the nisi period as ministerial. 
  Rather, the court concluded that it was satisfied that either under  New
  York or Massachusetts law, the subsequent marriage between the parties was
  legal and not  void.

       Additionally, appellant argues that the court erred in finding that
  appellant was aware of appellee's  divorce and counseled her not to
  disclose it.  The court's finding that "[t]here is no question that 
  [appellant] testified that he was aware of the divorce and actually
  counseled his wife not disclose it  when they were married in New York a
  few months later," is reviewed for clear error.  See Mullin  v. Phelps, 162
  Vt. 250, 260, 647A.2d. 714, 720 (1994).  The record reveals that appellant
  was aware  of appellee's divorce and that appellant in fact attended her
  final divorce hearing on October 31,  1977.  Furthermore, appellee
  testified that she and appellant discussed her divorce prior to  completing
  the marriage license and application, and appellant insisted that she not
  indicate her prior  marriage because he was ashamed of the fact that she
  had been previously married.  The trial court  found appellee's testimony
  on this issue to be credible and we find no clear error in that 
  determination.  See Peckham, 149 Vt. at 390, 543 A.2d  at 269.  

       Appellee concedes that the court erred in its enumeration of the
  chronology of actions filed in the  superior court, appellant's final point
  of error.  The first matter filed with the superior court was the  subject
  case, the request for declaratory judgment.  All family court proceedings
  were commenced  thereafter.  Appellant argues that it is incorrect and
  misleading to view the declaratory judgment  action as having been filed in
  response to preexisting family court matters.  Appellant fails to argue 
  what impact, if any, this error had on the court's decision, and we are
  unaware of one.   
   
       Affirmed.


                                       BY THE COURT:

                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice