Powell v. Lane , 101 Ark. App. 295 ( 2008 )

Brian S. Miller, Judge.

This is an appeal of an adoption decree granted to the petitioners, Wendell Ray Lane and Davelynn Felkel Lane, permitting Wendell to adopt Davelynn’s minor son whom she conceived with Jason Powell. Powell argues on appeal that the trial court erred in granting the Lanes’ petition for adoption because: (1) Powell and Davelynn are not only the minor’s biological parents, but he and Davelynn are also married and their marriage has not been dissolved; (2) he was not given an opportunity to cure any failure to support or failure to have meaningful contact with the minor; (3) there was not clear and convincing evidence that he failed significantly, and without justifiable cause, to communicate with the minor; and (4) there was not clear and convincing evidence that he faded significantly, and without justifiable cause, to support the minor.

We agree with Powell that he and Davelynn were validly married and that the trial court erred in finding otherwise. In that the trial court’s finding that Powell and Davelynn were never married was the determinating factor regarding the remaining issues, we reverse and remand all issues presented.

Background

It is undisputed that, on December 31, 1996, Davelynn and Powell went to the First Baptist Church in Pencil Bluff where they were married by Reverend Bruce Tidwell. The ceremony was traditional in that Powell stood at the head of the church and Davelynn walked down the aisle in a creme-colored dress. When Davelynn reached the front of the church, she and Powell exchanged marriage vows while family and friends witnessed the ceremony. Davelynn’s mother was among those present. Dave-lynn was pregnant by Powell at the time of the ceremony and later gave birth to a son (the minor) on June 9, 1997. She and Powell lived together as husband and wife from the date of ceremony until their separation in the Spring of 2004, almost eight years.

It is also undisputed that Davelynn and Powell obtained a marriage license before the ceremony. The marriage license, however, was not signed by Reverend Tidwell and was never returned to the county clerk for filing. Finally, Davelynn and Powell have never obtained a divorce.

In case number DR-2004-51, Davelynn petitioned the Montgomery County Circuit Court in June 2004 to establish paternity. Powell failed to answer and a default judgment was entered on July 23, 2004. The default judgment found that Powell was the minor’s natural father; set a visitation schedule; required Powell to pay child support in the amount of seventy-five dollars per week; and required Powell to pay one-half of the minor’s medical expenses. Powell moved to set aside the default judgment, but that motion was denied.

Davelynn married Wendell on September 4, 2004. On March 28, 2006, they petitioned the Polk County Circuit Court for a decree allowing Wendell to adopt the minor without the consent of Powell. The case was assigned case number PR-2006-33. Davelynn consented to the adoption and alleged that Powell had failed significantly to communicate with or support the minor for at least one year. Powell denied the allegations and refused to consent to the adoption.

On May 12, 2006, Powell filed a petition for divorce against Davelynn, and Davelynn moved to dismiss the petition. Powell also moved, again, to set aside the default judgment. The cases were consolidated in the Polk County Circuit Court and heard on July 5, 2006.

At the trial, Davelynn testified that she was pregnant at the time of the wedding and that the marriage to Powell was a bad decision that she regretted. She further stated that she and Powell never intended to file the marriage license or to become legally married. In addition to providing testimony regarding the marriage ceremony with Powell, Davelynn testified that she and Wendell were married in September 2004, in Branson, Missouri. She further stated that Powell had not paid child support since December 2004 and he had not paid any part of the minor’s medical bills.

Powell testified that he was his son’s primary shot-giver and the primary medication-giver during the first eight years of the minor’s life. He admitted that he stopped paying support to Davelynn through the Child Support Clearinghouse; however, he denied that he quit paying support because he continued to deposit the payments into a fund that he was maintaining for the minor. He claimed that he stopped paying money to the clearinghouse because he knew that doing so would prod the Child Support Enforcement Office to bring him into court. At that time, he could resolve all of the other issues with Davelynn.

Powell’s sister-in-law, Melissa Powell, testified that she witnessed the marriage ceremony in which Powell and Davelynn were married. She said that there was no question that Powell and Davelynn were married because “[w]e had a wedding, they kissed, they went down the aisle, they said, I do. That’s what I seen.” She testified further that Powell and Davelynn appeared to be happy on their wedding day.

Wendell Lane testified that he and Davelynn were married on September 4, 2004, and have one child together. He further stated that he wished to adopt the minor, who was the biological child of Powell and Davelynn; that the minor had resided with him since his marriage to Davelynn; and that he and Davelynn have received no financial support from Powell since their marriage.

The trial court dismissed Powell’s divorce petition. In doing so, the court ruled that Davelynn and Powell were never married because they failed to have the preacher, who performed their marriage ceremony, sign the marriage license and they also failed to file it with the county clerk.

The court then granted the adoption petition of Davelynn and Wendell. In doing so, the court held that Powell’s consent to the adoption was not required because, in excess of one year, he failed significantly, and without justifiable cause, to support the minor. Powell’s motion for reconsideration was denied and he filed a timely appeal.

The Marriage of Davelynn and Powell

We will accept the trial court’s interpretation of a statute when no error is shown; however, we are not bound by the trial court’s interpretation of the law. Fryar v. Roberts, 346 Ark. 432, 57 S.W.3d 727 (2001). Here, the circuit court erred in concluding that Powell and Davelynn never entered into a valid marriage. In so ruling, the court misinterpreted Ark. Code Ann. § 9-11-218 (Repl. 2002), which provides that a person obtaining a marriage license is required to return the license to the county clerk within sixty days from the date the license is issued. The statute also provides that the license must be duly executed by a person authorized to solemnize marriage in this state. Id.

The key to a valid marriage is solemnization, not licensing. Solemnization is defined as “[t]he performance of a formal ceremony (such as a marriage ceremony) before witnesses, as distinguished from a clandestine ceremony.” Black’s Law Dictionary 1427 (8th ed. 2004). The solemnization statute provides that a marriage is invalid unless there is solemnization, performed by some person authorized by statute to do so. See Fryar, supra (citing Furth v. Furth, 97 Ark. 272, 133 S.W. 1037 (1911)).

The marriage licensing statute, however, is merely directory and is neither mandatory nor vital to the validity of a marriage. Fryar, supra. The only remedy provided in the marriage licensing statute for noncompliance is that the one-hundred-dollar bond required by the statute shall remain in effect. Id. There is “no statute providing that a marriage is void where no license is obtained.” Id. (quoting DePotty v. DePotty, 226 Ark. 881, 882, 295 S.W.2d 330, 331 (1956)). Moreover, the failure to return a marriage license does not void the marriage. Id. (citing Thomas v. Thomas, 150 Ark. 43, 53, 233 S.W. 808 (1921)).

A validly executed marriage license, that is filed in the county clerk’s office, is presumptive proof of marriage. Thomas, supra. When this does not occur, the party wishing to prove a marriage must do so by introducing evidence of the couple’s reputation as a married couple, their declarations and conduct, and other circumstances accompanying their relationship. Id.

This case is similar to the cases of Fryar, supra, and Thomas, supra, in which our supreme court held that the failure to file a marriage license does not void an otherwise valid marriage. In those cases, the supreme court held that valid marriages existed because they were solemnized by wedding ceremonies, although marriage licenses were not filed in either case. Id. In Thomas, supra, the supreme court noted that the couple also lived together for eight years after the ceremony and held themselves out as married. Id.

Powell and Davelynn were married on December 31, 1996, in a church ceremony performed by a preacher. They publicly said their marriage vows in a solemn ceremony that was conducted with all appropriate ritual. Not only was the ceremony witnessed by family and friends, but Powell and Davelynn also conducted themselves as a married couple and lived together as husband and wife for seven years after the ceremony. Their failure to file the marriage license does not void their marriage.

The dissent asserts, sua sponte, that Powell failed to rebut the presumption that the marriage between Davelynn and Wendell was valid. This assertion, however, was neither argued by the parties nor addressed by the trial court below. Moreover, it does not hold up under scrutiny because the marriage of Powell and Davelynn clearly rebuts any presumption of validity that may have attended Davelynn and Wendell’s marriage.

The dissent further asserts, sua sponte, that Powell failed to prove his marriage to Davelynn because he introduced no evidence regarding the licensing of the preacher who performed the ceremony. This assertion was neither argued by the parties nor addressed by the trial court below. Further, this argument contradicts the holding in Thomas v. Thomas, 150 Ark. 43, 233 S.W. 808 (1921). In Thomas, the supreme court held that the parties were validly married, although there was no testimony as to the credentials of the preacher who performed the wedding ceremony. Id.

Indeed, the credentials of the preacher in Thomas were less known than those of the preacher in the present case. In Thomas, Jas. Thomas and Alsie Thomas were residents of Ashley county before Alsie moved to Ft. Smith. Id. Jas. later traveled to Ft. Smith with a marriage license issued by the Ashley County Clerk and met Alsie at the train station. Id. The Arkansas Supreme Court set forth the circumstances surrounding their marriage ceremony as follows:

[A]s they walked along the street from the train they met an old negro preacher named Mooney, who used to live in Ashley county, and Jas. Thomas procured him to marry them. Jas. Thomas turned over the marriage license to the old preacher, and they never saw it afterwards. The marriage license was never returned to the clerk by the preacher . . .

Id. at 52, 233 S.W. at 811. At the trial, it was shown that the “old colored preacher” whom Alsie claimed had performed the marriage ceremony had died before the date of the ceremony. In holding that the marriage between Jas. and Alsie was valid, the court held that:

[i]t may be that [Alsie] was mistaken in the preacher who married them, but this did not overcome her testimony to the effect that they were married by a minister of the Gospel, after Jas. Thomas procured a license therefore provided by the statute.

Id. The court further noted that “marriage may be proved in civil cases by reputation, the declarations and conduct of the parties, and other circumstances usually accompanying that relation.” Id. at 53, 233 S.W. at 811.

There is no question but that Powell and Davelynn obtained a marriage license and were married in a Baptist church by a “minister of the Gospel,” whose credentials were never questioned. See Thomas, supra. Moreover, they lived together as husband and wife, with their son, for more than seven years after the marriage ceremony. See id. These factors, along with all of the other undisputed evidence set forth above, show that Powell and Davelynn were validly married on December 31, 1996.

Finally, the dissent asserts, sua sponte, that Davelynn was seventeen at the time of the marriage ceremony and that there is no evidence in the record that her parents consented to the marriage. This assertion, however, was neither argued by the parties nor addressed by the trial court below. In fact, it was specifically waived by Davelynn at trial when, discussing her age at the time of the marriage, she testified that “I don’t claim that I didn’t have capacity to marry.” Therefore, relying on this assertion is inappropriate.

For the reasons set forth above, we hold that Powell and Davelynn were validly married, and we reverse the contrary ruling of the trial court. A review of the court’s order shows that all of the court’s remaining rulings were based on its erroneous conclusion that Powell and Davelynn were never married. Therefore, we will not address the remaining issues but remand this case to permit the trial court to make further findings in accordance with this opinion.

Reversed and remanded.

Gladwin, Robbins, Glover and Marshall, JJ., agree. Pittman, C.J., Vaught, Heffley and Baker, JJ., dissent.