Oklahoma Family Law and Covers Most Problems That Family Law Attorneys Face in Their Practice

OKLAHOMA

FAMILY LAW

CASES AND MATERIALS

2015-2016 FIFTEENTH EDITION

ROBERT G. SPECTOR

GLENN R. WATSON CHAIR AND CENTENNIAL PROFESSOR OF LAW UNIVERSITY OF OKLAHOMA COLLEGE OF LAW IMPRIMATUR PRESS A DIVISION OF

GRAIL & TUCKER LEGAL PUBLISHING, L.C.

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ISBN 978-1-60503-090-2

These materials are prepared for classroom use. It is not a substitute for specific legal research. The cases and laws are discussed generally and the author’s comments should not be relied on for the basis of a legal opinion or course of action, without careful review of applicable authorities including those cases decided since the publication of this book.

For Carolyn

“The light of my life and the length of my days.”

PREFACE

The substance of family law, and its practice, has changed radically over the last two decades. Once upon a time, the subject of family law was concerned primarily with the question of when a divorce could be granted and what state could properly grant it. Problems of property division, alimony and child support were minor issues that took little time. Custody of children was normally given to their mothers and fathers received reasonable visitation. The entire area was one that was governed by local state law with little intrusion by the federal government.

Today the focus of family law has totally shifted. The decision of whether to grant a divorce has little importance to the family law practitioner. Rather, the emphasis is on the economic consequences of divorce. The family lawyer must be familiar with such diverse areas as pension analysis, taxation and bankruptcy. Children are no longer routinely placed with their mothers and, therefore, knowledge of child psychology as well as child abuse and neglect is essential for a family law practice. New areas such as the relationship between tort and family law continue to develop. Along with these changes, the federal government has also assumed an active role, particularly in the area of child support. The emphasis on welfare reform has produced radical changes in the way child support is determined and enforced. In- deed, the entire area of child support is now federally dictated.

Some areas have assumed new importance. For years the law of marriage was summarily treated as a simple prelude to a discussion of divorce. Today, the question of a status relationship for same-sex couples is a major public policy issue, with over 20% of the states authorizing marriage or a civil union for same-sex couples. Most of the other states have rejected such a status relationship by statute and, in many cases, by constitutional amendment. The interstate movement of these couples has become the family law issue of our times.

This book is designed for the Oklahoma law student and lawyer. It provides an introduction to Oklahoma family law and covers most problems that family law attorneys face in their practice. There- fore, whenever an Oklahoma case addresses a family law issue, it is used. Cases from other states are used to present alternative solutions to a problem or, to illustrate a solution if there is no Oklahoma case on point. It is my hope that this casebook will prove useful to you in your practice. The case materials are current through April 2015 and the statutes through the 2014 legislative session.

Robert G. Spector Norman, Oklahoma April 2015

TABLE OF CONTENTS

CHAPTER 1. MARRIAGE

A. Restrictions on Who Can Marry ...... 1 1. The Traditional Restrictions: Bigamy ...... 1 Whitney v. Whitney ...... 1 Notes & Questions ...... 4 2. The Constitutional Question...... 6 Zablocki v. Redhail ...... 6 Notes & Questions: Due Process Restrictions on State Marriage Regulations ...... 10 3. The Traditional Restrictions: Incest ...... 11 Catalano v. Catalano ...... 11 Notes & Questions: Problems of Incest ...... 12 4. The Traditional Restrictions: Age ...... 14 White v. McGee ...... 14 Notes & Questions ...... 16 Notes & Questions: The Void and Voidable Distinction ...... 17 5. The Traditional Restrictions: Mental Capacity ...... 18 Houser v. Houser ...... 18 Questions ...... 20 6. The Traditional Restrictions: Same Sex ...... 22 Baskin v. Bogan ...... 22 Matter of Nash and Barr ...... 22 Application of Harvey ...... 37 Notes & Questions: Same-Sex and Transgender Marriages: How We Got Here ...... 38 Notes & Questions: Other Restrictions and Incentives on Marriage ...... 41 B. Fraud and the Marriage Relationship ...... 41 Seirafi-Pour v. Bagherinassab ...... 41 Notes & Questions: Annulments ...... 45 Tice v. Tice ...... 45 Miller v. Miller ...... 47 Problems ...... 51 C. Formalities for a Ceremonial Marriage ...... 52 Notes & Questions ...... 52 D. Common Law Marriage ...... 54 Estate of Phifer ...... 54 Standefer v. Standefer ...... 55 In re Estate of Stinchcomb ...... 58 Notes & Questions: Standard of Review and Common Law Marriages ...... 60 Estate of Smart v. Smart ...... 61 Notes & Questions: Common Law Marriages in the Conflict of Laws ...... 62 E. Marriage Presumptions ...... 63 Parkhill Trucking Co. v. Row...... 63 Notes & Questions: Presumptions and Inferences in the Law of Marriage ...... 67 In the Matter of Estate of Allen ...... 69 Question ...... 72 F. Remarriage ...... 73 Brooks v. Sanders ...... 73 Copeland v. Stone ...... 78 Notes & Questions ...... 82 G. Making Your Own Deal: The Contract Approach ...... 83 Levine v. Konvitz ...... 83 Notes & Questions: “Palimony?” ...... 89

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Marvin v. Marvin (II) ...... 91 Marvin v. Marvin (III) ...... 91 Question ...... 92

CHAPTER 2. DIVORCE

A. Fault Divorce ...... 93 Tigert v. Tigert ...... 93 Notes ...... 97 B. “No-Fault” Divorce ...... 97 Vandervort v. Vandervort ...... 97 Ellam v. Ellam ...... 101 Notes & Questions: Divorce without Fault or Blame? ...... 102 C. The Role of the Lawyer ...... 103 1. Conflict of Interest ...... 103 Atkinson v. Rucker ...... 103 State of Oklahoma ex rel. Oklahoma Bar Association v. Downes ...... 106 Notes ...... 109 2. Fees ...... 110 Legal Ethics Opinion No. 299 ...... 110 State ex rel. Oklahoma Bar Association v. Fagin ...... 111 Wright v. Arnold ...... 117 Notes & Questions ...... 120 Handling Contested Divorce Cases ...... 120 D. Multi-State Divorce ...... 121 Introductory Note ...... 121 Williams v. North Carolina [I] ...... 122 Williams v. North Carolina [II] ...... 128 Notes & Questions: The Jurisdictional Jumble ...... 132 Sherrer v. Sherrer ...... 133 Notes & Questions: Res Judicata and the Multi-State Divorce ...... 139 Notes: Foreign Country Divorces and Estoppel ...... 140 E. Divorce Procedure ...... 141 1. Venue ...... 141 Manhart v. Burris ...... 141 Notes & Questions: Problems of Venue ...... 142 2. Fraud ...... 144 Chapman v. Chapman ...... 144 Notes & Questions: Extrinsic Fraud ...... 146 3. Temporary Orders ...... 147 Notes ...... 147 F. Relationship to Other Proceedings ...... 148 1. Probate ...... 148 Whitmire v. Whitmire ...... 148 Note: Death and Divorce ...... 153 2. Tort ...... 154 Stuart v. Stuart ...... 154 Notes: Marital Torts ...... 157 3. Domestic Violence ...... 159 Flury v. Howard ...... 159 Notes & Questions: Protective Orders ...... 161

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CHAPTER 3. EQUITABLE DIVISION OF PROPERTY

Introductory Note ...... 163 A. Marital or Separate Property? ...... 163 Notes & Questions ...... 163 Janitz v. Janitz ...... 164 1. Particular Types of Property: Degrees and Licenses ...... 166 Hubbard v. Hubbard ...... 166 O’Brien v. O’Brien ...... 171 Notes & Questions: Career Assets ...... 176 Jackson v. Jackson ...... 176 Forristall v. Forristall ...... 179 Notes & Questions: When is Restitution Appropriate?...... 181 Haugan v. Haugan...... 182 Notes & Questions: Measuring Restitution ...... 189 Pounders v. Pounders ...... 190 Questions ...... 192 2. Professional Practices: Good Will ...... 192 Mitchell v. Mitchell ...... 192 Travis v. Travis ...... 195 Mocnik v. Mocnik ...... 200 Traczyk v. Traczyk ...... 205 Notes & Questions: Professional Goodwill ...... 208 Piscopo v. Piscopo ...... 209 Note ...... 212 3. Professional Practices: Contingency Fees ...... 213 Musser v. Musser ...... 213 4. Pension and Profit Sharing Plans ...... 217 Pulliam v. Pulliam ...... 217 Notes: Deferred Compensation ...... 220 5. Other Employee Benefits ...... 224 a. Disability Benefits ...... 224 Christmas v. Christmas ...... 224 Notes & Questions: Disability Benefits ...... 226 Nelson v. Nelson ...... 228 Notes: Military Disability Benefits ...... 232 b. Severance and Early Retirement Benefits ...... 233 Davis v. Davis ...... 233 Questions ...... 236 c. Stock Options ...... 236 Duty v. Duty ...... 236 Notes & Questions: Stock Options and Other Employment Benefits ...... 238 6. Tort and Workers Compensation Recoveries...... 239 Crocker v. Crocker ...... 239 Notes & Questions: Torts, Workers’ Compensation and Other Types of Property ...... 243 B. Transactional Problems ...... 245 1. Gifts and Inheritances ...... 245 Marriage of King ...... 245 Note & Questions: Acquiring Separate Property During Marriage: Gifts, Inheritances and Tracing ...... 249 2. Commingling ...... 249 Standefer v. Standefer ...... 249 Notes & Questions: Commingling ...... 254 3. Joint Tenancy ...... 254

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Larman v. Larman ...... 254 Beale v. Beale ...... 258 Note & Questions: Joint Tenancy ...... 262 4. Trusts ...... 263 Marriage of Murphy ...... 263 Notes & Questions ...... 268 5. Income From and Appreciation in Value of Separate Property ...... 268 MacDonald v. MacDonald ...... 268 May v. May ...... 272 Notes: Income From and Increase in Value of Separate Property ...... 274 Ford v. Ford ...... 274 Notes & Questions: More on Enhanced Value of Separate Property ...... 276 Thielenhaus v. Thielenhaus ...... 277 Notes & Questions: Apportioning the Increase in Value ...... 284 Mothershed v. Mothershed ...... 284 Notes & Questions: Further Comments on Transmutation ...... 290 C. Valuation of Property ...... 290 1. When Should Property be Valued? ...... 290 Lemons v. Lemons ...... 290 2. Types of Property...... 292 Brown v. Brown ...... 292 Note ...... 295 Johnson v. Johnson ...... 295 Robbins v. Robbins ...... 296 Notes & Questions: Problems of Valuation of Marital Property ...... 298 Teel v. Teel ...... 299 Note & Questions ...... 304 D. The Division of the Property ...... 305 Spencer v. Spencer ...... 305 Note & Questions: Problems of Dividing the Marital Property ...... 306

CHAPTER 4. ALIMONY AND CHILD SUPPORT

A. Standards for the Alimony Award ...... 309 Stansberry v. Stansberry ...... 309 Bowman v. Bowman ...... 310 Note: Temporary Alimony ...... 313 Johnson v. Johnson ...... 313 Note & Questions: When is Alimony Appropriate? ...... 314 Wood v. Wood ...... 315 Note & Questions: Standard of Living ...... 318 Peyravy v. Peyravy ...... 319 Hutchings v. Hutchings ...... 323 Notes & Questions ...... 326 May v. May ...... 327 Notes & Questions: The Problem of the Alimony “Cap” ...... 327 B. Termination and Modification of Alimony ...... 329 1. Remarriage ...... 329 Mathis v. Mathis ...... 329 Note ...... 334 2. Cohabitation ...... 335

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Smith v. Smith ...... 335 Note & Questions: Termination of Alimony ...... 337 3. Change of Circumstance ...... 337 In re Key ...... 337 Note: Bankruptcy and Divorce ...... 341 Thielenhaus v. Thielenhaus...... 341 Notes ...... 343 Shadid v. Shadid ...... 344 Notes & Questions: Modification for Changed Circumstances ...... 347 C. An Interlude: Marital Agreements ...... 348 1. Premarital Agreements ...... 348 Matter of Burgess’ Estate ...... 348 Griffin v. Griffin ...... 353 Notes & Questions: Pre- and Post-Marital Agreements ...... 361 2. Settlement Agreements...... 362 Introductory Note ...... 362 Dickason v. Dickason ...... 364 Whitehead v. Whitehead ...... 366 Notes & Questions: Contracting Around the Law ...... 370 Marriage of Burrell ...... 370 Parham v. Parham ...... 375 Notes & Questions: Contracting Around the Law ...... 378 Ettinger v. Ettinger ...... 379 Holleyman v. Holleyman...... 381 Notes & Questions ...... 397 D. Standards for Child Support ...... 397 Department of Human Services ex rel. K.A.G. v. T.D.G...... 397 Notes & Questions ...... 402 Pub. Law 98-378, 98 Stat. 1305, Sec. 467(a) ...... 403 1. Determination of Income ...... 405 Hogue v. Hogue ...... 405 Notes & Questions: Determination of Income ...... 406 2. Income: Expenses and Self-Employment ...... 407 Hees v. Hees ...... 407 Notes & Questions: Expense Reimbursement and Self-Employment ...... 409 3. Imputation of Income ...... 409 State ex rel. Department of Human Services v. Baggett ...... 409 Notes & Questions: Imputation of Income ...... 414 4. Income: Deductions and Credits ...... 415 Nazworth v. Nazworth ...... 415 Notes: Credits and Deductions ...... 416 5. High Income Families ...... 417 Archer v. Archer...... 417 Smith v. Smith ...... 419 Notes & Questions: Child Support in Wealthy Families and Other Deviations ...... 422 E. Modification of Child Support ...... 423 Kerby v. Kerby (I) ...... 423 Garcia v. Garcia ...... 427 Notes & Questions: Modification of Child Support ...... 430 Roca v. Roca ...... 432 Notes: Arrears ...... 436 Hedges v. Hedges ...... 436 Notes & Questions ...... 444 Hester v. Hester ...... 446

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Carr v. Carr ...... 448 Bradshaw v. Bradshaw ...... 451 Notes: Termination of Child Support ...... 453 F. Multi-State Alimony and Child Support ...... 454 Powers v. District Court of Tulsa County ...... 454 Note ...... 465 Uniform Interstate Family Support Act ...... 465 Knowlton v. Knowlton...... 467 Notes: UIFSA ...... 468 Note: The 2007 Hague Convention on the Collection of Child Support ...... 469 G. Enforcement of Child Support and Alimony Awards ...... 470 Moore v. Moore ...... 470 Davis v. Davis ...... 471 Notes: Contempt ...... 472 George v. State...... 475 Notes ...... 477 State ex rel. Dept. of Human Services v. Palmer ...... 478 Notes: Additional Methods of Enforcing Child Support ...... 480 H. Attorney Fees ...... 481 Kerby v. Kerby (III) ...... 481 Smith v. Smith ...... 482 Note ...... 484 Wilks v. Wilks ...... 485

CHAPTER 5. CHILD CUSTODY AND VISITATION

A. The Problems of the Interstate and International Child ...... 489 1. Constitutional Concerns ...... 489 Introductory Note...... 489 May v. Anderson ...... 489 Note & Questions: The Supreme Court Sows Confusion ...... 492 2. Original Jurisdiction under the UCCJA and the UCCJEA ...... 493 Holt v. District Court for the Twentieth Judicial Dist., Ardmore, Carter County ...... 493 Note & Questions: Proceedings under the UCCJEA ...... 502 Matter of J.J...... 503 Questions: Emergency Jurisdiction ...... 505 3. Modification and Enforcement under the UCCJEA & the PKPA ...... 505 Rector v. Kimes ...... 505 Notes: Modifications Under the UCCJEA ...... 508 Note: The Deployed Parents Custody and Visitation Act ...... 509 4. The UCCJEA, the PKPA and DOMA: Interstate Child Custody Jurisdiction in Non-Traditional Families ...... 510 Miller-Jenkins v. Miller-Jenkins ...... 510 Miller-Jenkins v. Miller-Jenkins ...... 516 Notes: The Aftermath ...... 523 5. International Problems of Child Abduction ...... 523 a. Habitual Residence ...... 523 Stern v. Stern ...... 523 Notes: Habitual Residence ...... 526 b. Rights of Custody ...... 527 Abbott v. Abbott ...... 527

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Notes: Rights of Custody ...... 535 c. Defenses ...... 536 Friedrich v. Friedrich ...... 536 Lozano v. Alverez ...... 543 Note & Questions: Defenses to the Return of the Child and Other Problems Under the Convention ...... 551 In re T.L.B...... 553 Note: The Relationship Between the Hague Abduction Convention and the UCCJEA ...... 558 Whallon v. Lynn ...... 559 Notes: Attorney Fees and Criminal Remedies for International Child Abduction ...... 561 B. The Original Custody Decision ...... 562 Introduction ...... 562 1. Of Sex, Race and Religion ...... 562 Gorham v. Gorham ...... 562 Notes & Questions: Parental Misconduct ...... 565 Palmore v. Sidoti ...... 567 Notes & Questions ...... 569 Pater v. Pater ...... 569 Note ...... 574 2. The Role of the Child’s Preference ...... 574 Ynclan v. Woodward ...... 574 Notes & Questions: The Child’s Preference and Other Problems of Custody Procedure ...... 589 3. Role of the Expert ...... 591 Guidelines for Child Custody Evaluations in Divorce Proceedings ...... 591 Notes ...... 594 4. Alternative Approaches to Deciding Custody Matters ...... 595 Hornbeck v. Hornbeck ...... 595 Dunham v. Dunham ...... 600 Notes & Questions: Joint Custody ...... 601 Question ...... 603 C. Modification of the Original Custody Decision ...... 604 1. Changed Circumstances ...... 604 a. The General Standard ...... 604 Gibbons v. Gibbons ...... 604 Notes & Questions: Modification and Changes in the Non-Custodial Parent ...... 607 b. Voluntary Relinquishment ...... 608 Carter v. Carter ...... 608 c. Problems of Joint Custody ...... 610 Foshee v. Foshee ...... 610 Johnson v. Wingert ...... 616 Kilpatrick v. Kilpatrick ...... 622 Notes & Questions: Modifications and Joint Custody ...... 624 Mullendore v. Mullendore ...... 625 Lowry v. Lewis ...... 628 Note: The Child’s Preference—One More Time ...... 632 d. Change of Circumstance: Interference with the Non-Custodial Parent ...... 632 Hoog v. Hoog ...... 632 Taylor v. Taylor ...... 634 Notes: Other Misconduct by the Custodial Parent ...... 636 e. Sex and the Custodial Parent ...... 636 Wells v. Wells ...... 636 Note & Questions: Change of Custody and the “Live-in Lover” ...... 638 Boatsman v. Boatsman ...... 639 Questions ...... 641

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Fox v. Fox ...... 641 Notes & Questions ...... 643 f. Home Schooling, Relocation and Harm Requirement ...... 644 Stephen v. Stephen ...... 644 Kaiser v. Kaiser ...... 650 Notes & Questions: A Requirement of Harm? ...... 658 Caber v. Dahle ...... 659 Harrison v. Morgan ...... 662 Notes: The Relocation Statute ...... 671 2. Undisclosed Evidence ...... 673 Carpenter v. Carpenter ...... 673 Stewart v. Stewart ...... 675 Note: Modification of Custody Without Lawyers or Courts ...... 677 D. Visitation: Of Sex and Religion ...... 678 Introductory Note ...... 678 DeVita v. DeVita ...... 678 In re J.S. & C...... 681 Kendall v. Kendall ...... 683 Notes & Questions: Problems of Visitation ...... 689 E. Problems of Enforcement ...... 692 Finger v. Finger ...... 692 Zaharis v. Gammill ...... 695 Notes & Questions: Tortious Interference with Custodial Relations ...... 699 F. Third Party Problems ...... 701 1. Original Third Party Custody ...... 701 Application of Grover ...... 701 Notes & Questions: A Preference for the Natural Parent? ...... 703 Application of Smith ...... 705 Notes ...... 707 2. Modification of Third Party Custody ...... 707 Johnson v. Johnson ...... 707 Note: Modification of Third Party Custody ...... 709 In re Guardianship of A.G.S...... 710 Notes & Questions: Temporary Third Party Custody Decrees ...... 714 Note: Third-Party Custody By Abandonment ...... 714 3. Grandparent Visitation ...... 716 In the Matter of the Application of Christopher Steven Herbst ...... 716 Troxel v. Granville ...... 720 Neal v. Lee ...... 733 Ingram v. Knippers ...... 736 Notes & Questions: Grandparent Visitation ...... 745 Hays v. Taff ...... 747 Notes & Questions: Visitation by Other Third Parties ...... 752

CHAPTER 6. PARENTAGE

A. From Whence We Have Come ...... 755 Note: The Way It Was ...... 755 Gomez v. Perez...... 756 B. Who is a Parent? ...... 757 Introductory Note ...... 757

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1. The Father? ...... 757 a. The Problem of Presumptions ...... 757 Friend v. Tesoro ...... 757 Deloney v. Deloney ...... 758 Notes & Questions: Presumptions of Paternity ...... 762 b. Problems of Preclusion ...... 763 Deloney v. Downey ...... 763 Clark v. Edens...... 766 Note ...... 768 c. Problems of Acknowledgment ...... 769 Paul v. Williamson ...... 769 Sweet v. State ex rel. Dept. of Human Services Child Support Enforcement ...... 773 d. Parentage Proceedings ...... 775 Clark v. Jeter ...... 775 Note: Parentage Proceedings ...... 778 e. Fault and Other Father’s Issues ...... 779 S.F. v. State ex rel. T.M...... 779 In the Matter of the Paternity of K.B...... 783 Day v. Heller...... 786 d. What Happens When the Mother is Married? ...... 791 C.C. v. A.B...... 791 Stevens v. Griggs ...... 798 Questions: Paternity Challenges when the Mother is Married ...... 801 e. Artificial Insemination ...... 802 People v. Sorensen ...... 802 Note: Oklahoma Statutes on Artificial Reproduction ...... 804 Jhordan C. v. Mary K...... 806 A.A.B. v. B.O.C...... 810 Notes & Questions: Problems of Artificial Insemination ...... 813 2. The Mother? ...... 814 Marriage of Moschetta ...... 814 Paternity of F.T.R...... 822 Notes & Questions: Problems of Surrogacy ...... 834 Marriage of Buzzanca ...... 835 Question ...... 843 3. Parentage in Non-Traditional Families ...... 843 Elisa B. v. Superior Court ...... 843 Eldridge v. Taylor ...... 850 Dubose v. North ...... 855 T.F. v. B.L...... 843 Note ...... 856 4. The Future? ...... 857 A. (A.) v. B. (B.)...... 857 Note ...... 863 5. The Children? ...... 864 Reber v. Reiss ...... 864 Note: Frozen Embryos ...... 871 C. Problems of the Father of the Child Born Out-of-Wedlock ...... 871 Stanley v. Illinois ...... 871 Lehr v. Robertson ...... 875 Notes & Questions: What Rights Should be Accorded the Unwed Father ...... 883 Matter of Baby Girl L...... 884 Questions...... 894

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TABLE OF CASES ...... 895

APPENDIX (The Appendix is contained on the CD-ROM accompanying this casebook.)

Oklahoma Statutes

Title 10. Children Chapter 1. General Provisions §§ 1-3. Repealed § 4. Repealed § 5. Renumbered § 5.1. Repealed § 5.2. Renumbered § 5A. Repealed § 6. Repealed § 6.5. Use of Certain Words in Reference to Children Born out of Wedlock Prohibited § 7. Repealed § 8. Repealed § 9. Repealed § 10. Repealed § 11. Repealed § 12. Repealed § 13. Renumbered § 14. Repealed § 15. Renumbered § 16. Repealed § 17. Repealed § 17.1. Renumbered § 18. Repealed § 19. Renumbered § 20. Renumbered § 21. Renumbered § 21.1. Renumbered § 21.2. Renumbered § 21.3. Repealed § 21.4. Repealed § 21.5. Repealed § 21.6. Repealed Chapter 1B. Indian Child Welfare Act § 40. Short Title § 40.1. Purpose—Policy of State § 40.2. Definitions § 40.3. Application of Act—Exemptions—Determination of Indian Status § 40.4. Involuntary Indian Child Custody Proceedings—Notice § 40.5. Emergency Removal of Indian child from Parent or Custodian—Order § 40.6. Placement Preference § 40.7. Agreements with Indian Tribes for Care and Custody of Indian Children § 40.8. Payment of Foster Care Expenses under Certain Circumstances § 40.9. Records Chapter 2. Adoption [Repealed or Renumbered] Chapter 2A. Oklahoma Adoption Act [Repealed or Renumbered] Chapter 2B. Subsidized Adoption Act [Repealed or Renumbered] Chapter 2C. [Repealed or Renumbered] Chapter 3. Paternity Proceedings

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§§ 70-79. Repealed § 80. Appeals §§ 81, 82. Repealed § 83. Father’s Liability to Support and Educate Child § 84. Father’s Liability for Expenses of Mother §§ 85-90.3. Repealed § 90.4. Changing Child’s Name to Paternal Surname § 90.5. District Court Shall Make Inquiry to Determine Denial of Visitation in all Paternity or Arrearage Actions Chapter 77. Uniform Parentage Act Article 1. General Provisions § 7700-101. Short Title § 7700-102. Definitions § 7700-103. Applicability and Effect of Act—Adjudication Authority Article 2. Parent-Child Relationship § 7700-201. Establishment of Mother-Child and Father-Child Relationships § 7700-202. Rights of Children Born to Parents Not Married to Each Other § 7700-203. Duration and Scope of Parent-Child Relationship § 7700-204. Presumption of Paternity—Rebuttal Article 3. Acknowledgement of Paternity § 7700-301. Signed Acknowledgement of Paternity § 7700-302. Content and Form Acknowledgment—Void and Voidable Acknowledgements— Authentication § 7700-303. Signed Denial of Paternity—Validity § 7700-305. Effect of Valid Acknowledgment or Denial of Paternity § 7700-306. No Charge for Filing § 7700-307. Recission of Acknowledgement or Denial of Paternity § 7700-308. Proceeding to Challenge Acknowledgement or Denial of Paternity— Burden of Proof § 7700-309. Necessary Parties—Personal Jurisdiction—No Suspension of Paternal Duties— Procedure—Amendment of Birth Records § 7700-310. Effect of Unchallenged Acknowledgement of Paternity § 7700-311. Full Faith and Credit § 7700-312. Forms for Acknowledgement and Denial of Paternity and Recission of Same— Availability—Effect of Modification § 7700-313. Release of Copies of Acknowledgements and Denials of Paternity § 7700-314. Promulgation of Rules Article 4. Reserved Article 5. Genetic Testing § 7700-501. Matters Governed by Article § 7700-502. Order of Court or DHS for Genetic Testing—In Utero Testing—Concurrent and Sequential Testing § 7700-503. Standards for Genetic Testing—Specimens—Database Selection—Recalculation— Inconclusive Test § 7700-504. Report of Genetic Testing—Admissibility—Establishing Chain of Custody § 7700-505. Presumption Created by Testing—Rebuttal—Further Testing § 7700-506. Cost of Genetic Testing—Reimbursement of Costs Advanced by Department § 7700-507. Additional Testing of Man Previously Identified by Genetic Testing as Father § 7700-508. Others Who May Be Tested When Testing Specimen Unavailable from Man Who May be Father § 7700-509. Testing of Deceased Individual § 7700-510. Identical Brothers—Testing—Nongenetic Evidence to Determine Father § 7700-511. Release of Report of Genetic Testing Article 6. Proceeding to Adjudicate Parentage Part 1. Nature of Proceeding

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§ 7700-601. Civil Proceeding to Adjudicate Parentage § 7700-602. Who May Maintain Proceeding to Adjudicate Parentage § 7700-603. Who May Be Joined § 7700-604. Personal Jurisdiction § 7700-605. Venue § 7700-606. Commencement of Proceeding—Child Attaining Adulthood—Earlier Proceeding § 7700-607. Limitations of Actions § 7700-608. Circumstances Requiring and Effect of Denial of Motion for Genetic Testing— Factors—Incapacitated or Minor Child § 7700-609. Time Limitation for Commencing Proceeding—Signatory to Acknowledgment of Paternity—Others § 7700-610. Joinder of Proceedings § 7700-611. Commencement of Proceedings Before Birth of Child—Actions That May Be Taken Before Child’s Birth § 7700-612. Child Not Necessary Party—Guardian Ad Litem Part 2. Special Rules for Proceeding to Adjudicate Parentage § 7700-621. Admissibility of Records—Genetic Testing Experts—Admissibility of Results of Genetic Testing and Copies of Bills § 7700-622. Contempt of Testing Order—Refusal to Submit to Testing—Failure to Answer or Appear—Testing of Mother § 7700-623. Admission of Paternity § 7700-624. Temporary Order of Support—Custody and Visitation Part 3. Hearings and Adjudications § 7700-631. Rules to Adjudicate Paternity of a Child § 7700-632. Court, Not Jury, Shall Adjudicate § 7700-633. Close of Proceedings—Availability of Final Order and Other Papers and Records § 7700-634. Order Adjudicating Paternity—When Issued § 7700-635. Dismissal for Want of Prosecution Must be Without Prejudice § 7700-636. Orders—Assessment of Fees and Costs—Child’s Surname—Amended Birth Certificate § 7700-637. Upon Whom Determination of Parentage is Binding—Other Proceedings— Defensive Use—Appeals Article 9. Miscellaneous Provisions § 7700-901. Application and Construction of Act—Uniformity of Law § 7700-902. Effect of Act on Proceedings Commenced or Executed Before November 1, 2006

Title 12. Civil Procedure Chapter 21. Attachment and Garnishment § 1171.2. Child Support Payments--Garnishment § 1171.3. Income Assignments Chapter 39. Oklahoma Pleading Code § 2025.1. Assignment by Parent to Child of Right to Recover for Injury to Child

Title 21. Crimes and Punishment Part II. Crimes Against Public Justice Chapter 19. Other Crimes Against Public Justice § 566. Contempt for Failure to Comply with Child Support and Other Orders—Punishment § 566.1. Indirect Contempt for Failure to Comply with an Order of Child Support—Punishment § 567A. Violation of Child Custody Order—Defense—Emergency or Protective Order § 644. Punishment for Assault and Battery

Title 22. Criminal Procedure Victims of Rape, Forcible Sodomy, or Domestic Abuse § 40. Definitions § 40.1. Victim of Rape or Forcible Sodomy—Notice of Rights § 40.2. Victim of Domestic Abuse—Notice of rights § 40.3. Victims Not to be Discouraged from Pressing Charges

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§ 40.4. Renumbered Domestic Abuse Reporting Act § 40.5. Title—Domestic Abuse Reporting Act § 40.6. Duty to Keep Record of Reported Incidents of Domestic Abuse—Monthly Report Protection from Domestic Abuse § 60. Short Title § 60.1. Definitions § 60.2. Protective order—Petition; Form; Preparation § 60.3. Emergency ex parte order—Hearing § 60.4. Hearing—Service of Process—Emergency Ex parte Orders—Protective Orders—Period of Relief—Title to Real Property § 60.5. Police to be Sent Copy of Protective Order § 60.6. Violation of Protective Order—Penalty § 60.7. Orders Valid Statewide Unless Expressly Modified § 60.8. Seizure and Forfeiture of Weapons and Instruments § 60.9. Warrantless Arrest—Proceedings § 60.11. Statement Required on All Ex Parte or Final Protective Order § 60.12. Foreign Protective Order § 60.13. Repealed § 60.14. Address Confidentiality for Victims—Victims of Domestic Abuse, Sexual Assault, Stalking § 60.15. Notice of Victim’s Rights § 60.16. Duties of Police Officer—Emergency Temporary Order of Protection § 60.17. Duties of the Court—Emergency Temporary Order of Protection § 60.18. Expungement of Certain Victim Protective Orders Uniform Interstate Enforcement of Domestic Violence Protection Orders Act § 60.21. Short Title § 60.22. Definitions § 60.23. Judicial Enforcement of Order § 60.24. Nonjudicial Enforcement of Order § 60.25. Registration of Order § 60.26. Immunity § 60.27. Other Remedies § 60.28. Uniformity of Application and Construction § 60.29. Transitional Provision

Title 43. Marriage and Family Marriage § 1. Definition of Marriage § 2. Consanguinity § 3. Persons Having Capacity to Marry § 3.1. Marriage Between Persons of Same Gender Not Recognized § 4. Marriage License Requirement § 5. Issuance and Validity of Marriage License § 5.1. Marriage License Fee Reduction for Successful Completion of Premarital Counseling Program § 6. License—Contents § 7. Performance or Solemnization of Marriages—Witnesses § 8. Endorsement and Return of Marriage License § 9. Record of Application, License and Certificate—Book § 10. Additional Evidence to Determine Legal Capacity before Issuance of Marriage License § 11. Copy of Certified Records as Evidence § 14. Penalty for Solemnizing Unlawful Marriage § 15. Unlawfully Issuing Marriage License, Concealing Record or Performing Marriage Ceremony— Penalty § 16. Unlawful Solicitation of Performance of Marriage Ceremony § 17. Punishment for Violation of Act

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§ 18. Injunction Restraining Violation of Act § 19. Unlawful Sale of Papers Relating to Marriage Licenses—Penalty § 20. [Omitted] §§ 31-35. Repealed § 36. Marriage License—Issuance—Delivery to Clergy or Other Qualified Person—Return— Penalties § 37. Repealed Divorce and Alimony § 101. Grounds for Divorce § 102. Residency Requirement of Plaintiff or Defendant—Army Post or Military Reservation § 103. Venue—Divorce, Annulments and Separate Maintenance § 104. Personal Jurisdiction—Persons Once Living Within the State—Service § 104.1. Appointment of Court Referees § 105. Petition—Summons § 106. Answer May Allege Cause—New Matters Verified by Affidavit § 107. Repealed § 107.1. Time for Final Order Where Minor Children Involved—Waiver—Educational Program— Exceptions § 107.2. Court Authority to Mandate Educational Program Concerning the Impact of Separate Parenting and Coparenting, Visitation, Conflict Management, etc.—Adoption of Local Rules § 107.3. Proceeding for Disposition of Children § 108. Equally Wrong Parties—Divorce Granted to Both Parties—Powers of Court When Granting Alimony without Divorce or Refusing § 109. Best Interest of Child Considered in Awarding Custody or Appointing Guardian—Joint Custody—Plan Arbitration § 109.1. Custody of Child during Separation without Divorce § 109.2. Determination of Paternity, Custody and Child Support § 109.3. Custody of Child—Evidence of Domestic Abuse—Rebuttable Presumption § 109.4. Visitation Rights of Grandparent of Unmarried Minor § 109.6. Certain Information and Records to be Available to Both Custodial and Noncustodial Parent § 110. Orders Concerning Property, Children, Support and Expenses § 110.1. Policy for equal access to the minor children by parents § 110.1a. Oklahoma Child Supervised Visitation Program § 110.2. Court Order to Submit to Blood, Saliva, Urine or Other Test § 111. Indirect Contempt for Disobeying Property Division Orders § 111.1. Order to Provide Minimum Visitation for Noncustodial Parent—Violation or Order § 111.1A. Development and Periodic Review of Standard Visitation Schedule and Advisory Guidelines § 111.2. Liability and Remedies Available Where Person Not a Party to a Custody Proceeding Denies Another of Right to Custody or Visitation § 111.3. Enforcement of Visitation Rights of Noncustodial Parent § 111.4. Suspending Visitation With a Reasonable Belief of Abuse or Neglect. § 112. Care, Custody and Support of Minor Children § 112A. Agreement to Obtain Certain Necessary Information § 112.1A. Support for Child or Adult Child § 112.2. Custody, Guardianship, Visitation—Mandatory Considerations § 112.3. Relocation Notification of Children § 112.4. Stepparent’s Support of Spouse’s Children From Prior Relationship § 112.5. Custody or Guardianship—Order of Preference—Death or Judicial Removal of Parent— Preference of Child—Presumptions Regarding Best Interests of Child § 112.6. Payment of Victim’s Attorney Fees in Dissolution of Marriage of Custody Proceedings § 113. Preference of Child Considered in Custody or Visitation Actions § 114. Interest on Delinquent Child Support and Suit Moneys payment § 115. Child Support Orders to Include Provision for Income Assignment—Voluntary Income Assignment § 116. Security or Bond for Payment of Child Support § 117. Modification, Suspension or Termination of Income Assignment Order § 118. Child Support Guidelines [Effective through June 30, 2009]

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§ 118. Child Support Guidelines [Effective July 1, 2009] § 118A. Definitions § 118B. Definitions § 118C. Deductions for Other Children—Children for Whom Support is Being Determined— Parent-Child Relationship Not Before the Court—Calculation of Deduction § 118D. Child Support Obligations § 118E. Parenting Time Adjustments § 118F. Medical Support Orders § 118G. Actual Annualized Child Care Costs § 118H. Deviation from Child Support Guidelines § 118I. Child Support Modification § 118.1. Department to Review Child Support Orders—Time and Notice—Disclosure of Financial Status § 118.2. Employer’s Duties Regarding Court or Administrative Order for Health Coverage § 118.3. Agreement to Obtain Certain Necessary Information § 118.4. Assignment of Child Support § 119. Child Support Guideline Schedule § 119.1. Review of Child Support Guidelines § 120. Child Support Computation Form Parenting Coordinator Act § 120.1. Short Title § 120.2. Definitions § 120.3. Court May Upon Its Own Motion Appoint a Parenting Coordinator § 120.4. Parenting Coordinator Decisions Binding § 120.5. State Assumes No Financial Responsibility for Paying Parenting Coordinator § 120.6. Rules Governing Parenting Coordinator § 121. Restoration of Maiden or Former Name—Alimony—Property Division § 122. Divorce Dissolves Marriage Contract and Bars Property Claims—Exception for Actual Fraud § 123. Unlawful to Marry Within 6 Months from Date of Divorce Decree—Penalty for Remarriage and Cohabitation—Appeal § 124. Punishment for Bigamy § 125. Validation of Judgment Annulling Marriage or Granting Divorce § 126. Remarriage as Ground for Annulment § 127. Time When Judgment is Final in Divorce—Appeal § 128. Action to Void Marriage Due to Incapacity § 129. Alimony without Divorce § 130. Evidence in Divorce or Alimony Actions § 131. Residency in Divorce Action § 132. Parties Competent to Testify in Divorce Action § 133. Dissolution of Divorce Decree § 134. Alimony Payments—Termination—Modification § 135. Lien for Child Support Arrearages—Notice and Hearing § 136. Payment of Support and Alimony by Mail—Report of Payments as Evidence—Application Fee for Income Assignment § 137. Past Due Support Payments as Judgment—Arrearage Payment Schedule § 138. Cost in Child Support Enforcement Cases § 139. Child Support as Legal Right—Authority to Revoke or Suspend Licenses for Noncompliance with Child Support Order § 139.1. Definitions § 140. Problem Solving Court Program § 201. Mutual Obligations of Respect, Fidelity and Support § 202. Duty to Support—Husband—Wife § 203. Separate Property—Exclusion from Dwelling Prohibited § 204. Contracts or Transactions by Husband or Wife § 205. Contracts Altering Legal Relations Not Allowed—Exceptions

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§ 206. Mutual Consent as Consideration § 207. Husband and Wife—Joint Tenants, Tenants in Common or Community Property—Separate Property—Inventory and Filing § 208. Liability for Acts and Debts of the Other Spouse—Curtesy and Dower Not Allowed at Death § 209. Repealed § 209.1. Necessities Furnished to Either Spouse § 210. Husband Abandoned by Wife Not Liable for Her Support—Exceptions—Separation by Agreement § 211. Circumstances Where Abandoned Spouse May Manage, Control, Sell, or Encumber Property— Notice § 212. Contracts and Encumbrances Binding on Husband and Wife—Liability— Suit and Proceedings Not Abated § 213. Order or Decree Set Aside Pursuant to Preceding Sections—Notice and Service of Summons § 214. Legal Rights of Married Women § 215. Recordable Agreement as to Rights Acquired by Community Property Laws §§ 301-344. Repealed §§ 401, 402. Repealed Oklahoma Centralized Support Registry Act § 410. Short Title §§ 411, 412. Repealed § 413. Payments Made Through Registry—Procedure—Change of Address—Service of Process Oklahoma Child Visitation Registry Act § 420. Short Title § 421. Agencies to Provide § 422. Participant Log—Copies of Log and Record—Entries as Proof of Compliance § 423. Participation in Child Visitation Registry Program by Court Order or Motion § 424. Office of the Court Administrator to Develop Forms—Contents—Power to Reduce or Cancel Visitation for Habitual Lateness § 425. Time for Hearing §§ 501-527. Repealed Uniform Child Custody Jurisdiction and Enforcement Act Article 1. General Provisions § 551-101. Short Title § 551-102. Definitions § 551-103. Proceedings Governed by other Law § 551-104. Application to Indian Tribes § 551-105. International Application of Act § 551-106. Effect of Child Custody Determination § 551-107. Priority § 551-108. Notice to Persons outside State § 551-109. Appearance and Limited Immunity § 551-110. Communication between Courts § 551-111. Taking Testimony in another State § 551-112. Cooperation between Courts—Preservation of Records Article 2. Jurisdiction § 551-201. Initial Child Custody Jurisdiction § 551-202. Exclusive, Continuing Jurisdiction § 551-203. Jurisdiction to Modify Determination § 551-204. Temporary Emergency Jurisdiction § 551-205. Notice—Opportunity to be Heard—Joinder § 551-206. Simultaneous Proceedings § 551-207. Inconvenient Forum § 551-208. Jurisdiction Declined by Reason of Conduct § 551-209. Information to be Submitted to Court § 551-210. Appearance of Parties and Child Article 3. Enforcement

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§ 551-301. Definitions § 551-302. Enforcement under Hague Convention § 551-303. Duty to Enforce § 551-304. Temporary visitation § 551-305. Registration of Child Custody Determination § 551-306. Enforcement of Registered Determination § 551-307. Simultaneous Proceedings § 551-308. Expedited Enforcement of Child Custody Determination § 551-309. Service of Petition and Order § 551-310. Hearing and Order § 551-311. Warrant to Take Physical Custody of Child § 551-312. Costs, Fees, and Expenses § 551-313. Recognition and Enforcement § 551-314. Appeals § 551-315. Role of District Attorney § 551-316. Role of Law Enforcement § 551-317. Costs and Expenses Article 4. Miscellaneous Provisions § 551-401. Application and Construction § 551-402. Transitional Provision Uniform Interstate Family Support Act Article 1. General Provisions § 601-100. Citation—Uniform Interstate Family Support Act § 601-101. Definitions § 601-102. Tribunals of State § 601-103. Remedies Cumulative Article 2. Jurisdiction Part A. Extended Personal Jurisdiction § 601-201. Grounds for Personal Jurisdiction over Nonresident § 601-202. Exercise of Persona Jurisdiction over Nonresident Part. B. Proceedings Involving Two or More States § 601-203. Initiating and Responding Tribunal § 601-204. Proceedings in another State § 601-205. Continuing Exclusive Jurisdiction over Child Support Orders § 601-206. Enforcement and Modification of Orders by Tribunal Part C. Reconciliation with Orders of Other States § 601-207. Rules to Determine Which Child Support Order to Recognize § 601-208. Registrations or Petitions to Enforce Two or More Support Orders—Same Obligor, Different Obligees § 601-209. Credits for Amounts Collected for Same Period § 601-210. Evidence, Communications, and Discovery from Tribunals of Other States § 601-211. Effect of Continuing, Exclusive Jurisdiction Article 3. Civil Provisions of General Application § 601-301. Applicability of Article—Initial Proceedings § 601-302. Proceedings by Minor Parent § 601-303. Application of Procedural and Substantive Law of this State § 601-304. Initiating Tribunal to Forward Petition and Documents § 601-305. Powers and Duties of Responding Tribunal § 601-306. Duties of an Inappropriate Tribunal § 601-307. Duties of Support Enforcement Agency—Fiduciary Relationship Not Created § 601-308. Attorney General’s Power § 601-309. Employment of Private Counsel § 601-310. Child Support Enforcement Division of the Department of Human Services as State Information Agency—Duties

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§ 601-311. Pleadings Requirements—Other Documents § 601-312. Circumstances Justifying Nondisclosure of Identifying Information in Pleading § 601-313. Filing Fees, Costs and Expenses § 601-314. Immunity of Petitioner § 601-315. Nonparentage as Defense to Proceedings under Act § 601-316. Physical Presence of Petitioner Not Required in Responding Tribunal—Special Rules of Evidence § 601-317. Communications with Tribunal of Another State or Foreign Country or Political Subdivision § 601-318. Requesting Tribunal to Assist with Discovery—Compelling Person to Comply with Discovery § 601-319. Disbursement of Support Payments—Certified Statement of Amounts and Dates of Payment Received Article 4. Establishment of Support Order § 601-401. Income-Withholding Orders Issued in Another State—Contesting Order’s Validity Article 5. Direct Enforcement of Order of Another State Without Registration § 601-501. Recognition of Income-Withholding Order Issued in Another State § 601-502. Duties of Obligor’s Employer—Income-Withholding Orders § 601-503. Two or More Income-Withholding Orders § 601-504. Compliance with Income-Withholding Orders § 601-505. Non-Compliance with Income-Withholding Orders § 601-506. Contesting the Validity or Enforcement of Income-Withholding Order § 601-507. Enforcement of Income-Withholding Order Article 6. Enforcement and Modification of Support Order After Registration § 601-601. Registration of Order in State for Enforcement § 601-602. Procedure for Registration of Order from another State § 601-603. Registration of Order Issued in Another State—Enforceability—Modification § 601-604. Choice of Law—Statute of Limitations § 601-605. Notice of Registration of Order to Nonregistering Party and Obligor’s Employer § 601-606. Contesting Validity or Enforcement or Registered Order—Failure to Contest in Timely Manner—Hearing § 601-607. Available Defenses When Contesting Registered Order § 601-608. Effect of Confirmation of Registered Order § 601-609. Registration of Child Support Order Issued in another State § 601-610. Enforcement of Registered Order of another State § 601-611. Modification of Registered Child Support Order Issued in another State § 601-612. Recognition of Order Modified by Tribunal of another State § 601-613. Jurisdiction § 601-614. Filing Required § 601-615. When Foreign Country or Political Subdivision Will or May Not Modify Its Order Article 7. Determination of Parentage § 601-701. Courts of this State as Responding Tribunals in Proceedings to Determine Parentage Article 8. Interstate Rendition § 601-801. Rendition—Extradition § 601-802. Rendition, Extraditions—Conditions Article 9. Miscellaneous Provisions § 601-901. Application and Construction of Act Domestic Relations Recodification Committee §§ 700.1-700.6. Repealed

Title 47. Motor Vehicles § 6-201.1. Additional Requirements to Hold Driver’s License

Title 76. Torts § 1.1. Neither Parent or Child Answerable for Other’s Acts

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Federal Statutes

Title 25. Indians Federal Indian Child Welfare Act Chapter 21. Indian Child Welfare § 1901. Congressional findings § 1902. Congressional declaration of policy § 1903. Definitions § 1911. Indian tribe jurisdiction over Indian child custody proceedings § 1912. Pending court proceedings § 1913. Parental rights, voluntary termination § 1914. Petition to court of competent jurisdiction to invalidate action upon showing of certain violations § 1915. Placement of Indian children § 1916. Return of custody § 1917. Tribal affiliation information and other information for protection of rights from tribal relationship; application of subject of adoptive placement; disclosure by court § 1918. Reassumption of jurisdiction over child custody proceedings § 1919. Agreements between States and Indian tribes § 1920. Improper removal of child from custody; declination of jurisdiction; forthwith return of child: danger exception § 1921. Higher State or Federal standard applicable to protect rights of parent or Indian custodian of Indian child § 1922. Emergency removal or placement of child; termination appropriate action § 1923. Effective date

Title 28. Judiciary and Judicial Proceedings Part V. Procedure Chapter 115. Evidence, Documentary The Parental Kidnapping Prevention Act § 1738A. Full faith and credit given to child custody determinations § 1738B. Full faith and credit for child support orders

Title 42. The Public Health & Welfare Chapter 121. International Child Abduction Remedies Act § 11601. Findings and declarations § 11602. Definitions § 11603. Judicial remedies § 11604. Provisional remedies § 11605. Admissibility of documents § 11606. United States Central Authority § 11607. Costs and fees § 11608. Collection, maintenance, and dissemination of information § 11608a. Office of Children’s Issues § 11609. Interagency coordinating group § 11610. Authorization of appropriations

Hague Convention on the Civil Aspects of International Child Abduction Chapter I—Scope of the Convention Article 1 Article 2 Article 3 Article 4 Article 5 Chapter II—Central Authorities Article 6 Article 7

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Chapter III—Return of Children Article 8 Article 9 Article 10 Article 11 Article 12 Article 13 Article 14 Article 15 Article 16 Article 17 Article 18 Article 19 Article 20 Chapter IV—Rights of Access Article 21 Chapter V—General Provisions Article 22 Article 23 Article 24 Article 25 Article 26 Article 27 Article 28 Article 29 Article 30 Article 31 Article 32 Article 33 Article 34 Article 35 Article 36

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CHAPTER 1. MARRIAGE

A. RESTRICTIONS ON WHO CAN MARRY

1. The Traditional Restrictions: Bigamy

WHITNEY v. WHITNEY 1942 OK 268, 134 P.2d 357

BAYLESS, JUSTICE. Mary P. Whitney sued Wayne Whitney in the district court for a divorce, and other appropriate relief with respect to their minor children and property. She alleged that on October 1, 1928, plaintiff and defendant were married in Oklahoma City and ever since that date have been husband and wife. The ground for divorce was extreme cruelty. Whitney filed an answer wherein (1) he denied the marriage in Oklahoma City; (2) he set out in detail his marriage to another woman in 1913, and asserted that marriage had never been dissolved; (3) and by reason of the marriage existing between him and another woman, he was incapable in 1928, of contracting a marriage with plaintiff. During the trial the fact that Whitney had a living wife in 1928 and was still bound in matrimony to her at the time of the trial became so obvious that plaintiff asked and was given permission to amend her petition to allege as ground for divorce that Whitney had a former wife alive at the time of the subsequent marriage. 12 O.S. § 1271(1). At the close of the hearing plaintiff was granted a divorce from Whitney on the ground that he had a living wife at the time he married plaintiff in 1928. The matter of settlement of property rights and the custody of the children was deferred, and settled at a later hearing. The appeal involves all of the issues disposed of by the trial court. However, it is proper to say at this point that no contest is presented to us concerning the children. * * * Whitney contends first that the alleged marriage with plaintiff is bigamous and void. This is correct. The Constitution of Oklahoma, Art. 1, § 2 says: “Polygamous or plural marriages are forever prohibited.” At the time plaintiff and Whitney undertook to establish a marital status he was a married man, having a wife from whom he was not divorced and to whom he was bound in a legal marriage, and therefore he was incapable of entering into a contract of marriage with plaintiff. Considerable discussion is indulged by the parties as to whether, since it is admitted there was no ceremonial marriage, there was a common law marriage, and cases are cited from this and other jurisdictions setting out the elements to a common law marriage. We think this is beside the point. Common law marriages are valid in Oklahoma. * * * Where the prescribed essentials are shown a common law marriage is as valid as one based on a license and ceremony.

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But, if one of the parties to a so-called common law marriage has a living spouse of an undissolved marriage, the common law marriage attempted is as polygamous and plural and, therefore, as void as a ceremonial marriage attempted under the same circumstances. Plaintiff argues that because the first ground for divorce in our statutes, 12 O.S. 1941 § 1271(1), the one relied on by her, is the existence of a valid prior marriage as to one or both of the parties, the Legisla- ture has thereby invested the attempted subsequent marriage with some validity and sanctity, the effect of which is to give our courts power to adjust the so called marital rights and other incidents thereto. Plaintiff has furnished us with a memorandum calling attention to the statutes of several states (Ar- kansas, Colorado, Florida, Illinois, Mississippi, Ohio and Kansas) providing for divorce on the ground of an existing marital relation at the time of the subsequent marriage, and decisions from several states dis- cussing the legislative power, and the tendency of the courts to further such a policy, to deal less harshly with plural marriage than was customary at common law. * * * The statute just cited was first put into effect in Oklahoma prior to statehood, Stat. 1893, § 4543, and was adopted from Kansas. After statehood the statute was carried forward and now reads as it did prior to statehood. But whatever were its connotations prior to statehood, and granting it may have been construed to lend support to plaintiff’s argument, it ceased to have any meaning contrary to the fundamental policy of our State as expressed in Art. 1, § 2, Constitution of Oklahoma. With the adoption of our constitution any validity, or any sanctity theretofore accorded the subsequent marriage in cases of bigamous or plural marriages ceased, and such bigamous or plural marriages when attempted are void and wholly ineffectual to create a marital status or any of the legal incidents that usually flow therefrom as between the parties. * * * A search has not shown that any of the states, whose statutes are cited in the memorandum, have a constitutional prohibition against plural marriages as we have. The Legislatures of those states are free to establish the public policy thereon, and may accord any status or privileges to the parties to a plural marriage that seems desirable. We think this makes the problem in those states sufficiently different from the problem in this state as to deprive the statutes and decisions cited of any analogous value to the issue in Oklahoma. We are impressed by what is said in 18 R.C.L. 441, § 69: A marriage void in its inception does not require the sentence, decree or judgment of any court to restore the parties to their original rights or to make the marriage void, but though no sentence of avoidance be absolutely necessary, yet as well for the sake of the good order of society as for the peace of mind of all persons concerned, it is expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction. The legislature has the power and ought to provide for a judicial declaration of the void nature of the subsequent marriage. We do not think it beyond the power of the Legislature to adopt the mechanics of the divorce action as a method for the courts to determine the issue of fact and law, that a marriage is plural and void, and it probably does not matter that the decree or judgment is called divorce rather than annulment. Whitebird v. Luckey, 180 Okl. 1, 67 P.2d 775. But the power in the Legislature to provide for such a judicial determination and the use of the term “divorce” as applied thereto cannot have the effect of adopting the phi- losophy underlying divorce as applied to the dissolution of a valid marriage so as to carry with it the power to adjust rights as though a valid marriage was being dissolved. Many incidents attach to divorce in the dissolution of a valid marriage, such as allowances pendente lite, separate maintenance, permanent alimo-

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A. RESTRICTIONS ON WHO CAN MARRY

ny, custody and support of children and division of property on the basis of matters implied from joining in lawful wedlock, and are countenanced by equity or provided by statute. Where there is no marriage there can be no allowance pendente lite. Baker v. Carter, 180 Okl. 7, 68 P.2d 85. When the marriage is void there can be no alimony, no dower, courtesy or interest in property equivalent thereto. Krauter v. Krauter, 79 Okl. 30, 190 P. 1088 and Whitebird v. Luckey, 180 Okl. 1, 67 P.2d 775. Insofar then as our divorce statute is concerned, when the court has determined that one or both of the parties to a marriage were incapable of contracting the marriage because of being then bound in a valid marriage, it has exhausted the Legislative power conferred on it, and it cannot assume to exercise the other powers inherent or statutory in a divorce relating to valid marriages. Whitebird v. Luckey, supra. The trial court was correct in determining that the relation of the parties to each other should be stated by a judgment determining that Whitney was a married man in 1928, and at all times up to the rendition of the judgment, and therefore incapable of marrying plaintiff, and in granting to her an order or judgment that neither was bound to the other. The trial court undertook to adjust the property rights of the parties as though there was some sort of a marriage that vested the court with the powers stated by statute in rendering a divorce following a legal marriage. We are of the opinion that when it conclusively appears, as herein, or is adjudged on competent evidence that the relation of husband and wife never existed legally, the statutory power to adjust property rights, 12 O.S. 1941 § 1278, has no application, but that the power to adjust such rights is equitable. See Krauter v. Krauter, supra, and Tingley v. Tingley, 179 Okl. 201, 64 P.2d 865. The matter of adjustment of property rights between a man and a woman involved in a bigamous marriage has frequently engaged the attention of the courts, . . . 75 A.L.R. 733. . . . For purposes of classification the relation of the parties is likened to that of partnership, and while in earlier cases there was a desiring to question whether the man and woman should be treated as partners with respect to their property rights, the later cases seem to approach closer agreement on this issue and to recognize that it is probably an easier settlement of a difficult problem to regard the parties to a bigamous marriage as partners with respect to their property rights arising during the cohabitation. We have said it is a quasi partnership. Krauter v. Krauter, supra. This brings us then to the contention made by Whitney, that after this litigation arose the parties entered into a written contract adjusting and settling their property rights and such contract is binding on the court. Following the rule applicable to partnerships generally, we think this is correct. It is elemental that partners may dissolve their relationship by contract, and may adjust, settle and dispose of the property rights thereby . . . ; and, in the absence of an attack thereon by either of the parties on any of the recognized grounds for rescission, the contract will be enforced by the courts. No such attack is made upon the contract that calls for rescission. The plaintiff took the position that the contract entered into was for the purpose of adjusting the differences between the parties and to permit the reconciliation between them and we gather from what is said in her brief that they lived together after the contract had been executed. In support of this position the plaintiff cites Hale v. Hale, 40 Okl. 101, 135 P. 1143, and other Oklahoma cases to the effect that a contract made between a husband and wife in a divorce proceeding in settlement of differences between

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them is nullified by the reconciliation and resumption of the marital relation. We suppose that the trial court adopted this view and seems to have assumed that because the litigation was not terminated the contract was destroyed by the reconciliation, or the plaintiff was free to repudiate because not wholly executed, and that thereby the contract ceased to be effective for any purpose. We think this view of the matter is erroneous. Plaintiff and Whitney were not husband and wife. The rule announced in Hale v. Hale, supra, applies to parties who are legally husband and wife. These parties were not legally married and at the time the contract was entered into each of them knew that there was a serious question of its validity and they were not eligible to reconcile themselves and resume the marital relation with the effect of thereby rendering ineffective a contract entered into. They were with respect to their property partners and were free to deal with each other as such. Until such time as an attack is made on the contract on any of the recognized grounds, the contract must stand. Therefore with the record before us as it is, the trial court erred in treating the contract as not binding and not assuming to adjust the property rights of the parties. * * * * WELCH, C.J., and RILEY, OSBORN, HURST, and DAVIDSON, JJ., concur. CORN, V.C.J., and GIBSON, J., dissent. ARNOLD, JUSTICE (dissenting). * * * * Courts of enquiry may entertain suits to adjudge the nullity of any void contract, so unquestionably the plaintiff in this action might have maintained a suit in equity to nullify the purported contract of marriage. However, the remedy of divorce was also available. The legislature had the unquestioned power to authorize the bringing of such an action in our divorce courts, which are creatures of our legislative body, and authorize divorcement on the ground of the incapability of one of the parties by reason of the existence of a living spouse. This it did by 12 O.S. 1941 § 1271-(1), wherein is provided, as a ground for divorce “when either of the parties had a former husband or wife living at the time of the subsequent marriage.” * * * I cannot believe the legislature intended to do a useless thing. There are good reasons why the legislature so authorized such a person, while it failed to authorize the bringing of a divorce action in any other case where the contract was void ab initio. The family is the most sacred of all institutions and its preservation and integrity, and the welfare of children are matters of very vital public concern. The legislature evidently knew, as I know, that a party to a marriage contract might be, while wholly innocent of any wrongdoing, imposed upon grossly by the other party in the manner as contended by the plaintiff herein. Knowledge of a living spouse of a party to a marriage contract might easily be unknown to the other contracting party and such a fact easily be fraudulently undisclosed or covered up. Such a defrauded party to such a void marriage, if innocent of any wrongdoing or knowledge thereof, would morally be entitled to the same protection, rights, and privileges as one who was lawfully married, . . . * * * *

Notes & Questions 1. If parties to a bigamous marriage continue to live together as husband and wife following the removal of the impediment through death or divorce, they have a common law marriage as of the time the impediment is removed. Hill v. Shreve, 1968 OK 182, 448 P.2d 848 (“The rule is that the acts of living together and holding themselves out as husband and wife, after removal of a legal impediment to marriage constitute a common-law marriage, even though both parties knew of the impediment.”).

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2. Should Mr. Whitney be estopped from denying his marriage to Mrs. Whitney? See the conflicting opinions of Sutton v. Sutton, 143 S.W.3d 759 (Mo. Ct. App. 2004) and Falk v. Falk, 2005 WL 127077 (Tenn. Ct. App. 2005). 3. The following note appeared recently on a family law listserv for attorneys: Female client walks into the office saying she wants to get a divorce from husband #4 to marry guy # 5. Attorney asks about previous marriages, client replies: She married husband # 1 in the early 1970s, divorced him (does not remember when) and marries husband # 2 early 1980. She thinks she divorced husband # 2 but is not clear about the facts. She then goes and marries husband # 3 in the late 1980s. She is almost positive that another legal services agency divorced her from husband #3. She then marries husband # 4 in early 2000. Attorney goes to the clerk’s office of the county and searches for a divorce judgment. The only judgment of divorce found is for husband #1. There are no divorce judgments found for husband # 2 or # 3. Client also expresses a wish that if it is found that she is still married to husband # 2 then she does not want to divorce him and will not marry guy # 5. (It appears husband # 2 is the only one that has a decent job). QUESTION: What should be done about husband # 3 and # 4? Should the marriages to # 3 and # 4 be declared void? Was it bigamy if she lacks mens rea? What advice do you have for this lawyer? 4. Plural marriages are prohibited in every state. Freedom-of-religion objections concerning Mor- mons were overruled in Reynolds v. United States, 98 U.S. 145 (1878) and Utah v. Green, 99 P.3d 820 (Utah 2004). Privacy objections to banning plural marriage have also been rejected. Bronson v. Swenson, 2005 WL 1310482 (D. Utah 2005) (unpublished, text in Westlaw). 5. A number of plural marriage households secretly exist in Arizona, New Mexico, Idaho, Nevada, Montana and Utah. How immoral are such homes? Should the children of such households be taken away from their parents? The State of Utah has done so. See State ex rel. Utah v. Black, 283 P.2d 887 (Utah 1955). However, the Utah Supreme Court has held that it was error for a trial court to base an award of custody solely on the fact that the mother was involved in a polygamous relationship. Sander- son v. Tyson, 739 P.2d 623 (Utah 1987). 6. Bigamy is criminally proscribed in all states. See 21 O.S. §§ 881-884 (2001). The penalty is five years in prison. Anyone who knowingly marries a person who is still married to a third person can be punished by a sentence of one to five years in prison or by a fine of $500.

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2. The Constitutional Question

ZABLOCKI v. REDHAIL 434 U.S. 374 (1978)

MR. JUSTICE MARSHALL delivered the opinion of the Court. At issue in this case is the constitutionality of a Wisconsin statute, WIS. STAT. § 245.10(1),(4),(5), which provides that members of a certain class of Wisconsin residents may not marry within the State or elsewhere, without first obtaining a court order granting permission to marry. The class is defined by the statute to include any “Wisconsin resident having minor issue not in his custody and which he is under obligation to support by any court order or judgment.” The statute specifies that court permission cannot be granted unless the marriage applicant submits proof of compliance with the support obligation and, in addition, demonstrates that the children covered by the support order “are not likely thereafter to become public charges.” No marriage license may lawfully be issued in Wisconsin to a person covered by the statute, except upon court order; any marriage entered into without compliance with § 245.10 is declared void; and persons acquiring marriage licenses in violation of the section are subject to criminal penalties. After being denied a marriage license because of his failure to comply with § 245.10, appellee brought this class action challenging the statute as violative of the Equal Protection and Due Process Clauses of the Fourteenth Amendment and seeking declaratory and injunctive relief. The United States District Court for the Eastern District of Wisconsin held the statute unconstitutional under the Equal Pro- tection Clause and enjoined its enforcement. We now affirm. I Appellee Redhail is a Wisconsin resident who, under the terms of § 245.10, is unable to enter into a lawful marriage in Wisconsin or elsewhere so long as he maintains his Wisconsin residency. The facts are as follows. In January, 1972, when appellee was a minor and a high school student, a paternity action was instituted against him in Milwaukee County Court, alleging that he was the father of a baby girl born out of wedlock on July 5, 1971. After he appeared and admitted that he was the father, the court entered an order on May 12, 1972, adjudging appellee the father and ordering him to pay $109 per month as support for the child until she reached 18 years of age. From May 1972 until August 1974, appellee was un- employed and indigent, and consequently was unable to make any support payments. On September 27, 1974, appellee filed an application for a marriage license with appellant Zablocki, the County Clerk of Milwaukee County, and a few days later the application was denied on the sole ground that appellee had not obtained a court order granting him permission to marry, as required by § 245.10. Although appellee did not petition a state court thereafter, it is stipulated that he would not be able to satisfy either of the statutory prerequisites for an order granting him permission to marry. First, he had not satisfied his support obligations to his illegitimate child, and as of December 1974 there was an arrearage in excess of $3,700. Second, the child had been a public charge since her birth, receiving benefits under the Aid to Families with Dependent Children program. It is stipulated that the child’s benefit payments were such that she would have been a public charge even if appellee had been current in his support payments.

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On December 24, 1974, appellee filed his complaint in the District Court, on behalf of himself and the class of all Wisconsin residents who had been refused a marriage license pursuant to § 245.10(1) by one of the county clerks in Wisconsin. Zablocki was named as the defendant, individually and as representative of a class consisting of all county clerks in the State. The complaint alleged, among other things, that appellee and the woman he desired to marry were expecting a child in March 1975 and wished to be lawfully married before that time. * * * * * * * II * * * * * * * Since our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that “critical examination” of the state interests advanced in support of the classification is required. * * * The leading decision of this Court on the right to marry is Loving v. Virginia, 388 U.S. 1 (1967). In that case, an interracial couple who had been convicted of violating Virginia’s miscegenation laws challenged the statutory scheme on both equal protection and due process grounds. The Court’s opinion could have rested solely on the ground that the statutes discriminated on the basis of race in violation of the Equal Protection Clause. * * * But the Court went on to hold that the laws arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry. * * * Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals. Long ago, in Maynard v. Hill, 125 U.S. 190 (1888), the Court characterized marriage as “the most important relation in life,” and as “the foundation of the family and society, without which there would be neither civilization nor progress, . . .” * * * More recent decisions [such as Griswold v. Connecticut] have established that the right to marry is part of the fundamental “right of privacy” implicit in the Fourteenth Amendment’s Due Process Clause. * * * * * * * It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. As the facts of this case illustrate, it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society. The woman whom appellee desired to marry had a fundamental right to seek an abortion of their expected child or to bring the child into life to suffer the myriad social, if not economic, disabilities that the status of illegitimacy brings. . . . Surely, a decision to marry and raise the child in a traditional family setting must receive equivalent protection. And, if appellee’s right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place. By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subject to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed. See Califano v. Jobst, p. 47; n. 12, infra [434 U.S. 47]. The statutory classification at issue here, however clearly does interfere directly and substantially with the right to marry.

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Under the challenged statute, no Wisconsin resident in the affected class may marry in Wisconsin or elsewhere without a court order, and marriages contracted in violation of the statute are both void and punishable as criminal offenses. Some of those in the affected class, like appellee, will never be able to obtain the necessary court order, because they either lack the financial means to meet their support obligations or cannot prove that their children will not become public charges. These persons are absolutely prevented from getting married. Many others, able in theory to satisfy the statute’s requirements, will be sufficiently burdened by having to do so that they will in effect be coerced into forgoing their right to marry. And even those who can be persuaded to meet the statute’s requirements suffer a serious intrusion into their freedom of choice in an area in which we have held such freedom to be fundamental.12 III When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. * * * Appellant asserts that two interests are served by the challenged statute: the permission-to-marry proceeding furnishes an opportunity to counsel the applicant as to the necessity of fulfilling his prior support obligations; and the welfare of the out-of-custody children is protected. We may accept for present purposes that these are legitimate and substantial interests, but, since the means selected by the State for achieving these interests unnecessarily impinge on the right to marry, the statute cannot be sustained. There is evidence that the challenged statute, as originally introduced in the Wisconsin Legislature, was intended merely to establish a mechanism whereby persons with support obligations to children from prior marriages could be counseled before they entered into new material relationships and incurred further support obligations. Court permission to marry was to be required, but apparently permission was automatically to be granted after counseling was completed. The statute actually enacted, however, does not expressly require or provide for any counseling whatsoever, nor for any automatic granting of permission to marry by the court, and thus it can hardly be justified as a means for ensuring counseling of the persons within its coverage. Even assuming that counseling does take place—a fact as to which there is no evidence in the record—this interest cannot support the withholding of court permission to marry once counseling is completed. With regard to safeguarding the welfare of the out-of-custody children, appellant’s brief does not make clear the connection between the State’s interest and the statute’s requirements. At argument, appellant’s counsel suggested that, since permission to marry cannot be granted unless the applicant shows that he has satisfied his court-determined support obligations to the prior children and that those children will not become public charges, the statute provides incentive for the applicant to make support payments to his children. TR. OF ORAL ARG. 17-20. This “collection device” rationale cannot justify the statute’s broad infringement on the right to marry.

12 The directness and substantiality of the interference with the freedom to marry distinguish the instant case from Cali- fano v. Jobst, 434 U.S. 47. In Jobst we upheld sections of the Social Security Act providing, inter alia, for termination of a dependent child’s benefits upon marriage to an individual not entitled to benefits under the Act. As the opinion for the Court expressly noted, the rule terminating benefits upon marriage was not “an attempt to interfere with the individual’s freedom to make a decision as important as marriage.” The Social Security provisions placed no direct legal obstacle in the path of persons desiring to get married, and—notwithstanding our Brother Rehnquist’s imaginative recasting of the case—there was no evidence that the laws significantly discouraged, let alone made “practically impossible,” any marriages. Indeed the provisions had not deterred the individual who challenged the statute from getting married, even though he and his wife were both disabled.

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First, with respect to individuals who are unable to meet the statutory requirements, the statute merely prevents the applicant from getting married, without delivering any money at all into the hands of the applicant’s prior children. More importantly, regardless of the applicant’s ability or willingness to meet the statutory requirements, the State already has numerous other means for exacting compliance with support obligations, means that are at least as effective as the instant statute’s and yet do not impinge upon the right to marry. Under Wisconsin law, whether the children are from a prior marriage or were born out of wedlock, court-determined support obligations may be enforced directly via wage assignments, civil contempt proceedings, and criminal penalties. And, if the State believes that parents of children out of their custody should be responsible for ensuring that those children do not become public charges, this interest can be achieved by adjusting the criteria used for determining the amounts to be paid under their support orders. There is also some suggestion that § 245.10 protects the ability of marriage applicants to meet support obligations to prior children by preventing the applicants from incurring new support obligations. But the challenged provisions of § 245.10 are grossly underinclusive with respect to this purpose, since they do not limit in any way financial commitments by the applicant other than those arising out of the contemplated marriage. The statutory classification is substantially overinclusive as well: Given the possibility that the new spouse will actually better the applicant’s financial situation by contributing income from a job or otherwise, the statute in many cases may prevent affected individuals from improving their ability to satisfy their prior support obligations. And, although it is true that the applicant will incur support obligations to any children born during the contemplated marriage, preventing the marriage may only result in the children being born out of wedlock, as in fact occurred in appellee’s case. Since the support obligation is the same whether the child is born in or out of wedlock, the net result of preventing the marriage is more illegitimate children. The statutory classification created by §§ 245.10(1), (4), (5) thus cannot be justified by the interests advanced in support of it. The judgment of the District Court is accordingly, AFFIRMED. REHNQUIST, JUSTICE (dissenting). * * * * * * * I would view this legislative judgment in the light of the traditional presumption of validity. I think under the Equal Protection Clause the statute only need pass the “rational basis test,” . . . and that under the Due Process Clause it need only be shown that it bears a rational relation to a constitutionally permissible objective. . . . The statute so viewed is a permissible exercise of the state’s power to regulate family life and to assure the support of minor children, despite its possible imprecision in the extreme cases envisioned in the other opinions. * * * Because of the limited amount of funds available for the support of needy children, the State has an exceptionally strong interest in securing as much support as their parents are able to pay. Nor does the extent of the burden imposed by this statute so differentiate it from that considered in Jobst as to warrant a different result. In the case of some applicants, this statute makes the proposed marriage legally impossible for financial reasons; in a similar number of extreme cases, the Social Security Act makes the proposed marriage practically impossible for the same reasons. I cannot conclude that such a difference justifies the application of a heightened standard of review to the statute in question here. In short, I conclude that the statute despite its imperfections, is sufficiently rational to satisfy the demands of the Four- teenth Amendment. * * * *

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I would reverse the judgment of the District Court.

Notes & Questions: Due Process Restrictions on State Marriage Regulations 1. Loving v. Virginia, 388 U.S. 1 (1967), referred to in Zablocki, struck down the Virginia statute prohibiting marriages between persons of different races. Oklahoma prohibited miscegenation when the Loving case was decided. See 43 O.S. §§ 14, 15, 16 (1961) (repealed). The Oklahoma Supreme Court sustained the constitutionality of the interracial prohibition just one year before Loving was decided. See Jones v. Lorenzen, 1965 OK 185, 441 P.2d 986 (Okla. 1965). 2. What is the long term effect of the Zablocki decision? How many of the traditional restrictions on marriage can survive a constitutional attack? Or, does Zablocki only apply to new restrictions on the right to get married? A Missouri prison regulation prohibited inmates from marrying unless the prison superintendent, after finding that there were compelling reasons, approved the marriage. Generally, only the birth of a child or pregnancy was considered a compelling reason. The state attempted to justify the regulation by claiming it was for security concerns. The prison contended that the regulations prohibited love triangles in prisons and, with regard to female prisoners, encouraged self-reliance. Are these two interests sufficient to sustain the regulation? See Turner v. Safley, 482 U.S. 78 (1987), where the Court relying on Zablocki struck down the regulations. JUSTICE O’CONNOR discussed the purposes of marriage in the following terms: We disagree with petitioners that Zablocki does not apply to prison inmates. It is well settled that a prison inmate retains those rights that are not inconsistent with his status as prisoner or with the legitimate objectives of the corrections system. The right to marry like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many reli- gions recognize marriage as having spiritual significance; for some inmates, and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commu- tation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits, property rights, and other, less tangible benefits. These incidents of marriage, like the religious and personal aspects of the marriage commitment are unaffected by the fact of confine- ment or the pursuit of legitimate corrections goals. Turner at 95, 96. Do you agree with JUSTICE O’CONNOR?

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3. The Traditional Restrictions: Incest

CATALANO v. CATALANO 170 A.2d 726 (Conn. 1961)

MURPHY, JUSTICE. The plaintiff appealed to the Superior Court from the action of the Probate Court denying her application for a widow’s allowance for support from the estate of Fred Catalano. * * * . . . Fred Catalano, a widower and citizen of this state, was married on December 8, 1951, in Italy to the plaintiff, his niece, an Italian subject. Such a marriage was prohibited by § 87 of the Italian Civil Code, but since the parties obtained a legal dispensation for the marriage from the Italian government, it was valid in Italy. Fred returned to this country. The plaintiff remained in Italy until 1956, when she joined Fred and they came to Hartford, where they lived as husband and wife until his death in 1958. A son was born to the couple. The plaintiff claims to be the surviving spouse of the decedent and, as such, entitled to an allowance for support. . . . The determination of the question propounded depends on the interrelation and judicial interpretation of our statutes, . . . * * * * * * * It is the generally accepted view that a marriage valid where the ceremony is performed is valid everywhere. * * * There are, however, certain exceptions to that rule, including one which regards as invalid incestuous marriages between persons so closely related that their marriage is contrary to the strong policy of the domicil though valid where celebrated. RESTATEMENT, CONFLICT OF LAWS § 132(b). That exception may be expressed in terms of a statute or by necessary implication. * * * To determine whether the marriage in the instant case is contrary to the public policy of this state, it is only necessary to consider that marriages between uncle and niece have been interdicted and declared void continuously since 1702 and that ever since then it has been a crime for such kindred to either marry or carnally know each other. At the time of the plaintiff’s marriage in 1951, the penalty for incest was, and it has continued to be, imprisonment in the state prison for not more than ten years. * * * This rela- tively high penalty clearly reflects the strong public policy of this state. We cannot completely disregard the import and intent of our statutory law and engage in judicial legislation. The marriage of the plaintiff and Fred Catalano, though valid in Italy under its laws, was not valid in Connecticut because it contra- vened the public policy of this state. * * * The plaintiff therefore cannot qualify . . . as the surviving spouse of Fred Catalano. * * * * MELLITZ, JUSTICE (dissenting). We are dealing here with the marriage status of a woman who was validly married at the place of her domicil and who, so far as the record discloses was entirely innocent of any intent to evade the laws of Connecticut. * * * There is no suggestion anywhere in the record that at the time of the marriage she intended to come to America, that the parties had any intention of coming to live in Connecticut, or that the marriage was entered into in Italy for the purpose of evading the laws of Connecticut. If a marriage status

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resulting from a valid marriage, such as the one here, is to be destroyed, the issue bastardized, and the relations of the parties branded as illicit, it should follow only from an explicit public policy which compels such harsh consequences to ensue from a marriage entered into under the circumstances disclosed here. The cases cited in the majority which deal with the question we have here are all cases where the parties went to a foreign state to evade the law of the domicil and the marriage celebrated in the foreign state was refused recognition in the place of their domicil when they returned to live there after the marriage. * * * The provisions [of our statutes], prohibiting marriage within specified degree of consanguinity, apply only to marriages celebrated in Connecticut and are not given extraterritorial operation. . . . * * * * * * Mrs. Catalano was innocent of any intent to violate our laws, and she is entitled to have recognition here of her marriage status, with all of the rights flowing from that status. The following from the opinion in Pierce v. Pierce, 58 Wash. 622, 109 P. 45, expresses what I conceive to be the correct view in the situation here. “We know of no public policy which will warrant a court in annulling a marriage between competent parties if there be any evidence to sustain it and especially so where it appears that the parties have consummated the marriage, a child has been born, and the offending party has been openly acknowledged as a spouse. It will not be done unless it appears that the parties willfully went beyond the jurisdiction of the courts of this state to avoid and defy our laws. It is not clear that they did so in this case.” * * * *

Notes & Questions: Problems of Incest 1. All states prohibit marriages between brother and sister, parent and child, and aunt and nephew. A few states permit marriages between uncle and niece when allowed by the religion of the contracting parties. 2. Twenty states and the District of Columbia permit marriages between first cousins. In Oklahoma such marriages are prohibited. However, 43 O.S. § 2 (2001) contains an exception for marriages of first cousins performed in states that recognize such marriages. Texas allows first cousins to marry. Is there any justification for the continued ban on first cousin marriages? 3. What is the rationale for extending the incest ban to first cousins? Consider the following excerpt from Sharon Begley, Kissing Cousins, NEWSWEEK, December 30, 2008: A good way not to win friends in an immigrant community is to blame its high rate of birth defects on the practice of cousin marriages. That’s what British environment minister Phil Woolas did in February, blaming birth defects in children in the UK’s Pakistani community on marriages between first cousins. “If you have a child with your cousin, the likelihood is there will be a genetic problem,” he told the Sunday Times. That belief is reflected in laws in 31 U.S. states that either bar cousin marriage entirely or permit it only if the couple undergoes genetic counseling or cannot have kids. But in a paper in the journal PLoS Biology, Hamish Spencer of New Zealand’s University of Ota- go and Diane Paul of Harvard’s Museum of Comparative Zoology argue that the genetic risk to children born of cousin marriages is much less than widely believed.

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Risk is in the eye of the beholder, of course. But in 2002 an expert panel convened by the Nation- al Society of Genetic Counselors found that the risks of a first-cousin marriage are about 1.7% to 2% above the background risk for congenital defects and 4.4% above background (which is van- ishingly low to begin with) for dying in childhood. Whether 2% and 4% seem like a big extra risk or a piddling one probably depends on how much you want to marry your cousin, but Spencer concludes that “neither the scientific nor social as- sumptions behind [anti-cousin-marriage laws] stand up to close scrutiny. Women over the age of 40 have a similar risk of having children with birth defects and no one is suggesting they should be prevented from reproducing. People with Huntington’s disease or other autosomal dominant disorders have a 50 percent risk of transmitting the underlying genes to offspring and they are not barred either.” And what of the belief that humans have an incest-avoidance gene that keeps people from lusting after their cousins? None has ever been found. And if avoiding incest with a cousin is part of human nature, as some evolutionary psychologists contend, then an awful lot of humans haven’t noticed. In Turkey and Morocco, first-cousin marriages account for 22% of all marriages, and second-cousin marriages for another 29%, finds demographer Georges Reniers of the University of Ghent. Cousin marriages are similarly common among China’s majority Han ethnic group and in the Middle East and sub-Sahara Africa.” So what is the rationale for banning incestuous marriage? Do you think any rationale can be constitutionally justified in light of the Zablocki case? Colorado held its incest ban unconstitutional as applied to a case where a woman with one child, a daughter, married a man with one child, a son, and the daughter and the son wished to marry. See Isreal v. Allen, 577 P.2d 762 (Colo. 1978). 4. Is there any reason for prohibiting marriages between people related by affinity? Suppose in Ok- lahoma, a man marries a woman with a daughter from an earlier marriage. If they divorce two years later, can the man marry the woman’s daughter? See 43 O.S. § 2 (2001). How should the language be construed? See also Bagnardi v. Hartnett, 366 N.Y.S.2d 89 (N.Y. Sup. Ct. 1975), Missouri ex rel. Meisner v. Giles, 747 S.W.2d 757 (Mo. Ct. App. 1988) and Rhodes v. McAfee, 457 S.W.2d 522 (Tenn. 1970). 5. Should criminal incest statutes be treated differently than marriage incest statutes? See 21 O.S. § 885 (2001). THE AMERICAN LAW INSTITUTE, MODEL PENAL CODE, § 230.2 (1980), applies the criminal incest provision to people related by affinity. The comment to the section notes: The inclusion of adopted children reflects the conclusion that the incest law properly serves the function of protecting the nuclear family and that the concept of adoption seeks to duplicate, insofar as possible, the structure of the natural family. Adoption agencies, courts, and other partici- pants in the process try to insure that the artificial family will mirror a natural family not only in definition of legal relationship but also in the emotional content and social significance of those relationships. 6. In this country, marriage, divorce, and other family regulations are primarily a matter of state law. State statutes regulating the marriage and divorce process differ radically. Thus, many people find that the law governing their family relations changes as they move from state to state. The resulting problems form an essential part of the Family Law course and practice. 7. The typical rule for multi-state marriage is set out in RESTATEMENT (SECOND) CONFLICT OF LAWS § 283 (1971):

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(1) The validity of a marriage will be determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the marriage. (2) A marriage which satisfied the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage. Do you suppose there is much difficulty applying this section? Is not the validity of marriage an area where the rules should be firm and not subject to argument?

4. The Traditional Restrictions: Age

WHITE v. MCGEE 1931 OK 280, 299 P. 222

CLARK, V.C.J. This action was commenced in the district court of Oklahoma county by plaintiffs in error, Samuel K. White and Nellie E. White, against defendants in error, Reece E. McGee, Marland Pipe Line Company, Marland Oil Company of Oklahoma, and the Marland Refining Company, corporations, for damages for the death of their son, James Leo White, and allege that James Leo White died without issue or lawful wife; that plaintiffs in error are his sole and only heirs at law; that no administrator of the estate of James Leo White is or has been appointed, and that said deceased’s estate has not been administered; that a purported marriage was attempted between James Leo White, their son, and one Elizabeth Mae Wentworth, and that the same was unlawful, for the reason that the said James Leo White was under the age of 18 years at that time, being only 17 years of age, and the said Elizabeth Mae Wentworth was only 15 years of age at the said time, and that the consent of the parents to said marriage was not obtained either orally or in writing; that James Leo White and Elizabeth Mae Wentworth did not live together at the time of his death, and had been separate and apart for some time prior thereof, and that he had wholly abandoned and refused to live with and support her; that, because of the nonage of the parties, said attempted marriage was not lawful and is expressly prohibited and forbidden by law; and that the said attempted marriage was made within the state of Oklahoma, and in violation of its statutes, and that she was not his lawful wife. On December 2, 1927, by leave of court first had, Elizabeth Mae White filed motion for leave to in- tervene in said cause, asking that she be made a party defendant, and alleging that she was the lawful wife of James Leo White, deceased, and is the lawful widow and heir at law of James Leo White, and that the petition of plaintiffs below, plaintiffs in error here, attacks the validity of the marriage of James Leo White and herself, and therefore she is a proper party defendant. Thereafter Elizabeth Mae White, by Floyd C. Wentworth, her father and next friend, as intervener, filed a demurrer in said cause alleging that the petition failed to state facts sufficient to constitute a cause of action. Thereafter the plaintiffs in error filed a motion to strike intervener’s petition and plea, alleging that the same is unlawful and fails to show that petitioner has or claims an interest in the controversy adverse to

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the plaintiffs’ rights, or that she is a necessary party to the complete determination of the action, and that the petition is unverified, that intervener has at this time a cause of action pending, involving the same subject-matter and against the same defendants, and that a full determination of the present action would not prejudice her rights in her own action, and that she is interjecting herself in this action against the will or consent of both plaintiffs in error and defendants in error. The court overruled said motion to strike, and made said intervener a party defendant. The general demurrer of intervener was sustained, and plaintiffs in error refused to plead further. Judgment was entered for defendants below, and the petition of plaintiffs below was dismissed. Motion for new trial was filed and overruled. Plaintiffs in error bring the cause here for review. * * * * The next contention of plaintiffs in error is: 2. Where alleged wife was a minor, aged 15, at the time of marriage, and alleged husband 17 years and no issue of such marriage, Has the surviving infant the right under our law to sue for wrongful death of the other or does this right go to the next of kin, and did the court err in sustaining intervenor’s demurrer. Section 825, C.O.S. 1921, provides: In all cases where the residence of the party whose death has been caused as set forth in the preceding section, is at the time of his death in any other state or territory, or when, being a resident of this State, no personal representative is or has been appointed, the action provided in the said section may be brought by the widow. * * * Under the above section, a widow is the proper person to bring actions of this kind where there is no personal representative. See C., R. I. & P. Ry. Co. v. Owens, 78 Okl. 50, 186 P. 1092; Id., 78 Okl. 114, 189 P. 171. The next question to be determined is whether or not Elizabeth Mae White is the lawful widow of James Leo White. Section 7490, C.O.S. 1921, provides: Any unmarried male of the age of twenty-one years or upwards, or any unmarried female of the age of eighteen years or upward and not otherwise disqualified, is capable of contracting and con- senting to marriage; but no female under the age of eighteen years and no male under the age of twenty-one years shall enter into the marriage relation, nor shall any license issue therefor, except upon the consent and authority expressly given, either in person or in writing, by a parent or guardian, and if such consent be given in writing, the written instrument must be acknowledged before some officer authorized to take acknowledgments of deeds, and every male under the age of eighteen years, and every female under the age of fifteen years are expressly forbidden and prohibited from entering into the marriage relation: Provided, that this section shall not be construed to prevent the courts from authorizing the marriage of persons under the ages herein mentioned, in settlement of suits for seduction or bastardy, when such marriage would not be incestuous under this chapter. In construing this section in connection with the penal statutes for marriage of persons under the ages set forth in the above section, this court held that such marriage is voidable only, and not void. See Hunt v. Hunt, 23 Okl. 490, 100 P. 541. In the opinion, this court said, after reviewing the decisions from other states:

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The rule to be gathered from all of the foregoing cases of this character is that, notwithstanding the statute may penalize those who solemnize or those who enter into marriage contrary to statutory authority, the marriage itself is not void unless the statute itself so makes it, and hence in the case at bar, although the marriage was expressly forbidden and prohibited, it was voidable, and not void. While marriage is a personal relation arising out of a civil contract, it differs to such an extent from all other contracts in its consequences to the parties and to the public that the rule that prohibited and penalized contracts are void does not apply thereto. * * * This conclusion on our part necessarily establishes the proposition that the relation entered into between these parties constituted them husband and wife. In the case of Hunt v. Hunt, supra, the male was 16 and the female 14 years of age. Plaintiffs in error’s only contention as to the marriage being unlawful was on account of the nonage of the parties. No questions were raised which would bring the marriage under the statutes with reference to void marriages. Void marriages are defined by section 7489, C.O.S. 1921, as follows: Marriages between ancestors and descendants of any degree, of a stepfather with a stepdaughter, stepmother with stepson, between uncles and nieces, aunts and nephews, except in cases where such relationship is only by marriage, between brothers and sisters of the half as well as the whole blood, and first cousins, or second cousins, are declared to be incestuous, illegal and void, and are expressly prohibited. Such marriages are illegal and void, as defined in section 7489, supra, but this statute does not apply in the case at bar. In the case at bar the parties were husband and wife, and the marriage was merely voidable and not void. The cases cited by plaintiffs in error relate to void marriages and not to voidable marriages. The marriage entered into between Elizabeth Mae Wentworth and James Leo White on account of nonage was voidable and not void, and, said relation being in existence at the time of the death of the said James Leo White, left Elizabeth Mae White his surviving widow, and as such, in the absence of a personal representative of his estate, could maintain an action for his wrongful death, and plaintiffs in error are without authority to maintain such action, and the court did not err in sustaining intervener’s demurrer to the plaintiffs in error’s petition. Judgment of the trial court is affirmed. LESTER, C.J., and RILEY, HEFNER, CULLISON, SWINDALL, ANDREWS, and KORNEGAY, JJ., concur. MCNEILL, J., disqualified, not participating.

Notes & Questions 1. The census bureau reports that 5.5 percent of Oklahoma teens are married. This is one of the highest rates in the country. Oklahoma’s teen pregnancy rate is 12th-highest nationally, only a slight im- provement from a decade earlier, according to the National Centers for Disease Control and Prevention (CDC). CDC figures show that in 2000, the Oklahoma pregnancy rate of women ages 15 to 19 was 60.1 births per 1,000. For those 18 to 19, the rate was 99.8 births per 1,000. In 1991, Oklahoma ranked 13th nationally with a rate of 72.1 births per 1,000 for women ages 15 to 19. For ages 18 and 19, it was 115.6 births per 1,000. The national rate in 2000 was 48.5 births per 1,000 for the 15 to 19 age group and 79.2

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births per 1,000 for those 18 and 19, the CDC said. The state with the highest teen pregnancy rate in the nation is Mississippi, which had 72 births per 1,000 women ages 15 to 19. In Washington, D.C., the rate was 80.7 per 1,000 women in that age bracket. Do any of these statistics explain Oklahoma’s high divorce rate? 2. In a rather startling decision, the Colorado Court of Appeals recently held that a twelve-year-old girl had a valid common law marriage, because when the legislature changed the age of consent for ceremonial marriages, it never changed the common law age of consent for common law marriages. In re J.M.H., 143 P.3d 1116 (Colo. Ct. App. 2006). In Oklahoma the age for marriage is eighteen. Persons between sixteen and eighteen can be married with parental consent. See 43 O.S. § 3 (2001). The divorce rate for people who marry before the age of eighteen is extremely high. Is this a constitutionally valid reason for raising the marriage age to 21, 25, etc.? The U.S. Census Bureau reports that in three states—Arkansas, Utah and Oklahoma—women married the youngest, at an average age of 24. For men in those states, the average age was 26. In the northeastern states of New York, Rhode Island and Massachusetts, men and women waited about four years longer to marry. Education also appeared to influence the age of marriage. In states with higher numbers of college-educated adults, couples tended to wed at older ages, while the opposite was true in states with lower education levels. A smaller share of Americans, however, are walking down the aisle, continuing a 50- year trend, the study said. The U.S. Census Bureau’s 2008 American Community Survey showed 52 percent of men and 48 percent of women older than 15 are married. Nevada, Maine and Oklahoma have the highest percentage of divorced adults. Arkansas and Okla- homa have the highest rates of people who have walked down the aisle at least three times. 3. A marriage license for people who wish to marry under the age of eighteen with parental consent must be on file for three days prior to the performance of the marriage. 43 O.S. § 5(C). Should people under the age of eighteen who wish to marry be required to have marital counseling? If a couple seeking a marriage license successfully completes a premarital counseling program conducted by a health care professional or an official representative of a religious institution, they will be charged a reduced fee for a marriage license. 43 O.S. §5.1

Notes & Questions: The Void and Voidable Distinction Suppose two people marry at age 15 and live together for 50 years before one dies. Is the survivor entitled to the benefits usually afforded the survivor of a marriage? Could the marriage be annulled? At any time? Annulment is an action to declare the invalidity of a particular union at its inception. Divorce, by comparison, is an action to legally terminate a valid marriage as of a specific date after the union is in existence. Despite the simplicity of this conceptual framework, our legal treatment of annulment has created considerable confusion. The distinction between void and voidable unions is of considerable importance in most jurisdictions. An attempted incestuous marriage, or one involving a person who is still married to a third person is generally considered void. Under the purist approach, a void marriage needs no formal judicial action or declaration to establish its invalidity. The void marriage can be attacked by third persons, and may be challenged even after the death of the parties. In states that recognize the void marriage concept in this “pure” form, courts nevertheless entertain annulment actions in order to accord certainty to wealth transactions.

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A voidable marriage typically reflects encroachment on some lesser public policy concern. It can be ratified by the parties’ conduct after removal of the legal impediment that made it vulnerable. Unless the voidable marriage is judicially annulled in a timely fashion, it becomes a valid union from its inception. If it is annulled, the marriage is deemed void ab initio. Voidable marriages are generally those entered into in violation of many of the procedural rules regulating marriage. Age restrictions vary from state to state. In Oklahoma, a marriage that violates the age restrictions becomes a common law marriage if the parties continue the marriage relationship after removal of the age impediment. Marriages can also be annulled for a variety of defects relating to the personal relationship of the parties before marriage (i.e. fraud). In this day and age with divorce being available for practically any reason, the action for annulment has fallen into disuse.

5. The Traditional Restrictions: Mental Capacity

HOUSER v. HOUSER #57,134 (Ok. Ct. Civ. App. 1984) (unpublished), certiorari denied, 55 O.B.J. 2552 (Okla. 1984)

ROBINSON, JUDGE. The single issue in this case is whether Everett B. Houser (decedent) was competent when he entered into a marriage contract with Appellant. If he was, Appellant is a surviving spouse and entitled to appointment as his Administratrix, if not, Ruby Proctor as one of the heirs of decedent is entitled to Letters of Administration with Appellant being denied her intestate wife’s share of decedent’s estate. Oklahoma defines marriage in 43 O.S. 1981 § 1 as: A personal contract to which the consent of parties legally competent of contracting and of entering into it is necessary, and the marriage relation shall only be entered into, maintained or abro- gated as provided by law. Consent of the parties to a contract must be free, mutual and communicated by each other. 15 O.S. 1981 § 51. Consent involves a “voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another. It supposes a physical power to act, a moral power of acting, and a serious, determined, and free use of the powers.” BLACK’S LAW DICTIONARY 276 (5th ed. 1979). In the present case we find there was no such free mutual consent and the deceased was not capable of knowingly entering into a contract. Decedent was an 83 year old man who had severe emphysema requiring oxygen frequently. On April 8, 1980, his female live in companion of 40 years, apparently his common law wife, died. Testimony revealed that this was an extremely traumatic event for decedent. Apparently a few days before decedent’s common law wife died, Appellant appeared on the scene offering her help and sympathy. At that time decedent was being cared for by a nurse. After decedent’s common law wife died, the nurse ceased to be employed by decedent and Appellant began caring for him. Approximately one month and a half later Appellant married decedent on May 22, 1980. Decedent expired February 16, 1981; about nine months after his marriage. In the period between those two events decedent caused two annulment proceedings to be started and virtually all of decedent’s savings, $40,000, were withdrawn and spent by Appellant. The

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annulment proceedings were never completed because of a written request to abandon the same, apparently signed by decedent. One of the attorneys, who decedent requested to file an annulment, testified that deceased “was very absent-minded. It took at least 30 minutes for him to understand who I was.” One witness characterized decedent as a “sick, senile, old man.” There was testimony that decedent was extremely volatile and would curse and threaten various people around him frequently. The nurse that took care of decedent prior to Appellant’s appearance on the scene testified that Appellant had told her that she planned to marry decedent for his money. This witness was present when Appellant came to decedent’s home on May 21, 1980. The nurse testified that “she (Appellant) went into the bedroom, got him up by the arms and pulled him up and told him she was taking him out to get a haircut.” Actually, Appellant took decedent to get a blood test and a marriage license, not a haircut. The witness further testified that when decedent returned with Appellant, decedent had missed his medicine and was near collapse from fatigue. Further, decedent was not sure where he had been or what he had done, although he thought he had been to get a blood test. Further testimony revealed that decedent had called the police on one occasion to have Appellant removed from his home. A deputy court clerk testified that she was present when Appellant brought decedent to the courthouse to get the marriage license and stated “I really don’t think he knew what he was doing.” Finally, decedent’s personal attorney who saw him frequently, arranged for nurses, paid decedent’s bills and managed decedent and his common law wife’s business affairs, testified that in his opinion “I don’t believe he was competent.” Appellant and decedent were married by a minister who was a friend of Appellant’s and was witnessed by friends of Appellant. Appellant’s witness, decedent’s barber, testified that he cut decedent’s hair approximately once a month and decedent knew what he was there for and was, in his opinion, mentally competent. One of decedent’s renters testified that he saw decedent once a month to deliver a rent check and believed “he was in his right mind.” The minister who married Appellant and decedent testified that he was competent on the date of the marriage, however, he had only talked with decedent on approximately two or three occasions. Finally, decedent’s personal physician testified that “several days before his death, I was introduced by him to his wife, one Louise McClendon Houser. He appeared to be in good spirits at that time and mentally competent.” This testimony, however, was right before decedent’s death and is not relevant to decedent’s competency at the time of his marriage. The State of Oklahoma has a legitimate interest in the marital status of parties. Ross v. Bryant, 90 Okl. 300, 217 P. 364 (1923). Here the clear weight of the evidence shows decedent did not freely and mutually consent to enter this marriage contract and was not legally competent to contract. 15. O.S. 1981 § 1. We therefore agree with the trial court’s determination that “E.B. Houser was not competent to enter into a marriage contract and such marriage is held to be invalid.” Lastly, pursuant to Appellee’s request we grant Appellee’s their appellate costs and attorney fees for the defense of this action. AFFIRMED.

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Questions 1. Is the “marriage” in Houser void or voidable? If it is the latter, should a collateral attack have been permitted? Is 43 O.S. § 128 (2001) applicable? 2. Is the problem in Houser likely to arise more in the future? Yes, according to the Wall Street Journal: Unholy Matrimony: How to Fight Back By KELLY GREENE WALL STREET JOURNAL, page B8 It is difficult enough to entrust an elderly parent’s care to someone you hire. But what do you do when that worker secretly marries their charge—and claims a chunk of your inheritance? Although no one tracks the numbers of such marriages, lawyers who handle estate-related litigation say they are seeing increasing numbers of “predatory unions,” as life spans increase and dementia becomes more common. “Let's face it—baby boomers are heading into old age,” says Susan Slater-Jansen, an estate- planning attorney at Kurzman Eisenberg Corbin & Lever in White Plains, N.Y. “It’s going to be an increasing problem.” What’s worse, it is virtually impossible for children to challenge the property consequences of a parent getting married once the parent dies, says Terry Turnipseed, an associate law professor at Syracuse University, who has studied “deathbed marriages” and analyzed state laws. How could families be duped into not knowing their own parents had married? In one case, an adult daughter left her elderly father in the care of a longtime friend while she took a short vacation. In one week, the friend married the father, started transferring assets into joint accounts and named herself his pension beneficiary. The children learned of the marriage a month later. When they confronted their father, he recalled nothing about it. In another case, a hired caretaker secretly married her charge of nine years about a year before his death. She told his children about it the day before his funeral. In most states, the inheritance rights of widows and widowers trump any estate plan—even if the new spouse wasn't named in the will, and even if the marriage took place shortly before the death of someone unable to recall a few days later that they said “I do.” The only way many state courts can fix things is to annul a marriage after death. Typically the only person who has legal standing to sue is the surviving spouse, “who of course has no incentive whatsoever to annul the marriage,” Mr. Turnipseed says. But in a few states, courts and lawmakers are starting to make it easier to unwind a twilight union. Florida closed a loophole last year by enacting a law that gives heirs and others the legal standing to challenge any marriage—even after a spouse’s death—on the grounds of fraud, duress or undue influence. Florida’s statute found a way around the big legal concern: that state laws could be challenged as messing with the constitutional right to marriage, says Samantha Weissbluth, an estate litigator with Foley & Lardner in Chicago. “It doesn’t narrow any existing right to marry; it severs marriage from its usual property consequences in certain circumstances,” she says.

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In New York, an appeals court last year ruled in favor of the families of two men with dementia who had secretly married outside caregivers before their deaths, by denying their surviving spouses a share of the dead men’s assets. “The spouses were deemed to be committing fraud because the decedents didn’t have the capacity to know what they were doing,” Ms. Slater-Jansen says. But until more state legislatures and courts take action, families need to watch out when em- ploying caregivers. Distance often exacerbates the problem. It is tough to supervise workers in a parent’s home from afar. Before you hire anyone, extensive background checks are crucial, along with making sure any paid caregivers are bonded and insured, says Patricia Maisano, chief execu- tive of Ikor USA in Kennett Square, Pa., which provides case-management and advocacy services for elderly and disabled clients. Ask the aide to consent to a background check and provide a Social Security number if he or she hasn't been screened or formally trained, she says. Don’t hire anyone who refuses. You may want to hire a geriatric-care manager to keep an eye on home health-care aides. If you do sense that your parent is developing a relationship with an aide, don’t keep it to yourself. Tell your family, and your parent, about your concerns. The worst thing the child and parent could do is to quit speaking to each other, says John Morken, a partner at Farrell Fritz in Uniondale, N.Y. If your parent is diagnosed with dementia, one defense against fraud is a durable power of attorney—a legal arrangement that helps older people turn over management of their finances to a family member or others—assuming he or she can still execute one. If used, it is a good idea to require all of the adult children’s consent for transactions over a certain dollar amount. That way, you can make sure that no one in the family falls sway to the hired help—or takes advantage of the situation himself, says Ms. Slater-Jansen. Another defense: having your parent put their assets in a trust. If the assets involved are worth less than $5 million—and you set it up this year or next, when there is no gift tax on that amount—make the trust irrevocable, meaning it can’t be unwound during the parent’s lifetime. If you use a revocable trust, make sure the paid caregiver doesn’t know about it, she says. Many parents, though, are suspicious of their own children’s attempts to help them. If your parents refused to shield their assets in advance, and you worry that a deathbed marriage is loom- ing, there is one more step that may make sense: Going to court to have a parent ruled as lacking the capacity to tie the knot. Can a conservator, who was appointed because a person lacks capacity to make responsible decisions concerning their health and welfare, prevent a ward from contracting a marriage? See In re Mikulanec, 356 N.W.2d 683 (Minn. 1984).

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6. The Traditional Restrictions: Same Sex

BASKIN v. BOGAN 766 F.3d 648 (7TH Cir. 2014)

POSNER, CIRCUIT JUDGE. Indiana and Wisconsin are among the shrinking majority of states that do not recognize the validity of same-sex marriages, whether contracted in these states or in states (or foreign countries) where they are lawful. The states have appealed from district court decisions invalidating the states’ laws that ordain such refusal. Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, as we shall see, they are about the welfare of American children. The argument that the states press hardest in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer “accidental births,” which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care. Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotion- ally and economically if their adoptive parents were married. We are mindful of the Supreme Court's insistence that “whether embodied in the Fourteenth Amend- ment or inferred from the Fifth, equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) (emphasis added). The phrase we’ve italicized is the exception applicable to this pair of cases. We hasten to add that even when the group discriminated against is not a “suspect class,” courts examine, and sometimes reject, the rationale offered by government for the challenged discrimination. In Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979), an illustrative case in which the Supreme Court accepted the government's rationale for discriminating on the basis of age, the majority opinion devoted 17 pages to analyzing whether Congress had had a “reasonable basis” for the challenged discrimination (requiring foreign service officers but not ordinary civil servants to retire at the age of 60), before concluding that it did. We’ll see that the governments of Indiana and Wisconsin have given us no reason to think they have a “reasonable basis” for forbidding same-sex marriage. And more than a reasonable basis is required because this is a case in which the challenged discrimination is, in the formula from the Beach case, “along suspect lines.” Discrimination by a state or the federal government against a minority, when based on an immutable characteristic of the members of that minority (most familiarly skin color and gender), and occurring against an historical background of discrimination against the persons who have that characteristic, makes the discriminatory law or policy constitutionally suspect. See, e.g., Bowen v. Gilliard, 483 U.S. 587, 602-03, 107 S.Ct. 3008, 97 L.Ed.2d 485 (1987); Regents of University of California v. Bakke, 438 U.S. 265, 360-62, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). These circumstances create a presumption that

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the discrimination is a denial of the equal protection of the laws (it may violate other provisions of the Constitution as well, but we won't have to consider that possibility). The presumption is rebuttable, if at all, only by a compelling showing that the benefits of the discrimination to society as a whole clearly outweigh the harms to its victims. The approach is straightforward but comes wrapped, in many of the decisions applying it, in a formi- dable doctrinal terminology—the terminology of rational basis, of strict, heightened, and intermediate scrutiny, of narrow tailoring, fundamental rights, and the rest. We’ll be invoking in places the conceptual apparatus that has grown up around this terminology, but our main focus will be on the states’ arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage. We will engage the states’ arguments on their own terms, enabling us to decide our brace of cases on the basis of a sequence of four questions: 1. Does the challenged practice involve discrimination, rooted in a history of prejudice, against some identifiable group of persons, resulting in unequal treatment harmful to them? 2. Is the unequal treatment based on some immutable or at least tenacious characteristic of the people discriminated against (biological, such as skin color, or a deep psychological commitment, as religious belief often is, both types being distinct from characteristics that are easy for a person to change, such as the length of his or her fingernails)? The characteristic must be one that isn't relevant to a person's ability to participate in society. Intellect, for example, has a large immutable component but also a direct and substantial bearing on qualifications for certain types of employment and for legal privileges such as entitlement to a driver’s license, and there may be no reason to be particularly suspicious of a statute that classifies on that basis. 3. Does the discrimination, even if based on an immutable characteristic, nevertheless confer an important offsetting benefit on society as a whole? Age is an immutable characteristic, but a rule prohibiting persons over 70 to pilot airliners might reasonably be thought to confer an essential benefit in the form of improved airline safety. 4. Though it does confer an offsetting benefit, is the discriminatory policy overinclusive because the benefit it confers on society could be achieved in a way less harmful to the discriminated- against group, or underinclusive because the government's purported rationale for the policy implies that it should equally apply to other groups as well? One way to decide whether a policy is overinclusive is to ask whether unequal treatment is essential to attaining the desired benefit. Im- agine a statute that imposes a $2 tax on women but not men. The proceeds from that tax are, let’s assume, essential to the efficient operation of government. The tax is therefore socially efficient, and the benefits clearly outweigh the costs. But that’s not the end of the inquiry. Still to be determined is whether the benefits from imposing the tax only on women outweigh the costs. And likewise in a same-sex marriage case the issue is not whether heterosexual marriage is a socially beneficial institution but whether the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes. Our questions go to the heart of equal protection doctrine. Questions 1 and 2 are consistent with the various formulas for what entitles a discriminated-against group to heightened scrutiny of the discrimination, and questions 3 and 4 capture the essence of the Supreme Court’s approach in heightened-scrutiny cases: “To succeed, the defender of the challenged action must show ‘at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.’ ” United States v. Virginia, supra, 518 U.S. at 524, 116

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S.Ct. 2264 (1996), quoting Mississippi University for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982). The difference between the approach we take in these two cases and the more conventional approach is semantic rather than substantive. The conventional approach doesn't purport to balance the costs and benefits of the challenged discriminatory law. Instead it evaluates the importance of the state’s objective in enacting the law and the extent to which the law is suited (“tailored”) to achieving that objective. It asks whether the statute actually furthers the interest that the state asserts and whether there might be some less burdensome alternative. The analysis thus focuses not on “costs” and “benefits” as such, but on “fit.” That is why the briefs in these two cases overflow with debate over whether prohibiting same-sex marriage is “over—or underinclusive”—for example, overinclusive in ignoring the effect of the ban on the children adopted by same-sex couples, underinclusive in extending marriage rights to other non- procreative couples. But to say that a discriminatory policy is overinclusive is to say that the policy does more harm to the members of the discriminated-against group than necessary to attain the legitimate goals of the policy, and to say that the policy is underinclusive is to say that its exclusion of other, very similar groups is indicative of arbitrariness. Although the cases discuss, as we shall be doing in this opinion, the harms that a challenged statute may visit upon the discriminated-against group, those harms don’t formally enter into the conventional analysis. When a statute discriminates against a protected class (as defined for example in our question 2), it doesn't matter whether the harm inflicted by the discrimination is a grave harm. As we said, a statute that imposed a $2 tax on women but not men would be struck down unless there were a compelling reason for the discrimination. It wouldn't matter that the harm to each person discriminated against was slight if the benefit of imposing the tax only on women was even slighter. Our pair of cases is rich in detail but ultimately straightforward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don't need marriage because same-sex couples can't produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases. It is also why we can avoid engaging with the plaintiffs’ further argument that the states’ prohibition of same-sex marriage violates a fundamental right protected by the due process clause of the Fourteenth Amendment. The plaintiffs rely on cases such as Hodgson v. Minnesota, 497 U.S. 417, 435, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990), and Zablocki v. Redhail, 434 U.S. 374, 383-86, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978), that hold that the right to choose whom to marry is indeed a fundamental right. The states reply that the right recognized in such cases is the right to choose from within the class of persons eligible to marry, thus excluding children, close relatives, and persons already married—and, the states contend, persons of the same sex. The plaintiffs riposte that there are good reasons for ineligibility to marry children, close relatives, and the already married, but not for ineligibility to marry persons of the same sex. In light of the compelling alternative grounds that we’ll be exploring for allowing same-sex marriage, we won’t have to engage with the parties’ “fundamental right” debate; we can confine our attention to equal protection. We begin our detailed analysis of whether prohibiting same-sex marriage denies equal protection of the laws by noting that Indiana and Wisconsin, in refusing to authorize such marriage or (with limited ex-

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ceptions discussed later) to recognize such marriages made in other states by residents of Indiana or Wis- consin, are discriminating against homosexuals by denying them a right that these states grant to heterosexuals, namely the right to marry an unmarried adult of their choice. And there is little doubt that sexual orientation, the ground of the discrimination, is an immutable (and probably an innate, in the sense of in- born) characteristic rather than a choice. Wisely, neither Indiana nor Wisconsin argues otherwise. The American Psychological Association has said that “most people experience little or no sense of choice about their sexual orientation.” APA, “Answers to Your Questions: For a Better Understanding of Sexual Orientation & Homosexuality” 2 (2008), www.apa.org/topics/lgbt/orientation.pdf (visited Sept. 2, 2014, as were the other websites cited in this opinion); see also Gregory M. Herek et al., “Demographic, Psy- chological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults in a U.S. Probability Sample,” 7 Sexuality Research and Social Policy 176, 188 (2010) (“combining respondents who said they'd had a small amount of choice with those reporting no choice, 95% of gay men and 84% of lesbians could be characterized as perceiving that they had little or no choice about their sexual orientation”). That homosexual orientation is not a choice is further suggested by the absence of evidence (despite extensive efforts to find it) that psychotherapy is effective in altering sexual orientation in general and homosexual orientation in particular. APA, “Answers to Your Questions,” supra, at 3; Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orien- tation 35-41 (2009). The leading scientific theories of the causes of homosexuality are genetic and neuroendocrine theories, the latter being theories that sexual orientation is shaped by a fetus’s exposure to certain hormones. See, e.g., J. Michael Bailey, “Biological Perspectives on Sexual Orientation,” in Lesbian, Gay, and Bi- sexual Identities Over the Lifespan: Psychological Perspectives 102-30 (Anthony R. D’Augelli and Char- lotte J. Patterson eds.1995); Barbara L. Frankowski, “Sexual Orientation and Adolescents,” 113 Pediat- rics 1827, 1828 (2004). Although it seems paradoxical to suggest that homosexuality could have a genetic origin, given that homosexual sex is non-procreative, homosexuality may, like menopause, by reducing procreation by some members of society free them to provide child-caring assistance to their procreative relatives, thus increasing the survival and hence procreative prospects of these relatives. This is called the “kin selection hypothesis” or the “helper in the nest theory.” See, e.g., Association for Psychological Sci- ence, “Study Reveals Potential Evolutionary Role for Same-Sex Attraction,” Feb. 4, 2010, www. psycho- logicalscience.org/media/releases/2010/vasey.cfm. There are other genetic theories of such attraction as well. See, e.g., Nathan W. Bailey and Marlene Zuk, “Same-Sex Sexual Behavior and Evolution,” forth- coming in Trends in Ecology and Evolution www.faculty.ucr.edu/m~zuk/Bailey% 20and% 20Zuk% 202009% 20Same% 20sex% 20behaviour.pdf. For a responsible popular treatment of the subject see William Kremer, “The Evolutionary Puzzle of Homosexuality,” BBC News Magazine, Feb. 17, 2014, www.bbc.com/news/magazine-26089486. The harm to homosexuals (and, as we'll emphasize, to their adopted children) of being denied the right to marry is considerable. Marriage confers respectability on a sexual relationship; to exclude a couple from marriage is thus to deny it a coveted status. Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community. Not that allowing same-sex marriage will change in the short run the negative views that many Americans hold of same- sex marriage. But it will enhance the status of these marriages in the eyes of other Americans, and in the long run it may convert some of the opponents of such marriage by demonstrating that homosexual married couples are in essential respects, notably in the care of their adopted children, like other married couples.

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The tangible as distinct from the psychological benefits of marriage, which (along with the psychological benefits) enure directly or indirectly to the children of the marriage, whether biological or adopted, are also considerable. In Indiana they include the right to file state tax returns jointly, IND.CODE § 6-3-4- 2(d); the marital testimonial privilege, § 34-46-3-1(4); spousal-support obligations, § 35-46-1-6(a); survivor benefits for the spouse of a public safety officer killed in the line of duty, § 36-8-8-13.8(c); the right to inherit when a spouse dies intestate, § 29-1-2-1(b), (c); custodial rights to and child support obligations for children of the marriage, and protections for marital property upon the death of a spouse. §§ 12-15- 8.5-3(1); 12-20-27-1(a)(2)(A). Because Wisconsin allows domestic partnerships, some spousal benefits are available to same-sex couples in that state. But others are not, such as the right to adopt children jointly, WIS. STAT. § 48.82(1); spousal-support obligations, §§ 765.001(2), 766.15(1), 766.55; the presumption that all property of married couples is marital property, § 766.31(2); and state-mandated access to enrollment in a spouse’s health insurance plan, § 632.746(7). Of great importance are the extensive federal benefits to which married couples are entitled: the right to file income taxes jointly, 26 U.S.C. § 6013; social security spousal and surviving-spouse benefits, 42 U.S.C. § 402; death benefits for surviving spouse of a military veteran, 38 U.S.C. § 1311; the right to transfer assets to one’s spouse during marriage or at divorce without additional tax liability, 26 U.S.C. § 1041; exemption from federal estate tax of property that passes to the surviving spouse, 26 U.S.C. § 2056(a); the tax exemption for employer-provided healthcare to a spouse, 26 U.S.C. § 106; Treas. Reg. § 1.106-1; and healthcare benefits for spouses of federal employees, 5 U.S.C. §§ 8901(5), 8905. The denial of these federal benefits to same-sex couples brings to mind the Supreme Court’s opinion in United States v. Windsor, --- U.S. ----, 133 S.Ct. 2675, 2694-95, 186 L.Ed.2d 808 (2013), which held unconstitutional the denial of all federal marital benefits to same-sex marriages recognized by state law. The Court’s criticisms of such denial apply with even greater force to Indiana’s law. The denial “tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. [No same-sex marriages are valid in Indiana.] This places same-sex couples in an unstable position of being in a second-tier marriage [in Indiana, in the lowest—the unmarried—tier]. The differentiation de- means the couple . . . [and] humiliates tens of thousands of children now being raised by same-sex couples. The law . . . makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Id. at 2694. The Court went on to describe at length the federal marital benefits denied by the Defense of Mar- riage Act to married same-sex couples. Of particular relevance to our two cases is the Court’s finding that denial of those benefits causes economic harm to children of same-sex couples. “It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses. And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security. [The Act also] divests married same-sex couples of the duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept.” Id. at 2695 (citations omitted). Of course there are costs to marriage as well as benefits, not only the trivial cost of the marriage license but also the obligations, such as alimony, that a divorcing spouse may be forced to bear. But those are among “the duties and responsibilities that are an essential part of married life and that [the spouses] in most cases would be honored to accept.” That marriage continues to predominate over cohabitation as a choice of couples indicates that on average the sum of the tangible and intangible benefits of marriage outweighs the costs.

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In light of the foregoing analysis it is apparent that groundless rejection of same-sex marriage by government must be a denial of equal protection of the laws, and therefore that Indiana and Wisconsin must to prevail establish a clearly offsetting governmental interest in that rejection. Whether they have done so is really the only issue before us, and the balance of this opinion is devoted to it. . . . First up to bat is Indiana, which defends its refusal to allow same-sex marriage on a single ground, namely that government’s sole purpose (or at least Indiana’s sole purpose) in making marriage a legal relation (unlike cohabitation, which is purely contractual) is to enhance child welfare. Notably the state does not argue that recognizing same-sex marriage undermines conventional marriage. When a child is conceived intentionally, the parents normally intend to raise the child together. But pregnancy, and the resulting birth (in the absence of abortion), are sometimes accidental, unintended; and often in such circumstances the mother is stuck with the baby—the father, not having wanted to become a father, refuses to take any responsibility for the child’s welfare. The sole reason for Indiana’s marriage law, the state’s argument continues, is to try to channel unintentionally procreative sex into a legal regime in which the biological father is required to assume parental responsibility. The state recognizes that some or even many homosexuals want to enter into same-sex marriages, but points out that many people want to enter into relations that government refuses to enforce or protect (friendship being a notable example). Government has no interest in recognizing and protecting same-sex marriage, Indiana argues, because homosexual sex cannot result in unintended births. As for the considerable benefits that marriage confers on the married couple, these in the state’s view are a part of the regulatory regime: the carrot supplementing the stick. Marital benefits for homosexual couples would not serve the regulatory purpose of marital benefits for heterosexual couples because homosexual couples don't produce babies. The state’s argument can be analogized to requiring drivers’ licenses for drivers of motor vehicles but not for bicyclists. Motor vehicles are more dangerous to other users of the roads than bicycles are, and therefore a driver’s license is required to drive the former but not to pedal the latter. Bicyclists do not and cannot complain about not having to have a license to pedal, because obtaining, renewing, etc., the license would involve a cost in time and money. The analogy is not perfect (if it were, it would be an identity not an analogy) because marriage confers benefits as well as imposing costs, as we have emphasized (indeed it confers on most couples benefits greater than the costs). But those benefits, in Indiana’s view, would serve no state interest if extended to homosexual couples, who should therefore be content with the benefits they derive from being excluded from the marriage-licensing regime: the cost of the license and the burden of marital duties, such as support, and the costs associated with divorce. Moreover, even if possession of a driver’s license conferred benefits not available to bicyclists (discounts, or tax credits, perhaps), the state could argue that it offered these benefits only to induce drivers to obtain a license (the carrot supplementing the stick), and that bicyclists don't create the same regulatory concern and so don’t de- serve a carrot. In short, Indiana argues that homosexual relationships are created and dissolved without legal consequences because they don’t create family-related regulatory concerns. Yet encouraging marriage is less about forcing fathers to take responsibility for their unintended children—state law has mechanisms for determining paternity and requiring the father to contribute to the support of his children—than about en- hancing child welfare by encouraging parents to commit to a stable relationship in which they will be raising the child together. Moreover, if channeling procreative sex into marriage were the only reason that Indiana recognizes marriage, the state would not allow an infertile person to marry. Indeed it would make marriage licenses expire when one of the spouses (fertile upon marriage) became infertile because of age or disease. The state treats married homosexuals as would-be “free riders” on heterosexual marriage, un-

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reasonably reaping benefits intended by the state for fertile couples. But infertile couples are free riders too. Why are they allowed to reap the benefits accorded marriages of fertile couples, and homosexuals are not? The state offers an involuted pair of answers, neither of which answers the charge that its policy toward same-sex marriage is underinclusive. It points out that in the case of most infertile heterosexual couples, only one spouse is infertile, and it argues that if these couples were forbidden to marry there would be a risk of the fertile spouse’s seeking a fertile person of the other sex to breed with and the result would be “multiple relationships that might yield unintentional babies.” True, though the fertile member of an infertile couple might decide instead to produce a child for the couple by surrogacy or (if the fertile member is the woman) a sperm bank, or to adopt, or to divorce. But what is most unlikely is that the fertile member, though desiring a biological child, would have procreative sex with another person and then abandon the child—which is the state’s professed fear. The state tells us that “non-procreating opposite-sex couples who marry model the optimal, socially expected behavior for other opposite-sex couples whose sexual intercourse may well produce children.” That’s a strange argument; fertile couples don’t learn about child-rearing from infertile couples. And why wouldn’t same-sex marriage send the same message that the state thinks marriage of infertile heterosexuals sends—that marriage is a desirable state? It’s true that infertile or otherwise non-procreative heterosexual couples (some fertile couples decide not to have children) differ from same-sex couples in that it is easier for the state to determine whether a couple is infertile by reason of being of the same sex. It would be considered an invasion of privacy to condition the eligibility of a heterosexual couple to marry on whether both prospective spouses were fertile (although later we’ll see Wisconsin flirting with such an approach with respect to another class of infertile couples). And often the couple wouldn’t know in advance of marriage whether they were fertile. But then how to explain Indiana’s decision to carve an exception to its prohibition against marriage of close relatives for first cousins 65 or older—a population guaranteed to be infertile because women can’t conceive at that age? IND.CODE § 31-11-1-2. If the state’s only interest in allowing marriage is to protect children, why has it gone out of its way to permit marriage of first cousins only after they are provably infertile? The state must think marriage valuable for something other than just procreation—that even non-procreative couples benefit from marriage. And among non-procreative couples, those that raise children, such as same-sex couples with adopted children, gain more from marriage than those who do not raise children, such as elderly cousins; elderly persons rarely adopt. Indiana has thus invented an insidious form of discrimination: favoring first cousins, provided they are not of the same sex, over homosexuals. Elderly first cousins are permitted to marry because they can’t produce children; homosexuals are forbidden to marry because they can’t produce children. The state’s argument that a marriage of first cousins who are past child-bearing age provides a “model [of] family life for younger, potentially procreative men and women” is impossible to take seriously. At oral argument the state’s lawyer was asked whether “Indiana’s law is about successfully raising children,” and since “you agree same-sex couples can successfully raise children, why shouldn’t the ban be lifted as to them?” The lawyer answered that “the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence.” In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encourage- ment of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to

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be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure. Which brings us to Indiana’s weakest defense of its distinction among different types of infertile couple: its assumption that same-sex marriage cannot contribute to alleviating the problem of “accidental births,” which the state contends is the sole governmental interest in marriage. Suppose the consequences of accidental births are indeed the state’s sole reason for giving marriage a legal status. In advancing this as the reason to forbid same-sex marriage, Indiana has ignored adoption—an extraordinary oversight. Unintentional offspring are the children most likely to be put up for adoption, and if not adopted, to end up in a foster home. Accidental pregnancies are the major source of unwanted children, and unwanted children are a major problem for society, which is doubtless the reason homosexuals are permitted to adopt in most states—including Indiana and Wisconsin. It’s been estimated that more than 200,000 American children (some 3000 in Indiana and about the same number in Wisconsin) are being raised by homosexuals, mainly homosexual couples. Gary J. Gates, “LGBT Parenting in the United States” 3 (Williams Institute, UCLA School of Law, Feb. 2013), http://williamsinstitute.law.ucla.edu/wp-content/uploads/lgbt-parenting.pdf; Gates, “Same-Sex Couples in Indiana: A Demographic Summary” (Williams Institute, UCLA School of Law, 2014), http://williamsinstitute.law.ucla.edu/wp-content/uploads/IN-same-sex-couples-demo-aug-2014.pdf; Gates, “Same-Sex Couples in Wisconsin: A Demographic Survey” (Williams Institute, UCLA School of Law, Aug. 2014), http://williamsinstitute.law.ucla.edu/wp-content/uploads/WI-same-sex-couples-demo- aug-2014.pdf. Gary Gates’s demographic surveys find that among couples who have children, homosexual couples are five times as likely to be raising an adopted child as heterosexual couples in Indiana, and two and a half times as likely as heterosexual couples in Wisconsin. If the fact that a child’s parents are married enhances the child’s prospects for a happy and successful life, as Indiana believes not without reason, this should be true whether the child’s parents are natural or adoptive. The state’s lawyers tell us that “the point of marriage’s associated benefits and protections is to encourage child-rearing environments where parents care for their biological children in tandem.” Why the qualifier “biological”? The state recognizes that family is about raising children and not just about producing them. It does not explain why the “point of marriage’s associated benefits and protections” is inapplicable to a couple's adopted as distinct from biological children. Married homosexuals are more likely to want to adopt than unmarried ones if only because of the many state and federal benefits to which married people are entitled. And so same-sex marriage improves the prospects of unintended children by increasing the number and resources of prospective adopters. No- tably, same-sex couples are more likely to adopt foster children than opposite-sex couples are. Gates, “LGBT Parenting in the United States,” supra, at 3. As of 2011, there were some 400,000 American children in foster care, of whom 10,800 were in Indiana and about 6500 in Wisconsin. U.S. Dept. of Health & Human Services, Children’s Bureau, “How Many Children Are in Foster Care in the U.S.? In My State?” www.acf.hhs.gov/programs/cb/faq/ foster-care4. Also, the more willing adopters there are, not only the fewer children there will be in foster care or being raised by single mothers but also the fewer abortions there will be. Carrying a baby to term and putting the baby up for adoption is an alternative to abortion for a pregnant woman who thinks that as a single mother she could not cope with the baby. The pro-life community recognizes this. See, e.g., Stu- dents for Life of America, “Adoption, Another Option,” http://studentsforlife.org/resources/organize-an- event/adoption: “There may be times when a mother facing an unplanned pregnancy may feel completely unequipped to parent her child. She may feel her only option is to kill her preborn child. Pro-life indi-

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viduals touch lives by helping women place their baby or child for adoption. It is important to show women on your campus that adoption can be the answer to all of her fears”. Consider now the emotional comfort that having married parents is likely to provide to children adopted by same-sex couples. Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be). Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers. If a child’s same-sex parents are married, however, the parents can tell the child truthful- ly that an adult is permitted to marry a person of the opposite sex, or if the adult prefers as some do a person of his or her own sex, but that either way the parents are married and therefore the child can feel secure in being the child of a married couple. Conversely, imagine the parents having to tell their child that same-sex couples can't marry, and so the child is not the child of a married couple, unlike his classmates. Indiana permits joint adoption by homosexuals (Wisconsin does not). But an unmarried homosexual couple is less stable than a married one, or so at least the state’s insistence that marriage is better for children implies. If marriage is better for children who are being brought up by their biological parents, it must be better for children who are being brought up by their adoptive parents. The state should want homosexual couples who adopt children—as, to repeat, they are permitted to do—to be married, if it is serious in arguing that the only governmental interest in marriage derives from the problem of accidental births. (We doubt that it is serious.) The state’s claim that conventional marriage is the solution to that problem is belied by the state’s experience with births out of wedlock. Accidental pregnancies are found among married couples as well as unmarried couples, and among individuals who are not in a committed relationship and have sexual intercourse that results in an unintended pregnancy. But the state believes that married couples are less likely to abandon a child of the marriage even if the child’s birth was unintended. So if the state’s policy of try- ing to channel procreative sex into marriage were succeeding, we would expect a drop in the percentage of children born to an unmarried woman, or at least not an increase in that percentage. Yet in fact that percentage has been rising even since Indiana in 1997 reenacted its prohibition of same-sex marriage (thus underscoring its determined opposition to such marriage) and for the first time declared that it would not recognize same-sex marriages contracted in other states or abroad. The legislature was fearful that Hoosier homosexuals would flock to Hawaii to get married, for in 1996 the Hawaii courts appeared to be moving toward invalidating the state’s ban on same-sex marriage, though as things turned out Hawaii did not authorize such marriage until 2013. In 1997, the year of the enactment, 33 percent of births in Indiana were to unmarried women; in 2012 (the latest year for which we have statistics) the percentage was 43 percent. The corresponding figures for Wisconsin are 28 percent and 37 percent and for the nation as a whole 32 percent and 41 percent. (The source of all these data is Kids Count Data Center, “Births to Unmarried Women,” http://datacenter.kidscount.org/data/tables/7-births-to-unmarried-women# detailed/2/16,51/false/868,867,133,38,35/any/257,258.) There is no indication that these states’ laws, osten- sibly aimed at channeling procreation into marriage, have had any such effect. A degree of arbitrariness is inherent in government regulation, but when there is no justification for government’s treating a traditionally discriminated-against group significantly worse than the dominant group in the society, doing so denies equal protection of the laws. One wouldn’t know, reading Wiscon- sin’s brief, that there is or ever has been discrimination against homosexuals anywhere in the United States. The state either is oblivious to, or thinks irrelevant, that until quite recently homosexuality was anathematized by the vast majority of heterosexuals (which means, the vast majority of the American people), including by most Americans who were otherwise quite liberal. Homosexuals had, as homosex-

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uals, no rights; homosexual sex was criminal (though rarely prosecuted); homosexuals were formally banned from the armed forces and many other types of government work (though again enforcement was sporadic); and there were no laws prohibiting employment discrimination against homosexuals. Because homosexuality is more easily concealed than race, homosexuals did not experience the same economic and educational discrimination, and public humiliation, that African-Americans experienced. But to avoid discrimination and ostracism they had to conceal their homosexuality and so were reluctant to participate openly in homosexual relationships or reveal their homosexuality to the heterosexuals with whom they associated. Most of them stayed “in the closet.” Same-sex marriage was out of the question, even though interracial marriage was legal in most states. Although discrimination against homosexuals has diminished greatly, it remains widespread. It persists in statutory form in Indiana and in Wisconsin’s constitution. At the very least, “a [discriminatory] law must bear a rational relationship to a legitimate governmental purpose.” Romer v. Evans, supra, 517 U.S. at 635, 116 S.Ct. 1620. Indiana’s ban flunks this unde- manding test. Wisconsin’s prohibition of same-sex marriage, to which we now turn, is found in a 2006 amendment to the state’s constitution. The amendment, Article XIII, § 13, provides: “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.” Opponents of same-sex marriage in Indiana have tried for a number of years to insert a prohibition of such marriages into the state’s constitution, as yet without success. A number of large businesses in Indiana oppose such a constitutional amendment. With 19 states having authorized same-sex marriage, the businesses may feel that it’s only a matter of time before Indiana joins the bandwagon, and that a constitutional amendment would impede the process—and also would signal to Indiana’s gay and lesbian citizens, some of whom are employees of these businesses, that they are in a very unwelcoming environment, with statutory reform blocked. (On the attitude of business in Indiana and Wisconsin to same-sex marriage, see, e.g., Nick Halter, “Target Files Court Papers Supporting Same-Sex Marriage in Wisconsin and Indiana,” Aug. 5, 2014, www.bizjournals.com/twincities/news/2014/08/05/target-amicus-same-sex- marriage-wisconsin-indiana.html.) Wisconsin’s brief in defense of its prohibition of same-sex marriage adopts Indiana’s ground (“accidental births”) but does not amplify it. Its “accidental births” rationale for prohibiting same-sex marriage is, like Indiana’s, undermined by a “first cousin” exemption—but, as a statutory matter at least, an even broader one: “No marriage shall be contracted . . . between persons who are nearer of kin than 2nd cousins except that marriage may be contracted between first cousins where the female has attained the age of 55 years or where either party, at the time of application for a marriage license, submits an affidavit signed by a physician stating that either party is permanently sterile.” WIS. STAT. § 65.03(1). Indiana’s marriage law, as we know, authorizes first-cousin marriages if both cousins are at least 65 years old. But—and here’s the kicker—Indiana apparently will as a matter of comity recognize any marriage lawful where contracted, including therefore (as an Indiana court has held) marriages of first cousins contracted in Tennessee, a state that places no restrictions on such marriages. See TENN.CODE ANN. § 36-3-101; Ma- son v. Mason, 775 N.E.2d 706, 709 (Ind. App. 2002). Indiana has not tried to explain to us the logic of recognizing marriages of fertile first cousins (prohibited in Indiana) that happen to be contracted in states that permit such marriages, but of refusing, by virtue of the 1997 amendment, to recognize same-sex marriages (also prohibited in Indiana) contracted in states that permit them. This suggests animus against same-sex marriage, as is further suggested by the state’s inability to make a plausible argument for its refusal to recognize same-sex marriage.

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But back to Wisconsin, which makes four arguments of its own against such marriage: First, limiting marriage to heterosexuals is traditional and tradition is a valid basis for limiting legal rights. Second, the consequences of allowing same-sex marriage cannot be foreseen and therefore a state should be permitted to move cautiously—that is, to do nothing, for Wisconsin does not suggest that it plans to take any steps in the direction of eventually authorizing such marriage. Third, the decision whether to permit or forbid same-sex marriage should be left to the democratic process, that is, to the legislature and the electorate. And fourth, same-sex marriage is analogous in its effects to no-fault divorce, which, the state argues, makes marriage fragile and unreliable—though of course Wisconsin has no-fault divorce, and it’s surprising that the state’s assistant attorney general, who argued the state’s appeal, would trash his own state’s law. The contention, built on the analogy to no-fault divorce and sensibly dropped in the state’s briefs in this court—but the assistant attorney general could not resist resuscitating it at the oral argument—is that, as the state had put it in submissions to the district court, allowing same-sex marriage creates a danger of “shifting the public understanding of marriage away from a largely child-centric institution to an adult- centric institution focused on emotion.” No evidence is presented that same-sex marriage is on average less “child-centric” and more emotional than an infertile marriage of heterosexuals, or for that matter that no-fault divorce has rendered marriage less “child-centric.” The state’s argument from tradition runs head on into Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), since the limitation of marriage to persons of the same race was traditional in a number of states when the Supreme Court invalidated it. Laws forbidding black-white marriage dated back to colonial times and were found in northern as well as southern colonies and states. See Peggy Pas- coe, What Comes Naturally: Miscegenation Law and the Making of Race in America (2009). Tradition per se has no positive or negative significance. There are good traditions, bad traditions pilloried in such famous literary stories as Franz Kafka’s “In the Penal Colony” and Shirley Jackson’s “The Lottery,” bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween). Tradition per se therefore cannot be a lawful ground for discrimination—regardless of the age of the tradition. Holmes thought it “revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” Oliver Wendell Holmes, Jr., “The Path of the Law,” 10 HARV. L.REV. 457, 469 (1897). Henry IV (the English Henry IV, not the French one—Holmes presumably was referring to the former) died in 1413. Criticism of homosexuality is far older. In Leviticus 18:22 we read that “thou shalt not lie with mankind, as with womankind: it is abomination.” The limitation on interracial marriage invalidated in Loving was in one respect less severe than Wis- consin’s law. It did not forbid members of any racial group to marry, just to marry a member of a different race. Members of different races had in 1967, as before and since, abundant possibilities for finding a suitable marriage partner of the same race. In contrast, Wisconsin’s law, like Indiana’s, prevents a homosexual from marrying any person with the same sexual orientation, which is to say (with occasional exceptions) any person a homosexual would want or be willing to marry. Wisconsin points out that many venerable customs appear to rest on nothing more than tradition—one might even say on mindless tradition. Why do men wear ties? Why do people shake hands (thus spread- ing germs) or give a peck on the cheek (ditto) when greeting a friend? Why does the President at Thanksgiving spare a brace of turkeys (two out of the more than 40 million turkeys killed for Thanksgiv- ing dinners) from the butcher’s knife? But these traditions, while to the fastidious they may seem silly, are at least harmless. If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a

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harmless anachronism; it is a violation of the equal protection clause, as in Loving. See 388 U.S. at 8-12, 87 S.Ct. 1817. Against this the state argues in its opening brief that Loving “should be read as recognizing the constitutional restrictions on the government’s ability to infringe the freedom of individuals to decide for themselves how to arrange their own private and domestic affairs.” But that sounds just like what the government of Wisconsin has done: told homosexuals that they are forbidden to decide for themselves how to arrange their private and domestic affairs. If they want to marry, they have to marry a person of the opposite sex. The state elaborates its argument from the wonders of tradition by asserting, again in its opening brief, that “thousands of years of collective experience has [sic] established traditional marriage, between one man and one woman, as optimal for the family, society, and civilization.” No evidence in support of the claim of optimality is offered, and there is no acknowledgment that a number of countries permit polygamy—Syria, Yemen, Iraq, Iran, Egypt, Sudan, Morocco, and Algeria—and that it flourishes in many Afri- can countries that do not actually authorize it, as well as in parts of Utah. (Indeed it's been said that “po- lygyny, whereby a man can have multiple wives, is the marriage form found in more places and at more times than any other.” Stephanie Coontz, Marriage, a History: How Love Conquered Marriage 10 (2006).) But suppose the assertion is correct. How does that bear on same-sex marriage? Does Wiscon- sin want to push homosexuals to marry persons of the opposite sex because opposite-sex marriage is “optimal”? Does it think that allowing same-sex marriage will cause heterosexuals to convert to homosexuality? Efforts to convert homosexuals to heterosexuality have been a bust; is the opposite conversion more feasible? Arguments from tradition must be distinguished from arguments based on morals. Many unquestioned laws are founded on moral principles that cannot be reduced to cost-benefit analysis. Laws forbidding gratuitous cruelty to animals, and laws providing public assistance for poor and disabled persons, are examples. There is widespread moral opposition to homosexuality. The opponents are entitled to their opinion. But neither Indiana nor Wisconsin make a moral argument against permitting same-sex marriage. The state’s second argument is: “go slow”: maintaining the prohibition of same-sex marriage is the “prudent, cautious approach,” and the state should therefore be allowed “to act deliberately and with pru- dence—or, at the very least, to gather sufficient information—before transforming this cornerstone of civilization and society.” There is no suggestion that the state has any interest in gathering information, for notice the assumption in the quoted passage that the state already knows that allowing same-sex marriage would transform a “cornerstone of civilization and society,” namely monogamous heterosexual marriage. One would expect the state to have provided some evidence, some reason to believe, however speculative and tenuous, that allowing same-sex marriage will or may “transform” marriage. At the oral argument the state’s lawyer conceded that he had no knowledge of any study underway to determine the possible effects on heterosexual marriage in Wisconsin of allowing same-sex marriage. He did say that same-sex marriage might somehow devalue marriage, thus making it less attractive to opposite-sex couples. But he quickly acknowledged that he hadn’t studied how same-sex marriage might harm marriage for heterosexuals and wasn’t prepared to argue the point. Massachusetts, the first state to legalize same-sex marriage, did so a decade ago. Has heterosexual marriage in Massachusetts been “transformed”? Wisconsin’s lawyer didn’t suggest it has been. He may have been gesturing toward the concern expressed by some that same-sex marriage is likely to cause the heterosexual marriage rate to decline because heterosexuals who are hostile to homosexuals, or who whether hostile to them or not think that allowing them to marry degrades the institution of mar-

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riage (as might happen if people were allowed to marry their pets or their sports cars), might decide not to marry. Yet the only study that we’ve discovered, a reputable statistical study, finds that allowing same- sex marriage has no effect on the heterosexual marriage rate. Marcus Dillender, “The Death of Marriage? The Effects of New Forms of Legal Recognition on Marriage Rates in the United States,” 51 Demography 563 (2014). No doubt there are more persons more violently opposed to same-sex marriage in states that have not yet permitted it than in states that have, yet in all states there are opponents of same-sex marriage. But they would tend also to be the citizens of the state who were most committed to heterosexual marriage (devout Catholics, for example). No one knows exactly how many Americans are homosexual. Estimates vary from about 1.5 percent to about 4 percent. The estimate for Wisconsin is 2.8 percent, which includes bisexual and transgendered persons. Gary J. Gates & Frank Newport, “LGBT Percentage Highest in D.C., Lowest in North Dakota,” Gallup (Feb. 15, 2013), www.gallup.com/poll/160517/lgbt-percentage-highest-lowest-north-dakota.aspx. Given how small the percentage is, it is sufficiently implausible that allowing same-sex marriage would cause palpable harm to family, society, or civilization to require the state to tender evidence justifying its fears; it has provided none. The state falls back on Justice Alito’s statement in dissent in United States v. Windsor, supra, 133 S.Ct. at 2716, that “at present, no one—including social scientists, philosophers, and historians—can pre- dict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are certainly not equipped to make such an assessment.” What follows, if prediction is impossible? Justice Alito thought what follows is that the Supreme Court should not interfere with Congress’s determination in the Defense of Marriage Act that “marriage,” for purposes of entitlement to federal marital benefits, excludes same-sex marriage even if lawful under state law. But can the “long- term ramifications” of any constitutional decision be predicted with certainty at the time the decision is rendered? The state does not mention Justice Alito’s invocation of a moral case against same-sex marriage, when he states in his dissent that “others explain the basis for the institution in more philosophical terms. They argue that marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.” Id. at 2718. That is a moral argument for limiting marriage to heterosexuals. The state does not mention the argument because as we said it mounts no moral arguments against same-sex marriage. We know that many people want to enter into a same-sex marriage (there are millions of homosexual Americans, though of course not all of them want to marry), and that forbidding them to do so imposes a heavy cost, financial and emotional, on them and their children. What Wisconsin has not told us is whether any heterosexuals have been harmed by same-sex marriage. Obviously many people are dis- tressed by the idea or reality of such marriage; otherwise these two cases wouldn’t be here. But there is a difference, famously emphasized by John Stuart Mill in On Liberty (1869), between the distress that is caused by an assault, or a theft of property, or an invasion of privacy, or for that matter discrimination, and the distress that is caused by behavior that disgusts some people but does no (other) harm to them. Mill argued that neither law (government regulation) nor morality (condemnation by public opinion) has any proper concern with acts that, unlike a punch in the nose, inflict no temporal harm on another person without consent or justification. The qualification temporal is key. To be the basis of legal or moral concern, Mill argued, the harm must be tangible, secular, material—physical or financial, or, if emotional, focused and direct—rather than moral or spiritual. Mill illustrated nontemporal harm with revulsion against polygamy in Utah (he was writing before Utah agreed, as a condition of being admitted to the union as a state, to amend its constitution to prohibit polygamy). The English people were fiercely critical

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of polygamy wherever it occurred. As they were entitled to be. But there was no way polygamy in Utah could have adverse effects in England, 4000 miles away. Mill didn't think that polygamy, however offensive, was a proper political concern of England. Similarly, while many heterosexuals (though in America a rapidly diminishing number) disapprove of same-sex marriage, there is no way they are going to be hurt by it in a way that the law would take cognizance of. Wisconsin doesn’t argue otherwise. Many people strongly disapproved of interracial marriage, and, more to the point, many people strongly disapproved (and still strongly disapprove) of homosexual sex, yet Loving v. Virginia invalidated state laws banning interracial marriage, and Lawrence v. Texas invalidated state laws banning homosexual sex acts. Though these decisions are in the spirit of Mill, Mill is not the last word on public morality. But Wis- consin like Indiana does not base its prohibition of same-sex marriage on morality, perhaps because it believes plausibly that Lawrence rules out moral objections to homosexuality as legitimate grounds for discrimination. In passing, Wisconsin in its opening brief notes that it “recogniz[es] domestic partnerships.” Indeed it does: WIS. STAT. ch. 770. And the domestic partners must be of the same sex. Id., § 770.05(5). But the preamble to the statute states: “The legislature . . . finds that the legal status of domestic partnership as established in this chapter is not substantially similar to that of marriage,” § 770.001, citing for this proposition a decision by a Wisconsin intermediate appellate court. Appling v. Doyle, 345 Wis.2d 762, 826 N.W.2d 666 (App. 2012), affirmed, 2014 WI 96, ––– Wis.2d ––––, 853 N.W.2d 888 (Wis. July 31, 2014). Indeed that is what the court held. It pointed out that chapter 770 doesn’t specify the rights and obligations of the parties to a domestic partnership. Rather you must go to provisions specifying the rights and obligations of married persons and see whether a provision that you’re concerned with is made expressly applicable to domestic partnerships, as is for example the provision that gives a surviving spouse the deceased spouse’s interest in their home. 826 N.W.2d at 668. But as the court further explained, the rights and obligations of domestic partners are far more limited than those of married persons. See id. at 682-86. (For example, only spouses may jointly adopt a child. Id. at 685.) They have to be far more limited, because of the state’s constitutional provision quoted above that “a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.” WIS. CONST. Art. XIII, § 13. Domestic partnership in Wisconsin is not and cannot be marriage by another name. It is true that because the state does not regard same-sex marriages contracted in other states as wholly void (though they are not “recognized” in Wisconsin), citizens of Wisconsin who contract same-sex marriages in states in which such marriages are legal are not debarred from receiving some of the federal benefits to which legally married persons (including parties to a same-sex marriage) are entitled. Not to all those benefits, however, because a number of them are limited by federal law to persons who reside in a state in which their marriages are recognized. These include benefits under the Family & Medical Leave Act, see 29 C.F.R. § 825.122(b), and access to a spouse’s social security benefits. See 42 U.S.C. § 416(h)(1)(A)(i). So look what the state has done: it has thrown a crumb to same-sex couples, denying them not only many of the rights and many of the benefits of marriage but also of course the name. Imagine if in the 1960s the states that forbade interracial marriage had said to interracial couples: “you can have domestic partnerships that create the identical rights and obligations of marriage, but you can call them only ‘civil unions’ or ‘domestic partnerships.’ The term ‘marriage’ is reserved for same-race unions.” This would give interracial couples much more than Wisconsin’s domestic partnership statute gives same-sex couples. Yet withholding the term “marriage” would be considered deeply offensive, and, having no justification other than bigotry, would be invalidated as a denial of equal protection.

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The most arbitrary feature of Wisconsin’s treatment of same-sex couples is its refusal to allow couples in domestic partnerships to adopt jointly, as married heterosexual couples are allowed to do (and in Indiana, even unmarried ones). The refusal harms the children, by telling them they don’t have two parents, like other children, and harms the parent who is not the adoptive parent by depriving him or her of the legal status of a parent. The state offers no justification. Wisconsin’s remaining argument is that the ban on same-sex marriage is the outcome of a democratic process—the enactment of a constitutional ban by popular vote. But homosexuals are only a small part of the state’s population—2.8 percent, we said, grouping transgendered and bisexual persons with homosexuals. Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law. In its reply brief Indiana adopts Wisconsin’s democracy argument, adding that “homosexuals are politically powerful out of proportion to their numbers.” No evidence is presented by the state to support this contention. It is true that an increasing number of heterosexuals support same-sex marriage; otherwise 11 states would not have changed their laws to permit such marriage (the other 8 states that allow same-sex marriage do so as a result of judicial decisions invalidating the states’ bans). No inference of manipulation of the democratic process by homosexuals can be drawn, however, any more than it could be inferred from the enactment of civil rights laws that African-Americans “are politically powerful out of proportion to their numbers.” It is to the credit of American voters that they do not support only laws that are in their palpable self-interest. They support laws punishing cruelty to animals, even though not a single animal has a vote. To return to where we started in this opinion, more than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation. As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible. For completeness we note the ultimate convergence of our simplified four-step analysis with the more familiar, but also more complex, approach found in many cases. In SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, 483 (9th Cir.2014), the Ninth Circuit concluded, based on a reading of the Supreme Court’s decisions in Lawrence and Windsor, that statutes that discriminate on the basis of sexual orientation are subject to “heightened scrutiny”—and in doing so noted that Windsor, in invalidating the Defense of Marriage Act, had balanced the Act’s harms and offsetting benefits: “Notably absent from Windsor’s review of DOMA are the ‘strong presumption’ in favor of the constitutionality of laws and the ‘extremely deferential’ posture toward government action that are the marks of rational basis review . . . . In its parting sentences, Windsor explicitly announces its balancing of the government’s interest against the harm or injury to gays and lesbians: ‘The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.’ 133 S.Ct. at 2696 (emphasis added). Windsor’s balancing is not the work of rational basis review.” The Supreme Court also said in Windsor that “the Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.” 133 S.Ct. at 2693-94. A second-class marriage would be a lot better than the cohabitation to which Indiana and Wisconsin have consigned same-sex couples. The states' concern with the problem of unwanted children is valid and important, but their solution is not “tailored” to the problem, because by denying marital rights to same-sex couples it reduces the incen-

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tive of such couples to adopt unwanted children and impairs the welfare of those children who are adopted by such couples. The states’ solution is thus, in the familiar terminology of constitutional discrimination law, “overinclusive.” It is also underinclusive, in allowing infertile heterosexual couples to marry, but not same-sex couples. The district court judgments invalidating and enjoining these two states’ prohibitions of same-sex marriage are Affirmed.

APPLICATION OF HARVEY 2012 OK CIV APP 112, 293 P.3d 224

KENNETH L. BUETTNER, PRESIDING JUDGE: Petitioner/Appellant Steven Charles Harvey (Harvey) filed a Petition for Change of Name in the Dis- trict Court of Oklahoma County. Harvey sought to have his name changed from “Steven Charles Harvey” to “Christie Ann Harvey,” because he was in the process of undergoing sexual/gender change. Harvey’s Petition alleged that he did not seek to have his name changed for any illegal or fraudulent purpose or to delay or hinder creditors. The trial court denied Harvey’s Petition. Harvey filed a Motion for New Trial, which the trial court overruled. Harvey appeals. We hold the trial court abused its discretion by denying Harvey’s Motion for New Trial. Accordingly, we reverse and remand with directions to grant Harvey’s name change. A trial court’s denial of a new trial is reviewed for abuse of discretion. Lierly v. Tidewater Petroleum Corp., 2006 OK 47, ¶ 15, 139 P.3d 897, 902. Because the trial court has broad discretion in ruling on a motion for a new trial, the denial of a new trial will be reversed only upon clear error with respect to a pure and unmixed question of law. Id. This appeal proceeds on the appellant’s brief only. Where the brief in chief is reasonably supportive of the allegations of error, this Court will ordinarily reverse the appealed judgment with appropriate directions. Cooper v. Cooper, 1980 OK 128, 616 P.2d 1154, 1156; Okla. Sup. Ct. R. 1.10. Harvey’s Petition complied with the pleading requirements of 12 O.S.2011 § 16321 and the notice requirements of 12 O.S.2011 § 1633. In the Petition, Harvey alleged the reason he was seeking a name change was that “Petitioner is in the process of undergoing sexual/gender change.” Harvey stated that “The Petitioner does not seek to have his name changed for any illegal or fraudulent purpose, or to delay or hinder creditors.” Harvey later stipulated that the gender reassignment process would not alter his DNA or his ability to bear children. On appeal, Harvey asserts that judgment should have been entered granting the name change. Title 12, § 1634 provides:

1 Title 12, § 1632 provides: The petition [for change of name] shall be verified and shall state: (a) The name and address of the petitioner; (b) The facts as to domicile and residence; (c) The date and place of birth; (d) The birth certificate number, and place where the birth is registered, if registered; (e) The name desired by petitioner; (f) A clear and concise statement of the reasons for the desired change; (g) A positive statement that the change is not sought for any illegal or fraudulent purpose, or to delay or hinder creditors.

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The material allegations of the petition shall be sustained by sworn evidence, and the prayer of the petition shall be granted unless the court or judge finds that the change is sought for an illegal or fraudulent purpose, or that a material allegation in the petition is false. 12 O.S.2011 § 1634. (emphasis added). Harvey argues that “the only statutory impediment to a name change is a finding that the change is for an illegal or fraudulent purpose.” In re Stratton ex rel. Kelley, 2004 OK CIV APP 35, ¶ 12, 90 P.3d 566, 570. Harvey contends there is no fraud in identifying oneself by a traditionally male or female name while having the DNA of the other sex. We agree with the last contention. The law does not require males be given traditionally male names, or females traditionally female names, by their parents at birth. Additionally, there are numerous gender androgynous names. The relevant issue in a name change proceeding is not whether the applicant’s DNA corresponds with the traditionally male or female name preferred by the applicant. The statute does not change the sex of the applicant, only the applicant’s name. The trial court’s denial was not based on a finding that a material allegation in the petition was false. Therefore, the relevant issue is whether the applicant is seeking a name change for an illegal or fraudulent purpose. See 12 O.S. § 1634. We hold that the trial court abused its discretion by overruling Harvey’s Motion for New Trial and denying his application for a change of name. The trial court’s finding that Harvey sought a name change for an illegal or fraudulent purpose is not supported by the evidence. Because we hold the trial court abused its discretion by failing to apply the standard set forth in 12 O.S. § 1634, we will not address Harvey’s constitutional arguments. The trial court’s judgment is reversed, and the case is remanded with directions to enter judgment granting Harvey’s change of name. REVERSED AND REMANDED WITH DIRECTIONS. JOPLIN, V.C.J., and BELL, J. (sitting by designation), concur.

Notes & Questions: Same-Sex and Transgender Marriages: How We Got Here 1. Marriages between persons of the same gender has been the major family law story of the last twenty years. The debate began with the decision in the Hawaii case of Behr v. Lewin, 852 P.2d 44 (Haw. 1993). Although that case did not authorize marriages between persons of the same gender, it did rule that a statute restricting marriage to persons of the opposite gender implicated the Hawaii Constitution’s “Equal Rights” Amendment. Therefore, the burden was on the state to show that the restriction constituted a compelling state interest. The case as remanded for trial. On remand, a Hawaiian circuit did determine that the state’s ban on same-sex marriage was unconstitutional. Baehr v. Milke, 1996 WL 694235 (Hawaii Cir. Ct., 1st. Dist. Dec. 3, 1996). Ultimately Hawaii passed a referendum amending their constitution to authorize the legislature to restrict marriage to people of different genders. The Hawaii Supreme Court said that this amendment took the statute out of the ambit of the state constitution’s equal protection clause and therefore mooted the case. Baehr v. Milke, 994 P.2d 566. No marriages between people of the same gender were ever performed in Hawaii until the state changed its law in 2013. 2. The Backlash, Part 1. During the period between the Baehr decision and the Hawaii referendum, there was considerable public controversy over whether other states would have to recognize Hawaiian marriages under the Full Faith and Credit Clause of the United States Constitution. The answer to this question was very clearly no. Marriage may be a public act but it is not a judgment of a court in the same way that dissolution of marriage is a court judgment. Therefore the restrictive rules concerning when a state may disregard a judgment of another state, such as a divorce of dissolution of marriage judgment,

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are not applicable. States have long had the ability to apply their own law in their own court system whenever their policy requires it. See Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981)(holding that the forum can apply its own law rather than the law of another state, provided it has a significant contact or other significant aggregation of contacts with the parties and the occurrence or transaction to which it is applying its own law). However, with respect to judgments, the rules are very restrictive concerning when a state may refuse to respect the judgment of another state. Fauntleroy v. Lum, 210 U.S. 230 (1908). In response to controversy, Congress passed the “Defense of Marriage Act” Publ. L. No 104-199, 110 Stat. 2419 (1996), which provided in Section 2 that: No State, territory, or possession of the United States or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the law of such State, territory, possession or tribe, or a right or claim arising from such marriage. Section 3 of the Act required that for purposes of federal law, a marriage may only be between a man and woman. Oklahoma, like many other states, pursuant to DOMA, enacted 43 O.S. §3.1 which prohibited recognition of same-sex marriages from other states. 3. The Rise and Fall of an Alternative Model: An alternative model to same-sex marriage is called the civil union or domestic partnership. It was pioneered in Denmark. Couples in a civil union have all the rights and responsibilities of married couples but cannot call themselves married. See e.g., Peter Lødrup, Registered Partnership in Norway, INT’L SURVEY OF FAM. L. 387 (1994); Linda Nelson, Family Right and “Registered Partnership in Denmark, 4 INT’L J. L & FAM. 297-307 (1990). This concept was picked up in Baker v. State, 744 A.2d 864 (Vt. 1999), where the court held that the exclusion of same-sex couples form the benefits and protections incident to marriage under state law violated the Vermont Con- stitution. The court gave the Vermont legislature a choice: either legalize same-sex marriage of provide for “domestic partnerships,” which would have the same benefits as marriage. The Vermont legislature subsequently passed a bill creating “civil unions.” for couples of the same gender which gave them the same rights as married couples. A number of other states followed suit and at one point civil unions were available in 7-8 states, not all of which were the functional equivalent of marriage. With the advent of recent developments all states which formerly had civil unions have turned them into marriages. 4. The Marriage Surge. The major case in the United States involving same-sex marriage came from Massachusetts, which held that the state’s ban on same-sex marriage could not survive a constitutional challenge under the Massachusetts Constitution. Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). Same-sex marriage used to be available in Massachusetts only to those couples from other states who would be allowed to marry in their state of residence. This followed the European model where couples are only allowed to marry where one of them is a habitual residence. This restriction was repealed by Massachusetts in 2008. A number of other states soon joined Massachusetts in allowing same-sex couples to marry. This included California, Connecticut, the District of Columbia, Delaware, Iowa, Maine, Maryland, New York, Vermont and Washington. 5. The Backlash, Part 2. In response to these state decisions many states amended their constitution to provide that marriage was only between a man and a woman. See 33 FAM.L.REP (BNA) 1023 (2006). In California, “Proposition 8” overturned the California Supreme Court decision striking down the same- sex marriage ban. The court did determine that those marriages entered into between the date of the case and the effective date of Proposition 8 were valid marriage.

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The Oklahoma amended its constitution in 2004, as follows: A. Marriage in this state shall consist only of one man and one woman. Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups. B. A marriage between persons of the same gender performed in another states shall not be recognized as valid and binding in this state as of the date of the marriage. C. Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor. 6. The Constitutional Deluge: In 2013 the United States Supreme Court decided two major cases involving same sex marriage. First, in United States v. Windsor, 133 S.Ct. 2675 (2013), the court found that section 3 of the Defense of Marriage Act (DOMA) was unconstitutional. Then in Hollingsworth v. Perry, 133 S.Ct. 1532 (2013)the court held that the petitioner’s did not have standing to appeal the trial court decision finding that California’s Proposition 8 was unconstitutional. Most decided cases now hold that same-sex marriage bans cannot survive in a post-Windsor world. See e.g., Majors v. Jeanes, 2014 WL 4541173 (D. Ariz. 2014); Jernigan v. Crane, 2014 WL 6685391 (D. Ark. 2014); Campaign for Southern Equality v. Bryant, 2014 WL 6680570 (S.D. Miss. 2014); Marie v. Moser, 2014 WL 5598128 (D. Kan. 2014) (unpublished; text in Westlaw). Lawson v. Kelley, 2014 WL 5810215 (W.D. Mo. 2014); McGee v. Cole, 2014 WL 5802665 (D. W.Va. 2014); Condon v. Haley, 2014 WL 5897175 (D. S.C. 2014); Rolando v. Fox, 2014 WL 6476196 (D. Mont. 2014); Rosenbrahn v. Dau- gaard, 2015 WL 144567 (D. S.D. 2015). However, some courts have disagreed. However, some courts have disagreed. See DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014); Conde-Vidal v. Garcia-Padilla 40 FAM. L. REP. (BNA) 1611(D. P.R. 2014); Oliver v. Stufflebeam, 2014 WL 7331241 (Fla. Ct. App. 2014) (Florida will not divorce a same-sex couple married elsewhere, although an annulment may be available). The Supreme Court granted certiorari on the Snyder case and the decision in that case may well decide this issue for the foreseeable future. Should the court determine that states may no longer maintain a ban on same-sex marriages, many of the problems will disappear. The case that overturned the Oklahoma ban on same-sex marriage is Bishop v. Oklahoma, 760 F.3d 1070 (10th Cir. 2014) cert den.2014 WL 3854318 (U.S. 2014). 7. One of the problems that may disappear if the court strikes down same-sex marriage bans is the problem of transsexual marriages. If same-sex marriage is allowed then it is no longer necessary to determine the sex of an individual. For two different views on the issue under pre-existing law compare Kantaras v. Kantaras, 884 So.2d 155 (Fla. Ct. App. 2004) with M.T. v. J.T., 355 A.2d 204 (N.J. Super. 1976). 8. Justice Robert Jackson once opined that “If there is one thing that the people are entitled to expect from their lawmakers, it is rules of law that will enable individuals to tell whether they are married, and, if so, to whom.” Estin v. Estin, 334 U.S. 541,553 (1948). Do you agree with him? If so, how do you pro- pose to achieve this goal?

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Notes & Questions: Other Restrictions and Incentives on Marriage 1. Private restraints on marriage in wills or contracts have been made illegal in many states. See 15 O.S. § 220 (2001) (Every contract in restraint of the marriage of any person, other than a minor, is void.) Should this statute apply only to a total restraint? Would a partial restraint be acceptable? 2. This chapter has focused on state restrictions on who may marry. Sometimes state laws have put pressure on unwilling parties to marry. See 43 O.S. § 3 (2001). 3. Breach of promise actions are almost extinct. Historically, breach of promise actions forced people into unwanted matrimony, but they are no longer much of a threat. Over half of the states have abol- ished the action and many of the rest have severely restricted the damages recoverable. Traditionally, the damages were measured by the lost lifestyle the person would have had if the marriage had occurred. However, with divorce available on a no-fault basis, it is cheaper to marry and divorce the person to whom the promise was made. While Oklahoma provides in 23 O.S. § 40 (2001) that the damages in breach of promise actions shall be left to the sound discretion of the jury, there has not been a reported case in 50 years. See Roberts v. Van Cleve, 1951 OK 251, 237 P.2d 892 (plaintiff recovers $25,000).

B. FRAUD AND THE MARRIAGE RELATIONSHIP

SEIRAFI-POUR v. BAGHERINASSAB 2008 OK CIV APP 98, 197 P.3d 1097

Opinion on Remand by Jane P. Wiseman, Judge. Masoumeh Bagherinassab (Appellant) appeals from an order of the trial court, which annulled her marriage to Mohammad Ali Seirafi-Pour (Appellee). The issue on appeal is whether the trial court’s decision that the parties’ marriage had been procured by fraud practiced by Appellant is supported by the evidence. We find that the trial court’s decision to annul the marriage due to fraud is supported by the evidence and affirm. FACTS AND PROCEDURAL BACKGROUND Appellee and Appellant were married in Iran on August 29, 2002, and again in a ceremony in the United States on February 22, 2003. Prior to the Iranian ceremony, Appellee entered into a prenuptial agreement with Appellant’s family regarding the dowry he would pay upon Appellant’s demand. Appel- lee claims that Appellant orally promised him she would never make demand for the dowry. The parties returned to the United States together in December 2002 after Appellant secured a visa. Appellee testified that Appellant left him just a few days after returning to the U.S. They reconciled shortly thereafter and then separated again in April 2003 for approximately four months. In September, Appellant returned to Iran to visit her family. While she was out of the country, Appellee filed for divorce in Iran and also filed for annulment in Oklahoma. At trial, Appellee testified that Appellant constantly ridiculed him and refused to consummate their relationship through sexual intercourse, all of which was denied by Appellant. After two days of testimo-

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ny, the trial court found that Appellee established by clear and convincing evidence that Appellant fraudulently induced him into the alleged marriage, granted Appellee an annulment, and refused to enforce the premarital agreement regarding the dowry claimed by Appellant. On appeal, Appellant claims that the trial court erred in refusing to enforce the prenuptial agreement and in relying on contradictory testimony to find that Appellee proved by clear and convincing evidence that Appellant fraudulently induced him into the marriage. After completion of briefing on appeal, Appellee filed a motion to dismiss the appeal claiming Appel- lant had remarried, thus making the appeal moot. Appellant failed to respond to the motion, and this Court granted Appellee’s motion to dismiss. The dismissal, based on Davis v. Flint, 1928 OK 34, 265 P. 101, stated that Appellant “cannot accept the benefits of the judgment and recognize its validity without waiving her right to pursue the appeal of that judgment.” We subsequently denied Appellant’s motion to reconsider or vacate the dismissal. Appellant then petitioned the Oklahoma Supreme Court for certiorari claiming the appeal was not moot because she was not asking for her marriage to be reinstated but rather for the judgment to be recast from one for an annulment to one for a divorce and for the enforcement of the prenuptial agreement. In her petition, Appellant cited cases that prove an exception to the Davis rule, stating that an appellant does not waive the right to appeal in situations where the appellant could receive a more favorable judgment but not a less favorable one. She asserted that “[i]t is possible for her to obtain a more favorable judgment, insofar as having the judgment for annulment transmuted into a decree of divorce will grant her contractual and property rights that may provide her with some assets, but it is not possible to obtain a worse outcome than what she is appealing.” The Supreme Court granted certiorari, vacated this Court’s order of dismissal, and remanded “for a consideration of the record and briefs.” STANDARD OF REVIEW A trial court’s power to annul a marriage is based in equity. See Brooks v. Sanders, 2008 OK CIV APP 66, ¶ 18, 190 P.3d 357, 360; see also In re Mo-se-che-he’s Estate, 1940 OK 453, 107 P.2d 999 (“A District Court, under its broad, general equity jurisdiction conferred by the Constitution, has power and jurisdiction to annul a marriage . . . .”). “In an equity case this court will examine the whole record and will reverse the judgment of the trial court if found to be against the clear weight of the evidence or contrary to established principles of equity.” Mayfair Bldg. Co. v. S & L Enters., Inc., 1971 OK 42, ¶ 4, 483 P.2d 1137, 1138-39. ANALYSIS Appellant asserts that the trial court committed reversible error in deciding that she fraudulently induced Appellee into marriage. The question before this Court is whether Appellee presented sufficient evidence to the trial court to support his fraud claim. The trial court cited cases involving “green card” fraud when it announced its decision to annul the marriage. “[I]f an alien marries a citizen of this country for the only purpose of entering the United States, and without any intention of assuming the duties and responsibilities of the marriage, in a proper case an annulment may be decreed.” Kurys v. Kurys, 209 A.2d 526, 528 (Conn. Super. Ct. 1965). In Mil- ler v. Miller, 1998 OK 24, ¶ 42, 956 P.2d 887, 903, the Oklahoma Supreme Court stated, “Misrepresenta- tions which have been found to go to the essence of the marital relationship, generally in an action for annulment, include . . . concealment of the fact that one party married the other for the sole purpose of obtaining a ‘green card’ from the Immigration Department.” The Supreme Court cited a California case in support of its position on “green card” misrepresentation, Rabie v. Rabie, 115 Cal.Rptr. 594 (Cal. Ct. App. 1974).

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In Rabie, the California court upheld an annulment that had been sought by an American appellant against her Iranian husband. The evidence before the court showed that the husband had spent time look- ing for a woman to marry him in order to secure a green card and that he married the plaintiff even though “he possessed a very low opinion of her.” Id. at 597. The marriage quickly disintegrated after the husband received his green card. Id. The Court of Appeal found that the trial court did not abuse its discretion in granting the annulment. The court found that there was substantial evidence that the defendant husband never intended to fulfill any of his marital duties to his wife, “especially the duties to remain faithful to [her] and to remain married to her.” Id. It stated, “Where fraud is so grievous that it places the injured party in an intolerable relationship, it robs the marital contract of all validity.” Id. Another California Court of Appeal also addressed the issue of fraudulent inducement to marry involving a “green card” in Liu v. Liu, 242 Cal.Rptr. 649 (Cal. Ct. App. 1987). In Liu, husband met wife, a citizen of Taiwan, in Taiwan after wife’s sister had arranged for the parties to meet. Id. at 651. Husband traveled to Taiwan again approximately eight months later and married wife in a civil ceremony. Id. Husband returned home to the United States, but wife was not able to join him for several months until after she obtained a visa. Id. Wife refused to have sexual relations with husband and moved to a separate bedroom only four days after moving into husband’s home. Id. Within a month, husband asked for a separation, and then later served wife with a petition for annulment. Id. Husband testified that he never had sexual relations with wife during the marriage. Id. Wife asserted that the marriage had been consummated and tried to introduce “newly discovered evidence” to that effect in a motion for new trial. Id. at 655. The Court upheld the trial court’s decision that husband’s consent to marry was obtained by fraud. The Court stated, “An annulment may be had for fraud where a wife harbors a secret intention at the time of the marriage not to engage in sexual relations with her husband.” Id. at 656. The Court found ample evidence to support the trial court’s conclusion that the wife did not intend to engage in sexual relations with the husband. Id. The Court stated the following: First, respondent testified that he never had sexual relations with appellant. (See Lamberti v. Lamberti (1969) 272 Cal.App.2d 482, 485, 77 Cal.Rptr. 430 [annulment of an unconsummated marriage may be secured more readily than one where the parties have cohabited as husband and wife].) Secondly, there is evidence here that appellant had an ulterior motive for entering into the marriage: namely, to obtain a green card to allow her to reside in the United States. Finally, the rapidity with which the marriage deteriorated after appellant arrived in the United States also supports the trial court’s findings. Id. In the present case, the trial court found the circumstances remarkably parallel to the Liu case. The evidence reveals that before Appellant met Appellee, she applied for a student visa to come to the United States, but her application was denied. Appellee proposed to Appellant only two weeks after meeting her in person in Iran. Appellee also testified that after the two were married and her visa was approved, Ap- pellant came home with him. During the flight home, Appellee claims that Appellant started complaining about his age, his appearance, and the way he walks. After they got off the plane, they went to Appellant’s sister’s home. Appellee claims that Appellant did not want to go home with him but wanted to stay at her sister’s home. Appellee claims that he had to persuade her to go home with him. Appellant received her “green card” in the mail, then left Appellee only nine days after she arrived in the United States. Appel- lant stayed at her sister’s home for three days, and Appellee and his mother had to go to the sister’s home to try to convince Appellant to return to Appellee’s home.

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In February 2003, the parties had a wedding ceremony and reception. Appellee testified that the parties never consummated the marriage. He claims that he asked Appellant to have sex with him, but she refused. Appellee claims that Appellant left his home again on April 16, 2003, and stayed at her sister’s home until August 12, 2003. After returning home, Appellant spent a lot of time “chatting” on the internet. When she returned to Iran in late September 2003, Appellee hired a computer forensic recovery specialist to install software on the computer that Appellant had been using. The software recovered logs of several chats that appeared to have taken place between Appellant and an individual with the screen name “Pentagon 666 2000.” Appellee claims that upon reading the chat logs, he concluded that the person Appellant was chatting with was her boyfriend and that he lived in Iran. The recovery specialist testified that he also recovered web cam images of Appellant, one of which showed Appellant partially undressed. One of Appellant’s co-workers, testifying on behalf of Appellee, stated the following: “Well, I just asked [Appellant] if she was married or single, and she said single.” Appellee’s sister testified that Ap- pellee confided in her that he did not have a sexual relationship with Appellant. Appellant claims that she had sexual intercourse with Appellee and denied that she married Appellee to obtain a green card. She claimed that Appellee told her not to come home after she went to her sister’s house in April 2003. She denied chatting on the internet with anyone named Pentagon 666 2000. She claimed that she loved Appellee. The trial court stated that it found Appellee “far more credible” and found “inconsistencies on the part of” Appellant. It found Appellee’s demeanor to be “reassuring” and Appellant’s “to be less reassuring.” “The trial court is entitled to choose which testimony to believe as the judge has the advantage over this Court in observing the behavior and demeanor of the witnesses. The court’s judgment need not rest upon uncontradicted evidence.” Mueggenborg v. Walling, 1992 OK 121, ¶ 7, 836 P.2d 112, 114. The trial court is “in the best position to evaluate the demeanor of the witnesses and to gauge the credibility of the evidence,” and we will defer “to the conclusions it reaches concerning those witnesses and that evidence.” Beale v. Beale, 2003 OK CIV APP 90, ¶ 6, 78 P.3d 973, 975. The relief sought by Appellee in the form of an annulment is based on a claim of fraud. “Fraud is never presumed, but must be proven by clear and convincing evidence.” Tice v. Tice, 1983 OK 108, ¶ 8, 672 P.2d 1168, 1171. The testimony of the parties conflicted on the issue of whether Appellant fraudulently induced Appellee to marry her. “When fraud is properly alleged by one party and denied by the other party, the existence or non-existence of fraud becomes a question of fact.” Id. The trial court found that the facts supported Appellee’s contention that Appellant fraudulently induced him into the marriage. After reviewing the record on appeal, we find no basis on which to conclude that this determination is against the clear weight of the evidence. We therefore affirm the decision of the trial court. Appellant also contends that the trial court erred in refusing to enforce the parties’ marriage contract which contained a provision for a dowry. “An annulment is said to ‘relate back’ and erase the marriage and all its implications from the outset.” Liu, 242 Cal.Rptr. at 657. When consent to a marriage agreement has been procured by fraud and the marriage is therefore annulled, contract law precludes the enforcement of such an agreement. The trial court’s finding of fraud is not against the clear weight of the evidence, nor does it violate established principles of equity. Such a finding erases the marriage, and with it, the right to any benefits under the contract. Having concluded that the marriage should be annulled, the trial court was correct in refusing to enforce the dowry provision.

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Appellee asks this court to award him appeal-related attorney fees.1 We find that Appellee should bear his own attorney fees for this appeal. See Stepp v. Stepp, 1998 OK 18, ¶ 20, 955 P.2d 722, 727 (holding parties responsible for their own appeal-related attorneys’ fees). CONCLUSION We find that the trial court’s decision to annul the marriage at issue based on fraudulent inducement is supported by the evidence and further find no error in its refusal to enforce Appellant’s dowry claim under the marriage contract. Accordingly, we affirm the decision of the trial court. AFFIRMED.

GOODMAN, P.J., and FISCHER, J., concur.

Notes & Questions: Annulments 1. There is a noticeable division in judicial attitudes regarding annulment for fraud. The evaluation of whether a particular fraud goes to the essence of the marriage may proceed either in terms of (a) the special nature of the marriage, e.g., having children is an essential ingredient of marriage (or at least it used to be), whereas the presence or absence of money is not, so that a misrepresentation as to wealth cannot be a basis for annulment, or (b) the defrauded party’s perception in terms of a reliance test, i.e., would he or she have entered into this marriage contract absent the fraud? The latter is obviously the looser test. 2. The only Oklahoma annulment statute is 43 O.S. § 128 (2001), which relates to avoiding marriages of incompetents. Nonetheless, the Oklahoma Supreme Court has authorized annulments for all cases involving void and voidable marriages, including fraud. See Kildoo v. Kildoo, 1989 OK 6, 767 P.2d 884.

TICE v. TICE 1983 OK 108, 672 P.2d 1168

HODGES, JUSTICE. The question presented is whether a person who induces another to marry by the oral promise to reimburse any lost alimony in the event of a subsequent divorce is liable to pay alimony awarded under a previous divorce decree. Evalyn (appellee-wife) and Charles Tice (appellant-husband) were married in Las Vegas, Nevada on December 31, 1979. Previously, Evalyn had received an alimony award from her first husband of $72,000. The divorce decree provided that the alimony would terminate upon her death or remarriage. At the time of her marriage to Charles, there was $44,500 remaining to be paid. On July 18, 1980, Evalyn filed a divorce petition alleging that Charles had orally agreed to indemnify her for the alimony which she would lose as a result of their marriage; and that this promise was made as an inducement for the mar-

1 [Footnote omitted.]

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riage. The trial court severed the two causes of action. A divorce was granted, and the action based on the indemnification agreement was set for jury trial which was waived by Evalyn. The trial judge made factual findings that: as an inducement to marriage Charles promised to indemnify Evalyn; in reliance upon this promise Evalyn promised to marry him; and that Charles did not intend to fulfill his promise. The facts were disputed. According to Evalyn, numerous proposals of marriage were made to her before she accepted. Confronted with the forfeiture of her right to the alimony payments from her former husband, she told Charles in the latter part of October, 1979, that she “couldn’t afford to give up” her alimony. Charles assured her that he could make a “good living” and that she would not need the alimony. Evalyn responded that if the marriage did not work out, she could not live on her salary as a secretary. Evalyn testified that Charles told her he would give it to her if she married him. She told Charles the certainty of forfeiting the right to alimony was the only reason she would not accept his proposal. Charles told her he would put $45,000 in escrow, the amount which she would have received had she not remarried. Evalyn testified this was the only reason she married Charles. Charles denied that he had ever promised to indemnify Evalyn for any loss resulting from the marriage. His testimony was that: both parties had been previously married; Evalyn told him of her right to alimony as a result of the termination of her prior marriage; he disclosed his financial obligations and in- debtedness to her; Evalyn knew his economic conditions would not warrant the payment of $45,000; and the first time Evalyn ever mentioned indemnity of the lost alimony was when she first threatened divorce. The court ordered Charles to pay $41,900 to Evalyn to compensate her for the alimony which was terminated when she married him. It is argued on appeal that the evidence presented was insufficient to warrant judgment for Evalyn; the alleged antenuptial agreement was not reduced to writing nor fraudulently induced, and that even if a contract existed it was a contract of guaranty which must be in writing. The dispositive issues are whether Charles fraudulently induced Evalyn to marry him, and if the promise must be in writing. The statute of frauds requires that an agreement made upon consideration of marriage, other than mutual promises to marry must be in writing to be enforceable.1 Evalyn testified at trial that Charles promised to reimburse her for any loss from the previous divorce decree. She stated that she would not have married Charles had he refused to make the promise and that it was the only reason she married him. This testimony established that the sole consideration for the agreement was the marriage of the parties. Under the facts of this case, because the agreement is not in writing, Evalyn may only recover if Charles fraudulently induced her to marry him by promising to compensate her for her losses.2 Marriage is a personal relation which arises from a civil contract, and which requires the voluntary consent of parties who have the legal capacity to contract. It is a present agreement to be husband and wife and to as-

1 Title 15 O.S. 1981 § 136 provides in pertinent part: “The following contracts are invalid unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged, or by his agent: * * * * (3) An agreement upon consideration of marriage, other than a mutual promise to marry.” See also Byers v. Byers, 618 P.2d 930,933 (Okla. 1980); Stanley v. Madison, 11 Okl. 288, 66 P. 280 (1901). 2 Sellers v. Sellers, 428 P.2d 230,240 (Okla. 1967); Scriviner v. Scriviner, 207 Okl. 225, 248 P.2d 1045,1046 (1952); Whitney v. Whitney, 194 Okl. 361, 151 P.2d 583 (1941); In re Cantrell’s Estate, 154 Kan. 545, 119 P.2d 483 (1942); Mashundashey v. Mashundashey, 189 Okl. 60, 113 P.2d 190 (1941).

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sume all rights and duties of the marital relationship.3 A common law duty to perform with skill, care, reasonable expediency and faithfulness accompanies every contract. Insofar as property interests are concerned, marriage is founded on business principles in which utmost good faith is required from all parties, and fraud in the inducement of a marriage is the subject of judicial cognizance.5 Actionable fraud consists of a false material representation made as a positive assertion which is known either to be false, or made recklessly without knowledge of the truth, with the intention that it be acted upon, and which is relied upon by a party to his/her detriment. Fraud can be predicated upon a promise to do a thing in the future when the promisor’s intent is otherwise. The basis of fraudulent misrepresentation is the creation of a false impression and damage sustained as a natural and probable consequence of the act charged. The fraudulent representation need not be the sole inducement which causes a party to take the action from which the injury ensued. The key is that without the representation the party would not have acted. The liability for misrepresentation depends upon whether the person relying thereon was in fact deceived, not whether an ordinarily prudent person should have been misled. Fraud is never presumed, but must be proven by clear and convincing evidence. Evalyn had the burden of proving that the promise was made, and that Charles did not intend to perform the promise. The testimony of the parties to this action is in conflict. When fraud is properly alleged by one party and denied by the other party, the existence or non-existence of fraud becomes a question of fact. The trial court specifically found that: a party to a marriage should not suffer detriment because of the fraud of the other party. Charles promised to indemnify Evalyn for any loss of alimony which she might suffer as the result of the marriage as an inducement to the marriage; in reliance upon his promise, she agreed to marry him; and that Charles did not intend to fulfill his promise. The factual findings will not be disturbed on appeal by this Court if there is any evidence reasonably tending to support the verdict. The testimony supports the trial court’s conclusion that Charles fraudulently induced Evalyn to marry him. AFFIRMED BARNES, C.J., and IRWIN, HARGRAVE, OPALA and WILSON JJ., concur. SIMMS, V.C.J., and LAVENDER and DOOLIN, JJ., dissent.

MILLER v. MILLER 1998 OK 24, 956 P.2d 887

OPALA, JUSTICE. * * *.* Jimmy D. Miller (“Jimmy”) sued his former wife, Judy A. Miller (“Judy”) and her parents, Bill and Nora Hall (“Judy’s parents”) for damages and equitable relief based on the theories of fraud, intentional infliction of emotional distress, and quantum meruit. He alleges in his petition that for the purpose of inducing him to marry Judy, defendants in 1980 knowingly misrepresented to him that she was pregnant

3 See Title 43 O.S. 1981 § 1; Williams v. Williams, 543 P.2d 1401,1403 (Okla. 1976); Beach v. Beach, 160 Iowa 346, 141 N.W. 921-22 (1913). 5 Beach v. Beach, supra, note 3.

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with his child, and continued to perpetrate this fraud against him for the next fifteen years for the purpose of causing him to perform the duties of husband and father. He further alleges that after carrying out this fraud for almost fifteen years and permitting him to develop a loving parent-child relationship, Judy and her parents suddenly and unexpectedly pulled the proverbial rug out from under him by revealing to the child that Jimmy was not in fact her father. Jimmy alleges that the defendants then further undermined his bond with the child by encouraging her to develop a relationship with her “real father” and her “real family.” The defendants responded with a motion to dismiss the petition for failure to state a cause of action. The trial judge granted defendants’ motion, and plaintiff appealed. The Court of Civil Appeals, Division No. 1, affirmed the order of the trial court, holding that the theory of intentional infliction of emotional distress because the acts complained of fail to meet the minimum degree of outrageousness necessary to state, prima facie, a claim for intentional infliction of emotional distress. We disagree and hold that plaintiff’s petition states a claim for fraud and intentional infliction of emotional distress . * * * I THE ANATOMY OF LITIGATION Jimmy D. Miller and Judy A. Hall were dating in the early months of 1980. Jimmy was seventeen years old and Judy was fifteen. According to Jimmy, in March of 1980, Judy and her parents, Bill and Nora Hall, informed him that Judy was pregnant, that the child was his, and that the child could only be his inasmuch as Judy had not had sexual relations with any man other than Jimmy. Relying on these representations, Jimmy married Judy on October 24, 1980, and they proceeded to live as husband and wife for nearly five years. The child Judy was carrying at the time of her marriage to Jimmy, subsequently named A, was born on December 29, 1980. During their nearly five-year marriage, Jimmy, together with Judy, raised the child as his own, never disputing her legitimacy, believing at all times that the little girl was his biological child. Jimmy and Judy divorced in 1985. The divorce decree recites that Jimmy and Judy are the parents of a minor child named A. Jimmy alleges that Judy made that recitation to the court in the divorce proceeding, knowing it to be false. The court ordered Jimmy to pay child support for A in the amount of One Hundred Fifty Dollars ($150.00) per month beginning on August 1, 1985. Jimmy alleges that he has faithfully paid that amount as ordered. He was granted joint, but not primary, custody of A and has maintained a continuous parent-child relationship with his daughter since the divorce. In early 1995, when A was approximately fifteen years old, she decided she no longer wanted to live with her mother. She moved into Jimmy’s home. According to Jimmy, in January, 1996, almost one year after coming to live with her father, A informed him that when she had originally expressed a desire to live with him, her mother and her grandparents, Bill and Nora Hall, had told her that Jimmy was not her real father and had urged her to “get to know her ‘real’ family.” According to Jimmy, A told him that her mother and grandparents had identified her real father, had introduced her to members of her “real family,” had given photographs of A to members of this “real family”, and had stated to her that there was nothing either she or Jimmy could do about it. Jimmy states that A’s revelations in January, 1996 were the first notice he had that Judy and her parents had deceived him in 1980 as to his paternity of the child Judy was then carrying. Jimmy and A underwent that very month a paternity test, which verified that Jimmy was not A’s biological father. Jimmy filed his petition on March 8, 1996, approximately two months after first learning that his paternity of A was being denied by his ex-wife and her parents. For his first theory of recovery, Jimmy alleges that he was fraudulently induced to marry Judy in 1980 by the knowing misrepresentations of Judy

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and her parents that he was the father, and that he was the only man who could possibly be the father, of the child with whom she was then pregnant because she had not had sexual intercourse with any other man. Relying on these allegedly knowing misrepresentations, Jimmy married Judy and took on the responsibilities of husband and father. * * * For his second theory of recovery, Jimmy alleges that the defendants’ marriage-inducing misrepresentations, the cruel paternity hoax perpetrated against him for fifteen years, the callous revelation of this hoax to him through A, and the effort to undermine his bond with A amount to extreme and outrageous conduct, causing him severe emotional distress. For the tort of intentional infliction of emotional distress, Jimmy seeks damages against all defendants. [The court held that as the legal father of the child, Jimmy was not entitled to reimbursement of child support.] * * * * V PLAINTIFF’S PETITION STATES A CLAIM BASED ON THE THEORY OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS * * *.* It is the trial court’s responsibility initially to act as gatekeeper: to determine whether the defendant’s conduct may reasonably be regarded as sufficiently extreme and outrageous to meet the standards. Only when it is found that reasonable people would differ in an assessment of this central issue may the tort of intentional infliction of emotional distress be submitted to the jury. The trial court did not specifically address in this case the issue of the outrageousness of defendants’ conduct when it dismissed plaintiff’s action for failure to state a claim. The parties’ briefs below were limited to arguments addressing the statutory and preclusion bar and did not discuss outrageousness or any other aspect of the tort of intentional infliction of emotional distress. The Court of Civil Appeals upheld the trial court’s dismissal of Jimmy’s theory of intentional infliction of emotional distress because, in its view, the defendants’ conduct failed to cross the threshold degree of outrageousness necessary to proceed with this tort. We disagree and hold that plaintiff has stated sufficient facts upon which reasonable people could conclude that defendants’ conduct was indeed extreme and outrageous. The Court of Civil Appeals described the behavior complained of as “confessing a fifteen year lie and revealing the identity of . . . [A’s] biological father.” This rather cold and lifeless characterization of defendants’ conduct fails to take into account much of what plaintiff alleges, including (1) the telling of a premarital falsehood going to the heart of the marital and parental relationship, a falsehood which was implicitly repeated every day until the defendants decided the falsehood was no longer useful to them, (2) causing the plaintiff to develop a parental relationship with a child, believing that child to be his biological offspring, and then causing plaintiff to learn that the child was not biologically his own, (3) using the plaintiff to fulfill the emotional, physical, and financial obligations of a husband for almost five years and of a father for fifteen years, knowing that these obligations were not really his, (4) undermining the plaintiff’s relationship to his child, first by gratuitously revealing to the child that plaintiff, the man she knew as her father, was not in fact biologically related to her, and then by attempting to establish and foster a parental relationship between the child and another man whom the defendants identified as A’s “real father”, and his family, (5) failing to reveal the truth to the plaintiff in the divorce action, resulting in plaintiff joining in a legal document acknowledging his parental relationship to A, (6) failing to reveal the truth to the court in the divorce action, thereby showing contempt for the judicial system and making the di-

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vorce court an unwitting accomplice to fraud, (7) causing the plaintiff to suffer from the knowledge that he had been hoodwinked and used, and (8) boasting that nothing could be done about their fraud. Whether plaintiff can prove these allegations, as well as prove the other elements of the tort and whether a jury would in fact find such conduct extreme and outrageous are questions about which we express no opinion. We need only consider whether the allegations of defendants’ conduct may reasonably be regarded as sufficiently extreme and outrageous to meet the § 46 standards. We believe they may reasonably be so regarded. That rational people might differ as to whether plaintiff’s allegations may reasonably be regarded as outrageous is demonstrated by the split decision in this case by the Court of Civil Appeals. Where reasonable people may differ on this issue, the threshold has been crossed and dismissal is improper. VI PLAINTIFF STATES A CLAIM FOR FRAUDULENT INDUCEMENT TO MARRY An action for damages for fraudulent inducement to marry has been recognized in Oklahoma with respect to both void and valid marriages. Tice v. Tice, 1983 OK 108, 672 P.2d 1168; Whitney v. Whitney, 194 Okl. 361, 151 P.2d 583 (1944). Like other fraud-based actions, a claim for fraudulent inducement to marry must allege all the elements of common law fraud. These are: 1) a false material representation, 2) made as a positive assertion which is either known to be false, or made recklessly without knowledge of the truth, 3) with the intention that it be acted upon, and 4) which is relied upon by a party to that party’s detriment. The requirement that the false representation be material is easily met where the person mis- represents that he or she has the capacity to marry when in fact he or she lacks such capacity, as in the case of bigamy. We have held in that circumstance that the marriage is void and that the injured party can have the marriage annulled or can seek a divorce and damages for fraud. The only case decided by this court in which a party has alleged fraudulent inducement into a valid marriage is Tice v. Tice, in which we held that a husband’s alleged breach of a prenuptial oral promise to reimburse any lost alimony which the wife would have received under a previous divorce decree had she not remarried entitled the wife to recover damages to compensate her for the lost alimony. The court stated that insofar as property interests are concerned, marriage is founded on business principles, and marital fraud affecting a plaintiff’s property interests should be treated no differently than fraud in any other context. While the court in Tice did not explicitly discuss the materiality of the fraudulent promise in that case, implicit in its holding is the principle that a misrepresentation affecting property interests which induces a party to marry can be a material misrepresentation. This court has never had occasion to consider the materiality of a misrepresentation made to induce a party to enter into a valid marriage, which affects an interest other than a party’s property interest. The present case presents this issue. We hold that a misrepresentation inducing one to enter into a valid marriage must go to the essential ingredients of the marriage in order to sustain a finding of materiality sufficient to support a cause of action for fraudulent inducement to marry. This is a necessary restriction. Every premarital representation of boundless affection, eternal love, and endless commitment cannot be allowed to give rise to an action for fraud when a marriage breaks down, and love and commitment prove unenduring. Limiting materiality to those representations which go to the essence of the marital relationship will avoid misuse of the judicial system to avenge hurt feelings and disappointed dreams. The question here is whether the defendants’ misrepresentation concerning plaintiff’s paternity is material. Does it go to the essence of the marital relationship? In this regard, it is useful to consider those cases in which an annulment has been granted based upon a claim of fraudulent inducement to marry. These cases are instructive because they deal with whether a fraud is sufficiently material to vitiate the

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B. FRAUD AND THE MARRIAGE RELATIONSHIP

marriage contract. If a claim of fraud is sufficient to support an annulment, then it ought to be sufficient to support an action for damages where an annulment is unavailable because the marriage has already been dissolved by divorce. Misrepresentations which have been found to go to the essence of the marital relationship, generally in an action for annulment, include concealment of the fact that one party was suffering from syphilis, concealment by the husband that he lacked the physical and mental capacity to engage in normal sexual relations with his wife, concealment of the fact that one party married the other for the sole purpose of obtaining a “green card” from the Immigration Department, concealment of a former narcotics addiction and a prior criminal record, concealment of heroin addiction, and concealment of a criminal record and a false representation that joint funds were being used for child support when they were really being used to pay fines and restitution. Misrepresentations which have been found not to be essential to the purposes of the marriage relationship include: misrepresentation of affection, concealment of lesbian activities and drug use prior to marriage, concealment of prior marriage and divorce, concealment of the fact that inheriting the property of the spouse at death was the motive for the marriage, and concealment of a misdemeanor narcotics conviction coupled with a periodic, but not consistent, disabling narcotics addiction. Cases involving misrepresentations of pregnancy fall into two categories. One category consists of a false claim of a pregnancy which the woman knows does not in fact exist. Relief has been denied under these circumstances on the ground that a false representation of pregnancy does not go to the essence of the marital relationship because it does not prevent the future performance of the marital obligation to bear only the children of the spouse. The other category consists of a true claim of an existing pregnancy coupled with a false representation that the prospective spouse is the child’s father when in fact the father of the child is known or suspected to be another man. The majority of cases, especially those decided since the turn of the century, have held that such fraud goes to the essence of the marital relationship and vitiates the marriage contract. We hold that a true claim of an existing pregnancy coupled with a false representation that the child is that of the prospective spouse goes to the essentials of the marital relationship and will support an action based on fraud. * * * *

Problems 1. The wife alleges that she worked to put her husband through medical school. He began an extramarital affair and fraudulently concealed that fact from her, knowing that her knowledge of the affair would probably lead to the breakup of the marriage. He did not intend to continue the marriage after completing medical school. He breached the oral contract to pay her one-half interest in his increased earning capacity in return for her financial support while he attended school. The husband had indeed done everything alleged. Should his motion to dismiss the wife’s suit for failure to state a cause of action be granted? See Church v. Church, 630 P.2d 1243 (N.M. Ct. App. 1982). 2. Barbara McKettrick met Robert Bridgeman in her hometown of Augusta, Georgia in April 1982. Dr. Bridgeman was a dentist, practicing in New Martinsville, West Virginia. Mrs. McKettrick worked for a utility company in Augusta. Dr. Bridgeman was a widower, and Mrs. McKettrick was a divorcee. Mrs. McKettrick received alimony for $850 per month from her first husband, payable until Mrs. McKettrick’s remarriage or the death of either. Dr. Bridgeman courted Mrs. McKettrick ardently for eighteen months,

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from the time they met until their marriage on July 2, 1983. In the course of this courtship, Dr. Bridge- man wrote Mrs. McKettrick many letters containing boiler-plate language of undying devotion, like: “You really need someone to take care of you and look after you and I’m applying for that job,” he loved her so much “it hurt,” that she should “be his forever,” and that he would “change the weather” to please her. Mrs. McKettrick also wrote Dr. Bridgeman letters, but she destroyed those after they were married. Some three weeks after the couple were married, Dr. Bridgeman told the new Mrs. Bridgeman that he had made a mistake in marrying her. Mrs. Bridgeman claims that Dr. Bridgeman’s courtship letters to his future wife constituted an express contract to support Mrs. Bridgeman for life. The trial court agreed. What result on appeal? See Bridgeman v. Bridgeman, 391 S.E.2d 367 (W.Va. 1990).

C. FORMALITIES FOR A CEREMONIAL MARRIAGE

Notes & Questions 1. Marriage formalities are governed by 43 O.S. §§ 4-37 (2001). 2. In 2004, SB 1582 repealed the blood test for infectious syphilis. The bill authorizes the State Board of Health to require blood tests for infectious diseases prior to obtaining a marriage license. The State Board of Health has not issued any regulations as to what tests, if any, are required for a marriage license. 3. AIDS testing requirements for those seeking marriage licenses have been enacted in several states. See, e.g., TEX. CIV. STAT., Art. 4419(b)-1, § 9.02(e) (when the prevalence rate of confirmed positive HIV infection is .83 percent the Board of Health shall promulgate emergency rules for mandatory testing for HIV infection as a condition for obtaining a marriage license). Louisiana mandated such testing for a brief period but repealed that requirement along with other medical requirements. Illinois required AIDS testing (Tit. 40, § 204(b)) in 1987 over the strong opposition of health care officials who argued that the program would be counterproductive and very expensive. In 1988, the first full year of the law’s operation, marriage licenses issued in the state declined by 25% because many couples went out of state to get married and others simply declined to get married. In the first 18 months, of the 221,000 people married in Illinois, only 44 tested positive for the HIV virus. Health officials suspected that nearly a dozen of those were false positives. Given the test cost of $30 to $125 per person, it was calculated that the total cost in 1988 for Illinoisans was $5.4 million or about $209,000 for each case of HIV infection detected. In late July 1989 the legislature repealed the testing requirement. Walkerton, Illinois Legislature Repeals Requirement for Prenuptial AIDS Tests, N.Y. TIMES, June 25, 1989, p.12. For an analysis of the AIDS testing statute’s constitutionality and the right to marry, see Goodman, In Sickness or in Health, 38 DEPAUL L. REV. 87 (1989). Utah attempted to go even further and prohibit marriages by persons who had contracted AIDS. UTAH CODE ANN. § 30-1-2(i). The statute was stricken as a violation of the Americans with Disabilities Act. T.E.P. v. Leavitt, 840 F. Supp. 110 (D. Utah 1993). 4. Does it matter who performs the marriage? For example, in Cramer v. Commonwealth, 202 S.E.2d 911 (Va. 1974), the Supreme Court of Virginia held that “ordained” ministers of the Universal Life Church, Inc. did not qualify as “ministers” within the meaning of the Virginia statute describing who

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could celebrate the rites of marriage. The court noted that the organization’s only dogma was “that each person believe that which is right and that each person shall judge for himself what is right,” and that “Universal ministers are ordained without question of their faith, for life for a free-will offering.” The court said, “The interest of the state is not only in marriage as an institution, but in the contract between the parties who marry, and in the proper memorializing of the entry into, and execution, of such a contract. In the proper exercise of its legislative authority it can require that the person who performs a marriage ceremony be certified or licensed.” In State v. Lynch, 272 S.E.2d 349 (N.C. 1980), a bigamy conviction was reversed because the defendant’s first marriage was performed by a person holding only a mail-order certificate purchased for $10 giving him “credentials of a minister” in the Universal Life Church. The court held the certification was invalid and, thus, the second marriage could not be bigamous. Do you think the court would arrive at the same result if the question was whether the survivor of the marriage was entitled to a forced share in the decedent’s estate? Suppose the issue was whether the court had jurisdiction to grant a divorce? In Ranie- ri v. Ranieri, 539 N.Y.S.2d 382 (N.Y. App. Div. 1989), the court found that Universal Life Church ministers are not “ministers” or “clergymen” under the relevant state statute and, thus, unauthorized to perform weddings. Therefore, the court could not grant a divorce. The court also held that the couple’s antenuptial agreement was void for failure of consideration. The parties had only been “married” for four months and New York law provides that support and attorney fees may be obtained in an action to declare a marriage a nullity. Do you think that had any effect on the court’s decision? For a case sustaining marriage performed by ministers of the Universal Life Church, see Matter of Blackwell, 531 So.2d 1193 (Miss. 1988). How should these cases come out in Oklahoma? 5. The parties have gone through a full ceremonial marriage before an ordained minister. However, they have somehow neglected to obtain a marriage license and somehow the minister did not require one. They have lived together for fifteen years and have four children. Are they validly married? Does it de- pend on what the issue is? See Carabetta v. Carabetta, 438 A.2d 109 (Conn. 1980); contra Dire v. Dire- Blodgett, 102 P.3d 1096 (Idaho 2004). 6. When does a marriage occur? Is it when the parties exchange mutual promises, or when the person officiating pronounces them husband and wife? If the man dies after the promises but before the offi- ciant pronounces, is the woman entitled to a forced share in his estate? For an actual case, see In re Nei- derhiser, 850 A.2d 68 (Pa. Ct. Comm. Pleas, 2004).

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D. COMMON LAW MARRIAGE

ESTATE OF PHIFER 1981 OK CIV APP 21, 629 P.2d 808

BOYDSTON, JUDGE. This is an appeal by Treva K. Walters, a/k/a Kay Walters from the district court’s denial of her application to establish priority as the surviving spouse and heir of Henry Phifer. Ms. Walters filed the application for the purpose of contesting the appointment of Valerie Joe Phifer, now Dickenson, as administratrix of the estate of Henry Phifer. Ms. Walters claimed to be the common law wife of the deceased physician. The trial court after hearing the evidence, ruled she has failed to carry her burden of proof and denied her application. In a case of this nature, this court on appeal is required to weigh all the evidence and unless the judgment is clearly against the weight of the evidence to uphold the decision of the trial court.1 Furthermore, the burden of proof in this instance is upon Ms. Walters to establish the existence of a common law mar- riage2 and under Oklahoma law that burden must be met by “clear and convincing evidence.”3 The party asserting a common law marriage must prove the following elements: (1) an actual and mutual agreement between spouses to be husband and wife;4 (2) a permanent relationship;5 (3) an exclusive relationship;6 (4) cohabitation as man and wife;7 (5) the parties to the marriage must hold themselves out publicly as husband and wife.8 It is the function of this court to carefully scrutinize and weigh the evidence in order to determine if these points were proven in the case at bar. After a careful review we conclude the trial court’s decision was correct and is not clearly against the weight of the evidence. Ms. Walters’ strongest evidence consisted of three or four witnesses who testified that on several occasions deceased had referred to her as his wife. Even though such may have been the case, isolated instances are not sufficient to establish a community-wide reputation that they were a married couple. Ms. Walters only testified to three instances where deceased had specifically held her out publicly or introduced her as his wife. She testified to his having introduced her as “Kay Phifer” at medical conventions and further testified her name tag read “Kay Phifer” instead of Kay Walters. We hold this is equivocal

1 Briggs v. Sarkeys, Inc., Okl., 418 P.2d 620 (1966). 2 Quinton v. Webb, 207 Okl. 133, 248 P.2d 586 (1952). 3 Maxfield v. Maxfield, Okl., 258 P.2d 915 (1953). 4 Vann v. Vann, 186 Okl. 42, 96 P.2d 76 (1939). 5 Marshall v. State, Okl.Cr., 537 P.2d 423 (1975). 6 Rath v. Maness, Okl., 470 P.2d 1011 (1970). 7 In re Miller’s Estate, 182 Okl. 534, 78 P.2d 819 (1938); Quinton v. Webb, supra. 8 Red Eagle v. Cannon, 201 Okl. 511, 208 P.2d 557 (1949); In re Troop’s Estate, 190 Okl. 453, 124 P.2d 733 (1942).

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evidence which is not necessarily conclusive because of the social-professional ramifications inherent in these gatherings. Ms. Dickenson established that Dr. Phifer and Ms. Walters were separated from time to time, particularly during the summer of 1978, at which time Ms. Walters returned to Texas with her two children for a period of several months. Ms. Dickenson offered much more conclusive evidence from the testimony of tax accountants, deceased’s office employees, business associates and members of the community which directly contradict- ed the claimed marriage.9 This was further substantiated by the admission of recently executed mortgages and deeds. Rather, it is apparent from a fair reading of the record that the deceased never considered himself married and indeed took great pains not to leave that impression from both a private and business standpoint. In fact Ms. Walters testified that this was a deliberately established course of conduct between them. Under these circumstances we find Ms. Walters failed to prove by clear and convincing evidence that the claimed “marriage” had in fact been agreed to, consummated and adhered to during the four or five years in which she apparently resided under the same roof with the doctor on a part time basis. We therefore affirm the decision of the trial court and tax costs of this appeal to Ms. Walters. BACON, P.J. and BRIGHTMIRE, J., concur.

STANDEFER v. STANDEFER 2001 OK 37, 26 P.3d 104

HODGES, J. The following issues are presented for this Court’s review: (1) Whether the district court properly found a common-law marriage existed as of November 1988; (2) Whether the district court erred by including funds acquired from a settlement in a personal injury suit as part of the marital estate; and (3) Whether the division of property was equitable. I. Facts Charles Standefer and Cynthia Birdsong began cohabitating in November of 1988. At the time, Cyn- thia had two children from a previous marriage. As a result of the death of her husband from the previous marriage, Cynthia and the two children were receiving social security benefits. Charles was a truck driver. Cynthia worked for a time during the cohabitation as a waitress and at another time as a medical care giver.

9 There is ample documentary evidence that the deceased considered himself to be an unmarried man right up to the time of his death. These included income tax returns, mortgages, loan applications and deeds. Further, evidence was offered that Ms. Walters had recently applied for and obtained a beer license while residing in deceased’s home, in the name of Kay Walters, that she maintained her own separate bank account, that she never had a joint bank account with the doctor nor had she been included in any of the transactions in which a wife would normally participate.

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On September 28, 1996, while on a metal-roofed shed adjacent to the home in Chouteau, Oklahoma, Charles came in contact with a high voltage electrical wire. As a result of the electrocution, Charles was burned over 65% of his body, had numerous operations, had diminished use of his legs, and, for social security purposes, is 100% disabled. At the time of the accident, Cynthia was in the house. When she saw a bluish ball of fire and heard a horrible noise, she went outside. When Cynthia saw flames coming out of both of Charles’ legs, she started shaking. Then, Cynthia turned the electricity off, ran in the house, and called 911. The rescue team removed Charles from the shed, and he was air lifted to a medical center in Tulsa. Charles was in a burn center for three months. During most of this time, Cynthia rented a room and stayed at the hospital. Her parents and friends helped care for her children. Most weekends, she would bring the children to the hospital to visit Charles. When Charles was moved to a rehabilitation center, Cynthia returned to live at home but made daily trips to the hospital. When Charles returned home, Cyn- thia helped him with daily activities, changed his bandages, provided medical assistance, pushed his wheelchair, and gave other necessary assistance. On February 5, 1997, Charles and Cynthia and Cynthia on behalf of her two children filed a lawsuit against one of the tortfeasors (Tortfeasor I). Charles sought compensation for his injuries and Cynthia and the children for loss of consortium. The law suit was settled. Even though they were informed that they could seek separate settlements, Charles and Cynthia instructed their attorneys to seek one lump-sum settlement. Charles stated that he wanted Cynthia to be taken care of if anything should happen to him. Charles and Cynthia were insistent that their claims should be joined and that they negotiate for and receive a combined settlement. On November 12, 1997, Charles, Cynthia, and the children signed a “Memorandum of Agreement by Plaintiffs Regarding Settlement of Their Lawsuit” and directing the disbursement of the funds from the settlement. The parties acknowledged that they had the right to individually consult separate attorneys regarding their rights but elected not to do so. The children acknowledged that their claims were not legally recognized and, therefore, of dubious value. The memorandum stated specifically: Specifically, Charles R. Standefer and Cynthia Birdsong Standefer understand and acknowledge that their claims against [Tortfeasor I] were different in kind and value and that they freely choose that all payments made under the terms of the settlement be made [jointly] rather than to them individually in separate amounts. Charles R. Standefer and Cynthia Birdsong Standefer further acknowledge that they directed their attorneys not to negotiate separate settlements from [Tortfea- sor I], but that their interests in the case be pursued collectively and result in one settlement to be shared jointly by them and their family. There was no document or other statement which allocated the settlement funds to specific items of loss or injury of Charles and Cynthia. The Standefers received slightly over half of the settlement funds in cash. Most of the cash was used for attorney fees, medical bills, and other bills which were incurred during the time after Charles’ accident. With the remaining amount of settlement funds, Tortfeasor I purchased three annuities, one each from Metropolitan Life Insurance Company, from Berkshire Hathaway Life Insurance Company of American, and from United of Omaha Life Insurance Company. Charles and Cynthia dictated many of the terms of the annuities such as how they were to be paid and that the payments be made into a joint account. The Metropolitan Life annuity represented about 22.52% of the total value of the annuities, the Berkshire Hathaway annuity represented about 38.22%, and the Omaha Life annuity represented about 39.26%. The monthly payments for the Metropolitan Life and Berkshire Hathaway annuities were to be

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paid for the life of Charles but no less than thirty years. The Omaha Life annuity was to be paid until the death of the last surviving of Charles or Cynthia but no less than twenty years. The Berkshire Hathaway annuity contract specifically stated that the interests of the payees, in this case Charles and Cynthia, were several and equal. The Omaha Life annuity policy listed Charles and Cynthia as the annuitants. The payments under each of these annuities were to be made monthly into an account held jointly by Charles and Cynthia. Charles and Cynthia were the payees for all the annuities. Charles wrote a check for $5,000.00 each month from the joint account and gave it to Cynthia to put in her separate checking account. On December 24, 1997, Charles and Cynthia were married in a ceremony. In an attempt to show that they were not common-law spouses before the accident, Charles presented evidence that in January of 1995, Cynthia purchased a house (the Chouteau property, the place where Charles’ injuries occurred) as a single person and that Charles and Cynthia had filed separate tax returns. In contrast, during the time after they started cohabiting, Charles gave Cynthia cards which stated they were for “his wife” or other in- dications that he considered Cynthia to be his wife. On March 30, 1992, Charles changed his insurance enrollment listing Cynthia as his wife and her two children as his stepson and stepdaughter. More importantly, Charles testified he considered that he and Cynthia were common-law married on Thanksgiving Day of 1988. On July 26, 1998, Charles and Cynthia separated. However, before their separation Charles and Cyn- thia brought suit against the second tortfeasor (Tortfeasor II). In August of 1999, Charles settled this claim. However, Cynthia’s claim remains pending. II. TRIAL COURT’S JUDGMENT The district court found the following facts. Charles and Cynthia were common-law married as of Thanksgiving Day of 1988. Using the analytical method of division, the Tortfeasor II settlement funds were Charles’ separate property, and Cynthia’s claim against Tortfeasor II was her separate property. Certain vehicles were gifts to Cynthia’s children and parents. The proceeds from the settlement with Tortfeasor I were marital property and that the analytical method of division of property was inapplicable based on Charles’ and Cynthia’s actions. The parties had equitably divided the proceeds of the annuities by their practice of Cynthia receiving a fixed monthly amount of $5,000.00 from the annuity payments. An IRS debt was Charles’ separate property, and the other debts totaling $15,100 were marital debts. The court awarded approximately 62% of the marital assets to Charles and approximately 38% to Cynthia. The district court ordered that Cynthia should receive approximately one-third of the monthly payments from the annuities. III. COMMON-LAW MARRIAGE On appellate review, a trial court’s determination of the existence of a common-law marriage will not be disturbed if it is not clearly against the weight of the evidence. Mueggenborg v. Walling, 1992 OK 121, ¶ 5, 836 P.2d 112, 113. A common law marriage is formed when “the minds of the parties meet in consent at the same time.” Reaves v. Reaves, 1905 OK 32, 82 P. 490. Some evidence of consent to enter into a common-law marriage are cohabitation, actions consistent with the relationship of spouses, recognition by the community of the marital relationship, and declarations by the parties. See Reaves v. Reaves, 1905 OK 32, 82 P. 490. The person seeking to establish a common-law espousal relationship has the burden to show by clear and convincing the existence of the marriage. See Maxfield v. Maxfield, 1953 OK 390, ¶ 24, 258 P.2d 915, 921. In the present case, Charles testified that “as far as [he] was concerned, [he and Cynthia] had been married since Thanksgiving of 1988.” Cynthia likewise believed that they were common-law spouses beginning in 1988. Other evidence of the common-law marriage is Charles listing Cynthia as his wife

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and her children as his step-children on his insurance and giving her cards to her as his wife, Charles and Cynthia celebrating their anniversary every year, her children giving them anniversary gifts, and Charles and Cynthia holding themselves out to others as spouses. The evidence is clear and convincing that both parties assented to a marriage on Thanksgiving Day of 1988. According to the record, the trial court's finding that a common-law marriage existed as of Thanksgiving of 1988 was not against the weight of the evidence. * * * *

In re ESTATE OF STINCHCOMB 1983 OK 120, 674 P.2d 26

This case is the consolidation of five (5) separate appeals. Jeanie Stinchcomb, appellant, contends that she was the common law wife of Glen C. Stinchcomb, the decedent and appellee’s father, before they signed an antenuptial agreement and before Mr. Stinchcomb made a codicil to his will. Therefore, she claims that the documents are void, and that she should get the one third widow’s share instead of the proceeds of a Texaco lease which was bequeathed to her in decedent’s will. Appellant further claims that she is entitled to $30,000 that she withdrew from a safe deposit box that she and Mr. Stinchcomb held as joint tenants. The trial court ruled against appellant in both these matters, and further ordered appellant to reimburse appellee for any expenses connected with the lease, and to reimburse appellee for the amount she was paid as widow’s allowance during the proceedings. The reimbursement was to be done when appellant began receiving proceeds from the lease. Appellant appeals. AFFIRMED. OPINION ON REHEARING PER CURIAM. The parties to this appeal have each filed petitions for rehearing following the adoption of our unpublished opinion dated June 14, 1983. The appellant’s petition for rehearing is denied, however the appellee’s is granted and the issue raised therein is dealt with in this opinion on rehearing. In Texas in November 1971, Jeanie Stinchcomb, appellant, met Glen C. Stinchcomb, the decedent and appellee’s father. Mr. Stinchcomb was still married at the time to his former wife, Agnes Stinch- comb. Appellant and Mr. Stinchcomb began seeing one another and in 1972, appellant moved to Okla- homa City where Mr. Stinchcomb had arranged for her to have a furnished apartment. On August 7, 1975, Mr. Stinchcomb and Agnes Stinchcomb were divorced. Appellant testified that within a week of the divorce, she and Mr. Stinchcomb had agreed to live together as husband and wife. In December of 1975, appellant moved into Mr. Stinchcomb’s house with him. Various testimony was given to the effect that Mr. Stinchcomb bought her two rings, referred to her as Mrs. Stinchcomb on several occasions, lived with her in a “typical” marriage setting, and that appellant’s son introduced Mr. Stinchcomb as his step-father. On the other hand, in June 1976, a new home was purchased by Mr. Stinchcomb and he took the title in his name. He filed his income tax returns as a single man. On January 9, 1978, the appellant and Mr. Stinchcomb signed an antenuptial agreement stating that both parties were single, but they intended to get married. Additionally, Mr. Stinchcomb made a codicil

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to his will leaving all of his furniture and household goods to appellant and an interest in his Northwest Expressway property from which appellant was to receive the proceeds of a Texaco service station lease. The proceeds are $48,000 per year for ten years with options to renew. On February 21, 1978, the couple had a ceremonial marriage performed in Rio Grande City, Texas. On June 20, 1981, Mr. Stinchcomb suffered a stroke. After admitting him to the hospital, appellant went to the bank and got $30,000 from a safety deposit box. With this money she bought a mink coat, gave $5,000 to her lawyer and carried the remaining $20,000 in her car before delivering it to a friend from Texas for safekeeping. Further testimony was elicited to the effect that appellant forged Mr. Stinch- comb’s signature to the assignment on a car title and had a new title issued to herself, and caused ficti- tious hotel registration bills to be prepared and introduced into evidence. On September 17, 1981, Mr. Stinchcomb died. On September 22, appellant signed an affidavit stating that Mr. Stinchcomb died on September 17, leaving no valid will. Glenn Lee Stinchcomb, appellee was appointed executor of his father’s estate. The trial court heard this case and held that appellant should only receive the interest in the lease property Mr. Stinchcomb had left to her in the codicil to his will; thereby upholding the validity of the antenuptial agreement, and giving no credence to the claims of appellant concerning the existence of a common-law marriage. Appellant’s basic contention is that she was the common law wife of Mr. Stinchcomb before the antenuptial agreement, codicil to the will, or ceremonial marriage. Therefore, she contends the antenuptial agreement is in essence a post nuptial agreement which purported to change the pre-existing common law marriage relationship, thus rendering it void. Consequently, she wants the statutory one-third widow’s share of the estate instead of the proceeds of the lease. A party asserting a common law marriage must prove the following elements: an actual and mutual agreement between the spouses to be husband and wife; a permanent relationship; an exclusive relationship, proved by cohabitation as man and wife; and the parties to the marriage must hold themselves out as husband and wife. Matter of Phifer’s Estate. Appellant introduced extensive testimony that would seem to create a presumption of the existence of a common law marriage. However, a common law marriage must be established by evidence that is clear and convincing. Maxfield v. Maxfield, 258 P.2d 915 (Okla. 1953). Several facts interrelate to destroy the apparent presumption. Mr. Stinchcomb purchased a house and took title in his name alone, the antenuptial agreement stated that the parties to the agreement were single, Mr. Stinchcomb filed his income tax returns as a single man, and in the codicil to the will, Mr. Stinchcomb stated that he intended to marry appellant. The appellant failed to prove a pre-existing common law marriage by clear and convincing evidence; therefore, the antenuptial agreement is valid. Since the trial court adequately weighed the circumstances and equities of this matter, we find that the trial court did not abuse its discretion in rendering its decision that the appellant must reimburse the estate the amount she is paid as widow’s allowance once she receive the proceeds from Texaco. * * * * AFFIRMED BARNES, C.J., LAVENDER, DOOLIN, HARGRAVE, OPALA, WILSON JJ., concur. SIMMS, V.C.J., dissents.

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Notes & Questions: Standard of Review and Common Law Marriages 1. Note the standard of review in the third paragraph of Phifer and compare it to the standard of review noted in the last paragraph of Tice. What accounts for the difference? The full standard of review for equity cases including divorce is set out in the case of Carpenter v. Carpenter, 1982 OK 38, 645 P.2d 476: [Divorce] contests are of equitable cognizance. The court may exercise continuing jurisdiction of disputed claims. On appeal, the trial court’s disposition is reviewed by the standards applicable to chancery cases. The court’s decision is presumed to include a finding favorable to the successful party upon every fact necessary to support it. While an appellate court may and will examine and weigh the evidence, the findings and decree of the trial court cannot be disturbed unless found to be against the clear weight of the evidence. Whenever possible, an appellate court must render, or cause to be rendered, that judgment which in its opinion the trial court should have rendered. A decree need not rest upon uncontradicted evidence. It is not fatal to the validity of an equity decision if, on the basis of the evidence presented, the chancellor might have been equally correct in reaching a conclusion different from that which he actually did. If the result is correct, the judgment is not vulnerable to reversal because the wrong reason was given for the decision or because the trial court considered an immaterial issue or made an erroneous finding of fact. We are not bound either by the reasoning or the findings of the trial court. Whenever the law and the facts warrant, we may affirm the judgment if it is sustainable on any rational theory and the ultimate conclusion reached below is legally correct. Unless the decision is found to be against the clear weight of the evidence, the appellate court must indulge in the presumption that it is correct. 2. Only nine states continue to recognize common law marriages. Oklahoma consistently holds that the statutes regulating the form of ceremonial marriages are directory and not mandatory. See Reaves v. Reaves, 1905 OK 32 82 P. 490 (Okla. Terr. 1905); In re Love’s Estate, 1914 OK 332 142 P. 305 (Okla. 1914). 3. What factors must be present to establish a common law marriage? Suppose either the husband or the wife has an affair during the course of the relationship. Does this mean that the third element cited by the Phifer court is not met and there is no marriage? Is cohabitation necessary? Suppose a couple lives together, holds themselves out as husband and wife, and files joint income taxes. Should this be sufficient to create a common law marriage without cohabitation? Are elements two through five, cited by the Phif- er court, actual elements or merely evidence of the agreement? After the decision in Standefer, is anything necessary for a common law marriage other than the intent to be married? 4. Precisely why did Mrs. Stinchcomb need to establish a common law marriage? After all, she and Mr. Stinchcomb were clearly married. Another variation on the problem area was discussed in Estate of Carroll, 1987 OK CIV APP 73, 749 P.2d 571. Mr. Carroll drew a will in which he left the bulk of his estate to his cohabitant. One year later, he married his cohabitant and divorced her four years after that. He never changed his will. His children challenged the will, alleging that he had a common law marriage at the time the will was executed. This would have the effect of rendering the subsequent ceremonial marriage a nullity, thus bringing the will under the terms of 84 O.S. § 114 (2001), which provides that all provisions in a will in favor of the testa- tor’s spouse are automatically revoked at the time of divorce. The appellate court rejected the children’s

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arguments. For the latest common law marriage case involving workers compensation, see Oklahoma Dept. Of Mental Health & Substance Abuse v. Pierce, 2012 OK CIV APP 73, 283 P.3d 894. 5. While couples living together rarely seek legal advice about their relationship, how should you ad- vise a couple who wish to be certain that they have not entered into a common law marriage?

ESTATE OF SMART v. SMART 1983 OK CIV APP 49, 676 P.2d 1379

BACON, PRESIDING JUDGE. This appeal involves an ancillary probate proceeding in Jefferson County, Oklahoma, for a deceased California resident. The trial court ruled that decedent’s common law wife could elect to take her forced heir share of decedent’s Oklahoma property. Decedent’s children appeal from that ruling. The pertinent facts necessary to resolve this case are undisputed. The record shows that in 1950, decedent Harold Smart was married to Marie. On October 21, 1950, decedent a resident of California and appellee, Gwendolyn Smart, participated in a ceremonial marriage service in Yuma, Arizona. At that time decedent was still married to Marie. Decedent and Marie were divorced in California on September 29, 1952. Decedent and appellee lived together in California from the time of their “ceremonial marriage” in Yuma, Arizona, until decedent died on March 12, 1981. Decedent died testate and a resident of California. His will and two codicils were admitted to probate in California. The executor, decedent’s son, filed the will and codicils for ancillary probate in Jefferson County, Oklahoma, where decedent owned real and personal property. Under the terms of decedent’s will and codicils appellee was not to inherit any interest in the Okla- homa property. She therefore filed her election to take against the will pursuant to 84 O.S.1981 § 44. The trial court found appellee was entitled to do so and appellants now appeal. Appellants argue that the trial court erred in finding appellee was the wife and surviving spouse of decedent and was therefore entitled to take against the will. We agree with the trial court and affirm. The basis for appellant’s argument is that decedent and appellee were, at all time they lived together, residents and domiciliaries of the State of California and that California does not recognize common law marriage. The simple answer to this assertion is that California does not recognize common law marriages created within its own boundaries. However, California does recognize marriages validly created elsewhere, including common law marriages of California domiciliaries. Tatum v. Tatum, 241 F.2d 401 (9th Cir. 1957)(citing Estate of McKanna, 106 Cal. App. 2d 126, 234 P.2d 672 (1951). Therefore, if decedent and appellee entered into a common law marriage after decedent’s divorce from Marie in 1952, appellee would be considered decedent’s wife and surviving spouse. The next logical step is to determine whether decedent and appellee created a common law marriage outside the boundaries of California. We find they did establish a common law marriage while in Okla- homa.

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The record in the present case contains an abundance of evidence that decedent and appellee considered themselves married to each other. For example, in his will decedent refers to appellee as his wife. They lived together as man and wife for 20 years and during that time held themselves out as such. In Gilmore, Gardner & Kirk Oil Co. v. Harvel, 208 Okl. 664, 258 P.2d 632 (1953), the supreme court said it its syllabus: A common-law marriage may exist in this state, and when parties capable of entering into the marriage relation agree to be and become husband and wife, and in pursuance of such agreement enter into and thereafter maintain the marriage relation, a common-law marriage exists. It is not required that the parties to a common law marriage created in Oklahoma be residents or domiciliaries of Oklahoma, nor do they have to cohabit or maintain the common law relationship for any mag- ical length of time to make it valid. In the present case decedent and appellee for a period of 16 years, traveled to Oklahoma two to three times a year. They would stay two to five weeks at a time in Jefferson County, Oklahoma, where decedent’s real property was located, holding themselves out as man and wife, not only to their family, but to the whole world. Under these circumstances we conclude that the trial court correctly held appellee was the wife and surviving spouse of decedent and was therefore entitled to elect to take against the will and codicil. Affirmed. BOYDSTON and MEANS, JJ., concur.

Notes & Questions: Common Law Marriages in the Conflict of Laws 1. The Court of Civil Appeals may have been incorrect when it found that California would recognize this common law marriage. Neither the court nor the attorneys cited Etienne v. DKM Enterprises, 186 Cal. Rptr 321 (Cal. Ct. App. 1982). In that case, Plaintiff’s complaint for loss of consortium was dismissed for failure to state a cause of action on the ground of lack of marriage to the victim. Plaintiff and the man she lived with for more than eight years visited Texas twice, one time for eight days. During those visits they held themselves out as husband and wife and, according to Plaintiff, cohabited. The court held this to be insufficient to establish a common law marriage in Texas. First, the court held that sharing the same room was not proof of cohabitation in Texas. Secondly, the court said there was no intent on the part of plaintiff and the person she lived with to establish a Texas domicile. Is that necessary for a common law marriage? Should the Oklahoma court decide this case based on how California would decide this case? If California would not recognize the common law marriage, is it nonetheless appropriate for Oklahoma to recognize it for purposes of ancillary probate of land located in this state? 2. In Wharton v. Wharton, 639 P.2d 652 (Or. Ct. App. 1982), the parties were Oregon domiciliaries. Plaintiff contended that she and Defendant established a common law marriage pursuant to Idaho law. The evidence indicated that over a 10-year period the couple spent an average of ten days each year in Idaho and represented themselves there as a married couple. Their relatives as well as business and social contacts in both states considered the couple married. The Oregon court held that the parties’ contacts with Idaho were that of mere visitors. “Although there were a great number of trips by the parties to Ida- ho, each visit was a temporary sojourn for business or pleasure. We conclude that the parties’ contacts with Idaho were insufficient to constitute a common law marriage.”

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3. Assuming the rationale in Smart was to be followed, how long was it necessary for the parties to have been in Oklahoma before a common law marriage arose? Suppose the couple visited Oklahoma for a couple of two-week vacations and held themselves out as husband and wife. Would that be sufficient? See Beatrice H. v. Eugene H., 11 FAM. L. REP. 1161 (NY Sup. Ct., Kings Cty, 1985).

E. MARRIAGE PRESUMPTIONS

PARKHILL TRUCKING CO. v. ROW 1963 OK 92, 383 P.2d 203

BERRY, JUSTICE. On September 29, 1958, James W. Row, hereafter referred to as “employee,” was employed by Parkhill Truck Company, hereafter referred to as “respondent.” On the mentioned date, employee sustained fatal bodily injuries in the course of his employment. Marie A. Row, hereafter referred to as “claimant,” and Opal N. Row, each claim to be the surviving spouse of employee and as such assert the right to death benefits provided for in 85 O.S. 1961 § 22, sub- paragraph 7 of the Workmen’s Compensation Act. The separate claims that they filed before the State Industrial Court were premised on said claim and assertion. Following trial in the mentioned court, it was found that (a) employee was engaged in hazardous employment at the time he sustained fatal bodily injuries; that (b) the injuries and resulting death arose out of and in the course of employee’s employment with respondent; that (c) claimant was employee’s surviving spouse and as such entitled to the death benefit award provided for in the above cited statute; that (d) Opal N. Row was not the surviving spouse of employee and accordingly was not entitled to such benefits. * * * From the mentioned order Opal N. Row has appealed. Her case here is numbered 39,252. Respond- ent has also appealed. Their case in numbered 39,238. In No. 39,238 the respondents contend that assuming claimant was employee’s surviving common- law wife, she is not entitled to the death benefit awarded below because she was not in fact a dependent of employee within the purview of 85 O.S.1961 § 3.1 at the time of his death. This contention is premised on the proposition that in December, 1957, claimant and employee separated; that in April, 1958, employee and Opal N. Row entered into a ceremonial marriage; that from date of separation to date of his death employee did not support claimant. It is not contended that claimant and employee entered into a separation agreement. § 3.1. supra, reads thus: In respect to death benefits under this Act, the following definitions apply: (1) The term Dependent or Dependents as used in this Act, shall mean and include the heirs at law of the deceased as defined by the Descent and Distribution Statutes of Oklahoma. (2) Compensation means the money payable to the persons entitled thereto under this Act. The evidence bearing upon respondents’ contention can be summarized thus:

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Claimant and employee became acquainted the latter part of 1953. Following several social dates, employee, in November, 1953, began to stay at claimant’s home. In January, 1954, he moved his personal effects to claimant’s home and from that time until in December, 1957, employee and claimant lived together. In 1957 employee had a number of dates with Opal N. Row. Claimant testified that this was the cause of employee and her separating in December, 1957. At the time of separation, employee surrendered to claimant a life insurance policy in the amount of $500. Claimant was apparently referred to in the policy as claimant wife and as such named beneficiary thereto. At time of separation employee made a promise to claimant to send her money but failed to do so or otherwise support her. Following the separation claimant lived first with her mother and then with her daughter by a prior marriage who supported her. In April, 1958, employee and Opal N. Row entered into a ceremonial marriage and thereafter lived together as husband and wife. In support of their contentions respondents cite Capitol Steel and Iron Co. et al. v. Fuller et al., 206 Okl. 638, 245 P.2d 1134, where it is stated that “if the death of the employee had occurred prior to the 1950 Constitutional Amendment, an action for wrongful death could have been prosecuted under the provisions of 12 O.S.1941, § 1053 for the benefit of the surviving spouse and children. These persons although having a cause of action would not have a right of action unless they suffered a pecuniary loss by reason of the death of, in other words, were dependents.” Also Jaggers v. Newton Barrett Drilling Co., Okl., 268 P.2d 285 and Fox-Vliet Wholesale Drug Company et al. v. Chase et al., Okl., 288 P.2d 391, are cited. In the first paragraph of the syllabus to the last cited case it is stated that: “In the Workmen’s Compensation Act, the legislative expression that death benefits are payable to the dependents of the deceased employee as herein defined refers to persons who are heirs at law of the deceased as defined by the descent and distribution statutes and who are presently, or in the reasonable future expectancy, relying on said employee in whole or in part for necessary support and maintenance.” We note that language is used in Sinclair Oil & Gas Company v. State Industrial Commission et al., 338 P.2d 871, which tends to sustain respondents’ contention. However in view of the fact that the conclusion reached therein was based on the fact that the deceased employee had partially supported his surviving wife, we do not consider that such language represents controlling precedent. To our way of think- ing the thought expressed by said language cannot be reconciled with that used in the Jaggers case, supra, to the general effect that an heir at law is a dependent of a deceased employee within the purview of the Compensation Act if he has reasonable future expectancy of support from such employee. The mentioned pronouncement of the Capitol Steel and Iron Co. case, supra, should be considered in connection with that portion of Chicago, R.I. & P.Ry. Co. v. Fontron Loan & Trust Co., 89 Okl. 87, 214 P. 172, to the effect that recovery on part of the widow and minor children for wrongful death statutes, will lie notwithstanding such ancestor was not supporting his wife and minor children. It appears that this is the first time that this Court has had occasion to consider the precise proposition presented by respondents. In making said statement we have not overlooked our decision in Stipes v. Sti- pes et al., Okl., 335 P.2d 640, where it was held that fact that deceased father had not paid award for child support, did not establish that the child was not his dependent within purview of § 3.1, supra. While the precise proposition before us has been passed upon in a number of other jurisdictions, there is a marked conflict in the conclusions reached. This is reflected by cases cited at p. 810 of annotated note beginning at p. 686, 13 A.L.R., and context of 99 C.J.S., WORKMAN’S COMPENSATION § 140(1), p. 464. In the last mentioned section this is said:

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* * * Whether the wife was entitled to support from her husband ordinarily is the test of whether she is entitled to compensation under the statute for his death, and the right is not forfeited by reason of the fact that the husband neglected the wife or because she elected to support herself. It has been held that the workman’s compensation act does not recognize partial dependency where the deceased employee leaves a widow whom he was legally obligated to support at the time of injury or where the employee leaves a husband totally dependent on the employee’s earnings. By force of statute, 32 O.S. 1961 § 3, a husband is under a mandatory duty to support his wife. For case law to said effect see State ex rel. Oklahoma Public Welfare Commission v. Simon, 203 Okl. 433, 222 P.2d 1027 and cited cases. In view of the fact that employee was under a legal duty to support his wife, she had a “reasonable future expectancy of support” from him and therefore was employee’s dependent within § 3.1, supra. We add, it is settled law in this jurisdiction that the Compensation Act be liberally construed. To construe the Act in accordance with respondents’ contention would not be in keeping with such rule of construction. In No. 39,252, Opal N. Row contends that there is no competent evidence showing that claimant was the common-law wife of employee. The fact that employee and Opal N. Row obtained a marriage license in April, 1958, and that the license shows that a minister of the gospel, “joined in marriage” employee and Opal N. Row, is not disputed. It is argued that upon such being shown, a strong presumption arose in favor of the validity of the ceremonial marriage; that it must be further presumed that a prior marriage of either party to the latter marriage was terminated by divorce or death and that the burden rested upon claimant to show that her alleged common-law marriage to employee did not terminate in divorce. Among the cases cited in support of said argument are Jones v. Jones, 63 Okl. 208, 164 P. 463; Templeton v. Jones, 127 Okl. 1, 259 P. 543; and Sam v. Sam, 172 Okl. 342, 455 P.2d 462. The above mentioned presumptions are rebuttable. See Brokeshoulder v. Brokeshoulder, 84 Okl. 249, 204 P. 284. It follows that the basic issue posed in No. 39,252 is whether under the evidence such presumptions were overcome and the validity of the marriage asserted by claimant was established. As to whether claimant and employee consummated a common-law marriage, the record shows that for some four years they lived together as husband and wife; that from August, 1954, on, claimant used and was known as Mrs. Row; that claimant introduced employee as her husband and employee introduced her as his wife; that from 1954 on, employee and claimant entered into rental contracts with others; that in 1957 employee addressed letters to claimant as Marie A. Row or Mrs. James W. Row; that in a 1957 application for employment employee stated that he was married; that in 1955 at the request of employee, transporting companies for which he worked issued “trip passes” to claimant in which she was referred to as employee’s wife; that as aforesaid, an insurance policy was issued in which claimant was referred to as employee’s wife and in which she was named employee’s beneficiary. Claimant testified that the relationship between her and employee from 1954 on was that of husband and wife. On the issue under consideration it is our province and duty to review the evidence and make an independent finding from the evidence. After having done so we are of the opinion and find that the evidence clearly shows that claimant and employee entered into a common-law marriage in 1954. As to whether the evidence overcomes the presumption that the common-law marriage was terminated by divorce, the record shows this: At the time of employee’s death he and claimant had been separated less than 10 months, during which period they were residents of Oklahoma. Claimant testified that she did not obtain a divorce from employee and that he did not obtain a divorce from her. Since they were both Oklahoma residents, employee could only obtain a valid divorce by causing personal service of

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summons in a divorce action to be made on claimant. She received no service of summons. Thus, claimant was in a position to testify that employee had not obtained a divorce. The record, being as stated, leads us to conclude that the evidence clearly overcomes the presumption that the common-law marriage in controversy was terminated by divorce. Opal N. Row points to testimony of claimant to effect that she was not divorced from her prior husband until 1957. Using this as a premise she argues that claimant and employee could not have entered into a common-law marriage prior to date of the divorce in 1957. A copy of the decree granting claimant’s prior husband a divorce was introduced in evidence. This shows that the decree was rendered and became final November 14, 1952. We note that claimant also testified that the decree was rendered in 1953. Under the evidence we conclude that the divorce decree was rendered on November 14, 1952. From the face of a second decree of divorce appearing in the record, claimant and the prior husband were apparently remarried on January 7, 1953, separated on July 25, 1953, and again finally divorced in Febru- ary 26, 1954. Opal N. Row makes the further argument that under the evidence the common-law marriage was consummated in Missouri; that under the statutory law of said State such marriages are not recognized and it appears that such was the law at all relevant times. There is evidence that claimant and employee agreed to become husband and wife prior to their moving to Kansas City in 1954. In any event, they moved from Kansas City to Oklahoma in January, 1956 and thereafter remained in this State. There is an abundance of competent evidence showing that after returning to Oklahoma they openly assumed the relationship of husband and wife. This evidence suffices to show a common-law marriage. See Olinghouse v. Olinghouse, Okl., 265 P.2d 711. In the last cited case the parties entered into a ceremonial marriage. At that time one of them was married to another person, which marriage was subsequently terminated by divorce. Thereafter the parties continued to live as husband and wife. It was held that such action on their part constituted a common-law marriage. * * * Assuming that the common-law marriage was first consummated in Missouri where such marriages are not recognized, the evidence clearly shows a common-law marriage following claimant’s and employee’s return to Oklahoma. For the reasons stated, the appealed-from order of the Industrial Court is affirmed. BLACKBIRD, C.J., HALLEY, V.C.J., and WILLIAMS and JACKSON, JJ., concur. WELCH, DAVISON, JOHNSON, and IRWIN, JJ., dissent. WELCH, JUSTICE (dissenting). * * * * This is in fine a contest between two women, “Opal Norrine” and “Marie A” as to which is and was the surviving widow and dependent of the deceased. When he died he was living with Opal N. as his wife. They had been married by formal license and ceremonial marriage by a minister in the usual manner five months before, all as shown by appropriate records, and during those five months this couple lived together as the ordinary married couple, the wife making and keeping the home and the husband earning the living and providing for her. All this is positively proven and nobody disputes it. After this man’s death, when he could not appear and testify and his widow Opal Norrine being una- ware of all details of past years, Marie A. appeared as claimant asserting an association with deceased over a period of three or four years which she contended ultimately became a living together as husband

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and wife until as she says they “separated” in September, 1957. And she had supporting witnesses who saw them while they lived together. By her own testimony her association with deceased and/or her living with him began as a pastime performance when he was single but she had a husband. She admitted that it was a “shackup” job between them. She did contend that thereafter while living with deceased, she and her husband were divorced. But although there was ample time for it, she and deceased never married, just continued their joint dwelling until for some reasons, which do not appear, she “separated” from him in September, 1957. From the whole record I am convinced that she did not prove she ever was the wife of the deceased. * * * * * * *

Notes & Questions: Presumptions and Inferences in the Law of Marriage 1. Does the necessaries doctrine violate the Equal Protection Clause? See Account Specialists and Credit Collections, Inc. v. Jackman, 1998 OK CIV APP 175, 970 P.2d 202. The creditor brought a collection action against the surviving husband, seeking to recover medical expenses relating to his wife’s last illness under the doctrine of necessaries. The court held that the necessaries doctrine impermissibly discriminates on the basis of sex, in violation of equal protection provisions of state and federal constitu- tions. There are contrary cases. See Marshfield Clinic v. Discher, 314 N.W.2d 326 (Wis. 1982). In response to the Jackman case the legislature enacted 43 O.S. § 209.1, which provides that both spouses are jointly and severally liable for debts incurred by the other for necessaries. Prior to the Jackman case, Smith v. Hernandez, 1990 OK CIV APP 54, 794 P.2d 772 was the first necessaries case in Oklahoma in 25 years. Dr. Smith, a dentist, rendered services to Mrs. Hernandez in the amount of $655. Upon her failure to pay, he commenced the action against both Mr. and Mrs. Hernandez. The trial court found that the services rendered to Mrs. Hernandez were “necessaries” and that Mr. Her- nandez was required to pay them under the statute. Mr. Hernandez appealed. The Court of Appeals found that Dr. Smith was not entitled to recover. The Court noted that historically the husband was only liable for “necessaries” when he failed to make adequate provision for her support. The plaintiff failed to prove that, in this case, the husband had failed to provide the wife with support or that there was a need for him to provide the dental services to his wife. The trial court was reversed. Older cases held that a creditor could sue the husband for necessary purchases made by the wife if: (1) she is living with her husband, (2) she buys the necessaries in the area of their home, and (3) they fit the station in life of the husband. Howell v. Blesh, 1907 OK 116 91 P. 893. Under Oklahoma law, for an item to be a necessity it must “tend to relieve distress or promote comfort of the body or mind.” Shiefer v. Wilson, 1935 OK 248, 42 P.2d 263. Of great importance in Oklahoma, and elsewhere, is the husband’s station in life. For two cases concerning whether a mink coat is a necessity considering husband’s station in life, see Anderson v. Neiman-Marcus, 1939 OK 371, 95 P.2d 584 and Gimbel Bros. v. Pinto, 145 A.2d 865 (Pa. Super. Ct. 1958). Absent the necessaries doctrine, the duty was unenforceable outside the divorce or separation context. In other words, courts would not entertain a support action on behalf of a wife in an intact marriage. McGuire v. McGuire, 59 N.W.2d 336 (Neb. 1953). 2. All states indulge in a variety of presumptions concerning marriage. The effect of presumptions is to find a large number of relationships to be marriages rather than cohabitation. The policy reason is usually that, “the law is astute to preserve the sanctity of the marriage relation, the legitimacy of children, and

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stability of descent and distribution, and, therefore, presumes innocence and virtue, in the absence of proof.” Coachman v. Sims, 1913 OK 9, 129 P. 845. 3. Oklahoma has recognized the following presumptions: (a) Presumption of the ceremonial marriage. One asserting a ceremonial marriage must prove that a ceremony occurred. Upon proof of the ceremony, a presumption favors its validity and the law will presume those facts necessary to validate the marriage. See e.g., Hale v. Hale, 1913 OK 540, 135 P. 1143. (b) Presumption in favor of the subsequent marriage’s validity. When a marriage in form is shown, either ceremonial or common law, the law presumes its validity in that the previously married party divorced the previous spouse. See e.g., Templeton v. Jones, 1927 OK 308, 259 P. 543. (c) Presumption of marriage from cohabitation. In proving a common law marriage, an inference, if not a presumption, of marriage arises from the cohabitation. See Horrigan v. Gibson, 1922 OK 110, 206 P. 219. 4. All of the presumptions are rebuttable as the Row case indicates. The presumptions are of decreas- ing importance as Oklahoma moves further away from frontier days. Before records were regularly maintained, presumptions were often the only way to decide a case. 5. In 1977, the Workers’ Compensation statute was amended. The statute, 85 O.S. § 3.1(A) (2001), now defines surviving spouse as “living with or actually dependent upon the employee,” or “one living apart for justifiable cause or by reason of desertion by the employee.” Gloria Tatum and Florine Bagby Tatum each claim to be the surviving spouse of Grady Tatum, who suffered fatal injuries while on the job. Florine was married to the decedent in 1958. They lived together in Texas until about 1971 when he left the marital home. Gloria met the decedent in 1972. With her two children by another marriage, they established a common household in 1973. During the same year she bore Grady’s child. During the period of their cohabitation, Gloria and the decedent held themselves out as husband and wife. They rented property together, established joint charge accounts, bought insurance policies on each other’s life and incurred loans as co-obligors. Gloria’s two children assumed decedent’s name both at school and for medical purposes. He and she contributed equally to the children’s support. At no time before the decedent died was Gloria aware of his previous ceremonial marriage to Florine. It is undisputed that Grady never divorced Florine. Is Florine a deserted spouse? See Tatum v. Tatum, 1982 OK 62, 736 P.2d 506. [Although the case was decided in 1982, rehearing was not denied until 1987. The case was published after the petition for rehearing was denied.] Is there anything to be said for JUSTICE DOOLIN’S dissent in Tatum where he argues that the test ought to be dependency and not whether the deceased and the woman he was living with were “legally married”? 6. In Bryan v. Bryan, 2003 OK 70, 76 P.3d 653, the deceased worker married Becky, who had two children from a prior relationship. At some point he and Becky separated and he began cohabiting with Christy. The deceased and Christy had two children. Becky claimed the death benefit on behalf of herself and the deceased’s step-children. Christy also claimed the death benefit on behalf of herself and the deceased’s natural children. The trial court awarded death benefits to Becky and the deceased’s step- children as well as to the deceased’s natural children. It denied any benefit to Christy. Christy argued that Becky was not entitled to the death benefit because Becky was not receiving one-half of her support from the deceased and she had effectively ended her marriage to the deceased by obtaining a protective order against him. If the marriage was over, then Becky’s children ceased to be step-children and therefore were not entitled to any benefit.

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The supreme court rejected her arguments. It first noted that under the definition of surviving spouse for workers compensation purposes, 85 O.S. § 3.1, she was not required to receive more than one-half of her support from the deceased. Stepchildren are included in § 3.1’s definition of “child,” if actually dependent on the deceased. Becky testified that she received $50 to $100 a week from the deceased for support. She also testified that she needed a protective order to prevent the deceased from stalking and harassing her. The supreme court then noted that, when it reviews workers compensation cases, it is not entitled to review the evidence. Instead, it must affirm the trial court if there is sufficient evidence in the record to support its decision. Therefore, Becky’s testimony was sufficient to show that she was actually receiving support from the deceased. The protective order did not show that the marriage was effectively over. Instead, it indicated that Becky and the deceased were living apart for “just cause” in terms of the statute. 7. In the Row case, suppose Marie died. Is James the surviving spouse for probate purposes on the ground that his common law marriage with Marie was never terminated?

IN THE MATTER OF ESTATE OF ALLEN 1987 OK 45, 738 P.2d 142

HODGES, JUSTICE. This appeal arises from a decision declaring appellee to be the surviving spouse of the decedent and thereby entitled to participate in the estate of the decedent. The deceased, Jack Marvin Allen, Sr., married Wilda Jean (Sutton) Allen (appellee) in January of 1965. Three years later, the couple divorced. On Sep- tember 28, 1969, Jack Allen and appellee remarried. A petition for divorce was filed in June of 1971, but the petition was later dismissed and no decree was entered. The parties, however, remained permanently separated. In June of 1977, appellee entered into a cohabitating relationship with Garland Gould which resulted in the birth of four children. Garland Gould filed a petition for divorce in Blaine County and sought custody of the children. Appellee answered the petition as Wilda Jean Gould, admitted the existence of the common law marriage and requested custody of the children. The Blaine County District Court found a common law marriage existed and entered a decree of divorce. On September 13, 1979, Jack Allen married Flossie Drake. The marriage produced no children and ended in 1983 with the suicide death of Flossie Drake. Approximately a year later Jack Allen died testate leaving the entire estate to Larry Allen (appellant), his surviving son from a prior marriage. Appellant son was named executor in decedent’s will. Subsequently, appellee petitioned for letters of administration and appointment as personal representative of the estate as the surviving spouse of decedent. Appellant also petitioned the court to issue letters testamentary to him. The trial court found the marriage between Jack and Wilda Allen had not been dissolved by a valid divorce or legal separation, and therefore, Wilda is the surviving spouse of Jack Allen and entitled to her statutory share of his estate. The Court of Appeals affirmed holding: The cohabitation between appellee and Mr. Gould could not generate a common law marriage if she were not divorced from decedent. The law in Oklahoma does not recognize such a thing as common law divorce.

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The particular facts of this case warrant a refusal of appellee’s statutory share in the decedent’s estate based on the doctrine of estoppel. Estoppel is a bar raised by the law which precludes one from alleging or from denying a certain fact or state of facts in consequence of the previous allegation, denial, conduct, or admission or in consequence of a final adjudication of the matter by a court of law. Wisel v. Terhune, 231 P.2d 286 (Okla. 1949). In this case, appellee claims to be the surviving spouse of Jack Allen because no divorce was ever decreed. However, her conduct precludes the assertion of her status as decedent’s wife and her right to his estate. Approximately six years after her separation from decedent, she voluntarily entered into cohabitation with Garland Gould. She never asserted the existence of her prior marriage. However, she continued the relationship with Gould which resulted in the birth of four children. When Gould filed for divorce, appellee admitted the existence of their common law marriage. The Blaine County District Court found the existence of such a marriage and entered a decree of divorce. The decree was issued in 1983. After hearing of the decedent’s death in 1984, she immediately claimed her marital status to the decedent even though she had remained silent for approximately thirteen years. In this regard we find our recent decision in Tatum v. Tatum, 53 OBJ 1197, May 15, 1982, reh’g denied, May 27, 1987, 736 P.2d 506 (Okla. 1987), to be instructive. In that case the first wife claimed to occupy the status of the surviving spouse under the workers’ compensation law although she was living alone at the time of her husband’s death by reason of desertion. This Court rejected the contention raised by the second wife of a subsequent common law marriage that the first wife lost her status as a deserted spouse by inaction and non-pursuit. We affirmed the trial court’s finding that the first wife was the decedent’s deserted spousal survivor entitled by statute to benefits. We did, however, state affirmative acts may indicate a change in character of the marriage relationship and that such legal change could manifest itself through some outward recognition that the relationship had terminated. We noted affirmative acts which might be recognized as changing the legal status such as suing for divorce or separate maintenance, active resistance to reconciliation efforts or cohabitation with another. Such indicia were found absent in that case. The predicate facts in this case constitute affirmative acts which give rise to a legal change in appellee’s marital relationship with decedent. In particular, appellee’s cohabitation with Gould and her affirmative recognition of her subsequent common law marriage to Gould. We therefore find appellee’s prior assertion of legal status and judicial finding and decree from which there was no appeal operate as a bar to her later inconsistent claim. Hill v. Shreve, 448 P.2d 848 (Okla. 1968); Marcum v. Zaring, 406 P.2d 970 (Okla. 1965); Norton v. Coffield, 357 P.2d 434 (Okla. 1960). In Darrough v. Davis, 135 Okl. 263, 275 P.309 (1929), this Court held the plaintiff was estopped from asserting his status as decedent’s surviving spouse which would have allowed him to participate in the estate. The plaintiff had abandoned his wife without obtaining a divorce, and subsequently entered into another marriage. Of this marriage two children were born and were being raised by the plaintiff and his wife. After his former wife died, plaintiff immediately announced he had never received a divorce from his former wife, and as her surviving spouse, he was entitled to participate in her estate. This Court found the fact that he remained silent for a long period of time, even during his present marriage, estopped him from claiming an interest in the estate. This Court described the theory of estoppel as, “If you do not speak when you ought to speak, you shall not speak when you want to speak.” Given the facts in this case, appellee is estopped from asserting her continual marital status with the decedent. Appellee had the opportunity for thirteen years to assert her relationship with the decedent, but declined to do so until the decedent’s death. She cannot “speak” now after she has been silent for so long. Estoppel is a doctrine that may be used to prevent injustice. Cf. Cleveland Trust v. Hunt, 555 P.2d 594 (Okla. 1976). If this Court decided to allow appellee to participate in the decedent’s estate, this

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would prejudice those who are rightly entitled to share in the estate. Because of her previous conduct, appellee should have no right to share in the estate. In conclusion, we find the Court of Appeals erred in affirming the trial court’s decision. This Court in Darrough, supra, said before plaintiff could claim an interest in the estate, it was essential for him to establish the lack of a divorce and the voidness and illegality of his second marriage. However, this Court found this would produce a condition that has support neither in equity, good morals, settled law or public policy. Therefore, based on the doctrine of estoppel and considerations of public policy, appellee is estopped from asserting her status as surviving spouse. We accordingly VACATE the order of the Court of Appeals, reverse the judgment of the trial court and the cause is remanded for further proceedings consistent with this opinion. LAVENDER, SIMMS, OPALA, WILSON and SUMMERS, JJ., concur. HARGRAVE, V.C.J., concurs in result. DOOLIN, C.J., and KAUGER J., dissent. OPALA, JUSTICE, with whom LAVENDER, JUSTICE joins, concurring. This case clearly does not require that we determine whether Wilda’s marriage to Jack was valid at its inception nor whether, in contemplation of law, the bond of their matrimony remained efficacious at the time of Jack’s death. Rather, the dispositive question to be answered here is far more narrow. It calls for us to decide whether Wilda’s claim as Jack’s widow stands barred by estoppel, either by record or in pais, that arises from her subsequent marriage to and divorce from Garland Gould. A personal status, though valid in law, may nonetheless fail to support a claim for the exercise of its rights if the assertion of the status be found to contravene some overriding principle of jurisprudence. A slayer who took the decedent’s life in a “felonious, intentional and unjustified manner”—to give but one example of this principle’s application—will not be allowed to share in the decedent’s estate either as an heir or legatee even in the absence of an explicit statute that bars the slayer’s bounty. Hence I concur in the court’s view and in its judgment that Wilda is estopped to claim her personal status as Jack’s heiress. SIMMS, JUSTICE, (concurring): I concur in the judgment of the Court, but for the reason that there is a strong legal presumption favoring the validity of the “last” marriage—Jack’s to Flossie, as well as Wilda’s marriage to Garland. * * * * KAUGER, JUSTICE with whom DOOLIN, CHIEF JUSTICE joins, dissenting by reason of stare decisis: Because the majority opinion fails to overrule or distinguish the controlling Oklahoma cases: Cox v. Cox, 95 Okl. 14, 237 P. 493, 34 A.L.R. 432 (1923); Brokeshoulder v. Brokeshoulder, 84 Okl. 249, 204 P. 284 (1921); and Copeland v. Copeland, 73 Okl. 252, 175 P. 764 (1918), I must dissent.1 Nor can I join the concurring opinion by JUSTICE SIMMS because it presumes, in the presence of clear and convincing evidence to the contrary, that “the marriage of Jack and Wilda ended in divorce.”

1 Also see Tatum v. Tatum, in which workers’ compensation benefits were awarded to the first wife from whom the claimant had never been divorced. The deceased claimant deserted his first wife and cohabited with another woman who claimed to be his common law wife, and thus the one entitled to receive death benefits. Again, the impediment of a valid pre-existing marriage precluding a valid second marriage was never removed. We note, however, that in Tatum, no divorce proceedings were instituted, nor was there an inconsistent legal claim asserted.

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Apparently, a discussion of Cox, Brokeshoulder, and Copeland is in order. Gilbert and Catherine Cox were married on July 11, 1918. Two months later, the couple separated, and on May 28, Catherine married Kelsie. An examination of the court records in the counties in which Gilbert and Catherine had lived reflected that although Catherine had filed for divorce, the proceedings had been dismissed without a divorce ever having been granted. After Gilbert died, Catherine sought to assert that she was an heir at law of Gilbert’s estate. This Court recognized that Catherine had deserted Gilbert, and that she had entered into a second marriage. However, the Court decided that she was not estopped from asserting and receiving her spousal interest in Gilbert’s estate. Cammack and Josephine Brokeshoulder were married on September 29, 1908, in Mississippi. Some- time in November, 1912, Cammack left his wife and child there and moved to Oklahoma. Less than two years later, On July 18, 1914, Cammack married Ruby. Three years later on November 13, 1915 Jose- phine married Edgar. When Cammack died in March of 1920, Josephine claimed that as his wife she was entitled to recover her share of the estate. She submitted evidence which revealed that she and Cammack had not obtained a divorce in any county in which they are resided since their marriage in 1912. Under those facts, this Court found that Josephine was Cammack’s surviving spouse. Joe and Samantha Copeland were married on May 13, 1877. In 1879, Joe deserted her, and in 1881, Samantha remarried. In 1899, Joe married for the second time. Again, the evidence produced indicated that no divorce had been granted in any of the counties in which they had resided, either individually or as a couple. This Court found that because Samantha was living at the time Joe consummated his second marriage, and because no divorce had been granted, his second marriage was void. Therefore, it determined that Samantha was his legal wife and that she was entitled to share in his estate. After any legal impediments to a marriage are removed, partners who live together with the intent of contracting to become husband and wife may have their relationship ripen into a valid common law marriage. However, if the impediments remain in full force and effect, the marriage remains a nullity—it cannot ripen into anything. In support of her position that she and Jack had never been divorced, Wilda obtained affidavits, (just as had the Cox, Brokeshoulder, and Copeland “widows”), from the court clerks in the ten counties in which either she or Jack had resided. Her evidence was unrefuted. Do the facts here warrant a different result that those in Cox, Brokeshoulder, and Copeland? I think not. Marriage is the personal relationship which arises out of a civil contract. It requires the consent of parties who must be legally competent to contract. Although I am in sympathy with the equities in this case, and while I may find the application of the doctrine of estoppel attractive, I am bound by the doctrine of stare decisis. I am compelled to find that Jack and Wilda Allen were incompetent to contract subsequent marriages because they had never been divorced. As a general rule, justice is more certainly served by deciding cases on the evidence if it is avoidable, than by indulging presumptions. Under the teaching of Cox, Brokeshoulder, and Copeland, Wilda Allen overcame the rebuttable presumption that her first marriage terminated in divorce, she is the surviving spouse of Jack Allen.

Question Husband and wife separate at wife’s insistence. She wishes to obtain a divorce to marry her lover. He wishes to reconcile, but she rejects his attempts. During the separation, but before the wife files a divorce petition, the husband dies. Is the wife estopped from claiming her statutory share? See Estate of Miller v. Miller, 1988 OK CIV APP 19, 768 P.2d 373.

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BROOKS v. SANDERS 2008 OK CIV APP 66, 190 P.3d 357 Released for Publication by Order of the Supreme Court

KEITH RAPP, CHIEF JUDGE. The claimant, Bonnie Brooks (Claimant), appeals a decision of the Three Judge Panel of the Workers’ Compensation Court in favor of Osage Drilling Company/Seismic Drilling (Employer) and its insurer, American Home Assurance, finding that she was not a surviving spouse of Roy Sanders, deceased.1 BACKGROUND The parties have not materially disputed the facts pertinent to this appeal. Roy Sanders sustained a work related injury which resulted in his death. Claimant sought benefits as surviving spouse. Roy Sanders and Debbie Sanders married in a ceremony in 1991. They separated sometime prior to the year 2000. In 2000, Claimant and Roy Sanders established a relationship. Claimant, at least, believed that Roy Sanders had previously been divorced from Debbie Sanders. This relationship continued until Roy Sanders’ death and evidenced the attributes of a common-law marriage.2 However, Roy and Debbie Sanders did not divorce until a decree was entered on February 14, 2006. On that date, the District Court of LeFlore County entered an Agreed Decree of Dissolution of Marriage between Roy and Debbie Sanders.3 In part, this Decree recited: The Court further finds, orders, and adjudges that the 90-day waiting period is waived for the reason that both parties have contemplated a peaceful divorce for over eight (8) years and have reached an agreement and signed approval regarding all issues of this divorce. Roy Sanders was injured on May 3, 2006. He died from his injury on May 13, 2006. The trial judge ruled that Roy Sanders and Bonnie Brooks had established a common-law marriage as of the date of his death and that she was his sole surviving spouse. Employer appealed and the Three-Judge Panel reversed that ruling with a finding that Roy Sanders was a single person at the time of his death and no common- law marriage existed between him and Claimant. Claimant appeals. STANDARD OF REVIEW Claimant, in order to obtain benefits, must be the widow of Roy Sanders by virtue of a common-law marriage. The issue here is whether there was an impediment to that marriage relationship by application of 43 O.S. 2001, § 123.4 Whether Claimant is the widow and entitled to maintain her claim, is a jurisdictional question upon which the finding of the Three-Judge Panel is not conclusive on this Court. D.P. Greenwood Trucking Co., 1954 OK 165 at ¶ 4, 271 P.2d at 340-41. The appellate court has the plenary, independent, and nondeferential authority to reexamine a trial court’s legal rulings. Neil Acquisition,

1 [Footnote omitted.] 2 [Footnote omitted.] 3 [Footnote omitted.] 4 [Footnote omitted.]

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L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100 n.1. Also, matters involving legislative intent present questions of law which are examined independently and without deference to the trial court’s ruling. Keizor v. Sand Springs Ry. Co., 1993 OK CIV APP 98, ¶ 5, 861 P.2d 326, 328. ANALYSIS AND REVIEW Until Roy Sanders obtained his divorce, his marriage to Debbie Sanders constituted a legal impediment to a marriage with Claimant. Whitney v. Whitney, 1942 OK 268, 134 P.2d 357 (Syl. 1). However, the removal of a legal impediment to marriage, where parties continue to live together, recognizing each other as husband and wife, ripens into a common-law marriage as of the time of the removal of the impediment. Burdine v. Burdine, 1952 OK 103, 242 P.2d 148 (Syl. 1, 2). It is undisputed that the six-month period specified in Section 123 had not passed from the date of the Sanders’ divorce decree in February 2006, to the date of Roy Sander’s death in May 2006. Moreover, the facts clearly show that the elements necessary to establish a common-law marriage existed during this period. Thus, the question is whether Roy Sanders and Claimant became married after the impediment of Roy Sanders’ prior marriage was lifted by the divorce, or whether Section 123 established a new, or continuing impediment preventing their relationship from evolving into a common-law marriage until the expiration of six months from the date of the divorce. Case histories reveal that people become embroiled in the six-month controversy in three ways following a divorce. The first two involve ceremonial rites, either in or out of state.5 The third case involves the common-law relationship. In Plummer v. Davis, 1934 OK 499, 36 P.2d 938, the Court was presented with the case where the parties had a ceremony less than six months after the divorce and then one of the parties died before the six-months period expired.6 The surviving spouse sought to establish a right to inherit as surviving spouse, which was contested on the basis that the marriage was unlawful under Section 123. The Court reviewed the history and derivation of Section 123. The Court found that Section 123 came from Kansas where the court there construed the original Kansas statute to make a marriage that violated the six-month rule voidable and not void. The Kansas Legislature amended the statute to make such marriages void and the Kansas court subsequently altered its construction of the statute accordingly. Oklahoma’s original statute, together with court construction of the statute, made such marriages void. However, in 1925, the Legislature amended Section 123 to remove the language making the marriage void. Thus, the Court, in Plummer, ruled that Davis was the surviving spouse, even though his marriage to his deceased wife was entered into less than six months after the date of her divorce from her former husband. The Court held that a remarriage within six months after a divorce is voidable, but not void. Plummer, (Syl. 1). The Court also recited the rule that when parties enter into a second marriage in good faith and continue to cohabit as married persons during and beyond the six month period, then the “relationship ripens into a common-law marriage.”7 Plummer, 1934 OK 499 at ¶¶ 18-19, 36 P.2d at 942. However, in Plum-

5 Out of state remarriages are not covered by Section 123 as currently written. Copeland v. Stone, 1992 OK 154, 842 P.2d 754. Parties do remarry each other during the six-month period without apparent imposition of penalty and often do so by common law as opposed to ceremonial marriage. Harrison v. Burton, 1954 OK 332, 303 P.2d 962 (Syl. 1). 6 [Footnote omitted.] 7 Oklahoma recognizes that there are two forms of marriage, ceremonial and common-law. The latter derives from the early frontier days of this nation and was first recognized as a legal form of marriage by the State of New York.

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mer the parties had proceeded with a ceremony and had not been together for six months before the death of one of them. In a pre-Copeland decision involving an out-of-state remarriage before the six months had passed, the Court in Wasson v. Carden, 1979 OK 69, 594 P.2d 1223, noted that the remarriage was only voidable.8 However, the Court held that such remarriages can ripen into a valid common-law marriage after the expiration of six months, which was the case there. The cases of Earley v. State Industrial Comm’n, 1954 OK 122, 269 P.2d 977, and Burdine v. Burdine, 1952 OK 103, 242 P.2d 148, involved common-law relationships after a divorce, rather than ceremonial marriages. In each case the Court ruled that the removal of a legal impediment to marriage while parties continue to live together as husband and wife gives rise to marriage by common-law as of the time of removal of impediment. Thus, the Court treated the six- month period under Section 123 as an impediment to remarriage. The foregoing cases result in an apparent disparity of treatment between ceremonial remarriages (valid during the six months, but voidable—Plummer) and common-law remarriages (only ripen into a valid marriage after six months—Earley/Burdine). In the case of In re Mo-se-che-he’s Estate, 1940 OK 453, 107 P.2d 999, the issue was whether the deceased’s Last Will, executed when she was single, was revoked by a marriage to one Jack Rogers (Hus- band), who claimed a right to inherit as surviving spouse and asserted that the Will was revoked by marriage. The resolution of the issue turned upon whether their marriage was valid because of Husband’s prior marriage. Husband and one Hattie Davis had a ceremonial marriage in Kansas, but it occurred within six months of her divorce. Husband, within six months of the marriage to Davis, filed for an annulment in Oklahoma and obtained a decree of annulment in March 1934. He and deceased then married in a ceremony in May of 1934, and lived as husband and wife until her demise. The Will’s proponents maintained, on several grounds, that the court that decreed annulment in the Davis marriage had no jurisdiction to do so. The Supreme Court rejected this contention. One of the reasons for the Court’s decision was that the district court has the power, in equity, to annul an invalid marriage. Thus, the Court entered into a discussion about the status of the Husband-Davis marriage prior to the six-month period having expired. The Court stated: It has often been held that where a person marries within six months after procuring a divorce, such marriage may ripen into a valid common-law marriage where the parties continue to live together as man and wife after the expiration of the six-months period. But this is purely because of the conduct of the parties after the expiration of the six months. The general rule is that such a marriage has no validity whatever during the time within which either party is prohibited by law from marrying any person except the other party to the divorce. This has been the universal holding of this court with the possible exception of Plummer v. Davis, 169 Okla. 374, 36 P.2d 938. Therein it is held: Where wife remarries and dies within six months from her divorce decree, her second marriage is voidable and not void, and unless the marriage is set aside prior to her death by proper proceeding, her second husband will inherit husband’s share.

8 [Footnote omitted.]

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It is there stated that such marriage is not void, but voidable. It is indicated, however, that such marriage may be set aside by proper proceedings within said six-months period. In re Mo-se-che-he’s Estate, 1940 OK 453 at ¶¶ 56-57, 107 P.2d at 1004. Thus, the Court’s ruling was that the district court has jurisdiction to annul a marriage entered into before the six-month period prohibiting marriage to all except the former spouse has expired. Moreover, it is apparent that the Court deemed it immaterial whether the remarriage was voidable or void, and of no validity, during the six-month period. In either case, the trial court had jurisdiction to annul the prohibited marriage and, as a result, whether Plummer gave some form of validity to the voidable marriage was also immaterial. Thus, In re Mo-se-che-he’s Estate does not present an applicable fact situation, such as here, where either the Husband-Davis relationship was fully consistent with a common-law marriage during the six-month period or a determination of the relationship’s void-voidable status as a common-law marriage was necessary. Subsequently, the Court of Civil Appeals in the case of In re Estate of Rogers, 1977 OK CIV APP 9, ¶ 11, 569 P.2d 536, 538, expressed the view that Plummer was overruled by In re Mo-se-che-he’s Estate.9 In Rogers, the Court found the Oklahoma rule to be that a voidable marriage has no validity during the six-month limitation period and, if the elements of a common-law marriage are present, the parties’ relationship ripens into a marriage after the expiration of the six months. However, Rogers does not assist in resolving the case here. The parties in Rogers engaged in a ceremonial remarriage. Just as in In re Mo-se-che-he’s Estate, the elements here of a common-law marriage were not in place. Consequently, Rogers also does not present a fact situation where the parties’ relationship satisfied the elements of a common-law marriage during the six-month period. Subsequent to Rogers, a different Division of the Court of Civil Appeals found that the parties’ relationship had matured into a common-law marriage by the time one had died. Dowell v. Welch, 1978 OK CIV APP 1, 574 P.2d 1089. Thus, the legal status of the parties during the six-month period was immaterial because the limiting period had passed and the relationship had matured into a valid common-law marriage. Nevertheless, the Dowell Court, citing Greenwood and Plummer (but not referencing Rogers), stated that the forbidden remarriage was valid and not void. The Opinion characterized the relationship as “perishable” during the six-month period and, after removal of the impediment, the relationship “ripens into a valid common-law marriage.” Dowell, 1978 OK CIV APP 1at ¶ 6, 574 P.2d at 1091. In 1979, the Supreme Court cited Plummer and Dowell (but without reference to Rogers) in its Opin- ion in Wasson v. Carden, 1979 OK 69, ¶ 4, 594 P.2d 1223, 1225-26.10 There, Wasson was divorced and then remarried outside of the State and returned to Oklahoma. His former spouse sought contempt. In ruling that Wasson was not subject to a contempt proceeding, the Court held that the prohibited remarriage was not void, but was voidable. The Court reasoned: Oklahoma has consistently held, in Greenwood v. Greenwood, 387 P.2d 615 (Okl. 1963), and in Plummer v. Davis, 169 Okl. 374, 36 P.2d 938 (1934) that remarriage by a divorced person within six months from the date of the divorce is voidable, but not void. It has also been determined in Oklahoma that, even though a marriage is improperly entered into in violation of the statute, it may ripen into a valid marriage at the end of the prohibitory period. In Dowell v. Welch, 574 P.2d 1089, 1091 (Okl. App. 1978) the Court of Appeals found that: the legitimacy of a marital relationship is perishable during the prohibitory period; the ultimate result is not altered where the parties

9 [Footnote omitted.] 10 [Footnote omitted.]

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continue living together after the nuptial inhibition is removed; and the adulterous concubinage ripens into a valid common-law marriage. The petitioner’s divorce was granted September 13, 1978. The petitioner remarried November 23, 1978. The marriage has ripened into a valid common-law marriage. Id. After review of the authorities, this Court holds that there can be no legal, constitutional difference in the treatment of remarriages by ceremony versus remarriages by common law. Close scrutiny of the cases shows that the Supreme Court, as of Wasson and when presented an appropriate fact situation, will treat both situations the same by citing to both Plummer and Dowell. In summary, this Court recognizes in accordance with established Oklahoma case law that, absent a marital impediment suffered by one of the parties to the common-law marriage, a common-law marriage occurs upon the happening of three events: a declaration by the parties of an intent to marry, cohabitation, and a holding out of themselves to the community of being husband and wife. Further, this Court recognizes that if there exists the same impediment to the marriage of either party as presented by the facts here, then the circumstance might expose the parties to the provisions of 43 O.S.2001 § 123. This Court holds that if either or both parties undertake to enter into a common-law marriage within a divorce decree’s six-month prohibitory marriage period to any except their former spouse, then the marriage is not per se void, but voidable until after the six-month prohibitory period. The marriage, after expiration of the prohibitory period, “ripens” or becomes a valid and recognizable common-law marriage only upon the expiration of the prohibitory period or periods.11 This Court further holds that the voidable common-law marriage may be terminated at any time during the running of the prohibitory marriage period by any one of the following events: voluntary action by either party or by the death of either party. CONCLUSION Therefore, the Court here holds that, because Roy Sanders died prior to the expiration of the prohibitory period of marriage resulting from his divorce, he could not have entered into a binding marital relationship with any except his former spouse. Accordingly, the attempted common-law marriage was void- ed by his death and failed. Thus, the decision of the workers’ compensation court is sustained. SUSTAINED. GABBARD, P.J., and WISEMAN, J. (sitting by designation), concur.

11 [Footnote omitted.]

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COPELAND v. STONE 1992 OK 154, 842 P.2d 754

KAUGER, JUSTICE. The issue presented is whether, pursuant to 12 O.S.1981 § 12801 a marriage contracted in another state in violation of the statute’s six-month prohibition against remarriage is valid in Oklahoma. Because 12 O.S.1981 § 1280 prohibits only those marriages celebrated within Oklahoma during the six-month period following a divorce, we find that a marriage conducted in another state during the statute’s six-month prohibition against remarriage is valid. FACTS The appellant, Etzell H. Copeland (Copeland/husband), obtained a divorce from his first wife on De- cember 10, 1986. On January 5, 1987, Copeland and the appellee, Dora “Dot” Stone (Stone/wife), were married in Nevada. The couple stayed three days in Nevada before returning to live together in Oklaho- ma for approximately three weeks. Copeland and Stone did not live together at any time after January, 1987; and no children were born of the marriage. On June 10, 19879 the six-month prohibition against remarriage imposed by 12 O.S.1981 § 12802 expired. Copeland married a third woman on July 22, 1987. On March 28, 1988, Copeland filed for divorce naming Stone as defendant. The trial court conducted a hearing on August 18, 1989, to determine the validity of the Nevada marriage in Oklahoma. Finding that the couple did not cohabit beyond the six-month prohibitory period imposed by 12 O.S.1981 § 1280, the trial court found that the union had not ripened into a common law marriage and that it was void. The Court of Appeals affirmed. We granted certiorari on July 9, 1992, to reexamine our prior jurisprudence3 and to consider a single issue4 whether, pursuant to 12 O.S.1981 § 1280, a marriage contracted in another state in violation of the statute’s six-month prohibition against remarriage is valid in Oklahoma.

1 Title 12 O.S.1981 § 1280 provides: “Remarriage and cohabitation—Appeal from judgment. It shall be unlawful for either party to an action for divorce whose former husband or wife is living to marry in this state a person other than the divorced spouse within six (6) months from date of decree of divorce granted in this state, or to cohabit with such other person in this state during said period if the marriage took place in another state; and if an appeal be commenced from said decree, it shall be unlawful for either party to such cause to marry any other person and cohabit with such person in this state until the expiration of thirty (30) days from the date on which final judgment shall be rendered pursuant to such appeal. Any person violating the provisions of this section by such marriage shall be deemed guilty of bigamy. Any person violating the provisions of this section by such cohabitation shall be deemed guilty of adultery. An appeal from a judgment granting or denying a divorce shall be made in the same manner as in any other civil case.” Section 1280 was renumbered effective November 1, 1989, and now appears at 43 O.S.1991 § 123. Section 123 is identical to its 1981 counterpart. Section 1280 was renumbered effective November 1, 1989, and now appears at 43 O.S. 1991 § 123. Section 123 is identical to its 1981 counterpart. 2 Id. 3 Wasson v. Carden, 594 P.2d 1223, 1225 (Okla.1979); Hess v. Hess, 198 Okla. 130, 176 P.2d 804-05 (1947); Branson v. Branson, 190 Okla. 347, 123 P.2d 643, 645 (1942); Mantz v. Gill, 147 Okla. 199, 296 P. 441, 444 (1931); Mudd v. Perry, 108 Okla. 168, 235 P. 479, 484 (1925); Estate of Rodgers, 569 P.2d 536, 539 (Okla. App. 1977). 4 Stone presents two other propositions. First, she relies on Norton v. Coffield, 357 P.2d 434, 438-39 (Okla. 1960) for the proposition that Copeland’s marriage to Stone is not valid because his subsequent marriage is entitled to a presump-

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BECAUSE 12 O.S.1981 § 1280 PROHIBITS ONLY THOSE MARRIAGES CELEBRATED WITHIN OKLAHOMA DURING THE SIX-MONTH PERIOD FOLLOWING A DIVORCE, A MARRIAGE CONDUCTED IN ANOTHER STATE DURING THE STATUTE’S SIX-MONTH PROHIBITION AGAINST REMARRIAGE IS VALID IN OKLAHOMA. Copeland asserts that his Nevada marriage is valid. He insists that the clear language of 12 O.S.1981 § 12805 prohibits only those marriages contracted in Oklahoma within six months of a divorce. Stone argues that because she and Copeland did not cohabit beyond the period of impediment imposed by § 1280, the marriage is void. She finds support in our prior jurisprudence.6 The determination of legislative intent controls statutory interpretation.7 However, it is unnecessary to apply rules of statutory construction if the legislative will is clearly expressed.7 Title 12 O.S.1981 § 1280 provides that it is unlawful for either party to a divorce whose spouse is living to “ . . . marry in this state a person other than the divorced spouse within six (6) months from date of decree of divorce granted in this state, or to cohabit with such other person in this state during said period if the marriage took place in another state . . . .” The express language of the statute prohibits only those marriages celebrated in Oklahoma within six months following a divorce. Additionally, the statute addresses the situation presented here—marriage outside Oklahoma. It provides that it is unlawful for the couple to reside together during the six-month prohibitory period. However, it does not restrict out-of-state marriages. Parties entering into such marriages are subject to a charge of adultery if they return to Oklahoma to reside during the six-month period following divorce.9 This Court may not, through the use of statutory construction, change, modify or amend the expressed intent of the Legislature.10 Pursuant to 12 O.S. 1981 § 1280, the Oklahoma Legislature has restricted remarriage within the six-month prohibitory period to those marriages contracted within Oklahoma. We may not extend that prohibition to marriages conducted outside the state. Because 12 O.S.1981 § 128011 prohibits only those marriages celebrated within Oklahoma during the six-month period following a divorce, we find that a marriage conducted in another state during the statute’s six-month prohibition against remarriage is valid. This finding is in accord with the majority of jurisdictions which have ana- tion of validity. Stone’s reliance on Norton is misplaced. In Norton, a prior spouse, in an attempt to share in her husband’s estate, sought to establish that she and her deceased-husband had never been divorced. Under those circumstances, this Court found that a third marriage spanning thirty-three years and of which six children were born was entitled to a presumption of validity. Here, it is conceded that Copeland and Stone were married in Nevada on January 5, 1987. If the marriage is valid, this concession is sufficient to overcome the presumption of the validity of Copeland’s third marriage. Second, Stone argues that there is no authority to adjust property rights between parties if no valid marital relationship exists. The issue of property division between Copeland and Stone has been stayed. The trial court specifically limited its ruling to the validity of the marriage. An issue not determined by the trial court will not be decided on appeal. Chilton v. Chilton, 207 Okla. 647, 252 P.2d 1219 123 (1953); Phelps v. Asplund, 184 Okla. 310, 87 P.2d 134-35 (1939). 5 Title 12 O.S.1981 § 1280, see note 1, supra. 6 Wasson v. Carden, see note 3, supra; Hess v. Hess, see note 3, supra; Branson v. Branson, see note 3, supra; Mantz v. Gill, see note 3, supra; Mudd v. Perry, see note 3, supra; Estate of Rodgers, see note 3, supra. 7 Fuller v. Odom, 741 P.2d 449, 452 (Okla. 1987); Matter of Phillips Petroleum Co. 652 P.2d 283 (Okla. 1982); Becknell v. State Indus. Court, 512 P.2d 1180, 1183 (Okla. 1973). 7 Fuller v. Odom, see note 7, supra; Duesterhaus v. City of Edmond, 634 P.2d 720, 722 (Okla. 1981). 9 Title 12 O.S.1981 § 1280, see note 1, supra. 10 Anschutz Co. v. Sanders, 734 P.2d 1290, 1292 (Okla. 1987); McVicker v. Board of County Comm’rs, 442 P.2d 297, 302 (Okla. 1968); Oklahoma Alcoholic Beverage Control Bd. v. Central Liquor Co., 421 P.2d 244, 248 (Okla. 1966). 11 Title 12 O.S.1981 § 1280, see note 1, supra.

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lyzed statutes similar to § 1280 or decrees containing the statutory language and have determined that the statutes have no extra-territorial effect.12 We recognize that our holding today, restricting the effect of the six-month prohibitory period contained in § 1280 to marriages contracted within Oklahoma, conflicts with prior case law. Wasson v. Carden, 594 P.2d 1223 1225 (Okla. 1979); Hess v. Hess, 198 Okla. 130, 176 P.2d 804-05 (1947); Bran- son v. Branson, 190 Okla. 347, 123 P.2d 643, 645 (1942); Mantz v. Gill, 147 Okla. 199, 296 P. 441, 444 (1931); Mudd v. Perry, 108 Okla. 168, 235 P. 479, 484 (1925); and Estate of Rodgers, 569 P.2d 536, 539 (Okla. App. 1977), all concerned marriages conducted outside Oklahoma within the six-month period of disability imposed by § 1280 and its predecessor statutes. In Wasson, Hess, Branson, Mantz, and Mudd, this Court characterized these marriages as voidable within the six months following the remarriage. However, because the parties continued to live together as husband and wife beyond the disability period, we held that the unions ripened into valid common law marriages. In Rodgers, the Court of Appeals relied upon the same rationale expressed in our jurisprudence. It held that the death of a spouse before the expiration of the six-month waiting prohibited a party to the voidable marriage from being appointed as the administratrix of the deceased spouse’s estate.

12 Nineteen jurisdictions hold that either statutory language similar to that found in 12 O.S.1981 § 1280, see note 1, supra, or corresponding language in a divorce decree has no extra-territorial effect. See, Loughran v. Loughran, 292 U.S. 216, 223, 54 S.Ct. 684, 687, 78 L.Ed. 1219, 1223 (1934)(Recognizing the general rule that a statutory prohibition against remarriage is given only territorial effect.); Lembcke v. United States, 181 F.2d 703-04 (2nd Cir. 1950)(Applying New York and Pennsylvania law.); Thomas v. Murphy, 107 F.2d 268, 270 (D.C. Cir. 1939)(Applying D.C. Code.); Fordham v. Marrero, 273 F. 61, 66 (1st Cir.1921)(Applying Puerto Rico law.); Smiley v. Smiley, 247 Ark. 933, 448 S.W.2d 6429 645 (1970); Humphreys v. Baird, 197 Va. 667, 90 S.E.2d 796, 800 (1956); In re Kinkead’s Estate, 238 Minn. 257, 57 N.W.2d 628, 631-32 (1953); Pickard v. Pickard, 241 Iowa 307, 45 N.W.2d 269, 271 (1950); Fitzgerald v. Fitzgerald, 210 Wis. 543, 246 N.W. 680, 682 (1933); Criss v. Industrial Comm’n, 348 Ill. 75, 180 N.E. 572, 574 (1932); Smith v. Goldsmith, 223 Ala. 155, 134 So. 651, 654 (1931); Fisher v. Fisher, 250 N.Y. 313, 165 N.E. 460, 462, 61 A.L.R. 1523, 1527 (1929); Reger v. Reger, 316 Mo. 1310, 293 S.W. 414, 425 (1927); Opdyke v. Opdyke, 237 Mich. 417, 212 N.W. 95, 97 (1927); Bauer v. Brahams, 73 Colo. 509, 214 P. 259, 261 (1923); Horton v. Horton, 22 Ariz. 490, 198 P. 1105-06 (1921); Small- wood v. Bickers, 139 Ga. App. 720, 229 S.E.2d 525, 527 (1976); Estate of Sanders, 147 Cal.App.2d 450, 305 P.2d 655, 658 (1957); Stephenson v. Stephenson, 417 N.C. App. 659, 298 S.W.2d 36, 39 (1956). See also, Annot., Inhibition by Decree of Divorce, or Statute of State or Country in Which It Is Granted, Against Remarriage, as Affecting a Marriage Celebrated in Another State or Country, 32 A.L.R. 1116-117 (1924). Five jurisdictions find that either through statutory language or through the terms of a divorce decree, a remarriage within a prohibitory period is void. See, Cummings v. United States, 34 F.2d 284, 286 (D. Minn. 1929); Gerrig v. Sneirson, 344 Mass. 518, 183 N.E.2d 131, 133 (1962); Brand v. State, 242 Ala. 15, 6 So.2d 446, 449 (1941); Wheelock v. Wheelock, 103 Vt. 421, 154 A. 665-66 (1931); Stevens v. Stevens, 304 Ill. 297, 136 N.E. 785, 787 (1922). Other cases in which prohibitory language has been given extra-territorial effect concern circumstances not presented by the present appeal. See, Copple v. Bowlin, 172 Neb. 467, 110 N.W.2d 117, 121 (1961)(Statute provides bonds not dissolved until six months after decree entered.); Wright v. Kroeger, 219 Or. 102, 345 P.2d 809, 811 (1959)(Statute providing that neither party shall be capable of contracting marriage.); Hack v. Industrial Comm’n, 74 Ariz. 305, 248 P.2d 863, 863 (1952) (Arizona Court applied Wisconsin law and found remarriage void where effect of divorce was postponed until a future date.); Bell v. Bell, 206 Ga. 194, 56 S.E.2d 289, 292 (1949)(If divorce decree contains specific disabilities which are not removed before remarriage, second marriage is invalid.); Fisch v. Marler, 1 Wash.2d 698, 97 P.2d 1479 151 (1939)(State specifically forbidding marriage either within or without the state.); Rhodes v. Miller, 189 La. 288, 179 So. 430, 433 (1938) (Statute specifically provided that remarriage would be a nullity.); Johnson v. State Compensation Comm’r, 116 W.Va. 232, 179 S.E. 8149 816 (1935)(Remarriage invalid when no dissolution of marriage for six months.); Jay v. Jay, 212 A.2d 331-32 (D.C. Ct. App.1965)(Statute providing divorce not effective until six months after date of decree.).

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Hess, Branson, Mantz, and Mudd were all decided under prior versions of § 1280 which specifically provided that it was unlawful for either party to a divorce to marry another person in any state within six months of the divorce decree.13 The statute was amended in 1969, and the Legislature adopted language prohibiting only those marriages contracted in Oklahoma within six months after a divorce.14 Wasson and Rodgers, both decided after the 1969 amendment, do not analyze the 1969 amendment to § 1280. The prohibition contained in 12 O.S.1981 § 1280, 15 first appearing in the 1969 amendment, to remarriage within six months of a divorce does not apply to marriages solemnized outside of Oklahoma. To the extent that Wasson and Rodgers may be read to require cohabitation past § 1280’s six-month prohibitory period to validate an out-of-state marriage, they are hereby expressly overruled. This pronouncement should not be construed to affect any other penalty for cohabitation in Oklahoma within the six-month prohibition period of § 1280. It is clear that under § 1280 only those marriages contracted in Oklahoma during the six months following a divorce are prohibited. However, an apparent conflict exists between the language of § 1280 and 12 O.S. Supp.1981 § 1282. 16 Section 1282 addresses the time when divorce decrees become final and the effect on an appeal. It provides that neither party to a divorce may marry another person within six months of a divorce. Section 1282 does not, as does § 1280, differentiate between marriages conducted within and outside Oklahoma. Section 1282 was amended contemporaneously with the 1969 amendment to § 1280. The pre-1969 version of § 128217 did not contain an express prohibition against remarriage during a specified period. However, it did provide that a divorce decree did not become absolute and effective until six months after the date it was rendered. Two years after first inserting language in § 1280 providing that only those marriages contracted outside Oklahoma were unlawful, the Legislature

13 Title 12 O.S. Supp.1969 § 1280 provides in pertinent part: “It shall be unlawful for either party to an action for divorce whose former husband or wife is living to marry in this state a person other than the divorced spouse within six (6) months from date of decree of divorce granted in this state or to cohabitate with such second husband or wife in this State during said period . . .” See also, 12 O.S. 1951 § 1280 and Section 510 C.O.S. 1925 both containing language specifically prohibiting marriage to any person in any other state within six months of a divorce. 14 Title 12 O.S.Supp. 1969 § 1280 provides in pertinent part: “It shall be unlawful for either party to an action for divorce whose former husband or wife is living to marry in this state a person other than the divorced spouse within six (6) months from date of decree of divorce granted in this state . . . An appeal from a judgment granting or denying a divorce shall be made in the same manner as in any other civil case, but the Supreme Court shall advance such case on its docket and shall expedite its determination.” 15 Title 12 O.S.1981 § 1280, see note 1, supra. 16 Title 12 O.S.1981 § 1282 provides in pertinent part: “Time when judgments in divorce actions become final—Effect of appeal . . . If an appeal be taken from any part of a judgment in a divorce action except the granting of the divorce, the divorce shall be final and take effect from the date the decree of divorce is rendered, provided neither party thereto may marry another person until six (6) months after the date the decree of divorce is rendered . . .” Section 1282 was renumbered effective November 1, 1989, and now appears at 43 O.S.1991 § 127. The text of the statute remains unchanged. 17 Title 12 O.S.1961 § 1282 provides: “Every decree of divorce shall recite the day and date when the judgment was rendered in the cause, and that the decree does not become absolute and take effect until the expiration of six months from said time, or as provided in cases of appeal.”

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again amended the statute. The only change made to § 1280 by this amendment deleted language providing that divorce cases were to have priority before this Court. 18 Before the Legislature amended § 1280, its meaning had been judicially determined in Hess, Branson, Mantz, and Mudd—marriages contracted outside of Oklahoma and occurring within the prohibitory period had to continue beyond the six-month period to ripen into valid common law marriages. 19 When the Legislature amends a statute whose meaning has been settled by case law, it has expressed its intent to alter the law. 20 The Legislative intent to change the law is expressed in the 1969 amendment of § 1280 prohibiting only those marriages contracted within Oklahoma. CONCLUSION The express language of 12 O.S.1981 § 128021 prohibits remarriage only if it occurs within Oklahoma during the six months following a divorce. Nothing in the language of the statute indicates that the same prohibition is to be imposed upon marriages contracted outside of Oklahoma. We may not, through judicial fiat, impose a restriction upon marital rights not intended by the Legislature. 22 A marriage conducted in another state during the six-month prohibitory period against remarriage contained in § 1280 is valid. CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; RE- VERSED AND REMANDED. LAVENDER, SIMMS, HARGRAVE, WILSON, KAUGER, SUMMERS, WATT, JJ. concur. OPALA, C.J., with HODGES, V.C.J., (concurring in result) Whether valid, void or merely voidable at its inception, these parties’ out-of-state ceremonial marriage is a fit subject for judicial dissolution. The trial court was hence clearly in error when it refused to entertain the divorce suit. It is solely for this reason that I concur in today’s result. Whitney v. Whitney, 192 Okl. 174, 134 P.2d 357,360 (1943); Whitney v. Whitney, 194 Okl. 361, 151 P.2d 583, 585 (1944); Krauter v. Krauter, 79 Okl. 30, 190 P. 1088, 1090 (1920).

Notes & Questions 1. Recall the decision of White v. McGee, where the husband who was in a marriage that was voidable due to nonage died. The court found there was a valid marriage since it had not been attacked in a suit for an annulment prior to the time of the husband’s death. What, if anything, justifies the difference between a marriage voidable for nonage and one that is voidable for violating the six-month prohibitory period on remarriage? 2. The six-month prohibition used to be a common practice in other jurisdictions. In theory, it discouraged divorces when the reason for the divorce was to marry another. Now, with no-fault divorce, the

18 Title 12 O.S.1969 § 1280, see note 14, supra. 19 Hess v. Hess, see note 3, supra; Branson v. Branson, see note 3, supra; Mantz v. Gill, see note 3, supra; Mudd v. Per- ry, see note 3, supra. 20 Tom P. McDermott, Inc. v. Bennett, 395 P.2d 566, 569-70 (Okla. 1964); County Bd. v. Muskogee Indus. Finance Corp., 357 P.2d 224, 227-28 (Okla. 1960). 21 Id. 22 Anschutz Corp. v. Sanders, see note 10, supra; McVicker v. Board of County Comm’rs, see note 10, supra; Oklahoma Alcoholic Beverage Control Bd. v. Central Liquor Co., see note 10, supra.

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continuation of the six month prohibition makes little sense. Oklahoma is one of the few states to retain the provision. Do you think that the six-month prohibitory period could survive a constitutional attack based on the reasoning in the Zablocki opinion? What is the sufficiently important state reason? Is the statute closely tailored to carry out such a state policy? 3. Some divorced spouses wish to resume their marriage. 43 O.S. § 133 (2001) allows them, by agreement, to have the court vacate the divorce at any time, so long as neither has married a third party. Should the couple again get divorced, the court can divide all the property the parties acquired since the original marriage date. However, if the couple remarried, instead of having the divorce set aside, the court could only divide the property acquired since the remarriage. See Henderson v. Henderson, 1988 OK 111, 764 P.2d 156.

G. MAKING YOUR OWN DEAL: THE CONTRACT APPROACH

LEVINE v. KONVITZ 890 A.2d 354 (N.J.Super Ct. 2006)

FUENTES, J.A.D. This appeal requires us to address whether cohabitation is an indispensable element of a cause of action seeking palimony support. The question arises in the context of the parties’ extramarital romantic relationship, which spanned over seventy years. It is undisputed that they never cohabited during the entire period of their relationship. As defendant was reaching the end of his life, plaintiff initiated this palimony suit, seeking to enforce an alleged promise that he would support her for the rest of her life. Defendant allegedly made this promise in consideration for the emotional and social support plaintiff had shown him, and the love and commitment she displayed throughout their long-term relationship. The trial court dismissed plaintiff’s case, finding that any promise of support made by defendant was unenforceable, because the parties had never cohabitated in a marital-type relationship. We now affirm the trial court’s judgment and, in so doing, reaffirm what, in our view, has been implicitly and consistently held by the Supreme Court in In re Estate of Roccamonte, 174 N.J. 381, 808 A.2d 838 (2002); Crowe v. De Gioia, 90 N.J. 126, 447 A.2d 173 (1982); and Kozlowski v. Kozlowski, 80 N.J. 378, 403 A.2d 902 (1979), the three cases that have considered and analyzed the cognizability of palimony-support enforcement actions. In order to establish a prima facie case for palimony, a plaintiff must present competent evidence showing: (1) that the parties cohabitated; (2) in a marriage-type relationship; (3) that, during this period of cohabitation, defendant promised plaintiff that he/she would support him/her for life; and (4) that this promise was made in exchange for valid consideration. We need not and, specifically do not address here, the question of how long a period of cohabitation is required in order to satisfy this element of the cause of action. It is sufficient to say, that a court confronted with this issue, should look to the length of the cohabitation as an indicator of the parties’ commitment

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to the relationship, as that may bear on the question of valid consideration. In other words, a lengthy period of cohabitation provides a more reliable indication that the relationship involved: [A] way of life in which two people commit to each other, foregoing other liaisons and opportunities, doing for each other whatever each is capable of doing, providing companionship, and fulfilling each other’s needs, financial, emotional, physical, and social, as best as they are able. [In re Estate of Roccamonte, supra, 174 N.J. at 392, 808 A.2d 838.] I Facts Contended by Plaintiff For purposes of our discussion, we will adopt, in its entirety, plaintiff’s version of the nature and characteristics of the parties’ relationship. Plaintiff, Jeanette Levine, is now eighty-five years old. De- fendant Philip Konvitz, who was approximately ninety-one years old at the time plaintiff filed this cause of action in 2004, is now deceased. The parties both grew up in Newark. They began dating when plaintiff was in her mid-teens. Alt- hough, according to plaintiff, defendant wanted her to marry him, she considered herself too young to make such a commitment at the time. Defendant married another woman when he was in his early twen- ties. His romantic relationship with the plaintiff, however, continued, and they “saw each other” on a regular basis. At the time, their relationship consisted of defendant visiting plaintiff at her place of work or when she was on vacation. According to plaintiff, she did not have a sexual relationship with defendant until she was thirty-five years old. Defendant was married at the time this sexual relationship began. Defendant continued to reside with his wife until her death in 1999. Plaintiff did not marry until she was forty years old, at which time the parties temporarily suspended their sexual relationship, but continued as friends and acquaintances. According to plaintiff, her husband was frequently away from home on business. During these periods, the parties resumed their physical relationship. Plaintiff's husband died in 1976. From that point forward, the parties’ romantic relationship continued until 2003. After plaintiff's husband’s death, her lifestyle was maintained by financial support provided by defendant. In her certification submitted to the trial court, plaintiff describes defendant as “a wealthy and successful businessman, [who] began supporting me and buying me more lavish gifts than he had in the past.” From 1996 to 1999, plaintiff was “placed” on the payroll of one of defendant’s companies at an annual salary of $48,000. Plaintiff alleged in her complaint that as a result of a government investigation in 1998, defendant began paying her directly $6,000 per month and $2,000 per month to her daughter. In addition to this income, defendant gave the plaintiff cash, “as well as periodic gifts, sometimes by way of checks and at other times through jewelry, furs and otherwise.” Defendant also took financial responsibility for any maintenance required to plaintiff's home or automobile. In 1983, defendant purchased a condominium in Long Branch, which was close to his marital residence. In her certification, plaintiff averred that this was intended to “facilitate us spending a greater amount of time together than we were while I resided in my home in South Orange.” By deed dated May 22, 1985, defendant transferred the condominium property to plaintiff. Although the deed reflected a purchase price of $80,000, plaintiff certified that “I paid nothing for it.” Despite this arrangement, plaintiff never moved into this residence because she “became uncomforta- ble with the notion of living in such close proximity to where [defendant] resided with his wife.” Plaintiff sold the condominium property in April 1986 for $131,000. She kept all the proceeds of the sale.

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The parties never lived together. After her husband’s death, defendant stayed overnight at plaintiff's home “periodically.” After defendant’s wife’s death in 1999, defendant invited plaintiff to live with him in Long Branch. According to plaintiff, I gave considerable thought to doing this, but because of the animosity felt toward me by Phil’s three children, I declined to. Instead, I began to spend weekends at a hotel near Phil’s home, which we would spend together, and commencing in or around 2002, I began to stay at Phil’s home on weekends. I would arrive on Thursday or Friday, and stay until Sunday or Monday, sometimes until Tuesday. Phil wanted me with him, and wanted no one else around us when we were together in his home. Plaintiff characterized her relationship with defendant as an open one, known to friends and neigh- bors. In fact, according to plaintiff, defendant repeatedly told her that his wife was aware of it. Their social activities included going out to dinner “every Sunday” and attending the theatre in New York City. In June 2003, in part due to his advanced age and declining health, defendant issued powers of attorney to his son Norman Konvitz and a friend named Howard Walter, named co-defendants in this case. This appears to have been the turning point in the relationship. Also at this time, defendant’s payments to plaintiff in the amount of $6,000 per month and an additional $2,000 per month for her daughter, not the child of the defendant, ceased. In November 2003, defendant’s son prohibited plaintiff from visiting defendant at his home in Long Branch. Telephone contacts and other forms of communication became less frequent and eventually ceased. In the last paragraph of her certification to the trial court, plaintiff summarized her relationship with defendant and the basis of her claim for support as follows: It may be true that we did not ever share a home, largely due to the fact that one or both of us has been married during the majority of our relationship. I could have resided with [defendant] had I agreed to after his wife died, but I felt that if I did, he would experience much grief at the hands of his children, whose resentment toward me I readily understand. [Defendant] has loved me for nearly all of his long life, and supported me for almost thirty years; his doing so when we each had our own homes speaks to the strength of our love, as he could have removed himself from the relationship far more easily than if we had lived together. It is only “special” relationships that can support a claim for the enforcement of an agreement such as we had, I can assure the Court that few are more special than ours. II Legal Analysis Kozlowski was the first New Jersey case that directly addressed the enforceability of palimony support actions. The Supreme Court framed the issue before it as follows: The primary issue on appeal is whether a man and a woman who are not married to each other, and who live together without a promise of marriage, may enter into a contract which, if otherwise valid, is enforceable by our courts. [Kozlowski, supra, 80 N.J. at 380, 403 A.2d 902.] The Court described the plaintiff in Kozlowski as an unsophisticated Polish immigrant, who had an amorous relationship with a “well-to-do business man.” Id. at 381, 403 A.2d 902. Plaintiff was forty- eight years old and married with two children. Defendant was six years her junior, also married and with two children of his own. Defendant was the initial pursuer. He “insisted that they leave their [respective]

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families and set up a new household together.” Ibid. From this point, the Court gave the following de- scription of the parties’ relationship: After about four months of vacillating and agonizing, [plaintiff] capitulated. Together the loving couple moved into an apartment and later a house, in which they lived in what may be fairly characterized as the illicit equivalent of marital bliss. Three of the four children of their prior marriages joined them during the early years of their new relationship and grew up in an atmosphere not dissimilar to that of a normal family unit. The last child reached adulthood and left the household in about 1970, after which defendant sold the original house and purchased a smaller one for himself and plaintiff alone. The parties lived together for a total of 15 years, continuously except for two brief separations. [Ibid.] On the question of consideration, the Kozlowski court emphasized plaintiff’s devotion to defendant, and the many services she performed for him during their long-term period of cohabitation. The court also found evidential support for the trial court’s conclusion that defendant had made an explicit promise to plaintiff “to take care of her the rest of her life.” Id. at 385, 403 A.2d 902. The central concern of the Court in Kozlowski was the public policy implications of enforcing such a promise in a context outside of marriage. That is, was plaintiff’s enforcement claims barred, as a matter of public policy, under the doctrine of the unlawfulness of so-called meretricious relationships? In reject- ing such a prospect, the Court adopted the following explanation provided by the California Supreme Court in Marvin v. Marvin: The mores of the society have indeed changed so radically in regard to cohabitation that we cannot impose a standard based on alleged moral considerations that have apparently been so widely abandoned by so many. Lest we be misunderstood, however, we take this occasion to point out that the structure of society itself largely depends upon the institution of marriage, and nothing we have said in this opinion should be taken to derogate from that institution. The joining of the man and woman in marriage is at once the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime. We conclude that the judicial barriers that may stand in the way of a policy based upon the ful- fillment of the reasonable expectations of the parties to a nonmarital relationship should be removed. As we have explained, the courts now hold that express agreements will be enforced unless they rest on an unlawful meretricious consideration. [Id. at 386, 403 A.2d 902 (quoting Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 831, 557 P.2d 106 (1976)).] Against this backdrop, and as a final point of emphasis, our Supreme Court in Kozlowski recognized that a promise of support made in the context of “unmarried cohabitation” cannot be termed meretricious and unenforceable, merely because the parties engaged in sexual relations. Id. at 387, 403 A.2d 902. Any reasonable reading of Kozlowski can yield at least one undeniable conclusion: the court was grappling with the legal implications of social forces that had de-stigmatized cohabitation by men and women outside of marriage. Promises of support made in the context of these marital-type relationships were deemed enforceable and, as a consequence, non-meretricious, because the consideration sustaining the contract was based on aspects of the relationship other than sexual relations. Thus, for the first time, the full spectrum and complexity of human relationships in a marital-type setting was being carefully examined and validated, based on the qualitative value of the contribution made

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by the individual partner. On the question of enforceability, sex was simply irrelevant to the discussion. It was, undeniably, a legal acknowledgment that traditional so-called “homemaker” or “work-in-the- home” activities were legally sufficient consideration to sustain a contract. Three years after Kozlowski, in Crowe, supra, 90 N.J. at 129, 447 A.2d 173, the Court considered the question of “whether temporary relief can be awarded in a suit to enforce an agreement between unmarried cohabitants.” As in Kozlowski, the facts in Crowe informed the Court’s analysis of the issue: In a verified complaint filed in the Chancery Division, plaintiff, Rose K. Crowe (who states she is also known as Rose K. De Gioia), claimed that defendant, Sergio De Gioia, breached his nonmarital agreement to support her for life. Her complaint alleged the following facts pertaining to their twenty-year relationship. She met De Gioia in February 1960 when she was 38 and separated from her husband, whom she has since divorced. She was the mother of seven children rang- ing in age from five to seventeen years. He was 26 and single. Starting in 1960, she and her children lived with and were supported by him. From 1967 to 1980, when De Gioia left, they lived in his house in Perth Amboy. Most significantly, he declared that “he would take care of her and support her for the rest of her life, and that he would share with her his various assets.” In return for his support, she acted like his wife: cooking, cleaning, caring for him when he was ill, helping in his various business ventures, and accompanying him socially. Their relationship was akin to a marriage. Even at the end of their relationship, when De Gioia told her he was leaving to marry a woman 22 years his junior, he promised to give her a “good settlement” so that she would not have to be concerned with her own support. That settlement, however, did not materi- alize. Crowe asked the court to enforce her alleged agreement with De Gioia for support, to compensate her for her services, and to award her a share of his assets, costs and counsel fees. [Id. at 129-130 (emphasis added).] Crowe is widely cited and accepted as the leading case for determining the standards that a court must apply in the context of a petition for temporary relief. In granting plaintiff’s application for such relief, the Court in Crowe emphasized the need to preserve the status quo, which principally involved plaintiff’s claims that she had resided in defendant’s residence with her children, and performed all of the functions and activities associated with a marriage, including an extended period of cohabitation. As the Court noted, “[t]he interest of an unmarried cohabitant in enforcement of a support agreement and the trauma of eviction from one's home may well justify the intervention of equity.” Id. at 133, 447 A.2d 173. Once again, the Court deemed cohabitation to be an indispensable predicate element for the relief sought. The latest issue in this ongoing debate arose in Roccamonte, supra, 174 N.J. at 385, 808 A.2d 838. As in Kozlowski and Crowe, the facts in Roccamonte involved a claim of support made by plaintiff, a long-term cohabitant of defendant. In fact, the parties resided in the same household for over twenty-five years. Plaintiff filed her claim against the estate of her long-time partner, seven months after his death. Id. at 387. In deciding in plaintiff’s favor, Judge Pressler eloquently expressed the nature of the relationship involved: Despite the high degree of congruency in the facts of Kozlowski, Crowe, and this case, the Estate argues that even if a promise were made, it would fail for want of consideration. The Estate takes the position that because sexual favor as the sole consideration would render the palimony contract unenforceable as meretricious, the consideration, as in Kozlowski and Crowe must include domestic services, and plaintiff, it argues, was not required by Roccamonte to perform such services. That argument, however, misperceives the fundamental point of our palimony cases. The

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principle we recognized and accepted is that the formation of a marital-type relationship between unmarried persons may, legitimately and enforceably, rest upon a promise by one to support the other. A marital-type relationship is no more exclusively dependent upon one partner’s providing maid service than it is upon sexual accommodation. It is, rather, the undertaking of a way of life in which two people commit to each other, foregoing other liaisons and opportunities, doing for each other whatever each is capable of doing, providing companionship, and fulfilling each other’s needs, financial, emotional, physical, and social, as best as they are able. And each couple defines its way of life and each partner’s expected contribution to it in its own way. Whatever other consideration may be involved, the entry into such a relationship and then conducting oneself in accordance with its unique character is consideration in full measure. There is no doubt that plaintiff provided that consideration here until her obligation was discharged by Roccamon- te’s death. [Id. at 392-93, 808 A.2d 838.] We are required here, to examine one aspect of the so-called “marital-type” relationship, “cohabitation,” as a step in the analysis of determining the enforceability of a promise of support. We are confident that reasonable minds can and do in fact differ on the definition of a “marital-type” relationship. We are equally confident that cohabitation was an implied and indispensable part of Judge Pressler’s poetic de- scription of the term. Although the quality, nature, and extent of the consideration sufficient to sustain a palimony action may differ depending on all the circumstances, we are satisfied that the rendering of such consideration must be done in a setting of cohabitation. Without such a bright-line requirement, the concept of “marital-type” relationship is unacceptably vulnerable to duplicitous manipulation. Requiring cohabitation as an element of a palimony action also provides a measure of advance notice and warning, to both parties to a relationship, and to their respective family members, that legal and financial consequences may result from that relationship. In this context, cohabitation requires the demon- strable act of setting up a household together. Thus, in contrast to an extramarital affair, even a long-term one, cohabitation announces to the ones most affected by the existence of the relationship, the innocent spouse and dependent children, that defendant has entered into a relationship that may result in significant and long-term impairment of family assets. Finally, cohabitation is the physical manifestation of what Judge Pressler described in Roccamonte as “the undertaking of a way of life in which two people commit to each other, foregoing other liaisons and opportunities.” Id. at 392, 808 A.2d 838. Here, the parties disregarded this fundamental aspect of a marital-type relationship. Throughout their long-term affair, each party married other people; had children with their respective spouses; and otherwise carried on full lives, independent of the other. The theme consistently running through the trilogy of cases that have examined palimony actions, has been to provide equitable relief to a plaintiff, who had devoted a significant part of her life to caring and providing for defendant, and as a result, forsaking all other opportunities for independent living. A finding of cohabitation is an indispensable element of the cause of action, because it provides concrete proof that the plaintiff’s devotion was significantly induced by a promise of support. Without evidence of cohabitation, a palimony action cannot be sustained as a matter of law. Affirmed.

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Notes & Questions: “Palimony?” 1. What is the purpose of requiring that a marriage be solemnized? Quite apart from any issue of conventional morality, is ceremonial marriage not a practical and easy way to provide ready proof and definition of the existence and the terms of a legal relationship between two parties? Or, in a common law marriage state, like Oklahoma, is this argument of little worth? Or, are you convinced now that common law marriage ought to be abandoned? 2. What is the crux of palimony—the “contract” or the “cohabitation?” Can you imagine a Marvin- like outcome in a case involving a “bona fide housekeeper” with whom the employer did not carry on a sexual relationship? Would his/her housekeeping contract be affected by the subsequent development of a sexual relationship with the employer? 3. Define what conduct evidences an “implied contract” or “some tacit understanding between the parties.” What intensity/frequency of cohabitation (with or without sexual relations) is required to invoke the doctrine? Years of sharing a home? Months? Days? Why does the parties’ very failure to marry not evidence a tacit understanding that no marital-type rights shall follow? 4. Once found, what does the “tacit understanding” mean in terms of “quantum meruit” or equitable remedies or whatever? Should the legislature prescribe basic legal consequences of unmarried cohabitation not pursuant to an express contract? What terms would you legislate? Concretely, consider support liabilities, inheritance, and the laws governing husband-wife agency, tort immunities, crimes, etc. 5. MINN. STAT. ANN. § 513.075 (1991) provides: If sexual relations between the parties are contemplated, a contract between a man and woman who are living together in this state out of wedlock, is enforceable as to terms concerning the property and financial relations of the parties only if: (1) the contract is in writing and signed by the parties, and (2) enforcement is sought after termination of the relationship. Is this desirable legislation? 6. List the elements of a valid release by which two persons intending to cohabit waive any and all rights and obligations vis-a-vis each other that otherwise might arise out of cohabitation. Could such a release be by oral agreement or even by tacit understanding? Assume that, upon entering cohabitation, the parties executed a complete mutual release with full legal advice, waiving any claim whatsoever against the other forever. As a judge, would you uphold such a release after “role-divided” cohabitation has continued for twenty or thirty years, children have been produced and raised, and the man now tells the woman to get out? If so, where would you draw the line? 7. A most basic, though often overlooked, aspect of the cohabitation cases is that they deal only with the partner-to-partner relationship. To the extent it moves unmarried cohabitation to a level of recognition resembling that of marriage, it does so only between the parties. What, if any, “public law” consequences should attend unmarried cohabitation? In MacGregor v. Unemployment Insurance Appeals Board, 689 P.2d 453 (Cal. 1984), the Supreme Court of California confronted the issue of whether a worker who leaves her employment in California to accompany her nonmarital partner to another state, in order to maintain the familial relationship they have established with their child, constituted voluntarily leaving work with good cause within the meaning of the state’s statute governing unemployment insurance benefits. The court noted that prior decisions of the Unemployment Insurance Appeals Board had recognized that leaving employment to accompany a spouse and family to a new home may be so compelling as to fall within the “good cause” definition. In a previous decision, the court had indicated that lack of a legally recognized marriage did not preclude an

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otherwise qualified claimant from benefits. Finding that claimant’s partner had good reasons for relocat- ing (the care of an elderly and ill father) and that he made the decision to move and claimant chose to go with him in order to preserve their family unit, the court held that claimant had left her employment with good cause and was eligible for benefits under the statute. In Elden v. Sheldon, 758 P.2d 582 (Cal. 1988), the court refused to extend MacGregor and ruled that a cohabiting could not recover under “bystander” recovery when he had witnessed his cohabiting injured and killed. The court also held that Mr. Elden could not recover for loss of consortium. In Oklahoma, only a spouse can recover for loss of consortium. It often leads to claims that cohabitants had a common- law marriage when the injury occurred. See Lee v. Cotten, 1990 OK CIV APP 48, 793 P.2d 1369. 8. Does the rationale of the cohabitation cases extend beyond the man/woman situation? Specifical- ly, should it extend to same-sex relationships? To close friends who enjoy no sexual relationship? 9. What do you think about the following: An Australian man who had an affair with a woman for 20 years while he was married has been ordered to pay the mistress more than $100,000 (£55,000) under the country’s new laws that give rights to people in de facto relationships. In the first known case of its kind in Victoria, the Melbourne businessman was sued under changes to the Family Law Act after his former lover complained that she had given him “the best years of my life”. The woman, who has not been named for legal reasons, said that she deserved the money, the Sunday Herald Sun reported. “He always told me he would look after me, then he left me. I had committed myself fully to him for all those years and it just came to a dead end. He behaved like a gentleman toward me throughout our relationship—except at the end—and now he has been a gentleman again by doing the right thing.” The woman argued that she provided her lover with moral and emotional support for more than two decades. “So this is also about giving our relationship a validity. It is a recognition that I have added something of value to his life. Now I am beginning to come to terms with life again. The money provides me with a security in my later years. This law has made a difference for me, so hopefully it will make a difference for others like me.” Her lawyer argued that many marriages didn’t last as long as the couple’s relationship. The pair traveled around the country and attended functions together. The man also gave his mistress a monthly four- figure allowance and showered her with gifts. However, when he ended the affair this year, she was dev- astated. Then she learned of the law change and her legal team sent a letter of demand—quoting the new legislation—to the man. “It settled (out of court) within weeks,” her lawyer said. “If it had not been for this law, my client would have been abandoned, left on the scrap heap. This is an acknowledgment that if you are in any substantial relationship, each party has a level of commitment to each other.” The new laws for maintenance and division of assets for de facto couples, mistresses and same-sex couples went into effect on March 1, 2009, and any disputes are heard by the Family Court or the Federal Magistrates’ Court. The laws give some mistresses, as well as de facto and same-sex couples, the same rights as married couples.

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MARVIN v. MARVIN (II) Case No. C23303 5 FAM. L. REP. (1979)

No express contract was negotiated between the parties. The conduct of the parties certainly does not reveal any implementation of any contract nor does such conduct give rise to an implied contract; the equitable remedy of resulting or constructive trust did not in good conscience apply. Plaintiff had dismissed her quantum meruit causes of action from the court’s consideration. The court is, however, aware of the recent resort of plaintiff to unemployment insurance benefits to support herself and of the fact that a return of plaintiff to a career as a singer is doubtful. Additionally, the court knows that the market value of defendant’s property at the time of separation exceeded $1,000,000. In view of these circumstances, the court in equity awards plaintiff $104,000 for rehabilitation purposes so that she may have the economic means to re-educate herself and to learn new, employable skills or to refurbish those utilized, for example, during her most recent employment and so that she may return from her status as companion of a motion picture star to a separate, independent but perhaps more prosaic existence.

MARVIN v. MARVIN (III) (1981) 176 Cal. Rptr. 555, 122 Cal. App. 3d 871

COBEY, ASSOCIATE JUDGE. * * * [T]he special findings in support of the challenged rehabilitative award merely establish Plaintiff’s need thereto and Defendant’s ability to respond to that need. That is not enough. The award being non- consensual in nature, must be supported by some recognized underlying obligation in law or in equity. A court of equity admittedly has broad powers, but it may not create totally new substantive rights under the guise of doing equity. * * * The trial court in its special conclusions of law addressed to this point attempted to state an underlying obligation by saying that Plaintiff had a right to assistance from Defendant until she became self- supporting. But this special conclusion obviously conflicts with the earlier, more general, finding that Defendant has never had and did not then have any obligation to provide plaintiff with a reasonable sum for her support and maintenance and, in view of the already-mentioned findings of no damage (but benefit instead), no unjust enrichment and no wrongful act on the part of Defendant with respect to either the relationship or its termination, it is clear that no basis whatsoever, either in equity or in law, exists for the challenged rehabilitative award. It therefore must be deleted from the judgment. REVERSED.

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Question In September 1979, the plaintiff, Vicki Floyd, and the defendant, Robert L. Dodson, began living together in a house located in northwest Oklahoma City. Although the home had been transferred to Dod- son in his name alone, Vicki had supplied a portion of the proceeds used for the down payment and testified at trial that she and Dodson were “partners” in its purchase. Dodson denied the existence of this agreement, but conceded that Floyd had expended money on improvements to the home. When the parties purchased the home, they had planned to marry. By September, 1980 their relationship had crumbled, and Dodson demanded that Floyd move out of the house. Although Floyd complied, she filed a “joint venturer’s lien” against the property to protect her financial interest. Does this case involve the Marvin problem? See Floyd v. Dodson, 1984 OK CIV APP 57, 692 P.2d 77.

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