FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Randy I. Bellows, Judge
James Ray Cottrell (John K. Cottrell; Cottrell Fletcher Schinstock Bartol & Cottrell, on briefs), for Deborah MacDougall.
Edna Ruth Vincent (Richard J. Colten; James A. Watson, II; Colleen M. Haddow; Mary C. Huff; Colten Cummins Watson & Vincent, P.C., on briefs), for Richard S. Levick.
Present: Judges Beales, McCullough and O'Brien Argued by teleconference
STEPHEN R. MCCULLOUGH JUDGE
We consider a number of issues in these consolidated appeals. Deborah MacDougall challenges the trial court's rulings with regard to whether she contracted a valid marriage with Richard S. Levick and the enforceability of the parties' marital agreement. Levick challenges the court's refusal to compel reimbursement of pendente lite support and attorneys' fees following its declaration that the marriage was void. Upon rehearing, and for the reasons noted below, we affirm the trial court.
I. The parties hold a marriage ceremony without a marriage license
Levick and MacDougall decided to get married at "an extraordinarily busy time." They had just purchased a home, and the wedding planning occurred while they were busy packing their belongings in anticipation of the move. At the same time, they were still caring for two young children, and Levick was busy running his business. The couple set their wedding date for December 21, 2002. The wedding ceremony was to take place at their new home in McLean, Virginia. Neither Levick nor MacDougall thought about obtaining a marriage license because neither realized that they needed one.
Rabbi Binyamin Raviv Biber had never performed a wedding in Virginia. He registered with a Virginia circuit court so he could officiate on this occasion. On the wedding date, Rabbi Biber checked final preparations and noticed that there was no marriage license. This "was a surprise" to him because he had never performed a wedding "where the marriage license wasn't actually there." The rabbi and the parties decided to "deal with that later because" everyone was "ready to do the wedding." Rabbi Biber instructed the parties to deliver a marriage license for his signature, as soon as possible, once they obtained one. The ceremony went on as scheduled.
Approximately two weeks later, on January 6, 2003, the couple went to the Fairfax County courthouse and obtained a marriage license. That same day, Levick mailed it, via FedEx, to Rabbi Biber at his Maryland address. Rabbi Biber was traveling at the time but signed the marriage license upon his return on January 21, 2003. He listed the marriage date as January 21, 2003, the date he signed it. He listed McLean, Virginia, as the place of marriage. Neither Levick nor MacDougall was present when Rabbi Biber signed the marriage license, and Rabbi Biber performed no other ceremony for the couple. Over the years that followed, both parties assumed that they were husband and wife.
II. The parties litigate divorce and annulment
MacDougall filed for divorce on March 21, 2011. She attached to her divorce complaint a marital agreement dated July 20, 2009. This marital agreement stated that it "shall form the foundation of a divorce or separation agreement, should either come to pass" and, among other clauses, stipulated that Levick would pay MacDougall annual spousal support of $150, 000. MacDougall sought an award of pendente lite support in accord with this agreement. On September 16 and November 2, 2011, the court ordered pendente lite support for MacDougall in the amount of $8, 000 per month.
Following protracted litigation over the validity of the marital agreement, the court ruled, on August 27, 2012, that Levick had made a knowing, explicit, voluntary, and valid waiver of his right to contest the marital agreement. The trial court relied on counsel's statements at a hearing on February 17, 2012, that Levick was withdrawing his challenges to the agreement and that he would "live with the agreement, as must Ms. MacDougall." The court vacated the prior pendente lite support orders and entered a new order incorporating the marital agreement. This order required Levick to pay monthly support of $12, 500 ($150, 000 annually).
On February 27, 2013, the litigation took a sharp turn when Levick filed a petition for declaration of marriage status. He contended that the parties' failure to follow statutory prerequisites meant that they never lawfully married. He argued that there was no marriage license when the rabbi performed the ceremony, and after the parties obtained a license, they did not solemnize a marriage. He argued that the invalidity of the marriage required the court to set aside the marital agreement. He moved for leave to amend his pleadings to reflect "newly discovered evidence of the nullity of the marriage." Levick explained that he had always assumed that he was lawfully married but began to investigate further when he and his attorneys noticed the discrepancy between the date that the marriage ceremony took place and the date that Rabbi Biber listed on the certificate. On March 15, 2013, over MacDougall's objection, the trial court granted Levick leave to amend. On April 12, 2013, Levick filed a motion to suspend support payments.
On August 23, 2013, the court granted MacDougall's motion for pendente lite attorneys' fees in the amount of $191, 288.
On October 10, 2013, following an evidentiary hearing, the court entered an order holding that the marriage was void ab initio because the parties had not complied with the statutory requirements for contracting a lawful marriage in Virginia. The court declined to resolve at that time the other relief Levick sought.
In the wake of this ruling, on October 3, 2014, the court held that the marital agreement was invalid, predicated as it was on the parties' mistaken belief that they were married. The court held that Levick's earlier waiver did not foreclose his new challenge, explaining that, because Levick was not aware of the potential invalidity of the marriage on February 17, 2012, any waiver of the right to challenge the marital agreement on the absence of a marriage would not have been knowing and voluntary. The court suspended, effective November 21, 2013, any pendente lite support orders. The court declined to order MacDougall to reimburse Levick for past support payments, although it observed that it had the discretion to do so. Finally, on August 15, 2014, the court ordered Levick to pay additional attorneys' fees in the amount of $100, 000 – rejecting MacDougall's request for $513, 252. MacDougall received a total of $291, 288 in attorneys' fees and $304, 500 in support during the course of the litigation.
These consolidated appeals followed.
I. The trial court was well within its discretion when it allowed Levick to amend his pleadings to challenge the validity of the marriage.
MacDougall argues that Levick should not have been granted leave to amend to challenge the validity of the marriage. She notes that the amendment followed extensive and costly litigation. She also points out that, from the litigation's inception, Levick had full knowledge of the facts that gave rise to the claim on which his amendment was based. She argues that allowing Levick to amend, under those circumstances, did not serve the "ends of justice."
Rule 1:8 provides, in relevant part, that "[n]o amendments shall be made to any pleading after it is filed save by leave of court. Leave to amend shall be liberally granted in furtherance of the ends of justice." "Amendment serves the underlying policy of litigating the actual controversy between the parties, rather than the approximation of it that was initially pleaded." Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure § 11.2[A], at 813 (6th ed. 2014). "[T]he decision to permit amendments of pleadings rests in the sound discretion of the trial court and will not be disturbed absent a showing of abuse of discretion." Adkins v. Dixon, 253 Va. 275, 279, 482 S.E.2d 797, 800 (1997).
We find no abuse of discretion. At the time Levick moved to amend, the litigation, while extensive, had not reached anything close to finality. There was no prejudice to MacDougall's ability to investigate and litigate the facts alleged in Levick's amended pleading. Moreover, "public policy forbids that a [party] should be barred from bringing a suit to declare null a marriage contract which never had any valid existence." Heflinger v. Heflinger, 136 Va. 289, 301, 118 S.E. 316, 320 (1923). With that threshold question resolved, we proceed to the merits of MacDougall's appeal.
II. Applicable statutes and longstanding case law point unmistakably to the conclusion that no marriage is created when the parties celebrate a marriage without a marriage license or obtain a license but do not timely celebrate.
A. Historical background of our marriage statutes
"Marriage is very properly regarded as the foundation of human society." Toler v. Oakwood Smokeless Coal Corp., 173 Va. 425, 430, 4 S.E.2d 364, 366 (1939). Aside from narrow constitutional constraints, the legislature "has the power to determine who shall assume or occupy the matrimonial relationship within its borders." Id.
The status of marriage . . . differs from other contracts in this, that the rights, obligations or duties arising from it are not left entirely to be regulated by the agreement of the parties, but are to a certain extent matters of municipal regulation over which the parties have no control by any declaration of their will.
Herring v. Wickham, 70 Va. (29 Gratt.) 628, 635 (1878) (quoting Duntze v. Levett (Dec. 21, 1816), in James Fergusson, Reports of Some Recent Decisions by the Consistorial Court of Scotland App. at 397 (1817)).
Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution.
Maynard v. Hill, 125 U.S. 190, 205 (1888).
The importance of marriage prompted legislative attention early in Virginia's history. Indeed, "the formal validity of marriage took a substantial share of the legislation" promulgated before independence. Dominik Lasok, Virginia Bastardy Laws: A Burdensome Heritage, 9 Wm. & Mary L. Rev. 402, 414 (1967); see Offield v. Davis, 100 Va. 250, 253-55, 40 S.E. 910, 911 (1902) (detailing statutory marriage formalities enacted from 1631 to 1849). One early law, proclaimed in 1628, forbade marriage "'without lycence, ' or asking in church." 1 Statutes at Large in Virginia 130 (William Waller Hening ed., 2d ed. 1823). This general requirement of license or banns remained in force until 1849, see Offield, 100 Va. at 253-55, 40 S.E. at 911, when the General Assembly enacted a revised Code to specify that "[e]very marriage in this state shall be under a license, and solemnized in the manner herein provided, " Code tit. 31, ch. 108, § 7 (1849). That statute's requirements remain materially unchanged in our current Code § 20-13.
For nearly its entire history, from the earliest colonial times down to the present day, the legislature has spelled out what formalities are required to contract a lawful marriage in Virginia. It has long stated what sorts of formal defects will not affect a marriage's validity. See Code § 20-31; Code tit. 31, ch. 108, § 7 (1849) (addressing a marriage performed by a celebrant professing, but lacking, authority to solemnize marriages).
B. Lawful marriage is presumed.
"The public policy of Virginia . . . has been to uphold the validity of the marriage status as for the best interest of society, except where marriage is prohibited between certain persons." Needam v. Needam, 183 Va. 681, 686, 33 S.E.2d 288, 290 (1945). "The presumption of marriage from cohabitation apparently matrimonial is one of the strongest presumptions known to the law." Eldred v. Eldred, 97 Va. 606, 625, 34 S.E. 477, 484 (1899). Further, a properly recorded, returned, and certified marriage certificate "shall be prima facie evidence of the facts therein set forth in all courts of this Commonwealth." Code § 20-20. However, these are not conclusive presumptions. A party can defeat the presumption of lawful marriage but only by "clear, cogent, and convincing evidence." Rahnema v. Rahnema, 47 Va.App. 645, 664, 626 S.E.2d 448, 458 (2006) (quoting 2 John W. Strong, McCormick on Evidence § 344, at 449 (5th ed. 1999)).
C. Virginia law requires a license, followed by solemnization, to contract a lawful marriage.
Code § 20-13, titled "License and solemnization required, " provides that "[e]very marriage in this Commonwealth shall be under a license and solemnized in the manner herein provided." This statute establishes two requirements for a valid marriage: a license and solemnization. Code § 20-13 does not expressly state that the license must precede solemnization, but that is its most reasonable reading. A license "confer[s] a right to do something which otherwise one would not have the right to do; it is a prerequisite to the right to . . . do certain acts." Commonwealth v. Shell Oil Co., 210 Va. 163, 166, 169 S.E.2d 434, 437 (1969). By analogy, where such a license is required, one cannot drive, hunt, or practice law or medicine before acquiring the necessary license. By the same token, one cannot marry before acquiring a marriage license. A marriage license "grants a couple permission to marry." Marriage license, Black's Law Dictionary (10th ed. 2014). Code § 20-13 thus indicates that, to contract a lawful marriage in Virginia, the parties must obtain a license and, afterward, solemnize their union under that license.
To the extent there might be any doubt on the subject, however, other statutes dispel it. Most significantly, Code § 20-28 provides that, "[i]f any person knowingly perform the ceremony of marriage without lawful license, or officiate in celebrating the rites of marriage without being authorized by law to do so, he shall be confined in jail not exceeding one year, and fined not exceeding $500." By attaching a criminal penalty to the performance of a ceremony of marriage without a license, the General Assembly clarified its intention that a lawful marriage be contracted by solemnization after a license has been obtained. See Offield, 100 Va. at 254, 40 S.E. at 911 (construing a forerunner statute to similar effect).
Code § 20-14.1 bolsters this conclusion. It provides as follows:
Every marriage license issued under § 20-14 shall constitute authority for a period of only sixty days from the date of issuance for the solemnization of a marriage of the licensees. Whenever such sixty-day period shall have elapsed without the solemnization of a marriage of the licensees, the license shall expire.
The provisions of this section shall not be construed to prevent licensees from applying for or receiving an additional license, either before or after expiration of any license, but no new license shall be issued except in compliance with all provisions of law applicable to the issuance of a license in the first instance.
Code § 20-14.1 (emphasis added). This statute plainly contemplates a specific order: the parties must obtain a license and, within the sixty days following, solemnize their union. If a ceremony does not occur within that time, the license expires. At that point, if the parties still wish to be married, they must apply for a new license.
Finally, "[t]he clerk issuing any marriage license shall require the parties contemplating marriage to state, under oath, the information required to complete the application for marriage license, " Code § 20-16, and "[e]very person who officiates at a marriage ceremony shall certify to the facts of marriage and file the record in duplicate with the officer who issued the marriage license within five days after the ceremony . . ., " Code § 32.1-267(C). ...