782 S.E.2d 182 (Va.App. 2016), 1981-14-4, MacDougall v. Levick

Docket Nº:Record 1981-14-4, 1982-14-4
Citation:782 S.E.2d 182, 66 Va.App. 50
Attorney: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.
Judge Panel:Present: Judges Beales, McCullough and O'Brien.
Case Date:February 23, 2016
Court:Court of Appeals of Virginia

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782 S.E.2d 182 (Va.App. 2016)

66 Va.App. 50







Record Nos. 1981-14-4, 1982-14-4

Court of Appeals of Virginia

February 23, 2016

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[Copyrighted Material Omitted]

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Affirmed and remanded.

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.


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We consider a number of issues in these consolidated appeals.1 Deborah MacDougall challenges the trial court's rulings with regard to whether she contracted a valid marriage

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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' [66 Va.App. 58] 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, [66 Va.App. 59] 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 [66 Va.App. 60] reflect " newly discovered evidence of the nullity of the marriage." Levick explained that he had always assumed

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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.

[66 Va.App. 61] ANALYSIS

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.

[66 Va.App. 62] 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.,

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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...

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