805 S.E.2d 775 (Va. 2017), 160540, Levick v. MacDougall

Docket Nº:Record 160540, 160551
Citation:805 S.E.2d 775
Judge Panel:PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Millette, S.J. JUSTICE POWELL, with whom JUSTICE GOODWYN and JUSTICE MIMS join, dissenting. JUSTICE POWELL, with whom JUSTICE GOODWYN and JUSTICE MIMS join, dissenting.
Case Date:November 02, 2017
Court:Supreme Court of Virginia

Page 775

805 S.E.2d 775 (Va. 2017)







Record Nos. 160540, 160551

Supreme Court of Virginia

November 2, 2017


MacDougall v. Levick, 66 Va.App. 50, 782 S.E.2d 182, (Feb. 23, 2016)

PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Millette, S.J. JUSTICE POWELL, with whom JUSTICE GOODWYN and JUSTICE MIMS join, dissenting.



Richard S. Levick and Deborah MacDougall married in 2002. During a divorce proceeding 10 years later, Levick asserted -- for the first time -- that their marriage was void ab initio. On this ground, Levick claimed that he could repudiate a marital agreement requiring him to pay spousal support and to distribute the marital assets.

The circuit court agreed in full with Levick's reasoning. The Court of Appeals agreed only in part, holding that the marriage was merely voidable, not void ab initio. We disagree entirely with Levick's reasoning and hold that the marriage was not voidable or void ab initio. The circuit court, therefore, had authority to distribute the marital assets consistent with the marital agreement and to continue its adjudication of the divorce proceeding.


On December 21, 2002, Levick and MacDougall participated in a wedding ceremony in their home in the presence of friends and family. Before the ceremony, the officiating rabbi discovered that the parties had not yet obtained a marriage license. The rabbi suggested that Levick and MacDougall participate in the ceremony that day as long as they obtained a marriage license and submitted the marriage certificate to the rabbi as soon as possible. On January 6, 2003, MacDougall went to the courthouse with Levick to obtain the license. See 2 J.A. at 673, 679, 802.1 Levick told MacDougall that he would mail the marriage register out right away to the rabbi, and she agreed and kissed him goodbye. See id. at 683, 803. After the rabbi received the marriage register, which included the license and certificate, he executed the marriage certificate and verified that the parties were married on the date of execution, not the prior date of the ceremony in their home.2

As the rabbi explained in his testimony, he was " completing" the solemnization that began with the ceremony. 3 id. at 979. His receipt of the marriage register in the mail from Levick and MacDougall demonstrated the couple's " intention . . . to complete the ceremony." Id. at 983. Levick conceded in the proceedings below that " [their] intention was to be legally married," when he and MacDougall followed the rabbi's instructions, obtained the license, and mailed the marriage register to the rabbi. See id. at 773-76 (emphasis added). Levick understood that they " needed a license and it had to be signed by the rabbi" and that " it was necessary to do [so] in order to be lawfully married." Id. at 776 (emphases added). In response to a question asked by Levick's counsel about whether she thought that she was married on December 21, 2002, MacDougall responded that she " didn't think that it was over" on December 21 because the rabbi " had told [them] what [they] had to do," and if she " thought it was all finished, then [she] wouldn't have gone to the Courthouse" thereafter to obtain the marriage license. Id. at 825-26. Under their agreement, the ultimate expression of their solemn intent to marry was their act of forwarding the marriage register to the rabbi for the sole purpose of him acknowledging that intent by executing the marriage certificate. The rabbi identified the date of the marriage as the date that he received the marriage register and executed the marriage certificate. See supra at 2 & note 2.

In 2009, the marriage began to deteriorate. Levick and MacDougall entered into a marital agreement to " form the foundation of a divorce or separation agreement, should either come to pass." 1 J.A. at 3. If either did occur, Levick agreed to pay MacDougall $150,000 in spousal support annually and pay for her health insurance premiums for the remainder of her lifetime. Levick also agreed to divide equally the proceeds from the sale of the marital home, and, in the event that he sold his company, MacDougall would receive 35% of the proceeds.

The parties filed for divorce in 2011. Nearly two years into the divorce litigation, Levick filed a motion arguing for the first time that the marriage was void ab initio -- that is, a " complete nullity" under the law, Jones v. Commonwealth, 293 Va. 29, 53, 795 S.E.2d 705, 719 (2017) (citation omitted) -- because they had obtained the marriage license 16 days after the marriage ceremony in their home.3 This time lapse, he contended, violated Code § 20-13 and rendered the marriage void ab initio, thus placing him outside the equitable powers of the divorce court and allowing him to repudiate his marital agreement. The circuit court agreed and rejected MacDougall's arguments in support of enforcing the marital agreement.

On appeal, the Court of Appeals agreed that the ceremony-before-license sequence violated an implied term in Code § 20-13 but rejected the circuit court's conclusion that the violation rendered the marriage void ab initio. See MacDougall v. Levick, 66 Va.App. 50, 69-70, 782 S.E.2d 182, 191-92 (2016). Treating the marriage as merely voidable, the Court of Appeals nonetheless affirmed the circuit court's decision to hold the marital agreement ineffectual and rejected MacDougall's assertion that, under equitable principles, the agreement should be enforced even if the marriage was voidable. See id. at 81-84, 782 S.E.2d at 197-98.


On further appeal to this Court, MacDougall argues that Code § 20-13 does not mandate a precise sequence for performing the marriage ceremony and obtaining the marriage license. To be sure, she points out, the statute does not mention a marriage " ceremony" at all. Instead, the statute addresses only the broader concept of solemnization. She adds that, even if this Court were to infer a particular sequence for the license and solemnization requirements, a violation of that judicially implied requirement would not render her marriage to Levick either void ab initio or voidable.4


We begin our analysis where it will eventually end -- with the first premise of Virginia law governing marriages: " The public policy of Virginia . . . has been to uphold the validity of the marriage status as for the best interest of society," Needam v. Needam, 183 Va. 681, 686, 33 S.E.2d 288, 290 (1945), and thus, the presumption of the validity of a marriage ranks as " one of the strongest presumptions known to the law," Eldred v. Eldred, 97 Va. 606, 625, 34 S.E. 477, 484 (1899). This presumption is not unique to our Commonwealth. " [I]t will be readily conceded that English and American tribunals tend, in construing the marriage acts, to uphold every marriage, if possible, notwithstanding a non-compliance with the literal forms." 2 James Schouler & Arthur W. Blakemore, A Treatise on the Law of Marriage, Divorce, Separation and Domestic Relations § 1191, at 1446 (6th ed. 1921). In our opinion, this robust presumption withstands all of Levick's arguments against it.

Levick's main argument is quite simple: A marriage license must precede the marriage ceremony, and the marriage is void ab initio if this sequence is not followed. While we admire the brevity of Levick's reasoning, it illustrates well the trenchant aphorism, often attributed to Albert Einstein, that " [e]verything should be made as simple as possible, but not simpler." 5 Levick's argument evades a set of conceptually complex yet necessary legal questions: What are the essential attributes of solemnization? Does solemnization necessarily end at the last moment of the marriage ceremony? Are " solemnization" and " ceremony" exact synonyms, or is the latter simply evidence of the former? Can the officiant and the celebrants agree to extend solemnization for a brief period of time after the ceremony ends and, during that period, obtain the marriage license and execute the marriage certificate?

To answer these questions, we start with the text of Code § 20-13: " Every marriage in this Commonwealth shall be under a license and solemnized in the manner herein provided." That is a rather slow start, however, because there is no specific " manner herein provided" anywhere in the Code of Virginia. As Levick concedes, nothing in Code § 20-13 expressly indicates that the license and solemnization requirements must be performed in any particular order for the marriage to be valid. See Appellee's Br. at 12.6 Nor does any provision of the Code limit solemnization only to a ceremony.

In this case, the celebrants and the officiant agreed upon the manner in which they intended to solemnize the marriage. Based on that understanding, Levick and MacDougall obtained the license together and mutually agreed that Levick would mail the marriage register to the rabbi right away. By doing so, they reasserted their mutual intent to marry. On the date that the rabbi executed the marriage certificate, not the date of the earlier ceremony, the marriage began because solemnization was complete pursuant to their agreement. As the rabbi explained, he was " completing" their solemnization agreement that began with the ceremony and ended when he received the marriage register and executed the marriage certificate. 3 J.A. at 979.

We know of no statute or opinion of this Court forbidding the celebrants and the officiant from agreeing to this particular manner of solemnization. While it may be unconventional, it should not be judicially deemed unlawful (much less...

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