Barbosa-Johnson v. Johnson, BARBOSA-JOHNSO

CourtCourt of Appeals of Arizona
Citation174 Ariz. 567,851 P.2d 866
Docket NumberP,No. 2,CA-CV,BARBOSA-JOHNSO,2
PartiesIn re the Marriage of Gina Marieetitioner/Appellee, v. Ronald John JOHNSON, Jr., Respondent/Appellant. 92-0202.
Decision Date23 February 1993
OPINION

ESPINOSA, Judge.

In this appeal, appellant challenges the order of the trial court granting appellee's motion to dismiss the petition for dissolution of marriage upon its finding that the parties' marriage was invalid. We reverse and remand for dissolution proceedings.

On July 14, 1989, appellant Ronald Johnson and appellee Gina Barbosa were issued a marriage license by the Pima County Superior Court clerk. On October 14, 1989, while on vacation in San Juan, Puerto Rico, the parties exchanged vows in a marriage ceremony performed by the pastor of a local church. The parties, the pastor, and two witnesses signed the marriage license after the ceremony. The parties then returned to Arizona, continued to reside here as husband and wife, and had one child.

Appellee filed a petition for dissolution of marriage on March 10, 1992. After appellant filed his pro se response, the parties commenced discovery and began negotiations to resolve the primary issues in dispute regarding child custody and visitation. In the summer of 1992, after changing attorneys, appellee moved to dismiss the petition on the ground that the parties' marriage was invalid in both Arizona and Puerto Rico because neither the Arizona marriage license nor any other was ever filed or recorded in either jurisdiction. Appellant did not dispute this fact in his opposition, but he asserted that the marriage license remained in appellee's sole possession from the date of the ceremony, and that she told him it had been properly filed. The trial court granted the motion after finding that there was no valid marriage in either Arizona or Puerto Rico. This appeal followed. We reverse because there was a valid marriage under Arizona law.

The validity or invalidity of a marriage in this state is statutorily determined. A.R.S. § 25-125 sets forth the following general requirements for a valid marriage:

A valid marriage is contracted by a male person and a female person with a proper marriage license in the presence of an official and two witnesses who participate in a ceremony conducted:

1. By a person authorized to solemnize marriages who signs and files the marriage license with the clerk of the superior court.

2. In the presence of at least two witnesses of lawful age who sign the marriage license.

All of these statutory requirements were satisfied here except for the admitted failure of the pastor to file the marriage license with the clerk of the superior court, a class two misdemeanor under A.R.S. § 25-128(A)(3). That failure alone, however, does not invalidate the marriage.

It is frequently provided by statute that a person solemnizing a marriage shall make a return thereof to a specified officer of the county in which the marriage takes place; and a failure to observe such a statute is made an offense punishable criminally. Other statutes impose a penalty on the officer to whom the return is made for a failure to record it. Such return and record are primarily for the benefit of the parties ..., and a failure or deficiency in the return or record does not affect the validity of the marriage....

55 C.J.S. Marriage § 33 at 865 (footnotes omitted). See Krizman v. Industrial Accident Commission, 14 Cal.App.2d 419, 58 P.2d 405 (1936) (marriage in foreign state not invalidated by failure to record marriage certificate). See also Rea v. Fornan, 26 Ohio Op. 485, 46 N.E.2d 649 (App.1942) (interpreting antecedent Arizona statutes, failure to record marriage certificate does not avoid the marriage), and 52 Am.Jur.2d Marriage § 41 (registration or recording of marriage not essential...

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6 cases
  • State v. Guadagni
    • United States
    • Arizona Court of Appeals
    • February 29, 2008
    ...recorded is directed at the official who solemnizes a marriage, not the parties to the marriage. § 25-125; Barbosa-Johnson v. Johnson, 174 Ariz. 567, 569, 851 P.2d 866, 868 (App.1993). And, the only express sanction for the failure to file and record the license is likewise directed exclusi......
  • State v. Smith
    • United States
    • Arizona Court of Appeals
    • April 11, 1995
    ... ... 6 In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), the Supreme Court established that a ... ...
  • Donlann v. Macgurn
    • United States
    • Arizona Court of Appeals
    • September 12, 2002
    ...requires us to consider the formalities "as if" they had been performed in Arizona. 9. Wife asserts that Barbosa-Johnson v. Johnson, 174 Ariz. 567, 569, 851 P.2d 866, 868 (App. 1993), directs the superior court to apply A.R.S. § 25-112(B) in this situation. In Barbosa-Johnson, however, we w......
  • Mayol v. Rowlls
    • United States
    • Arizona Court of Appeals
    • June 11, 2015
    ...inadequate. He did not raise the issue with the trial court, and we need not address issues first raised on appeal. Barbosa-Johnson v. Johnson, 174 Ariz. 567, 569 (App. 1993) (citing Richter v. Dairy Queen of S. Ariz., Inc., 131 Ariz. 595, 596 (App. 1982)). However, even had Father not waiv......
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