Cook v. Cook, 1 CA-CV 03-0727.

• Decision Date: 13 January 2005
• Docket Number: No. 1 CA-CV 03-0727.,1 CA-CV 03-0727.
• Citation: 104 P.3d 857,209 Ariz. 487
• Parties: In re the Marriage of: Alan Roger COOK, Petitioner-Appellant, v. Peggy COOK, Respondent-Appellee.
• Court: Arizona Court of Appeals

104 P.3d 857

209 Ariz. 487

In re the Marriage of: Alan Roger COOK, Petitioner-Appellant, v. Peggy COOK, Respondent-Appellee.

No. -0727.

Court of Appeals of Arizona, Division 1, Department A.

January 13, 2005.

Leyh, Billar, Sternberg, P.L.L.C., Phoenix, By Cynthia A. Leyh, for Petitioner-Appellant.

Hunt, Kenworthy, Meerchaum & Hossler, Yuma, By David J. Hossler, for Respondent-Appellee.

OPINION

BARKER, J.

¶ 1 In 1996, the Arizona legislature amended this state's marriage statutes to provide that certain marriages, even though "valid by the laws of the place where contracted," were nonetheless "void and prohibited" in Arizona. S.B. 1038, 42d Leg., 2d Reg. Sess. (Ariz.1996); Ariz.Rev.Stat. ("A.R.S.") § 25-112(A) ("1996 amendments"). We resolve statutory, choice-of-law, and constitutional issues that arise out of the 1996 amendments.

I.

¶ 2 Alan R. Cook ("appellant") appeals from a decree of dissolution. He contests the trial court's jurisdiction, alleging that there was no valid marriage.¹

¶ 3 Appellant and Peggy Cook ("appellee") were married on April 7, 1984 in Virginia. They are first cousins. Marriage between first cousins was then (and is now) valid in Virginia. See Va.Code Ann. §§ 20-38.1 (1978) and 20-45.1 (1975) (statutes listing void and prohibited marriages do not include marriage between first cousins); Va.Code Ann. §§ 20-38.1 and 20-45.1 (West, WESTLAW through 2004 Spec. Sess. II) (same). The parties have one minor child, born July 11, 1986.

¶ 4 In 1989 the parties moved to Arizona. Arizona's statutory scheme (then and now) provides that a marriage between first cousins in Arizona is "void." A.R.S. § 25-101.² However, when the Cooks moved to Arizona, our law also provided that "[m]arriages valid by the laws of the place where contracted are valid in this state." Arizona Code of 1939, § 63-108 (currently codified as A.R.S. § 25-112(A)) (emphasis added). Effective July 20, 1996, the legislature amended § 25-112(A) to add the phrase, "except marriages that are void and prohibited by § 25-101." 1996 amendments. The text of A.R.S. § 25-112, with the 1996 amendments in bold, is as follows:

A. Marriages valid by the laws of the place where contracted are valid in this state, except marriages that are void and prohibited by § 25-101.

B. Marriages solemnized in another state or country by parties intending at the time to reside in this state shall have the same legal consequences and effect as if solemnized in this state, except marriages that are void and prohibited by § 25-101.

C. Parties residing in this state may not evade the laws of this state relating to marriage by going to another state or country for solemnization of the marriage.

A.R.S. § 25-112. Thus, under the plain language of § 25-112(A), the Cook's marriage was "valid" in Arizona in 1989 (when they moved here) but subsequently declared "void" by the 1996 amendments.

¶ 5 On January 3, 1997, appellant filed a petition for marital dissolution in the superior court. Though initially alleging there was a marriage, appellant subsequently filed a motion to amend/dismiss dissolution proceedings alleging that the parties' marriage was void and prohibited under A.R.S. §§ 25-101 and -112(A). The trial court denied the motion. It held, in part, that Arizona law prior to the 1996 amendments did not preclude recognition of a marriage valid in other states that was void in Arizona pursuant to § 25-101. It then reasoned that because the law prior to the 1996 amendments permitted recognition of the first cousin marriage in this circumstance, the 1996 amendments could not be retroactively applied to void a marriage that was valid at the time the parties moved to Arizona.

¶ 6 After denial of the motion, trial ensued. The trial court entered various orders as to property, spousal maintenance, and other issues. Appellant timely appealed. The only issue we take up in this opinion is that of the validity of the marriage.

II.

¶ 7 The first question we must decide is whether the validity of the marriage should be determined under Arizona or Virginia law. If determined under Virginia law, the marriage is valid; if determined under Arizona law, we are presented with statutory and constitutional issues as to whether the marriage is valid. It is unnecessary to address those issues if Virginia law applies. When the material facts, as here, are uncontested this question is a matter of law which we determine de novo. Swanson v. Image Bank, Inc., 206 Ariz. 264, 266,

¶ 6, 77 P.3d 439, 441 (2003) ("Choice-of-law issues are questions of law, which we decide de novo.").

¶ 8 With a significant exception applicable here, Arizona follows the general rule that it is the law of the place where the marriage is celebrated, not the law of the place where the divorce takes place, that determines the validity of the marriage. Horton v. Horton, 22 Ariz. 490, 494, 198 P. 1105, 1107 (1921) (recognizing the "common-law rule" that when "[c]onsidered merely as a contract, [a marriage] is valid everywhere if entered into according to the lex loci.")³. As our supreme court has stated:

It is the general rule of law that a marriage valid under the laws of the country where contracted will be recognized as valid everywhere. The question of the validity of the marriage, therefore, depends upon the place where it is contracted, and not the place where an action for divorce is brought.

Gradias v. Gradias, 51 Ariz. 35, 36-37, 74 P.2d 53, 53 (1937) (citation omitted). The reasons for this rule have been described as the "predictability and the interstate order arising from society's interest in marriage."

Vandever v. Indus. Comm'n, 148 Ariz. 373, 376, 714 P.2d 866, 869 (App.1985) (citation omitted).

¶ 9 Just as enduring as the general rule, however, has been Arizona's exception to that rule; namely, that the power to define a valid marriage is vested in this state's legislature and not in the legislature (or judiciary) of another state nor in the judiciary of this state. Horton, 22 Ariz. at 495-96, 198 P. at 1107; Vandever, 148 Ariz. at 376-77, 714 P.2d at 869-70. Our supreme court described that power as follows:

The Legislature undoubtedly had the power to enact what marriages shall be void in this state, notwithstanding their validity in the state where celebrated, whether contracted between parties who were in good faith domiciled in the state where the ceremony was performed, or between parties who, being domiciled in this state, left the state for the purpose of avoiding its statutes and married.

Horton, 22 Ariz. at 495, 198 P. at 1107 (emphasis added). Thus, we have long recognized that the legislature of this state, notwithstanding the general rule, may declare what marriages are valid (or void) in Arizona even if the marriage pertains to persons "who were in good faith domiciled in the state where the ceremony was performed" and the marriage is valid in that state.

¶ 10 Of course, as with all exercises of legislative power, the legislature's enactments on this subject are subject to the limitations of the United States and the Arizona Constitutions. U.S. Const. art. VI, cl. 2 (Supremacy Clause); Ariz. Const. art. 2, § 3 ("The Constitution of the United States is the supreme law of the land."); Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2 L.Ed. 60 (1803); Cohen v. State, 121 Ariz. 6, 588 P.2d 299 (1978) (declaring legislation invalid based on constitutional grounds); see also Standhardt v. Superior Court, 206 Ariz. 276, 77 P.3d 451 (App.2003)

(concluding that Arizona's legislative enactment limiting marriage to one man and one woman was constitutional). Thus, absent constitutional considerations, our cases hold that the parameters of marriage in Arizona — whether originally contracted in this state or elsewhere — are a matter for the people of Arizona acting through the legislature or by direct mandate. Those parameters are not a matter for the people, legislature, or courts of another state.

¶ 11 In considering the choice-of-law issues surrounding out-of-state marriages, it is important to consider Arizona's treatment of the pertinent principles set forth in the Restatement (Second) of Conflict of Laws (1971) ("Restatement") pertaining to marriage. While Arizona invokes some principles from the Restatement, we do not follow it in certain significant regards. Specifically, Restatement § 283(1) and (2) both invoke the element of which state had "the most significant relationship" to the parties at the time of the marriage in determining which state's law to apply. Section 283(1) provides that "[t]he 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 under the principles stated in § 6." Section 6(1) then provides as follows: "A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law." (Emphasis added.) This principle from § 6(1) giving preeminence to the legislative pronouncement of "its own state" is consistent with Horton, and subsequent authorities. See, e.g., Vandever, 148 Ariz. at 376-77,

714 P.2d at 869-70. Arizona law follows § 6(1).

¶ 12 Section 283(2) of the Restatement, however, does not include this deference to the legislature of the forum state. It states the general rule that "[a] marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid." Unless the legislature has declared otherwise, Arizona follows this formulation of the general rule. Supra ¶¶ 8-9. Arizona does not, however, follow the exception stated in § 283(2).

¶ 13 The exception that Restatement § 283(2) provides to the general rule is based on the policy of the state with the "most significant relationship." Section 283(2) applies the general rule "unless it violates the strong public policy of another state which had the most...