Estate of Perez, In re, 84-719

• Decision Date: 21 May 1985
• Docket Number: No. 84-719,84-719
• Citation: 470 So.2d 48,10 Fla. L. Weekly 1280
• Parties: 10 Fla. L. Weekly 1280 In re ESTATE OF Gregorio Armando PEREZ, Deceased. Amanda Perez LOPEZ and Julia Perez, Appellants, v. Elsa Lopez PEREZ, Appellee.
• Court: Florida District Court of Appeals

Page 48

470 So.2d 48

10 Fla. L. Weekly 1280

In re ESTATE OF Gregorio Armando PEREZ, Deceased.

Amanda Perez LOPEZ and Julia Perez, Appellants, v. Elsa Lopez PEREZ, Appellee.

No. 84-719.

District Court of Appeal of Florida,

Third District.

May 21, 1985.

Rehearing Denied June 24, 1985.

Horton, Perse & Ginsberg and Mallory H. Horton, Simon, Schindler & Hurst and Thomas Martin Pflaum, Miami, for appellants.

Pestcoe, Slotnick & Garcia and Michael Slotnick, Coral Gables, for appellee.

Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.

FERGUSON, Judge.

Amanda Perez Lopez and Julia Perez appeal from an order declaring the marriage of Elsa Lopez Perez to decedent Gregorio Armando Perez to be valid, revoking letters of administration issued to Amanda, and appointing Elsa the personal representative of Gregorio's estate.

Gregorio died intestate in November, 1983. Amanda, who is the daughter of Gregorio and his first wife Julia, was appointed personal representative of Gregorio's estate and letters of administration were issued to her by the trial court. Elsa became involved in the proceedings when she moved to be substituted for Amanda as the personal representative, asserting that she was the decedent's lawful wife based on a 1981 Peruvian marriage certificate.

The question we address is whether Julia, first wife of the decedent, presented sufficient evidence to overcome the presumption of the validity of the second marriage to Elsa.

Julia married Gregorio in 1949 in the province of Mantanzas, Cuba. Their child, Amanda, was born in 1950. The family came to the United States in 1961 and lived for nine months in Dallas, Texas. The parties thereafter established residence in Dade County, Florida. Gregorio's import/export business required him to travel extensively throughout the world, especially in Latin America. He maintained offices in Lima, Panama and purportedly in Mexico City as well. Gregorio supported Julia until his death and lived with her when he was not traveling abroad.

Elsa married Gregorio in Peru in 1981. According to Elsa, Gregorio had told her that he was divorced. On the Peruvian marriage certificate, however, Gregorio indicated that he had never been married. He also misrepresented himself as a Cuban national even though he and Julia had acquired United States citizenship. Gregorio and Elsa were married in both a civil ceremony and a Catholic church ceremony, the latter being impermissible for a divorced individual without a special dispensation from the church. Gregorio and Elsa maintained two residences, one in Lima, Peru, and the other in Trujillo, Peru.

After Gregorio died in 1983 and Amanda was appointed personal representative of his estate, Elsa subsequently appeared and sought to be substituted as personal representative. A trial was conducted to determine which of the women was Gregorio's lawful wife at the time of his death.

In order to rebut the common law presumption of validity attaching to a second marriage, Julia testified that she never received notice of a divorce proceeding filed against her in any jurisdiction and that Gregorio had held himself out as her husband until he died. Julia introduced as evidence "no-divorce" certificates from Florida and Texas where she and Gregorio had maintained marital residences. She also introduced a certificate from the civil registry of the South District of Mantanzas, Cuba, dated December 15, 1959, setting forth the date of Gregorio's birth and of his marriage to Julia. A former attorney from Cuba testified that marriages and divorces, if they occurred anywhere in Cuba, would be recorded on the certificate. Finally, Julia presented the testimony of a Peruvian attorney to the effect that it would not be possible to obtain a divorce in Peru without the wife's participation, and further that because Peru has no central registry, one would have to check the records of each province to determine if an individual has obtained a divorce in Peru. The trial court expressed reluctance as to the fairness of the result but entered an order finding that Elsa was the lawful wife of the decedent based on what he determined to be the requirements of law.

Julia and Amanda appeal from that order, contending alternatively that (1) this court should recede from the case law attaching a presumption of validity to the second marriage as applied to the unique factual situation where the decedent has lived abroad and traveled extensively, or (2) that the evidence presented by Julia adequately discharged her burden of proof in rebutting the presumption of validity attaching to the second marriage.

It is said the presumption of validity that attaches to a second marriage is one of the strongest presumptions known to the law. Teel v. Nolen Brown Motors, Inc., 93 So.2d 874, 876 (Fla.1957); Perkins v. Richards Constructors, Inc., 111 So.2d 494, 496 (Fla. 2d DCA 1959). The Teel court defined the burden of proof required to discharge this presumption:

While the alleged first wife is not required to eliminate every remote possibility that a divorce might have been secured by her husband, it is necessary that she tender evidence which when weighed collectively establishes the absence of a reasonable probability that her husband actually secured the divorce.

93 So.2d at 876. [e.s.] More specifically, a first wife must show that no divorce was issued in any of the counties in which the husband lived. Roberts v. Roberts, 124 Fla. 116, 167 So. 808 (1936).

The Florida Supreme Court has indeed held the spouse of a first marriage, who seeks to disprove a valid second marriage, to a strict requirement of an exhaustive search of the public records in each state where the other spouse resided. Teel, 93 So.2d 874 (burden not met); Perkins, 111 So.2d 494 (burden met). The two cases of King v. Keller illustrate that the fact that a decedent lived in many places does not relieve the first wife from searching the public records in every one of those places. In King v. Keller, 117 So.2d 726 (Fla.1960), the first wife produced "no-divorce" statements from several states and counties where the decedent had lived, including municipalities in South Carolina, Louisiana, Ohio, Florida, Washington, and California. The second wife testified, however, that the deceased told her he had also lived in Oregon, Mexico, Pennsylvania, Arizona, Canada, and Utah. Because...