Goode v. Goode

• Decision Date: 20 July 1990
• Docket Number: No. 19439,19439
• Citation: 396 S.E.2d 430,183 W.Va. 468
• Court: West Virginia Supreme Court
• Parties: , 59 USLW 2228 Martha Louise GOODE v. Carl Edward GOODE.

Page 430

396 S.E.2d 430

183 W.Va. 468, 59 USLW 2228

Martha Louise GOODE v. Carl Edward GOODE.

No. 19439.

Supreme Court of Appeals of West Virginia.

July 20, 1990.

Syllabus by the Court

1. "Common-law marriages, when contracted in this State, are not recognized by our courts as valid." Syl. pt. 1, Beverlin v. Beverlin, 29 W.Va. 732, 3 S.E. 36 (1887).

2. Pursuant to the statutory requirements of W. Va.Code, 48-1-5 [1969], every marriage in this state must be solemnized under a license. Therefore, the validity of a common-law marriage is not recognized.

3. A court may order a division of property acquired by a man and woman who are unmarried cohabitants, but who have considered themselves and held themselves out to be husband and wife. Such order may be based upon principles of contract, either express or implied, or upon a constructive trust. Factors to be considered in ordering such a division of property may include: the purpose, duration, and stability of the relationship and the expectations of the parties. Provided, however, that if either the man or woman is validly married to another person during the period of cohabitation, the property rights of the spouse and support rights of the children of such man or woman shall not in any way be adversely affected by such division of property.

Daniel F. Hedges, Hamlin, William W. Carter, Charleston, for Martha L. Goode.

Carl Edward Goode, Hamlin, for Carl E. Goode.

McHUGH, Justice:

This case is before the Court upon two certified questions from the Circuit Court of Lincoln County. The plaintiff is Martha Louise Goode. The defendant is Carl Edward Goode. ¹

I

The plaintiff filed a divorce action in the Circuit Court of Lincoln County based upon irreconcilable differences and mental and physical cruelty. ² However, the plaintiff and defendant's "marriage" was not the result of a formal ceremony, nor is there a marriage license to substantiate the plaintiff's claim that a marriage exists.

Rather, the plaintiff alleges that her marriage to the defendant is based upon the following, as found by the circuit court: (1) the plaintiff and defendant orally agreed to be "married" for life, on June 24, 1961; (2) the parties agreed to pool their resources, to share equally in marital property, and to provide lifelong mutual financial and emotional support to each other; (3) the parties have lived together for 28 years, from June, 1961, to July, 1989; (4) the parties held themselves out to be married for 28 years, and were regarded by others in the community to be husband and wife; (5) the parties had four children together and (6) the parties purchased real property, jointly, as a married couple, on three separate occasions. Each separate deed makes reference to "Carl E. Goode and Martha L. Goode, Husband and Wife."

On July 18, 1989, the defendant left the parties' most recent residence.

The plaintiff is 47 years old, and the defendant is 61 years old. The plaintiff contends that she should be entitled to an "equitable distribution" of the property acquired over the 28 years of her relationship with the defendant. Furthermore, the plaintiff would be entitled to Social Security benefits for which the defendant would be eligible, in the event their "marriage" is legally recognized. See 42 U.S.C. § 416(h)(1)(A) (1988). ³

The circuit court opined that questions of law pertaining to common-law marriage must be answered, and, therefore, certified the following two questions to this Court:

1. Whether or not a common law marriage can arise by operation of law in the State of West Virginia, and if so, what are the elements of a valid common law marriage?

2. If a common law marriage is not recognized by West Virginia law, or if recognized and not found in fact to exist between the parties by the trial court in this case, whether a Court may award support and/or order equitable distribution of property between a man and a woman who have lived together as husband and wife but lack the ceremonial and licensing formalities of a legal marriage?

The circuit court further opined that both certified questions should be answered in the negative.

II

We begin by addressing the first of the questions certified to us by the circuit court, that is, whether or not a common-law marriage can arise by operation of law in this state.

In Beverlin v. Beverlin, 29 W.Va. 732, 3 S.E. 36 (1887), this Court considered the issue of common-law marriage, and, in syllabus point 1 of that case, held that "[c]ommon-law marriages, when contracted in this State, are not recognized by our courts as valid."

In Beverlin, at issue was W.Va.Code ch. 63, § 6 [1868], which provided:

Every marriage in this state shall be under a license, and solemnized in the manner herein provided; but no marriage solemnized by any person professing to be authorized to solemnize the same shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected, on account of any want of authority in such person, if the marriage be in all other respects lawful, and be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage, nor shall any marriage celebrated within this State, between the 17th day of April, 1861, and the 1st day of January, 1866, be void by reason of the same having been solemnized without such license.

(emphasis supplied)

The statute at issue in Beverlin has since been amended, and is now codified as W.Va.Code, 48-1-5 [1969]. Simply stated, that statute provides: "Every marriage in this State shall be solemnized under a license as provided in this article." ⁴

The Beverlin Court interpreted W.Va.Code ch. 63, § 6 as requiring a marriage license, holding that that statute's language was mandatory as opposed to directory. Placing great weight upon the qualifying provisions of W.Va.Code ch. 63, § 6 [1868], the Court pointed out:

The statute, under consideration, in express words declares, that 'every marriage in this State shall be under a license and be solemnized in the manner herein provided.' It is possible that these words, standing alone, should, under the general rule just stated, be interpreted as merely directory. But the statute does not stop here. It qualifies these words by provisions which would be wholly useless and unnecessary, if it were intended and should be held that the preceding provisions are simply directory. It is declared that certain marriages shall not 'be deemed or adjudged void,' because the person solemnizing them did not in fact have authority to do so. It also declares that certain other marriages shall not be void, because they were solemnized without a license.... It is apparent that the legislature must have interpreted the statute as making the excepted marriages null and void without the excepting clauses, for otherwise the exceptions would be useless and would not have been made. The introduction of the exceptions is necessarily exclusive of all other independent, extrinsic exceptions.

29 W.Va. at 738-39, 3 S.E. at 39-40.

The plaintiff contends that because the legislature has since removed the qualifying provisions found in the previous version of W.Va.Code, 48-1-5, then the licensing statute is now directory, and not mandatory. We do not agree with this contention.

The qualifying provisions found in the previous version of W.Va.Code, 48-1-5 are now contained in W.Va.Code, 48-1-15 [1931]. Consequently, it is obvious that the legislature intended to retain these provisions as a part of this state's marriage statutes.

The plaintiff also points out that "the great weight of authority holds that marriage license statutes are merely directory [, and not mandatory]." DePotty v. DePotty, 226 Ark. 881, 883, 295 S.W.2d 330, 331 (1956). See Meister v. Moore, 96 U.S. 76, 80, 24 L.Ed. 826, 827 (1878); Carabetta v. Carabetta, 182 Conn. 344, 350, 438 A.2d 109, 112 (1980); In re Parsons, 44 Del. 406, 412-13, 59 A.2d 709, 712 (Super.Ct.1948); annotation, Validity of Solemnized Marriage as Affected by Absence of License Required by Statute, 61 A.L.R.2d 847 (1958).

"In accordance with this [general] rule it has been held that a valid common-law marriage may be entered into without first obtaining a license pursuant to statute." 55 C.J.S. Marriage § 24, at 857 (1948) (and cases cited therein).

This general rule, however, does not support the claim of the plaintiff in this case, that the validity of a common-law marriage should be recognized simply because the legislature has removed the qualifying provisions from W.Va.Code, 48-1-5. Two reasons stand in the way of the plaintiff's contention in this regard.

First, the general rule that a marriage license statute is merely directory does not per se give rise to the recognition of the validity of a common-law marriage. Rather, this concept relates to "whether a valid marriage results when there is a ceremony without a license, or without a valid license[.]" 1 H. Clark, The Law of Domestic Relations in the United States § 2.3, at 94 (2d ed. 1987) (emphasis supplied). See also DePotty, Carabetta, and Parsons, wherein there was a failure to obtain a license or the license obtained was defective, but there was a marriage ceremony nonetheless. In this case, there was no marriage ceremony.

Second, and more importantly as it pertains to this jurisdiction, in Kisla v. Kisla, 124 W.Va. 220, 19 S.E.2d 609 (1942), this Court expressly held that W.Va.Code, 48-1-5 is mandatory. Id. 124 W.Va. at 223, 19 S.E.2d at 610.

Alternatively, the plaintiff urges us to reexamine this Court's decisions in Beverlin and Kisla, maintaining that contemporary disapproval of common-law marriage is rooted not in the mores of today, but in outmoded nineteenth century morality which condemned nonmarital cohabitation.

Specifically, the plaintiff cites recent decisions of this Court as examples of how we have abandoned "outdated notions" with respect to the...