In re Marriage of J.M.H. and Rouse, 04CA0740.
| Citation | 143 P.3d 1116 |
| Decision Date | 15 June 2006 |
| Docket Number | No. 04CA0740.,04CA0740. |
| Parties | In re the MARRIAGE OF J.M.H., Appellee, and Willis ROUSE, Appellant, and Concerning Weld County Department of Human Services, Petitioner-Appellee. |
| Court | Court of Appeals of Colorado |
No Appearance for Appellee.
Willis Rouse, Pro Se.
Bruce T. Barker, County Attorney, Jim L. Pope, Assistant County Attorney, Greeley, Colorado, for Petitioner-Appellee.
Opinion by Judge TAUBMAN.
Willis Rouse appeals from the judgment declaring invalid his April 2003 attempted marriage to J.M.H. We reverse and remand.
According to Rouse, he and J.M.H. began living together in April 2002. In April 2003, when J.M.H. was fifteen years old, they applied for a marriage license in Adams County. Rouse also asserts that, although J.M.H. was subject to a dependency and neglect proceeding brought by the Weld County Department of Human Services, she had become emancipated.
J.M.H.'s mother offered her signed and notarized consent to the marriage, and accompanied Rouse and J.M.H. to the county clerk's office to obtain a marriage license. The deputy clerk approved the application and forwarded it to the county clerk for registration. The county clerk also approved the application and mailed it back to Rouse and J.M.H., stating that they were fully registered as a legally married couple as of April 28, 2003.
In February 2004, the Department filed a petition to declare the marriage invalid, asserting that J.M.H. was fifteen, that the application was not approved by a parent, that the Department had custody of J.M.H., that Rouse was incarcerated and awaiting trial on a charge of sexual assault on a child, and that he was serving a sentence for escape and parole violation.
Rouse responded by asserting that he and J.M.H. were legally married at common law and, in the alternative, that they had a valid ceremonial marriage because they had obtained a marriage license in Adams County.
The trial court granted the petition, after a hearing at which Rouse appeared by telephone from the county jail. The court held that a person under the age of sixteen must obtain judicial approval for a valid common law or ceremonial marriage. This appeal followed.
Rouse contends that the trial court erred in holding that a person under the age of sixteen must seek judicial approval to be married, even if that marriage is at common law. We agree.
Initially, we note that J.M.H. is now over the age of eighteen. Nevertheless, the Department asserts that the validity of her marriage is not moot because she is still the subject of a dependency and neglect petition before the Weld County District Court.
The Uniform Marriage Act (UMA), § 14-2-101, et seq., C.R.S.2005, sets forth the rules and requirements for ceremonial marriages in Colorado. The UMA reflects the legislative purposes of strengthening and preserving the integrity of marriage and safeguarding meaningful family relationships. Section 14-2-102, C.R.S.2005. The act provides procedures for the solemnization and registration of marriages. See § 14-2-104, C.R.S.2005 (formalities); § 14-2-105, C.R.S. 2005 (); § 14-2-108, C.R.S.2005 (judicial approval); § 14-2-110, C.R.S.2005 (prohibited marriages).
The UMA provides that "[n]othing in this section shall be deemed to repeal or render invalid any otherwise valid common law marriage between one man and one woman." Section 14-2-104(3), C.R.S.2005.
The statutory age of consent for marriage in Colorado is eighteen. Section 14-2-106(1)(a)(I), C.R.S.2005. Nevertheless, persons between sixteen and eighteen years of age may marry if they obtain parental consent, or, if that is not possible, judicial approval. Section 14-2-108.
Section 14-2-108(1), C.R.S.2005, states that:
The juvenile court . . . after a reasonable effort has been made to notify the parents or guardian of each underaged party, may order the county clerk and recorder to issue a marriage license and a marriage certificate form . . . [t]o a party aged sixteen or seventeen years who has no parent or guardian, or who has no parent capable of consenting to his [or her] marriage, or whose parent or guardian has not consented to his [or her] marriage. . . .
Section 14-2-108(1)(b), C.R.S.2005, states that a person under the age of sixteen may receive judicial approval to marry if that person "has the consent to his or her marriage of both parents, if capable of giving consent, or his or her guardian or, if the parents are not living together, the parent who has legal custody or decision-making responsibility concerning such matters or with whom the child is living." See also § 14-2-106(1)(a)(I) ().
Colorado is also one of several states, along with the District of Columbia, that still recognize common law marriages. Sonya C. Garza, Common Law Marriage: A Proposal for the Revival of a Dying Doctrine, 40 New Eng. L.Rev. 541, 545 (2006). The jurisdictions that recognized common law marriage are Alabama, Colorado, District of Columbia, Idaho, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, and Utah. Garza, supra, at 545 n. 27. However, Pennsylvania recently decided not to recognize common law marriages allegedly contracted after January 1, 2005. 23 Pa. Cons.Stat. § 1103.
Common law, not the UMA, governs the existence of a common law marriage. See People v. Lucero, 747 P.2d 660 (Colo. 1987); In re Marriage of Phelps, 74 P.3d 506 (Colo.App.2003). Essentially, in a common law marriage, two persons create a valid marital relationship without the benefit of a legal marriage ceremony performed according to statutory requirements. Denise K. Mills, Common Law Marriage in Colorado, 16 Colo. Law. 252 (Feb.1987).
Colorado appellate courts have not determined the age of consent for a valid common law marriage. Thus, for guidance, we look to the origins of common law in Colorado and decisions from other jurisdictions discussing the age of consent for common law marriage.
"The common law of England so far as the same is applicable and of a general nature . . . shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority." Section 2-4-211, C.R.S.2005; see Bertrand v. Bd. of County Comm'rs, 872 P.2d 223, 226 n. 4 (Colo.1994); see also Wagner v. Hilkey, 914 P.2d 460 (Colo.App.1995)(except to extent it is repealed either expressly or by passage of inconsistent legislation, common law of England prevails in Colorado), aff'd sub nom. Wagner v. Bd. of County Comm'rs, 933 P.2d 1311 (Colo.1997).
Although courts acknowledge and respect the General Assembly's authority to modify or abrogate common law, such changes will not be recognized unless they are clearly expressed. Vigil v. Franklin, 103 P.3d 322 (Colo.2004). Therefore, absent clear legislative intent, the common law prevails in any conflict with statutory law. Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70 (Colo.1998).
Similarly, the United States Supreme Court has held that common law marriages are valid, notwithstanding statutes that require ceremonial marriages to be solemnized by a minister or a magistrate, if no specific provision to the contrary exists. Meister v. Moore, 96 U.S. 76, 24 L.Ed. 826 (1877). As the Court explained, "No doubt, a statute may take away a common-law right; but there is always a presumption that the legislature has no such intention, unless it be plainly expressed." Meister v. Moore, supra, 96 U.S. at 79. The Court contrasted the Michigan statute at issue with statutes in North Carolina and Tennessee, which specified that all marriages solemnized without the parties' obtaining a marriage license beforehand were null and void.
The Meister Court cited with approval Parton v. Hervey, 67 Mass. (1 Gray) 119 (1854), in which the court held valid and binding a marriage of a girl only thirteen years old, married without parental consent, notwithstanding a statute prohibiting clergymen and magistrates from solemnizing a marriage of females under the age of eighteen without the consent of parents or guardians. The Meister Court continued:
But, in the absence of any provision declaring marriages not celebrated in a prescribed manner, or between parties of certain ages, absolutely void, it is held that all marriages regularly made according to the common law are valid and binding, though had in violation of the specific regulations imposed by statute.
Meister v. Moore, supra, 96 U.S. at 80. (Emphasis added; quoting Parton v. Hervey, supra.]
Other jurisdictions have followed this approach, holding that, if common law marriage is to be abolished, or the requirements for entering into it changed, this modification must be made by the legislature, not the courts. See, e.g., In re Miller, 301 Pa.Super. 511, 448 A.2d 25 (1982). Furthermore, an act that does not refer to common law marriages specifically cannot be presumed to abrogate or modify the common law in this respect. Buradus v. Gen. Cement Prods. Co., 356 Pa. 349, 52 A.2d 205, 208 (1947).
Similarly, statutes prescribing the procurement of a license and other formalities to be observed in the solemnization of a marriage do not render invalid a marriage entered into according to the common law, but not in conformity with the statutory formalities, unless the statutes themselves expressly declare such a marriage invalid. State v. Ward, 204 S.C. 210, 28 S.E.2d 785 (1944); see also Adams v. Boan, 559 So.2d 1084, 1087 (Ala.1990)(statute requiring person under the age of eighteen to acquire consent of parents before marriage not applicable to common law marriage in action for distribution of marital property).
Regarding the age of consent for common law marriage specifically, courts in other jurisdictions have uniformly declared that the common law age of consent applies to common law...
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