Kelley v. Kelley

• Decision Date: 03 August 2000
• Docket Number: No. 990711-CA.,990711-CA.
• Citation: 2000 Utah Ct. App. 236,9 P.3d 171
• Parties: Sonia KELLEY, Petitioner and Appellee, v. Wayne KELLEY, Respondent and Appellant.
• Court: Utah Court of Appeals

9 P.3d 171

2000 Utah Ct. App. 236

Sonia KELLEY, Petitioner and Appellee, v. Wayne KELLEY, Respondent and Appellant.

No. 990711-CA.

Court of Appeals of Utah.

August 3, 2000.

Ellen Maycock, Kruse Landa & Maycock, Salt Lake City, for Appellant.

James C. Haskins and Thomas N. Thompson, Haskins & Associates, Salt Lake City, for Appellee.

Before Judges GREENWOOD, JACKSON, and DAVIS.

DAVIS, Judge:

¶ 1 Respondent Wayne Kelley appeals the trial court's orders pertaining to his relationship with petitioner Sonia Kelley. For the reasons discussed below, we affirm in part, reverse in part, and remand for further proceedings consistent with this decision.

BACKGROUND

¶ 2 Sonia and Wayne married on May 24, 1980 and subsequently had two children. During their marriage, Wayne worked in the construction industry. Wayne founded Altex Construction in Alaska and owned a majority interest in another company, DSI. Wayne's work required him to make extended stays away from home, during which he occasionally rented an apartment.

¶ 3 In 1994, the terms of a purchase by DSI of another company placed Wayne's personal assets at risk. To minimize this risk and protect the family home, Wayne and Sonia agreed to divorce, transfer title to Sonia individually, but continue to live as husband and wife. Accordingly, Sonia and Wayne obtained a divorce decree entered on July 18, 1994.

¶ 4 This decree provided that Sonia was awarded primary custody of the children, Wayne was to pay child support totaling $1,000 per month, and Sonia was "awarded the sum of not less than $1,000.00 per month as alimony from [Wayne], said alimony to continue for three years, or until [Sonia] remarries, or until terminated by statute, whichever shall occur first." Among the property distributed, Sonia was awarded the marital residence in Bountiful, Utah, and two automobiles. Wayne was awarded all other real property, one automobile, and his personal effects.

¶ 5 Following their 1994 divorce, Wayne and Sonia made no change in their predivorce relationship or living arrangements. Wayne and Sonia continued to cohabit, subject to the traveling demands of Wayne's work, which included obtaining an apartment in Texas. They did not tell their children or anyone else in the community that they had divorced. Their financial relationship remained the same, with Wayne providing funds "at the same standard of living which had existed prior to the entry of the Decree of Divorce."¹ They continued to socialize together, including attending a Christmas party in 1994 and taking a family vacation in 1995. In May 1995, Wayne gave Sonia an anniversary card indicating he loved her and wished to spend another fifteen years together.

¶ 6 In the fall of 1995, Sonia became suspicious that Wayne was romantically involved with another woman. With Wayne's assurance that the relationship was over, however, Wayne and Sonia reconciled—until a few months later. In the spring of 1996, Sonia discovered that Wayne had continued his relationship with the other woman, which precipitated a May 1996 altercation. Wayne subsequently cut off financial support for Sonia and Sonia sought legal counsel.

¶ 7 On July 10, 1996, Sonia moved to modify the divorce decree, asserting such decree was fraudulently obtained and that "[s]ince the entry of the Decree of Divorce, [Wayne] has fully supported the family by paying over to [Sonia] the approximate sum of $7,500 each month" but that said support had ceased. The court entered a temporary order which provided, inter alia, that Sonia have custody of the children, Wayne make child support and alimony payments totaling $6,000 per month, and that Wayne pay $5,000 in temporary attorney fees. Also on July 10, 1996, Sonia filed a separate action to establish a common law marriage between her and Wayne effective on the day the decree was entered, July 18, 1994, and to obtain a divorce therefrom. This second proceeding was consolidated with the first. In July 1997, Sonia filed another separate action against Wayne seeking damages for fraud and other claims, which was likewise consolidated into the divorce/modification proceedings.

¶ 8 Before the matter came for trial, on August 18, 1997, Wayne moved for partial summary judgment, arguing that there can be no establishment of a common law marriage following the 1994 divorce because no such adjudication or determination was obtained within one year of the relationship's termination as required by section 30-1-4.5(2) of the Utah Code. See Utah Code Ann. § 30-1-4.5 (1998). The trial court agreed that no timely determination was made, but concluded that the one year time restriction was unconstitutional. Specifically, the court concluded that although the restriction did not run afoul of the Open Courts Clause, see Utah Const. art. I, § 11, it did violate the Uniform Operation of Laws Clause. See Utah Const. art. I, § 24. Consequently, the court denied Wayne's motion for partial summary judgment.

¶ 9 The matter was addressed during a bench trial, after which the trial court made factual findings. Regarding the existence of a common law marriage, the court's findings included the following:

9. ... [Wayne] proposed that the parties should enter into a divorce so that the home could be placed in [Sonia's] name to protect it from potential of [sic] creditors.... He represented to [Sonia] that the parties were not going to be separated and that nothing would change from how they had lived before.

10. During the Spring and Summer of 1994, the parties agreed to and did enter into a divorce action, resulting in a divorce being entered on the 18th day of July, 1994, in the District Court of Davis County.... The Court finds that the agreement between the parties to divorce was an agreement for a non-traditional divorce which created a legal fiction only, designed to protect the residence of the parties from the threat of creditors.

11. ... Both of the parties attended a parenting class and the Court accepts the testimony of Dr. Marty Hood and finds it is credible that during the intermission halfway through the parenting class, [Wayne] approached her and told her that the divorce the parties were going through was only a business thing and that the children would never know there was even going to be a divorce and that there was no real need for them to continue to attend the class on how to deal with the children in a divorce situation. He further told her that there was not going to be a separation....

....

16. Prior to the divorce the standard of living of the parties was one in which respondent would give to petitioner $7,500 a month to pay bills. This arrangement had existed for some substantial period of time....

17. Following the entry of the Decree of Divorce in July, 1994, there was no change in the relationship of the parties and in their living arrangements. The parties continued to live the same as they had prior to the divorce. Title to marital residence was not transferred until after this action was filed. The title to the Kodiak property was never transferred. The parties continued to maintain a joint checking account. The parties filed a joint 1994 income tax return, reflecting that they were husband and wife as of the end of 1994.² The parties continued to cohabit with sexual relations. The children, who at that time were nine and three and one-half years of age, were never told about any changes in their parents' relationship.

18. In July, 1994, the parties appeared at a counseling class and told the counselor that this divorce was only for business purposes and that the children would never know that the parties were divorced. The parties continued to socialize together; they attended a Christmas party together in December 1994, each held the other out as a married couple. No one in the community was told of the divorce at that time. During this time, respondent maintained an apartment in Texas.

.....

20. In May 1995, [Wayne] sent petitioner an anniversary card in which he indicated he loved her and a wish for another 15 years....

21. In the summer of 1995, as part of a family vacation, the parties traveled to Mexico, shared a room[,] and had sexual relations.

....

24. During the entire period from the entry of the Decree of Divorce[,] the financial relationship remained the same and [Wayne] provided [Sonia] with funds at the same standard of living which had existed prior to the entry of the Decree of Divorce.

....

27. The Court finds that as of the entry of the Decree of Divorce on July 18, 1994, [Sonia] knew that they would have to remarry. As of that day, the parties were unmarried. They continued their marital relationship, they continued to cohabit, they continued to treat each other as married, they had joint checking accounts, and [Wayne] maintained all of his personal property at the marital residence. The parties filed joint income tax returns for the 1994 year. [Wayne] sent [Sonia] money from which she serviced joint debts. The parties maintained joint credit cards. The parties held themselves out as married in the area of their domicile in Davis County, and in that area of the domicile had the reputation of being married. They held themselves out to their children as married. The parties continued to cohabit and hold each other out as spouse through April of 1996. The parties had a reputation in the community for being married and all of these actions arise out of a contract between two consenting parties.

The court further determined that Wayne had the current ability to produce $10,000 per month in income.

¶ 10 Through its findings and conclusions and the new divorce decree, both entered July 22, 1999, the trial court concluded: (1) that Sonia's action based upon fraud must fail; (2) that the parties entered a common law marriage which "commenced immediately following the entry of the Decree of Divorce" on July 18, 1994, and terminated in June 1996; and (3) that there was a change of...