Pinkhasov v. Petocz, 2008–CA–002420–MR.

• Decision Date: 28 January 2011
• Docket Number: No. 2008–CA–002420–MR.,2008–CA–002420–MR.
• Citation: 331 S.W.3d 285
• Parties: Daniel PINKHASOV, Appellant,v.Anna PETOCZ, Appellee.
• Court: Kentucky Court of Appeals

331 S.W.3d 285

Daniel PINKHASOV, Appellant,

v.Anna PETOCZ, Appellee.

No. 2008–CA–002420–MR.

Court of Appeals of Kentucky.

Jan. 28, 2011.

Allen McKee Dodd, Louisville, KY, for appellant.J. Michael Smither, Louisville, KY, for appellee.Before NICKELL, MOORE and WINE, Judges.

OPINION

NICKELL, Judge:

Daniel Pinkhasov appeals from two orders of the Jefferson Circuit Court, Family Court Division, holding that he and Anna Petocz had entered into a legally valid de facto marriage on July 10, 2005. The trial court found “no statutes relating to marriage that would indicate that the legislature intended that the validity of a marriage is conditioned on applying for, obtaining, signing, or filing a certificate of marriage license” and held “a failure to obtain and/or return for filing with the county clerk a license or certificate of marriage does not void or invalidate an otherwise valid marriage.” Further, even though Pinkhasov and Petocz had failed to obtain a marriage license and had excluded solemnization of a civil ¹ marriage from their religious marriage ceremony, the trial court held they had nevertheless established a valid and legally recognized “ de facto marriage.” On appeal, Pinkhasov argues no valid civil marriage was ever intended and none ever existed between Petocz and himself under Kentucky law because the parties did not meet the requirements of the Kentucky Revised Statutes (KRS). Pinkhasov further argues the trial court erred in holding that a legally valid de facto marriage had been established on July 10, 2005, because the term “ de facto marriage” is synonymous with a common-law marriage and Kentucky does not recognize common-law marriage. After careful review of the briefs, the record and the law, we reverse and remand for entry of an order consistent with this Opinion.

FACTS AND PROCEDURAL BACKGROUND

In the early part of 2005, Pinkhasov and Petocz initiated a dating relationship which became intimate. As a result, a child was conceived.

In late June 2005, Pinkhasov and Petocz approached Rabbi Avohom Litvin and asked that he perform a Jewish marriage ceremony consistent with the laws, customs, and traditions of the Jewish faith, but without a “secular, legal marriage contract.” In particular, the parties did not wish for any civil marriage license or marriage certificate to be secured, executed or filed. Neither party was an American citizen, and Rabbi Litvin understood their desire to avoid a civil marriage was based upon immigration concerns and a need to remain legally free to marry American citizens for the purpose of applying for citizenship.

Rabbi Litvin confirmed that Jewish religious law does not require that a civil marriage license be obtained and executed, or that certification of the marriage ceremony be filed with a governmental clerk, for the establishment of a valid marriage. Even so, his attempts to convince Pinkhasov and Petocz to be contemporaneously married in accordance with the mandates of both Jewish religious law and civil law were unsuccessful.

On July 10, 2005, Rabbi Litvin presided over a highly ritualistic orthodox Jewish wedding ceremony for the couple in Jefferson County, Kentucky, in the presence of more than one hundred family, friends, and guests. Rabbi Litvin solemnized the Jewish religious ceremony in accordance with all laws, customs, and traditions of their faith. During the ceremony, the “Ketubah” ² was written and executed by the parties in the presence of the required Jewish witnesses, a plate was ritualistically broken, and Pinkhasov performed the ceremonial act of lowering the veil over Petocz's face. Thereafter, the parties and assemblage joined in other traditional Jewish acts related to marriage at a reception.

Though he is a person authorized to solemnize civil marriages in the Commonwealth of Kentucky, Rabbi Litvin testified he did not solemnize a civil marriage on July 10, 2005, pursuant to the insistence of both Pinkhasov and Petocz. Instead, in solemnizing only the Jewish religious marriage formalities, Rabbi Litvin omitted that portion of the ceremony during which a civil marriage license is routinely executed before the requisite witnesses and any language referencing the establishment of a civil marriage.

Both Pinkhasov and Petocz admit they did not apply for or obtain a civil marriage license nor cause a marriage license or marriage certificate to be executed and filed with the Jefferson County Court Clerk. Rabbi Litvin confirmed that Pinkhasov and Petocz directed him not to sign or file documentation with the county clerk's office certifying that a marriage of any kind had taken place and, in keeping with their instructions, he did not do so. Thereafter, a son was born to the parties in September of 2005, and they continued to live together until about October 6, 2007.

On November 13, 2007, Petocz petitioned the trial court for dissolution of marriage. A few months later, Pinkhasov moved to dismiss the dissolution action, but urged the trial court to resolve pending custody and child support issues. In July of 2008, the trial court heard arguments on whether a valid civil marriage ever existed between the parties. Pinkhasov testified he never intended to be legally married to Petocz under the laws of the Commonwealth of Kentucky, and never considered them to be legally married. Petocz, however, testified she believed the couple was, in fact, legally married following the July 10, 2005, Jewish religious marriage celebration performed by Rabbi Litvin.

In support of his contention that the couple intended to be married in the eyes of the Jewish faith but not under Kentucky law, Pinkhasov argued that: he and Petocz never held themselves out to be husband and wife after the marriage celebration; Petocz did not take his last name as her own; the couple never filed joint tax returns; Petocz stated on a passport application that she had never been married; Petocz had listed Pinkhasov's marital status as “single” on an apartment application; and Petocz had identified Pinkhasov as her “religious husband, not legal” on mental health records. In contrast, both Petocz and Rabbi Litvin testified that Pinkhasov and Petocz had subsequently held themselves out to be husband and wife to the Jewish congregation and their community.

In an order dated August 12, 2008, the trial court denied Pinkhasov's motion to dismiss the dissolution action. The trial court found that Pinkhasov and Petocz had “participated in a Jewish wedding ceremony” memorialized by their Ketubah; acknowledged their intent to be husband and wife to each other and before Rabbi Litvin, the required Jewish witnesses, and their family and friends; lived together after the wedding ceremony; and thereafter held themselves out to be husband and wife. Finding “no statutes relating to marriage that would indicate that the legislature intended that the validity of a marriage is conditioned on applying for, obtaining, signing, or filing a certificate of marriage license,” the trial court held

a failure to obtain and/or return for filing with the county clerk a license or certificate of marriage does not void or invalidate an otherwise valid marriage. The language of KRS 402.080 (no marriage to be solemnized without license) and KRS 402.220 (person solemnizing marriage to return certificate to clerk) do not reflect that obtaining and/or returning to the county clerk are prerequisites to valid marriage.

Even though Pinkhasov and Petocz had failed to obtain a marriage license, had specifically excluded Rabbi Litvin's solemnization of a civil marriage from their religious marriage ceremony, and had caused Rabbi Litvin not to sign or file a certification of the marriage ceremony with the county clerk, the trial court held the parties had nevertheless established a legally valid “ de facto marriage” at the time of their July 10, 2005, religious marriage ceremony.

Thereafter, in an order dated December 1, 2008, the trial court denied Pinkhasov's request for reconsideration of its previous order, finding no factual or legal basis upon which to change its earlier ruling. The trial court recognized that KRS 402.080 prohibits the solemnization of any marriage without a marriage license. However, the trial court reasoned that a marriage so conducted is not void if solemnized or contracted in the presence of a person or society authorized under KRS 402.020(1)(c), since KRS 402.070 states

[n]o marriage solemnized before any person professing to have authority therefor shall be invalid for the want of such authority, if it is consummated with the belief of the parties, or either of them, that he had authority and that they have been lawfully married.

The trial court held that “while Rabbi Litvin may not have had authority to solemnize this marriage because a marriage certificate was not obtained under KRS 402.080, the marriage was valid because the Jewish wedding ceremony was performed while Ms. Petocz believed that Rabbit (sic) Litvin had such authority.” The trial court went on to conclude

[i]n their wedding plan discussions with the Rabbi both parties indicated that they wished for the child to be raised in the Jewish faith and the parties were undoubtedly taking steps to insure that the child was born a legitimate child. Mr. Pinkhasov cannot have it both ways. His actions and conduct surrounding and during the July 10, 2005[,] Jewish wedding ceremony, as well as his actions and conduct after the marriage now prevent him from claiming that the parties are not married, in order to circumvent the dissolution laws of the Commonwealth.

In summary, on July 10, 2005[,] both parties fully participated in a Jewish wedding ceremony which was memorialized by their written “Ketuba” [sic] (Bill of Marriage). In that Jewish wedding ceremony[,] both parties acknowledged to one another and before Rabbi Litvin, each of their families, the required number of Jewish witnesses, and in a celebration before...