Volk v. Vecchi

• Decision Date: 14 May 2020
• Docket Number: No. 20180776-CA,20180776-CA
• Parties: Carmelita VOLK, Appellee, v. John VECCHI, Appellant.
• Court: Utah Court of Appeals

467 P.3d 872

Carmelita VOLK, Appellee,

v.John VECCHI, Appellant.

No. 20180776-CA

Court of Appeals of Utah.

Filed May 14, 2020

David S. Pace, Heights, Attorney for Appellant

Karra J. Porter, Salt Lake City, and Kristen C. Kiburtz, Attorneys for Appellee

Judge Jill M. Pohlman authored this Opinion, in which Judges Kate Appleby and Ryan M. Harris concurred.

Opinion

POHLMAN, Judge:

¶1 John Vecchi and Carmelita Volk entered into a relationship and began living together around 1999, but the two never formally married. After separating in 2015, Volk petitioned for divorce, asserting that the parties had established a common law marriage. The district court agreed. Vecchi appeals, arguing that the court erred because Volk did not establish all the required elements for common law marriage in Utah. He also challenges the court's alleged failure to order that the parties equally share the costs of a custody evaluation. We affirm.

BACKGROUND¹

¶2 Volk and Vecchi met in approximately 1996. In 1999, they began dating and moved in together. With the exception of about one year in approximately 2001 or 2002, they lived together in California from 1999 until the summer of 2012, when they moved to Utah.

¶3 During the parties' time in California, they had two children together. Around the time their first child was born, the parties "specifically agreed" that Volk "would be a stay-at-home mother and [Vecchi] would pursue his career." To that end, they "agreed to divide up the responsibilities—with [Volk] taking on primary responsibility for the children and household duties," while Vecchi "provide[d] financially for [Volk] and the kids." They also agreed to "pool their resources together and share equally in everything that was accumulated (and in debts)."

¶4 As evidence of their agreement, the parties jointly purchased four properties together during their relationship—two in California, one in Illinois, and one in Utah. They were coborrowers on the loans, held title jointly, and shared in the maintenance of each property. They also maintained "joint checking and savings accounts, joint car loans, and joint credit cards." Indeed, as Volk later testified at trial, "none of the financial aspects of their lives were handled separately."

¶5 In early 2012, Vecchi began working for a company in Utah. Because the parties "agreed that their children should remain in California to finish the school year," Vecchi commuted for approximately six months before the parties and their children moved to Utah in the summer of 2012.

¶6 In late 2014, the parties began experiencing significant difficulties in their relationship, and they separated in March 2015. In November 2015, Volk filed a petition for divorce, seeking, among other things, a declaration of common law marriage, alimony, child support, and equitable division of the couple's assets. During the proceedings, the court ordered a custody evaluation for the parties' children. The court required Vecchi to pay for the evaluation but indicated that "[f]inal allocation of this cost, if any, shall be reserved for trial."

¶7 After a bench trial, the district court concluded that Volk had carried her burden of demonstrating that the parties had established a common law marriage for the time they resided in Utah—approximately thirty months. On that basis, the court ordered, among other things, equitable division of the parties' assets as well as alimony in Volk's favor for thirty months, the length of the common law marriage in Utah. The court also determined that it was "fair and equitable" for each party to pay, aside from one exception not relevant to this appeal, "his or her own attorneys' fees and costs."

¶8 Vecchi appeals.

ISSUES AND STANDARDS OF REVIEW

¶9 Vecchi raises two main issues on appeal. First, he argues that the district court erred in determining that Volk had shown that the parties established a common law marriage in Utah. Specifically, he argues that the court erred by determining "that the parties had acquired a uniform and general reputation as husband and wife" and that "the parties had consented to a common law marriage contract while residing" in Utah. We review the district court's interpretation of the common law marriage statute for correctness, Hansen v. Hansen , 958 P.2d 931, 933 (Utah Ct. App. 1998), but we review the court's findings of fact for clear error and its application of the statute to those findings for abuse of discretion, Clark v. Clark , 2001 UT 44, ¶ 14, 27 P.3d 538.

¶10 Second, Vecchi argues that the district court erred by failing to order that the costs of the custody evaluation be shared equally between the parties. When the issue is preserved, we review the district court's denial of costs and fees for abuse of discretion. See Penunuri v. Sundance Partners , 2017 UT 54, ¶ 15, 423 P.3d 1150 ; Leppert v. Leppert , 2009 UT App 10, ¶ 10, 200 P.3d 223 ; Wilde v. Wilde , 969 P.2d 438, 442 (Utah Ct. App. 1998). However, when, as here, an appellant challenges the adequacy of the district court's findings for the first time on appeal, we consider the issue waived. See 438 Main St. v. Easy Heat, Inc. , 2004 UT 72, ¶¶ 50–56, 99 P.3d 801 ; Shuman v. Shuman , 2017 UT App 192, ¶ 2, 406 P.3d 258.

ANALYSIS

I. The District Court's Common Law Marriage Determination

¶11 As discussed above, the district court determined that Volk proved that the parties established a common law marriage during their time in Utah. Vecchi challenges this determination on two grounds. First, he argues that the court erred when it determined that the parties acquired a uniform and general reputation as being married. Second, he argues that the court erred when it determined that the parties consented to a common law marriage.

¶12 Before 1987, Utah did not recognize common law marriages. Whyte v. Blair , 885 P.2d 791, 793 (Utah 1994). However, in 1987, our legislature enacted Utah Code section 30-1-4.5, which provides the requirements for establishing the validity of a marriage that has not been solemnized. See id. That section sets out five requirements to establish the validity of such a marriage:

A marriage which is not solemnized according to this chapter shall be legal and valid if a court or administrative order establishes that it arises out of a contract between a man and a woman who:

(a) are of legal age and capable of giving consent;

(b) are legally capable of entering a solemnized marriage under the provisions of this chapter;

(c) have cohabited;

(d) mutually assume marital rights, duties, and obligations; and

(e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife.

Utah Code Ann. § 30-1-4.5(1) (LexisNexis 2019).² Additionally, the marriage contract must arise between "two consenting parties." Hansen v. Hansen , 958 P.2d 931, 935 (Utah Ct. App. 1998) ; see also Whyte , 885 P.2d at 794–95 & n.3 (recognizing that "whether the parties consented to be married is often disputed," and setting forth evidence that may be used to establish consent). In proving the existence of a common law marriage, "[n]o single factor is determinative," but each required element must be established by sufficient evidence. Whyte , 885 P.2d at 794 ; Hansen , 958 P.2d at 935.

¶13 As we explain below, we conclude that Vecchi has not shown that the district court abused its discretion by determining that the parties had acquired a uniform and general reputation as a married couple and that they had consented to a marriage while living in Utah. On this basis, we affirm the district court's determinations on both points.

A. Uniform and General Reputation

¶14 Vecchi first challenges the district court's determination that the parties had acquired a uniform and general reputation as husband and wife. See Utah Code Ann. § 30-1-4.5(1)(e). He points to a few witnesses who testified at trial that they were informed (and therefore knew) that the parties were not legally married, and he claims this testimony evidences that the parties enjoyed a "divided" rather than a "uniform and general" reputation as husband and wife.

¶15 It is true that "a partial or divided reputation of marriage is insufficient" to establish that a couple has acquired a "uniform and general reputation as husband and wife," as required by section 30-1-4.5(1)(e). Rivet v. Hoppie , 2020 UT App 21, ¶ 11, 460 P.3d 1054 ; see also Hansen , 958 P.2d at 936. For example, "a partial or divided reputation of marriage may be shown when the parties' closest friends do not consider the parties married and the parties are not consistent in holding themselves out as married to the rest of the world." Rivet , 2020 UT App 21, ¶ 11, 460 P.3d 1054 (cleaned up).

¶16 Here, however, the court rejected the notion that the parties' reputation was divided and concluded that Volk met her burden of showing that they had acquired a "general reputation as husband and wife." The court found that Volk testified consistently about the fact that she "regularly referred" to Vecchi as her husband, that "she considered them to be married," and "that she routinely introduced [Vecchi] as her husband to third parties" and otherwise "regularly represented herself as being married." Volk also testified that both parties "provided documentation and information to third parties, including lenders, reflecting her and [Vecchi] as married" and that they also generally "presented themselves as a married couple." And the court found that, although Vecchi's "testimony was inconsistent and contradictory," Volk's testimony on these points nevertheless was "supported in large part by [Vecchi's] testimony."

¶17 Additionally, the court found that "a number of third-party witnesses called by [Volk] provided consistent and persuasive support for the requirement" that the parties acquired a uniform and general reputation of being husband and wife. For example, the court found that a neighbor had the impression that the parties were married "based on how they held each...