                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                       July 22, 2015 Session

          MARVIN DEWAYNE ECHOLS v. ELKE MONIKA ECHOLS

                 Appeal from the Circuit Court for Montgomery County
                    No. MCCCCVN130217         Ross H. Hicks, Judge


                No. M2014-01856-COA-R3-CV – Filed September 29, 2015


This appeal arises from a divorce involving a challenge to the validity of the marriage.
Marvin Dewayne Echols (“Husband”) filed suit for divorce against his wife Elke Monika
Echols (“Wife”) in the Circuit Court for Montgomery County (“the Trial Court”).1
Husband later alleged that his marriage to Wife was void. Husband and Wife had
married shortly after a German court had pronounced Wife divorced, and Husband’s
position is that Wife’s divorce was not yet legally binding under German law when they
married in Kentucky. The Trial Court, among other things, found the marriage valid and
granted the parties a divorce. Husband raises several issues on appeal, chief among them
the issue of the validity of the marriage in the first place. We hold that Husband failed to
prove that his marriage to Wife was invalid. We affirm the judgment of the Trial Court
in its entirety.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
                                    Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.

Karla C. Miller, Nashville, Tennessee, for the appellant, Marvin Dewayne Echols.

Michael K. Williamson, Clarksville, Tennessee, for the appellee, Elke Monika Echols.




1
  Although this appeal involves a challenge to the very validity of the marriage and we do not wish to beg
the question by referring to the parties as husband and wife from the beginning, we believe it would be
too cumbersome to refer to the parties as “putative husband” and “putative wife” throughout the opinion.
This is especially so in light of our holding.
                                       OPINION

                                      Background

              The pertinent background facts of this appeal are simple. Husband and
Wife were married in Elizabethtown, Kentucky, on December 29, 1986. The parties had
met on December 31, 1985 in Germany. Husband was stationed in Germany on military
assignment. Wife, a German citizen, was married at the time they met. A German court
pronounced Wife divorced from her husband on November 21, 1986. The divorce decree
was to become “legally binding” on January 10, 1987. Husband and Wife’s marriage
thus fell between the date of the “pronouncement” of the divorce and the date the divorce
became legally binding.

              Husband, now living in Tennessee, filed for divorce from Wife in January
2013. In July 2014, Husband moved to amend his pleadings to request an annulment
based on the alleged invalidity of the marriage. This case was tried in August 2014. The
Trial Court found the parties’ marriage valid, stating in its August 2014 order:

              The Court specifically finds that this marriage between Mr. and Mrs.
      Echols is valid. It should not be annulled, based on the reasons stated in the
      Trial Brief addressing the validity of the marriage. In addition to those
      reasons, which basically set forth the translation of the German statutes and
      state why, under German law, this marriage is valid at this point, the Court
      finds that Mr. Echols has been guilty of latches in raising that issue. That
      he has essentially waived it by waiting so long in this process and he is,
      furthermore, estopped from raising it at this point by virtue of the fact that
      he has derived the benefits for all of these years of having been married and
      treating the marriage as having been valid. Further, the Court specifically
      finds if there was any sort of misunderstanding on the part of Mrs. Echols
      back at the time the parties were married with regard to when she had been
      divorced, the Court finds it was simply that, a misunderstanding, and there
      was no effort made on her part to deceive Mr. Echols, in any way, with
      regard to the status of her divorce proceedings. For those reasons, the
      Court finds the marriage is valid and shall be treated as a valid marriage.

The Trial Court also divided the marital estate. In a subsequent order, the Trial Court
granted Wife her attorney’s fees in the amount of $5,500. Husband’s motion to alter or
amend was denied. Husband appealed.




                                           -2-
                                       Discussion

             Although not stated exactly as such, Husband raises the following issues on
appeal: 1) whether the Trial Court erred in finding the parties’ marriage valid; 2) whether
the Trial Court erred in dividing Husband’s retirement accounts as marital property and
awarding Wife alimony when the marriage allegedly was void; 3) whether the Trial Court
erred in awarding Wife her attorney’s fees in defending the claim of an invalid marriage;
and, 4) whether Husband should be awarded his attorney’s fees on appeal. Wife raises
her own issue of whether she should be awarded her attorney’s fees on appeal.

             Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001).

               We first address whether the Trial Court erred in finding the parties’
marriage valid. Three dates are critical to this issue. A German court “pronounced”
Wife divorced on November 21, 1986. Husband and Wife married in Kentucky on
December 29, 1986. Via the German divorce documents, Wife’s divorce from her
previous husband was to become “legally binding” on January 10, 1987. In the interim
period between November 21, 1986 and January 10, 1987, apparently an appeal
theoretically could have been filed in German court to challenge the divorce. In reality,
no appeal was taken. The question then is whether the fact that Wife married Husband
during this interim period renders their marriage bigamous and therefore invalid.

              The record contains certain relevant passages of German law on the subject,
as follows:

      Section 517
      Time limit for filing an appeal
      The time limit for filing an appeal shall amount to one (1) month; this is a
      statutory period and shall begin upon the fully worded ruling having been
      served, at the latest, however, upon the expiry of five (5) months following
      pronouncement of the judgment.




                                            -3-
      Section 1306
      Existing marriage or civil partnership
      A marriage may not be entered into if a marriage or a civil partnership
      exists between one of the persons who intend to be married to each other
      and a third party.

      Section 1315 Exclusion of annulment

      ***
      (2) An annulment of the marriage is further excluded
      1. In the case of a breach of section 1306, if, before the new marriage is
      entered into, the dissolution by divorce or the annulment of the former
      marriage or the annulment of the civil partnership is pronounced and this
      pronouncement becomes final and absolute after the new marriage is
      entered into;

Wife argues that Section 1315(2)1 of the German code fits this case exactly. That is,
Wife’s divorce from her previous husband was pronounced, she married Husband in the
interim period, her divorce from her previous husband became “final and absolute after
. . .” Husband and Wife’s marriage was entered into, and, therefore, the possibility of an
annulment was foreclosed. Wife argues, therefore, that the German divorce was final and
the subsequent marriage ratified despite the interim period for challenge to the divorce.
Husband disagrees with this interpretation. Moreover, Husband argues that the threshold
question should be whether the marriage is valid under Kentucky law as Kentucky, is,
after all, where the parties were married.

            We now review Kentucky law on marriage. The Court of Appeals of
Kentucky has discussed Kentucky’s presumption of validity of marriages as follows:

             Kentucky law favors marriage, Griffith v. Lunney, 300 Ky. 66, 68,
      187 S.W.2d 431, 433 (1945), and “[w]here a marriage ceremony is shown,
      every presumption will be indulged that it was legally performed.” Vest’s
      Adm’r v. Vest, 234 Ky. 587, 28 S.W.2d 782, 783 (1930). In Vest, which
      held parol evidence was sufficient to prove a legally valid civil marriage
      between a deceased and one claiming as his widow, notwithstanding the
      absence of record evidence, our former Court of Appeals quoted 18 R.C.L.
      416 § 39, stating:

             [t]he law and public policy favor matrimony, and when the
             celebration of a marriage is once shown, the contract of
             marriage, the capacity of the parties, and, in fact, everything
                                           -4-
      necessary to the validity of the marriage, in the absence of
      proof to the contrary, will be presumed. It will be presumed
      that the person assuming to officiate at the ceremony was
      authorized to perform it, and that a license was properly
      issued. This presumption of legality is said to be one of the
      strongest known to the law, especially where the legitimacy
      of children is involved, for the law presumes morality, and
      not immorality; marriage, and not concubinage; legitimacy,
      and not bastardy.

Id. (Emphasis added). Likewise, in Potter v. Stanley, 187 Ky. 292, 219
S.W. 167, 170 (1920), the court upheld a marriage where it was undisputed
that a marriage ceremony had been properly solemnized, although the
marriage license and the certification of the officiant who had solemnized
the marriage ceremony had been mislaid or destroyed, and no one could
testify as to the exact date of the marriage ceremony.

       While such a presumption of a legally valid civil marriage is one of
the strongest presumptions known in the law, it may be indulged only so
long as there is no substantial evidence to the contrary; but when that is
offered, the presumption disappears and the issues must be decided on the
evidence. Carroll, 251 S.W.2d at 991. In Carroll, our former Court of
Appeals affirmed the trial court’s finding that the surviving woman had
failed to prove her allegation of a “ceremonial marriage” in Ohio but
reversed the trial court’s finding that a common-law marriage had been
consummated in Florida. In holding “where the relationship is meretricious
in its inception, it will be presumed to continue so in the absence of
evidence to the contrary,” the Court stated:

             [w]e are reluctant to hold that these people were not
      married, but the same reasons which impel the Courts to
      protect the marriage institution preclude us from making any
      exception in favor of those who disregard the solemnities
      which experience has proved are necessary to protect the
      sanctity of that institution.

Id. (Citations omitted). Though recognizing the surviving woman may
have believed in good faith she was married, the Court determined the
evidence would not sustain such a finding.



                                    -5-
             Thus, while every presumption will be indulged to support finding a
      legally valid civil marriage, parties may not disregard statutorily mandated
      solemnities, and the strongest presumption must yield to uncontroverted
      evidence.

Pinkhasov v. Petocz, 331 S.W.3d 285, 293-94 (Ky. App. 2011) (footnote omitted).

              KRS § 402.020 states that a marriage is void where “there is a husband or
wife living, from whom the person marrying has not been divorced….” However, a
Comptroller General decision analyzing the Kentucky case Ferguson v. Ferguson
appears to support the proposition that even a bigamous marriage in Kentucky will be
recognized if it has not been appropriately challenged. The Matter of: Myrtle O. Morris,
1993 WL 284903 (Comp. Gen. July 22, 1993) discusses the voidability of bigamous
marriage in Kentucky as follows:

      The attorney cites Ferguson v. Ferguson, 610 S.W.2d 925 (Ky. Ct. App.)
      (1981) as standing for the proposition that even a bigamous marriage will
      be honored in Kentucky unless appropriately challenged. In Ferguson,
      William Ferguson married Eva Ferguson in 1969, 6 days prior to his
      divorce from his first wife. The son from the first marriage petitioned the
      court to be appointed the administrator of William’s estate after William’s
      death in 1979. The Court of Appeals found that since the marriage had not
      been challenged in accordance with section 403.210(2)(b), it was valid and
      the appointment of Eva as administratrix was proper.

      Under the holding in Ferguson, the 1987 marriage between Sergeant
      Morris and Myrtle Morris is not void ab initio, meaning it never had any
      existence, but merely voidable, meaning that it is subject to challenge under
      certain circumstances. Since no action was taken to void the marriage, it
      stands as valid, even though “prohibited and void.”

      Under these circumstances, we believe Myrtle and Sergeant Morris should
      be considered as having been married for over 3 years for the purpose of
      qualifying her as an eligible widow entitled to the SBP annuity.

              Finally, we turn to Tennessee law on marriage. Perhaps the seminal case in
recent times on bigamy and the validity of marriages in Tennesse is Guzman v. Alvares.
Guzman states about marriage generally:

             Except as restricted by constitutional provisions, the inception,
      duration, status, conditions, and termination of a marriage in Tennessee are
                                           -6-
      subject to state legislative power and control. Crawford v. Crawford, 198
      Tenn. 9, 277 S.W.2d 389, 391 (1955); see Martin v. Coleman, 19 S.W.3d
      757, 760 (Tenn. 2000). Common-law marriages are not recognized in
      Tennessee. Martin, 19 S.W.3d at 760. Our state’s legislature also prohibits
      bigamous marriages. See Tenn.Code Ann. § 36-3-102 (2005) (“A second
      marriage cannot be contracted before the dissolution of the first.”).
      Tennessee Code Annotated section 36-3-306 (2005) further provides that
      “[n]o marriage shall be valid, whether consummated by ceremony or
      otherwise, if the marriage is prohibited in this state.”

             Mr. Alvares maintains the parties’ marriage should be annulled
      because Ms. Guzman’s divorce from Mr. Covarrubias had not been
      finalized when the parties were married and that, as a result, the parties
      entered into a bigamous marriage. See Tenn. Code Ann. § 36-4-119
      (1996); see also Emmit v. Emmit, 174 S.W.3d 248, 252 (Tenn. Ct. App.
      2005) (holding that a trial court may annul a bigamous marriage). To
      protect the institution of marriage in Tennessee, regularly solemnized
      marriages are presumed to be valid. Aghili v. Saadatnejadi, 958 S.W.2d
      784, 789 (Tenn. Ct. App. 1997). Furthermore, in cases involving a
      subsequent marriage, courts presume that the previous marriage ended in
      divorce. Emmit, 174 S.W.3d at 252. These presumptions are not
      conclusive and may be rebutted. See id.; Duggan v. Ogle, 25 Tenn. App.
      467, 159 S.W.2d 834, 838 (1941). As the party challenging the validity of
      the marriage, Mr. Alvares bears the burden of rebutting the presumptions
      by providing “cogent and convincing” evidence that the marriage between
      him and Ms. Guzman is invalid. See Aghili, 958 S.W.2d at 789.

Guzman v. Alvares, 205 S.W.3d 375, 379-80 (Tenn. 2006) (footnote omitted).

             Now Chief Judge Susano, in Farnham, well summarized Guzman:

              In Guzman, the parties were married in Mexico under the belief that
      Ms. Guzman’s Mexican divorce from her first husband was final.
      Although her former husband had been granted a divorce at the trial court
      level in April 1986, the case went to the Supreme Court of Jalisco (Mexico)
      on automatic review. That court did not enter its judgment confirming the
      divorce until March 1987. Two expert witnesses testified that, under
      Mexican law, the divorce was not final under Mexican law until the Jalisco
      Supreme Court had entered its decree. In the interim, Ms. Guzman and Mr.
      Alvares were married in August 1986. The couple moved to Tennessee,
      had four children together, and lived as a married couple until Wife sought
                                          -7-
a divorce in 2002 on grounds of adultery, inappropriate marital conduct,
and irreconcilable differences. At the trial, the proof showed that Wife was
never served with the final divorce decree from her first marriage and she
testified she did not know of the circumstances surrounding her divorce
until Mr. Alvares filed his answer and counterclaimed for annulment based
on her subsisting first marriage. The trial court found a marriage by
estoppel, granted Ms. Guzman a divorce, divided the marital estate, and
ordered Mr. Alvares to pay child support.

        On appeal, this court affirmed the judgment except with regard to
the property division. On second-tier appellate review, the Supreme Court
reversed our judgment. Noting that there was no evidence presented that the
parties ever entered into a lawful marriage after Ms. Guzman’s divorce
became final, the Court concluded that Mr. Alvares had established that the
parties’ marriage was bigamous and void. In considering whether marriage
by estoppel would apply, the court further observed: “When one of the
parties to the purported marriage seeks to invoke the doctrine of marriage
by estoppel in a case against the other party to the marriage, this Court has
refused to apply the doctrine when the parties entered into a bigamous
marriage, regardless of either party’s knowledge of the impediment.” Id. at
380-81 (citing Pewitt v. Pewitt, 192 Tenn. 227, 240 S.W.2d 521, 526-28
(Tenn. 1951)). In short, the Guzman Court held that “the applicable
statutes, our prior case law, and the public policy of this state prohibit the
application of the marriage by estoppel doctrine to void, bigamous
marriages.” Id. Husband insists that Guzman’s holding applies to prevent
the parties’ Florida marriage by estoppel from being recognized in this
state. We disagree. The overriding problem with the “marriage” at issue in
Guzman was that there was no evidence that it was ever recognized as valid
as a marriage by estoppel or under any other theory of Mexican law. Stated
differently, the validity of the marriage in Guzman was entirely dependent
on the application of Tennessee law and, as the Supreme Court observed,
Tennessee does not permit a marriage by estoppel in the case of a void,
bigamous marriage. For these reasons, the Tennessee Supreme Court
refused to apply principles of estoppel to validate a marriage that was void
under the laws of the jurisdiction where it was entered into. To the
contrary, the present case involves a marriage that is recognized as valid
under Florida law, where it was celebrated, as well as Massachusetts law,
where the parties also lived together as husband and wife. In our view, the
trial court properly gave full faith and credit to the laws of our sister states.
In our view, there is no question that under the circumstances of this case,

                                       -8-
        the trial court properly found that the parties’ 17-year union was a valid
        marriage recognizable as such in Tennessee.

Farnham v. Farnham, 323 S.W.3d 129, 139-40 (Tenn. Ct. App. 2009).

              From our review of the law in the multiple relevant jurisdictions, we can
discern certain useful principles to guide our analysis as to whether Husband’s and
Wife’s marriage is valid. First, in both Tennessee and Kentucky, there is a strong but
rebuttable presumption of the validity of marriages. In other words, Husband bears the
burden of proving that his marriage to Wife was invalid. Second, from the Guzman
opinion, we can employ the methodology used by our Supreme Court in determining
whether the German divorce in the present case was final. The question then effectively
becomes whether Husband has proven that his marriage to Wife was invalid as bigamous
because the German divorce was not final when they married in Kentucky. We believe
that Husband has not met his burden.

               In the Guzman case, two expert witnesses testified at trial that the wife’s
divorce was not final under Mexican law. In the present case, no such proof even similar
to the expert testimony presented in Guzman sufficient to undermine the validity of the
parties’ marriage was presented to the Trial Court. The parties dispute the proper
interpretation of German law as presented to the Trial Court, as limited as it was, and as
contained in the record. However, there is no definitive evidence in the record showing
that Wife’s marrying Husband in the interim period between her divorce pronouncement
and its becoming final renders their marriage bigamous.               Indeed, a plausible
interpretation of the German law furnished to the Trial Court and to us suggests that
Wife’s marriage to Husband in that interim period foreclosed the possibility of annulment
once the pronouncement became final and absolute as it did here. In short, under this
plausible interpretation of German law to this specific fact pattern, which is the best the
Trial Court and this Court can do as no expert witnesses were presented as they were in
Guzman, the German divorce is treated under German law as being final as of the date of
the divorce pronouncement. At most, it appears that Wife took a chance in marrying
Husband during the interim period, but, as no challenge to her divorce in the previous
matter ever was advanced, that risk and controversy are mooted. We hold that Husband
has failed to overcome the presumption of validity of his marriage to Wife. We affirm
the Trial Court on this issue.2

             We next address whether the Trial Court erred in dividing Husband’s
retirement accounts as marital property and awarding Wife alimony when the marriage

2
  To the extent the Trial Court also relied on equitable doctrines to find the marriage valid, we decline to
affirm on that basis. We do however agree with the Trial Court’s result.
                                                     -9-
allegedly was void. Husband’s argument on this issue, as he concedes in his brief, is
inseparable from his argument that his marriage to Wife was void. Our having concluded
already that the marriage was valid, Husband’s argument on this issue fails. We affirm
the Trial Court on this issue.

               We next address whether the Trial Court erred in awarding Wife her
attorney’s fees in defending the claim of an invalid marriage. With respect to the award
of attorney’s fees in divorce cases, our Supreme Court has stated:

              It is well-settled that an award of attorney’s fees in a divorce case
      constitutes alimony in solido. The decision whether to award attorney’s
      fees is within the sound discretion of the trial court. As with any alimony
      award, in deciding whether to award attorney’s fees as alimony in solido,
      the trial court should consider the factors enumerated in Tennessee Code
      Annotated section 36-5-121(i). A spouse with adequate property and
      income is not entitled to an award of alimony to pay attorney’s fees and
      expenses. Such awards are appropriate only when the spouse seeking them
      lacks sufficient funds to pay his or her own legal expenses or the spouse
      would be required to deplete his or her resources in order to pay them.
      Thus, where the spouse seeking such an award has demonstrated that he or
      she is financially unable to procure counsel, and where the other spouse has
      the ability to pay, the court may properly grant an award of attorney’s fees
      as alimony.

Gonsewski v. Gonsewski, 350 S.W.3d 99, 113 (Tenn. 2011) (citations omitted).

              The record reflects that Husband’s monthly income is $5,519.16. Wife’s
monthly income is $1,917.09. Wife has a high school education and works at a child
development center. Husband had served in the military for many years and worked at
FedEx. There is a deep disparity in the earning power of the parties. Wife was made not
only to contest the divorce but also to defend the validity of her marriage to Husband, a
position on which she ultimately prevailed, incurring additional attorney’s fees in the
process. We find no abuse of discretion in the Trial Court’s award to Wife of her
attorney’s fees of $5,500. We affirm the judgment of the Trial Court on this and on all
other issues.

              As a final matter, both Husband and Wife request an award of attorney’s
fees on appeal. In the exercise of our discretion and for the same reasons relied on in
affirming the judgment of the Trial Court awarding Wife her attorney’s fees at trial, Wife



                                           -10-
is awarded her reasonable attorney’s fees on appeal. This matter is remanded to the Trial
Court for a determination as to the amount of Wife’s reasonable attorney’s fees on
appeal.

                                       Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to
the Trial Court for a determination of Wife’s reasonable attorney’s fees on appeal and for
collection of the costs below. The costs on appeal are assessed against the Appellant,
Marvin Dewayne Echols, and his surety, if any.


                                                  _________________________________
                                                  D. MICHAEL SWINEY, JUDGE




                                           -11-
