                                           COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, Malveaux and Senior Judge Annunziata
            Argued at Alexandria, Virginia
PUBLISHED




            BARTHOLOMEW D.S. PORTER
                                                                                  OPINION BY
            v.      Record No. 1872-17-4                                 JUDGE ROSEMARIE ANNUNZIATA
                                                                                AUGUST 14, 2018
            EILEEN PORTER


                                 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                             Randy I. Bellows, Judge

                            Daniel B. Schy (ShounBach, on brief), for appellant.

                            Valerie E. Hughes (The Bowen Law Firm, P.C., on brief), for
                            appellee.


                    Appellant, Bartholomew D.S. Porter, appeals an order dismissing his complaint for divorce.

            Appellant argues that the circuit court “erred in finding that the parties’ conduct did not constitute

            cohabitation in Washington, D.C., for the purposes of establishing a common law marriage under

            D.C. law.” We find no error, and affirm the decision of the trial court.

                                                       BACKGROUND

                    Appellant, a Washington, D.C. (D.C.) resident, and appellee, Eileen Porter, a Virginia

            resident, scheduled a wedding ceremony for February 25, 2006 in D.C. On February 24, 2006, the

            parties obtained a marriage license from Virginia, not D.C. The officiant, who was licensed to

            perform marriages in D.C. and Virginia, indicated on the marriage license that the ceremony was

            conducted in Arlington, Virginia, on February 25, 2006, but no ceremony, actually, occurred in
Virginia. Instead, the wedding ceremony occurred in D.C. on February 25, 2006.1 While

approximately thirty to forty friends and relatives watched, the parties exchanged marriage vows

and stated their intentions to be married to one another. At the conclusion of the ceremony, the

parties were introduced as “Mr. and Mrs. Porter.” The parties hosted a reception after the ceremony

and were presented to their guests as husband and wife. After the reception, the parties stayed

overnight at a hotel in D.C. but, because they were too tired, and appellee was five months pregnant,

they did not engage in sexual intercourse during their stay in D.C. The next day, on February 26,

2006, the parties left the hotel and returned to their separate residences. In May 2006, the parties

started living together in the same residence in Virginia. From February 25, 2006 until their

separation in September 2015, the parties considered themselves married and held themselves out as

a married couple. Since February 25, 2006, the parties have filed joint tax returns as a married

couple; they purchased a home, which was titled as tenants by the entirety.

       On September 22, 2015, the parties separated. Appellant filed a complaint for divorce on

October 21, 2016, and, on March 27, 2017, appellee filed a motion for declaration of marriage status

and related relief. By consent order entered on April 14, 2017, the case was transferred from Prince

William County to Fairfax County. On July 27, 2017, the parties appeared before the circuit court.

After hearing the parties’ evidence and arguments, the circuit court took the matter under

advisement and, on October 11, 2017, issued a letter opinion. First, the circuit court held that there

was no valid Virginia marriage because, although the parties had a Virginia license to marry and the

celebrant was licensed in Virginia, the ceremony occurred outside the Commonwealth. The circuit



       1
          Both parties were present when the officiant completed the license and indicated that
the marriage took place in Arlington, even though the marriage ceremony occurred in D.C. The
officiant told the parties that they would need to have another ceremony in Virginia, in which
they expressed their intent to marry, because their license was from Virginia, not D.C. The
parties did not think it was necessary and did not do so. In short, the parties believed that they
were married.
                                                 -2-
court concluded that the marriage was void ab initio. Second, the circuit court held that the parties

did not enter a valid common law marriage in D.C. because the parties’ one-night stay in a hotel did

not meet the cohabitation requirements to establish a common law marriage. After appellant filed

his objections, on October 27, 2017 the circuit court entered its final order and dismissed the

complaint for divorce. This appeal followed.

                                             ANALYSIS

       Appellant argues the circuit court erred in finding that “the parties’ conduct did not

constitute cohabitation in Washington D.C. for the purposes of establishing a common law marriage

under D.C. law.”2 Appellant contends that the parties’ one-night stay in D.C. after they exchanged

marriage vows was sufficient to establish a common law marriage. Appellant asserts that the

“purpose of common law marriage is to ensure that people who think they are married, behave as if

they are married, . . . and are believed by all whom they know to be married are, in fact, married,

irrespective of their failure to comply with the formal ministerial process.”

       “The public policy of Virginia . . . has been to uphold the validity of the marriage status as

for the best interest of society.” Levick v. MacDougall, 294 Va. 283, 291, 805 S.E.2d 775, 778

(2017) (quoting Needam v. Needam, 183 Va. 681, 686, 33 S.E.2d 288, 290 (1945)). “[T]hus, the

presumption of the validity of a marriage ranks as ‘one of the strongest presumptions known to the

law.’” Id. (quoting Eldred v. Eldred, 97 Va. 606, 625, 34 S.E. 477, 484 (1899)).

       “Virginia does not recognize common-law marriages where the relationship is created in

Virginia.” Farah v. Farah, 16 Va. App. 329, 334, 429 S.E.2d 626, 629 (1993) (citing Offield v.



       2
         Appellant does not challenge the circuit court’s finding that the parties’ marriage was
void ab initio because their marriage was not a valid marriage created under Virginia law;
therefore, we will not address this aspect of the circuit court’s ruling. For the same reason, we
also find it unnecessary to address the Virginia Supreme Court’s recent decision about void and
voidable marriages in Levick v. MacDougall, 294 Va. 283, 805 S.E.2d 775 (2017), which was
decided subsequent to the circuit court’s final order.
                                                 -3-
Davis, 100 Va. 250, 253, 40 S.E. 910, 914 (1902)). However, “a common-law marriage that is

valid under the laws of the jurisdiction where the common-law relationship was created” is

recognized in Virginia. Id. “A marriage’s validity is to be determined by the law of the state

where the marriage took place, unless the result would be repugnant to Virginia public policy.”

Kelderhaus v. Kelderhaus, 21 Va. App. 721, 725, 467 S.E.2d 303, 304 (1996) (quoting Kleinfield v.

Veruki, 7 Va. App. 183, 186, 372 S.E.2d 407, 409 (1988)).

       Unlike Virginia, D.C. recognizes common law marriages. Bansda v. Wheeler (In re

Ekekwe), 995 A.2d 189, 198 (D.C. 2010); Coates v. Watts, 622 A.2d 25, 27 (D.C. 1993); Hoage v.

Murch Bros. Constr. Co., 50 F.2d 983, 985 (D.C. Cir. 1931). “However, ‘[s]ince ceremonial

marriage is readily available and provides unequivocal proof that the parties are husband and wife,

claims of common law marriage should be closely scrutinized . . . .’” Bansda, 995 A.2d at 198

(quoting Coates, 622 A.2d at 27). “The elements of common law marriage in [D.C.] are

cohabitation as husband and wife, following an express mutual agreement, which must be in words

of the present tense.” Coates, 622 A.2d at 27 (citing East v. East, 536 A.2d 1103, 1105

(D.C. 1988)). “[A] party claiming that a common law marriage exists must prove the existence of

that common law marriage by a preponderance of the evidence.” Cerovic v. Stojkov, 134 A.3d 766,

774-75 (D.C. 2016).

       “Whether a common law marriage exists is largely a factual determination.” Mesa v. United

States, 875 A.2d 79, 83 (D.C. 2005). “Thus, we will affirm the trial court’s findings regarding the

existence of a common law marriage ‘unless appellant can persuade us that it is plainly wrong or

without evidence to support it.’”3 Id. at 83-84 (quoting East, 536 A.2d at 1106).




       3
         The narrow issue before this Court is whether there was a valid common law marriage in
D.C.; therefore, contrary to the parties’ assertions, we do not review this case with a de novo
standard of review.
                                                   -4-
       Appellant contends that the parties entered into a common law marriage in D.C. by virtue of

their expressed intent to marry one another at the wedding ceremony and their overnight stay in the

same hotel room. He asserts that, from the time of the wedding ceremony on February 25, 2006

through the morning of February 26, 2006, the parties had “connected lives,” and their actions

showed they considered themselves to be a married couple. They participated in the wedding

ceremony, attended the wedding reception, and stayed overnight in the same hotel room. Appellant

argues these actions met the requirements for a D.C. common law marriage.

       The circuit court found that appellant met the burden of proving the parties had an express

mutual agreement because the parties “clearly indicated an agreement to marry one another using

words in the present tense during the [D.C.] ceremony.” However, it found appellant failed to meet

his burden of proving the parties cohabitated together in D.C.

       As noted by the circuit court, “cohabitation is a required element of common law marriage”

in D.C., but “the minimum length of that cohabitation has never been clearly defined” by D.C. case

law. However, while appellant was a D.C. resident, the one-night hotel stay was the only nexus that

appellee and the couple had to D.C.

       Appellant relies on Crane v. Puller, 899 A.2d 879 (Md. Ct. Spec. App. 2006), to support his

argument that the parties’ overnight stay in D.C. was sufficient to prove that the parties cohabitated.

In Crane, the Court of Special Appeals of Maryland discussed Blaw-Knox Construction Equipment

Co. v. Morris, 596 A.2d 679 (Md. Ct. Spec. App. 1991), which held that a couple’s two-night

cohabitation in Pennsylvania, together with evidence of reputation in Pennsylvania, i.e. holding

themselves out as husband and wife to all their Pennsylvania friends, were sufficient evidence of a

Pennsylvania common law marriage to create a jury question. Id. at 913-14.

       Not all courts have accepted a short duration visit as proof sufficient to meet the

cohabitation requirement of common law marriage. This Court addressed the issue in Kelderhaus,

                                                 -5-
21 Va. App. 721, 467 S.E.2d 303. There, the parties purportedly married in California even though

Mr. Kelderhaus’ prior marriage had not been dissolved. Id. at 724, 467 S.E.2d at 304.

Subsequently, Mr. Kelderhaus divorced his former wife, and the parties participated in a second

marriage ceremony in Arizona that was not “legal.” Id. The parties resided together and held

themselves out as husband and wife while in Arizona. Id. They relocated to Virginia and, on their

way, they stopped overnight in Texas and Oklahoma. Id. at 725, 467 S.E.2d at 304.

Mrs. Kelderhaus argued that the parties had a common law marriage based on “their passage

through Texas and Oklahoma, states which recognize common-law marriages.” Id. at 725, 467

S.E.2d at 305.

       In addressing the asserted common law marriage in Kelderhaus, we relied, in part, on

Kennedy v. Damron, 268 S.W.2d 22 (Ky. Ct. App. 1954), which found that “mere visits to Ohio, a

common-law state,” by residents of Kentucky were not sufficient to prove the existence of a

common law marriage. Id. at 727, 467 S.E.2d at 305 (citing Kennedy, 268 S.W.2d at 24). We held

the parties’ “brief, transitory contact” with Texas did not establish a common law marriage in

Texas. Id. at 726, 467 S.E.2d at 305. Also underscoring the parties’ “minimal contact with

Oklahoma,” id. at 727, 467 S.E.2d at 306, we concluded, “To sanction marriage arising from such

an insignificant nexus with the common-law state would at once distort and trivialize the concept of

common-law marriage and ignore the principles which govern such unions in Oklahoma [and

Texas],” id. at 728, 467 S.E.2d at 306.

       Here, the circuit court found similarities between Kelderhaus and the facts of this case in

that both cases involved one-night hotel stays in foreign jurisdictions as proof a common law

marriage existed. The circuit court held that “a one-night stay – even where the parties believe

themselves to be married and have been through a marriage ceremony – is insufficient” to establish

cohabitation for purposes of a common law marriage in D.C.

                                                -6-
       Other states also have held that the parties must show more than a short visit to a state that

recognizes common law marriages as sufficient proof they cohabitated for common law marriage

purposes. See Fellin v. Estate of Lamb (In re Estate of Lamb), 655 P.2d 1001, 1003 (N.M. 1982)

(holding that a one-night or two-night stay at a hotel in Texas and the repetition of the parties’ vows

to one another were “insufficient to establish significant contacts with the State of Texas for

purposes of common law marriage”); In re Estate of Bivians, 652 P.2d 744 (N.M. Ct. App. 1982)

(holding that pleasure and business trips to Colorado and Texas were insufficient to prove a

common law marriage); Cross v. Cross, 146 A.D.2d 302, 310, 541 N.Y.S.2d 202, 206 (N.Y. App.

Div. 1989) (holding that parties could not “establish cohabitation and reputation in Washington,

D.C. on the basis of a two-day visit”); Laikola v. Engineered Concrete, 277 N.W.2d 653, 656

(Minn. 1979) (en banc) (holding that “Minnesota residents may not enter into a valid common-law

marriage by temporarily visiting a state which allows common-law marriages”); Stein v. Stein, 641

S.W.2d 856, 857-58 (Mo. Ct. App. 1982) (holding that a one-night trip to Pennsylvania and an

exchange of marriage vows were insufficient to prove a common law marriage); In re Estate of

Hildenbrand, 410 P.2d 244, 247 (Or. 1966) (holding that the parties did not enter into a common

law marriage as a result of their “temporary visit[s] for holiday purposes to a common-law marriage

state”); In re Marriage of Wharton, 639 P.2d 652, 653-54 (Or. Ct. App. 1982) (holding that business

and pleasure trips to Idaho were insufficient to prove common law marriage). See also 52 Am. Jur.

2d Marriage § 73 (2002) (“[A] brief sojourn, whether for business or social purposes, by a

nondomiciliary couple in a state which provides for the creation of a common-law marriage is

insufficient to consummate such a marriage.”). Here, although appellant had significant contact

with D.C. as a resident, he and appellee’s contact with D.C. as a couple was brief and insufficient to

prove cohabitation for common law marriage purposes.




                                                 -7-
        The parties in this case expressed their intent to marry one another in D.C., but they stayed

only one night in that jurisdiction. Accordingly, the trial court did not err in dismissing the

complaint for divorce and finding that appellant failed to prove the existence of a common law

marriage in D.C.

        Appellee seeks an award of the attorney’s fees and costs she incurred on appeal. “The

decision of whether to award attorney’s fees and costs incurred on appeal is discretionary.”

Friedman v. Smith, 68 Va. App. 529, 545, 810 S.E.2d 912, 919-20 (2018); Rule 5A:30(b). Since

this litigation “addressed appropriate and substantial issues,” and “neither party generated

unnecessary delay or expense in pursuit of its interests,” Estate of Hackler v. Hackler, 44

Va. App. 51, 75, 602 S.E.2d 426, 438 (2004), we deny appellee’s request for an award of

attorney’s fees and costs she incurred on appeal. See O’Loughlin v. O’Loughlin, 23 Va. App.

690, 695, 479 S.E.2d 98, 100 (1996).

                                            CONCLUSION

        For the foregoing reasons, the trial court’s ruling is affirmed.

                                                                                              Affirmed.




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