Filed 3/8/18

                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


MICHAEL CHANEY,                         2d Civil No.B282120
                                     (Super. Ct. No. 15FL-0528)
     Plaintiff and Respondent,        (San Luis Obispo County)

v.

LEANNE NETTERSTROM,

     Defendant and Appellant.


       After three years of dating and cohabitation, appellant
Leanne Netterstrom and respondent Michael Chaney applied for
a confidential marriage license and exchanged vows at a
solemnization ceremony. After the ceremony, the officiant gave
the signed license to the parties, who promised to file it with the
county. For personal and financial reasons, the parties did not
return the license to the county. Four years later, Chaney
petitioned for dissolution of marriage. Netterstrom moved to
quash on the ground that she and Chaney are not married. The
trial court denied the motion to quash.
       Rule 1: “[A] marriage shall be licensed, solemnized and
authenticated, and the authenticated marriage license shall be
returned to the county recorder of the county where the marriage
license was issued . . . . Noncompliance with this part by a
nonparty to the marriage does not invalidate the marriage.”1
       Rule 2: “The person solemnizing the marriage shall return
the marriage license . . . to the county recorder . . . within 10 days
after the ceremony.”2
       The law requires an officiant to return the license to the
county; however, noncompliance by a nonparty does not
necessarily invalidate an otherwise lawful marriage. (§ 306.)
Nor was the marriage invalidated by the parties’ conduct in
keeping the license or claiming “single” status to tax authorities
and a bank. Once they secured a license from the county,
exchanged vows at a solemnization ceremony and the license was
authenticated, the parties were married. We affirm the trial
court’s validation of the marriage.
             FACTS AND PROCEDURAL HISTORY
       The parties began dating in 2008 and cohabiting in 2011.
In the fall of 2011, Netterstrom agreed to what was, in her mind,
a “commitment ceremony.” She had reasons to avoid marriage:
she had been married twice before; “I never wanted to get
married again;” she did not want to lose her Social Security
widow’s benefits by remarrying; and Chaney gambled and was
financially unstable. In Chaney’s view, he proposed marriage to
Netterstrom and she accepted.
       The parties obtained a confidential marriage license from
the county clerk.3 Netterstrom claimed at trial that this was a


      1  Family Code, section 306. Unlabeled statutory references
in this opinion are to the Family Code.
       2 Section 423.
       3 The parties must personally appear before the county

clerk to obtain a confidential marriage license. (§ 501.)

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ruse: the parties only wanted to appease relatives who
disapproved of unwedded cohabitation. The trial court
discredited Netterstrom’s testimony, noting that the parties could
have held a ceremony without a license, and her relatives would
be none the wiser.
       It is undisputed that the parties participated in a
solemnization ceremony in Cambria on November 11, 2011. The
officiant signed the marriage license and gave it to the parties
with the understanding that they would file it. The trial court
found that in doing so, the officiant did not perform his duty to
return the license. It concluded, however, that this dereliction
did not invalidate the marriage.
       Chaney admittedly allowed the time for returning the
license to lapse. Netterstrom asked him not to file it because she
did not want to lose her Social Security benefits. Chaney told
Netterstrom “it was her decision as to whether or not the
marriage license would be returned to the county recorder’s
office”; she advised him that “she decided she didn’t want to mail
the certificate in.” It is undisputed that neither of the parties
returned the signed marriage license to the county. Instead, it
remained in Chaney’s desk, where Netterstrom found it in July
2015.
       After exchanging vows, Netterstrom occasionally called
herself Leanne Chaney, and the couple openly referred to each
other as husband and wife. Despite telling friends and family
that they were married, the parties pretended to be unmarried
when it suited their financial interests. They filed tax returns as
“single” people. They refinanced Chaney’s home in 2013, stating
on the loan application that they are unmarried. The deed of




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trust securing repayment of the loan is in the names of Chaney
and Netterstrom as “unmarried” individuals.
       In a change of ownership document for the house, Chaney
notified the assessor’s office of a transfer between “domestic
partners,” not between husband and wife. Title was taken in the
name of “Michael Chaney, an unmarried man, and Leanne
Netterstrom, an unmarried woman, as joint tenants.”
       In 2015, Chaney petitioned for dissolution of marriage. In
response to the petition, Netterstrom declared that she and
Chaney are not married. She asked the trial court to quash the
summons and petition on the ground that there is no marriage,
and to dismiss the action.
       The trial court ruled that the parties are married. The
statement of decision recites that the parties participated in a
ceremony, then wittingly kept the completed marriage license
instead of returning it to the county. Family members toasted
the marriage at a party after the ceremony. Netterstrom
announced the marriage on Facebook and thereafter referred to
Chaney as her “husband.” When the relationship ended,
Netterstrom lamented the end of the “marriage.”
       The trial court acknowledged that the parties filed as
“single” taxpayers throughout their marriage, to suit their
financial interests. Nonetheless, it found that the parties
consented to marriage by not calling off the ceremony before the
exchange of vows. Though the parties agreed to retain the
marriage license, the court deemed this “unconvincing” evidence
that consent was lacking. The court wrote that the wedding
officiant failed to perform his duty to return the license, but this
did not invalidate the marriage.




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                            DISCUSSION
       If either party denies a marriage, the other party may seek
to have the validity of the marriage judicially determined and
declared. (§ 309; Health & Saf. Code, § 103450, subd. (a) [a party
may petition to judicially establish the fact of an unregistered
marriage].) “[T]he Legislature has enacted a comprehensive
scheme regulating marriage in California . . . setting forth in
detail the procedures to be followed.” (Lockyer v. City and County
of San Francisco (2004) 33 Cal.4th 1055, 1079.) Our analysis
requires us to review and interpret the statutes governing
marriage, to determine whether the requirements for a valid
marriage have been met. This presents a question of law. (Ceja
v. Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113, 1119.)
       “Marriage is a personal relation arising out of a civil
contract between two persons, to which the consent of the parties
capable of making that contract is necessary. Consent alone does
not constitute marriage. Consent must be followed by the
issuance of a license and solemnization.” (§ 300, subd. (a).) To
solemnize the marriage, “the parties shall declare, in the physical
presence of the person solemnizing the marriage and necessary
witnesses, that they take each other as spouses.” (§ 420, subd.
(a).)
       Following solemnization, the marriage license “shall be
returned” to the county. (§ 306.) “Returned” means presented in
person or postmarked before the statutory deadline. (§ 359, subd.
(f).) A confidential marriage document “is a marriage license
until it is registered with the county clerk, at which time the
license becomes a marriage certificate.” (§ 500.5.)4

      4
        Once registered, the certificate becomes part of the state’s
vital statistics. (Health & Saf. Code, § 102100 [“[e]ach . . .

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       The statutory scheme does not contemplate what happens
if the wedded couple retains the signed license. The Legislature
did not address this eventuality because it has placed the burden
of returning the license to the county for registration squarely
upon the wedding officiant.
       The law on this point is clear. It states that a confidential
marriage license “shall be returned by the person solemnizing the
marriage to the office of the county clerk in the county in which
the license was issued within 10 days after the ceremony.”
(§ 506, subd. (c), italics added; § 423 [“The person solemnizing the
marriage shall return the marriage license . . . to the county
recorder . . . within 10 days of the ceremony.” Italics added];
Health & Saf. Code, § 103150 [A marriage “shall be registered by
the person performing the ceremony.” Italics added].) The word
“shall” means that the act is mandatory. (§ 12.)
       Applying the statutes addressing the creation of marriage,
we conclude that the parties in this case are married. They
applied in person for a confidential marriage license at the office
of the county clerk. They exchanged vows declaring each other
spouses at a solemnization ceremony. After the ceremony, the
officiant authenticated the marriage license; he was not told that
the wedding was a ruse. At that point, the parties were married.
The officiant had a legal duty to return the license to the county.
His failure to perform that duty “does not invalidate the
marriage.” (§ 306.)


marriage that occurs in the state shall be registered . . . on the
prescribed certificate forms”]; § 511, subd. (d) [the county clerk
must transmit a copy of the original confidential marriage
certificate to the State Registrar of Vital Statistics].)


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       Netterstrom relies on Estate of DePasse (2002) 97
Cal.App.4th 92 (overruled in part in Ceja v. Rudolph & Sletten,
supra, 56 Cal.4th at p. 1126). DePasse is factually inapposite. In
DePasse, the parties did not obtain a marriage license before
their “marriage ceremony”; therefore, there was no license to
return for registration. The burden of obtaining a marriage
license was on the parties, who had to prove their identity,
capacity to marry, and lack of intoxication at the time of
application. (Id. at pp. 98-100.) The absence of a license was
fatal to the claim of a valid marriage in DePasse. (Id. at p. 95.)
In our case, by contrast, the parties indisputably secured a valid
license and solemnized their vows. The burden was then on the
officiant, not the parties, to return the license.
       The case of In re Marriage of Cantarella (2011) 191
Cal.App.4th 916 (Cantarella) disposes of Netterstrom’s claim that
no marriage was formed because the parties did not return the
license. As here, the question in Cantarella was “whether a
party’s failure to register a certificate is fatal to the marriage’s
validity.” (Id. at p. 924, fn. 8.) Cantarella holds that failure to
return the license does not invalidate the marriage “regardless of
who bore the responsibility for the nonregistration (whether a
party or nonparty).” (Id. at p. 925.)
       In Cantarella, the parties had a marriage ceremony before
a judge in 1991; the certificate was rejected for registration due to
a technical error on the document. “After the second rejection,
the parties decided not to submit the certificate for registration,
possibly to avoid the tax consequences of marriage.” (Cantarella,
supra 191 Cal.App.4th at p. 919.) A decade later, they had a
second wedding ceremony. At dissolution, in 2008, the husband




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claimed that the marriage was not of long duration because the
unregistered 1991 marriage was invalid. (Id. at pp. 919-921.)
       The appeal required the court “to determine whether the
parties’ failure to register a marriage certificate invalidated the
1991 marriage.” (Cantarella, supra, 191 Cal.App.4th at p. 921.)
The court emphasized that a marriage is not invalidated if the
officiant fails to comply with the statutory mandate to return the
license to the county. The court declined to infer that a party’s
noncompliance with the same registration requirement
necessarily invalidates a marriage. (Id. at p. 922, fn. 6.)5
       The court in Cantarella reasoned that the validity of a
marriage is determined by the parties’ consent to it: “a marriage
was actually or potentially invalid if a party did not consent to it
or lacked the ability to consent.” (Cantarella, supra, 191
Cal.App.4th at p. 923.) “Most importantly, a marriage ceremony
culminated in the parties’ declaration that they accepted each
other as husband and wife. Common sense and tradition tells us
this is the moment at which the parties’ valid consent creates a
marriage. Indeed, once solemnized, a marriage is presumed valid


      5  Cantarella applied prior law, stating that a marriage
“‘must be licensed, solemnized, authenticated, and the certificate
of registry of marriage filed . . .; but noncompliance with its
provisions by others than a party to a marriage does not
invalidate it.’” (Cantarella, supra, 191 Cal.App.4th at pp. 921-
922, citing former Civ. Code § 4200.) The Family Code
superseded the Family Law Act without substantive change. (Id.
at p. 919, fn. 1.) Wording changes in a statute from “shall” to
“must” (or vice versa) without substantive changes means that
the former and current versions are “identical, and are to be
considered as having the same effect.” (Davis v. Superior Court
(1921) 184 Cal. 691, 693.)

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(Evid. Code, § 663) and a person disputing its validity bears the
burden of proving it void.” (Id. at p. 924.)
       The registration of the certificate does not bear on the issue
of consent, and serves only a recordkeeping function “after the
parties had solemnly consented to marriage in a ceremony and
after the county clerk and the officiant had satisfied themselves
the parties’ consent was knowing, voluntary, and valid.
Additionally, registration was the duty of an officiant . . . , i.e., of
a nonparty whose noncompliance with statutory requirements did
not void a marriage . . . .” (Cantarella, supra, 191 Cal.App.4th at
p. 924.)
       Nodding to the societal importance of recognizing the
validity of marriages—given the significant property and
inheritance rights marriage confers, with concurrent fiduciary
and legal duties—the court concluded that the Legislature did
not intend that a marriage be invalidated by the parties’ failure
to register the license. (Cantarella, supra, 191 Cal.App.4th at pp.
924-925.) The court recognized that its holding “could allow a
party to conceal a marriage for tax reasons, but later claim it for
purposes of spousal support” but determined that “[t]he tax
consequences of our decision, if any, are not before us.” (Id. at
p. 926, fn. 12.)
                           CONCLUSION
       Here we conclude that the parties’ retention of the license
does not invalidate the marriage after the solemnization
ceremony has taken place. The “necessary step of solemnizing”
the marriage makes the union valid. (Burnham v. Public
Employees’ Retirement System (2012) 208 Cal.App.4th 1576,
1584-1585 [contrasting domestic partnerships, in which filing the
declaration of partnership is the necessary step to validate the


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union].) The exchange of vows to take each other as spouses
“symbolize[s] the irrevocable decision to go through with the
union. In the case of solemnization, once the parties say ‘I do,’
they cannot take the statement back. . . . [I]t is the point in the
process at which the parties can no longer change their minds
about their decision to form a union.” (Id. at p. 1585.)
                          DISPOSITION
      The judgment is affirmed. Respondent is entitled to
recover his costs on appeal.

      CERTIFIED FOR PUBLICATION.




                                      PERREN, J.


      We concur:



      GILBERT, P. J.



      YEGAN, J.




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        Commissioner Patrick J. Perry, Judge Pro Tem

          Superior Court County of San Luis Obispo
              ______________________________

      Banick Hodges Law Corporation and John F. Hodges for
Plaintiff and Respondent.
      Ogden & Fricks, Roy E. Ogden and Sue N. Carrasco for
Defendant and Appellant.




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