IN RE THE MARRIAGE OF MARSHA KAY HILLER AND STEVEN MARK NELSEN Upon the Petition of MARSHA KAY HILLER, Petitioner-Appellee/Cross-Appellant, And Concerning STEVEN MARK NELSEN, Respondent-Appellant/Cross-Appellee.
from the Iowa District Court for Greene County, Steven J.
Nelsen appeals a dissolution decree concluding he entered a
common law marriage with Marsha Hiller and challenges the
alimony award; Marsha cross-appeals the decree's economic
Alexander E. Wonio of Hansen, McClintock & Riley, Des
Moines, for appellant.
R. Copeland of Wilcox, Gerken, Schwarzkopf, Copeland &
Williams, P.C., Jefferson, for appellee.
by Vogel, P.J., and Tabor and Bower, JJ.
threshold question in this appeal is whether Marsha Hiller
and Steven Nelsen entered into a common law marriage. Seeking
a dissolution of marriage, Marsha had the burden to show the
couple agreed and had the present intent to be married,
publicly declared that intent, and continuously cohabitated.
Because Marsha satisfied her burden, we affirm the existence
of a common law marriage. But because we conclude the
marriage started in 1993, instead of 1998, we modify the
decree. We remand for the district court to enter qualified
domestic relations orders (QDROs) using the earlier marriage
date. We also modify the duration of the alimony award;
Steven shall pay traditional alimony of $1200 per month until
either party dies or Marsha remarries. We further modify the
decree to provide Steven shall pay Marsha $16, 000 to
equalize the division of the couple's property. Finally,
we grant Marsha's request for appellate attorney fees.
Background Facts and Prior Proceedings
and Marsha attended high school together in Dennison, Iowa.
They started living together in Arizona in 1988 when their
son J.N. was a baby. They continued to cohabitate thereafter,
expanding their family in 1993 with son C.N. and in 1996 with
son Z.N.. Marsha consulted with a dissolution attorney in
April 2015, a month before the youngest child graduated from
high school. Contending the parties had a common law
marriage, Marsha petitioned for dissolution on July 21, 2015.
The next month, she moved to Minnesota to live with her
mother. Steven remained in the family home in Jefferson,
district court held a trial on March 23 and April 19, 2016.
The court found a common law marriage commenced on July 1,
1998. The court divided the parties' assets
and debts and ordered Steven to pay $1200 monthly alimony for
twelve years. On appeal, Steven maintains no common law
marriage existed. In the event we affirm the existence of a
common law marriage, he then challenges the alimony
award. On Marsha's cross-appeal, she defends
the marriage and raises economic issues.
Scope and Standard of Review
review de novo Marsha's claim of a common law marriage.
See In re Marriage of Martin, 681 N.W.2d 612, 646
(Iowa 2004). We examine the entire record and adjudicate anew
the parties' rights on the issues properly presented.
See In re Marriage of Williams, 589 N.W.2d 759, 761
(Iowa Ct. App. 1998). When we consider the credibility of
witnesses, we give weight to the findings of the district
court but are not bound by them. See In re Marriage of
McDermott, 827 N.W.2d 671, 676 (Iowa 2013).
Common Law Marriage
recognizes both ceremonial marriages, which are governed by
statute, and common law marriages. Martin, 681
N.W.2d at 616-17 (stating common law marriage "has been
recognized in Iowa for well over a century"). The burden
rests on the party claiming the existence of a common law
marriage, here Marsha, to prove the union by a preponderance
of the evidence. See In re Marriage of Grother,
242 N.W.2d 1, 1 (Iowa 1976). Marsha's claim "is
regarded with suspicion and is closely scrutinized."
Id.; see also In re Marriage of Winegard
(Winegard II), 278 N.W.2d 505, 510 (Iowa 1979)
(observing there is "no public policy in Iowa favoring
common law marriage"); Fisher, 176 N.W.2d at
804 ("There is no presumption that persons are
married."). Each case depends upon its own unique facts;
"precedents are not greatly valuable."
Gammelgaard v. Gammelgaard, 77 N.W.2d 479, 481 (Iowa
establish a common law marriage, Marsha had the burden to
prove the following: (1) a present intent and agreement by
both parties to be married, (2) a public declaration they are
wife and husband, and (3) continuous cohabitation.
Winegard II, 278 N.W.2d at 510. If Marsha meets her
burden, the parties' common law marriage can only be
ended by a decree of dissolution. See In re Estate of
Stodola, 519 N.W.2d 97, 100 (Iowa Ct. App. 1994)
(stating once a couple is married by common law then a
dissolution decree is necessary to dissolve the marriage).
Intent and Agreement.
requirement of a present intent and agreement to be married
reflects the contractual nature of marriage."
Martin, 681 N.W.2d at 617. The agreement can be
either express or implied. Id. An implied agreement
may support this element where one person intends to be
married and the would-be spouse does not share in that
intent, but the would-be spouse's conduct "reflects
the same intent." Id. This requirement
"precludes a common law marriage based on an intent to
be married at some future time." Id.