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In re Marriage of Hiller

Court of Appeals of Iowa

November 8, 2017

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.

         Appeal from the Iowa District Court for Greene County, Steven J. Oeth, Judge.

         Steven 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 provisions.

          Alexander E. Wonio of Hansen, McClintock & Riley, Des Moines, for appellant.

          Vicki R. Copeland of Wilcox, Gerken, Schwarzkopf, Copeland & Williams, P.C., Jefferson, for appellee.

          Heard by Vogel, P.J., and Tabor and Bower, JJ.

          TABOR, JUDGE.

         The 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.

         I. Background Facts and Prior Proceedings

         Steven 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, Iowa.

         The district court held a trial on March 23 and April 19, 2016. The court found a common law marriage commenced on July 1, 1998.[1] The court divided the parties' assets and debts and ordered Steven to pay $1200 monthly alimony for twelve years.[2] 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.[3] On Marsha's cross-appeal, she defends the marriage and raises economic issues.

         II. Scope and Standard of Review

         We 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).

         III. Common Law Marriage

         Iowa 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.[4] 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 1956).

         To 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).

         Present Intent and Agreement.

         "The 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.

         Public ...


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