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Gill v. Nostrand

Court of Appeals of The District of Columbia

April 25, 2019

Brian Gill, Appellant,
v.
Rodney Van Nostrand, Appellee.

          Argued February 14, 2019

          Appeal from the Superior Court of the District of Columbia DRB-1774-14 (Hon. Robert Okun, Trial Judge)

          Aaron Marr Page, with whom Christopher J. Gowen was on the brief, for appellant.

          Jack Maginnis for appellee.

          Before Thompson, Easterly, and McLeese, Associate Judges.

          Thompson, Associate Judge.

         Plaintiff/appellant Brian Gill and defendant/appellee Rodney Van Nostrand were in a romantic relationship and cohabited for several years beginning in 2004. After their romantic relationship waned, and a few months after Mr. Van Nostrand had a ceremonial wedding in Brazil to another man he had met while on a lengthy work assignment in that country, Mr. Gill filed a complaint for legal separation from Mr. Van Nostrand, alleging that the two men are parties in a common law marriage that began in 2004.[1] Mr. Gill also sought alimony and a distribution of marital property. Mr. Van Nostrand denied that he and Mr. Gill had entered into a common law marriage. The matter was tried in the Superior Court over several days in June and July 2017. In its post-trial decision that we are asked to review, the trial court recognized that same-sex common law marriages are lawful in the District of Columbia and referred to its prior ruling in the case "that a party in a same-sex relationship must be given the opportunity to prove a common law marriage, even at a time when same-sex marriage was not legal . . . ." The court concluded, however, that Mr. Gill had failed to prove by clear and convincing evidence the existence of a common law marriage between him and Mr. Van Nostrand. The court therefore dismissed Mr. Gill's complaint.

         In this appeal, Mr. Gill does not take issue with the trial court's description of what he was required to prove in order to prevail on his claims: "that he and [Mr. Van Nostrand] made a commitment to each other, in the present tense, that was comparable to the commitment that parties make to each other in ceremonial marriages." Mr. Gill asserts, however, that the trial court erred by unconstitutionally "[r]equiring the parties' . . . agreement and relationship to meet expectations of form, custom, and marital consciousness drawn from the very institution of traditionally-conceived marriage from which they were excluded" before the Supreme Court's decision in Obergefell v. Hodges.[2] Mr. Gill also argues that the trial court's assessment of the parties' relationship "was affected by prejudicial assumptions and expectations." He further asserts that the trial court "provided no room for the different forms that a 'marriage' agreement occurring in the shadow of the institution might take . . . ." He characterizes the trial court's reasoning as "an insult to the seriousness of same-sex relationships," and contends that the trial court gave inadequate consideration to the parties' "commitment, intimacy, shared responsibility, and . . . vision of [the] permanence" of their relationship.

         Because we are satisfied that the record does not support Mr. Gill's characterization of the trial court's ruling, and because the evidence did not compel the trial court to conclude that the parties made an express mutual commitment to each other that was comparable to the commitment parties make to each other in a ceremonial marriage, we affirm.

         I.

         In Obergefell, the Supreme Court held that same-sex couples may not be deprived of the fundamental right to marry and that state laws that "exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples" violate the Due Process and Equal Protection Clauses of the Constitution and are therefore invalid. 135 S.Ct. at 2602-03, 2604-05. This court similarly has recognized that a law that would deny the right to marry to "individuals who are partners to a same-sex rather than opposite-sex union . . . . would take away from those individuals a civil right" and would "authorize discrimination on the basis of sexual orientation" in violation of the District of Columbia Human Rights Act. Jackson v. District of Columbia Bd. of Elections & Ethics, 999 A.2d 89, 118-119 (D.C. 2010) (en banc); see also D.C. Code § 46-401(a) (2012 Repl.) (providing, effective March 3, 2010, that "[a]ny person may enter into a marriage in the District of Columbia with another person, regardless of gender").

         "[T]he District of Columbia has long recognized common law marriages." Mesa v. United States, 875 A.2d 79, 83 (D.C. 2005) (internal quotation marks omitted); see also Nat'l Union Fire Ins. Co. v. Britton, 187 F.Supp. 359, 363 (D.D.C. 1960) (stating that common-law marriages and ceremonial marriages "are equally lawful, solemn, and binding"), aff'd, 289 F.2d 454 (D.C. Cir. 1961) (per curiam). We now expressly recognize, as the trial court did and as Obergefell, Jackson, and § 46-401(a) require, that a same-sex couple may enter into common-law marriage in the District of Columbia and that this rule applies retroactively. Thus, the trial court was correct in ruling that "a party in a same-sex relationship must be given the opportunity to prove a common law marriage, even at a time when same-sex marriage was not legal . . . ."

         As articulated in numerous pre-Obergefell decisions of this court, "[t]he elements of common law marriage in this jurisdiction are cohabitation as husband and wife, following an express mutual agreement, which must be in words of the present tense." Coleman v. United States, 948 A.2d 534, 544 (D.C. 2008) (internal quotation marks); see also Coates v. Watts, 622 A.2d 25, 27 (D.C. 1993) ("Although there is no set formula required for the [express mutual] agreement, the exchange of words must inescapably and unambiguously imply that an agreement was being entered into to become man and wife as of the time of the mutual consent.") (internal quotation marks omitted). Adhering to Obergefell and Jackson, we now restate the elements of common law marriage as follows: cohabitation following an express mutual agreement, which must be in words of the present tense, to be permanent partners with the same degree of commitment as the spouses in a ceremonial marriage. Echoing Coates, we declare that "[a]lthough there is no set formula required for the [express mutual] agreement, the exchange of words must inescapably and unambiguously imply that an agreement was being entered into to become [permanent partners with the same degree of commitment as the spouses in a ceremonial marriage] as of the time of the mutual consent."[3]Coates, 622 A.2d at 27 (internal quotation marks omitted). An agreement "to be married at an unspecified future time . . . . is insufficient to establish the existence of a common law marriage . . . ." Id.; see also Cerovic v. Stojkov, 134 A.3d 766, 776 (D.C. 2016) ("Being engaged, by itself, does not constitute a common law marriage, but rather may signify an intention to marry.").

         "The best evidence of [the requisite present-tense express mutual] agreement is the testimony of the parties." United States Fid. & Guar. Co. v. Britton, 269 F.2d 249, 252 (D.C. Cir. 1959). In some circumstances, however, the existence of the required mutual agreement "may be inferred from the character and duration of cohabitation, or from other circumstantial evidence such as testimony by relatives and acquaintances as to the general reputation regarding the parties' relationship." Mesa, 875 A.2d at 83.

         Ordinarily, "a party alleging a common-law marriage need prove it only by a preponderance of the evidence." East v. East, 536 A.2d 1103, 1106 (D.C. 1988). However, where there is a claim that a common-law marriage preceded a ceremonial marriage between one of the parties to the putative common law marriage and a third person, [4] the party asserting the common law marriage must overcome the legal presumption that the more recent, ceremonial marriage is valid. Id. at 1105. This presumption is "one of the strongest [presumptions] in the law," id. (internal quotation marks omitted), and represents a "social policy in favor of reaching a particular result in the close or doubtful cases." Mayo v. Ford, 184 A.2d 38, 41 (D.C. 1962) (internal quotation marks omitted). The presumption of the validity of a later-in-time ceremonial marriage can be rebutted only by "strong, distinct, satisfactory, and conclusive evidence." Id. (internal quotation marks omitted). That is, "to overcome the presumption of the validity of [a] later marriage[, ] the proponent of the prior, common law marriage must prove its existence by clear and convincing evidence." Cerovic, 134 A.3d at 775 (internal quotation marks omitted). "Clear and convincing evidence is evidence which will produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established. . . ." In re Ta.L., 149 A.3d 1060, 1084 (D.C. 2016) (en banc) (plurality opinion) (internal quotation marks omitted). In short, the party seeking to prove the existence of a prior, non-dissolved common law marriage where there has been a subsequent ceremonial marriage, bears a "heavy burden." Johnson v. Young, 372 A.2d 992, 994 (D.C. 1977).

         More generally (e.g., even when there is no subsequent ceremonial marriage), we have said that "claims of common law marriage should be closely scrutinized." Cerovic, 134 A.3d at 776 (internal quotation marks omitted). This is especially so if ceremonial marriage, which "provides unequivocal proof" that the parties are married, "is readily available." Coates, 622 A.2d at 27; Bansda v. Wheeler, 995 A.2d 189, 198 (2010) ("Since ceremonial marriage is readily available and provides unequivocal proof that the parties are [spouses], claims of common law marriage should be closely scrutinized . . . .") (alteration and internal quotation marks omitted). One sound reason for courts to be skeptical of claims of common-law marriage is that "experience reveals that many who believe themselves to be 'common-law' married have had one or more previous 'common-law' relationships without the benefit of divorce." McCoy v. District of Columbia, 256 A.2d 908, 910 (D.C. 1969).

         Nevertheless, because ceremonial marriage between same-sex couples was not available in the District of Columbia prior to enactment of § 46-401(a) in 2010, it arguably would be appropriate to apply the "close[] scrutin[y]" described above only to a review of what transpired between the parties to a same-sex (putative) common-law marriage after that enactment date.[5] And, somewhat conversely, although Obergefell did not identify the applicable level of scrutiny when marriage laws are applied to same-sex couples, it might be appropriate to apply a rigorous review, "if not quite 'strict scrutiny, '"[6] to any judicial analysis that impinges upon or "substantially"[7] or "'significantly interfere[s]' with"[8] the ability of same-sex partners to exercise the fundamental right to marry.[9] We shall assume arguendo that serious constitutional issues would arise if the trial court's analysis of common-law marriage operated to the peculiar disadvantage of Mr. Gill and Mr. Van Nostrand as a same-sex-couple, i.e., required them to meet expectations that they as a same-sex couple could meet only with more difficulty than opposite-sex couples would encounter. Such an approach is arguably warranted in order to accord same-sex couples who have chosen to share their lives in a union comparable to traditional marriage "the same respect and dignity accorded a union traditionally designated as marriage." Strauss v. Horton, 207 P.3d 48, 71 (Cal. 2009) (internal quotation marks omitted).

         We have said that whether there is a common law marriage is "largely a factual determination," Mesa, 875 A.2d at 83 (emphasis added), meaning that it is a mixed question of fact and law. Compare East, 536 A.2d at 1106 ("The trial court found that there was a present verbal agreement to be married on October 31, 1977. In the 'Findings of Fact' section of its order, the court recited the contradictory evidence concerning that agreement, and in its 'Conclusions of Law' the court resolved this conflict in favor of Margaret East. Although this resolution appears in the 'Conclusions of Law' section of the order, it is really a finding of fact."), with Gardner v. Gardner, 233 F.2d 23, 25 n.3 (D.C. Cir. 1956) (referring to the finding that "no common law marriage exists" between the parties as "perhaps more accurately [a] conclusion[] of law"), and Renshaw v. Heckler, 787 F.2d 50, 54 (2d Cir. 1986) ("[T]he question as to whether a person has been legally married to another is a mixed question of law and fact for the purpose of review . . . ."). The trial court's resolution of conflicting factual evidence must be affirmed unless "it is plainly wrong or without evidence to support it." East, ...


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