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Family Law Update - June 2020

June 1, 2020

Common Law Marriage

Volk v. Vecchi, 2020 UT App 77

Utah Court of Appeals

Attorneys: David S. Pace; Karra J. Porter; Kristen C. Kiburtz

District Court: Third District – Honorable James D. Gardner

Summary: The parties were in a relationship between 1999 and 2015. The appellate court upholds the district court in finding that there was a common law marriage. The parties lived together between 1999 and 2015 (except for one (1) year). The parties had two children together. The parties “specifically” agreed that Volk would be a stay-at-home parent. They agreed to divide responsibilities and pool their resources together. They jointly purchased four (4) properties together, as co-borrowers on the loans. They shared title and maintenance on the properties. They maintained joint checking and savings accounts, joint car loans, joint credit cards, and none of their financial lives were handled separately.

Holding (Common Law Marriage – Uniform Reputation): The common law marriage statute and requirements are laid out in U.C.A. § 30-1-4.5(1). It requires partners to “hold themselves out as and have acquired a uniform and general reputation as husband and wife.” “In proving the existence of a common law marriage, no single factor is determinative, but each required elements must be established by sufficient evidence.” Whyte v. Blair, 885 P.2d 791, 793 (Utah 1994). The court found that Volk regularly referred to Vecchi as her husband, that she considered them to be married, and that she routinely introduced Vecchi as her husband to third parties and otherwise regularly represented herself as being married. The parties also provided documentation to third parties such as lenders that said they were married. Vecchi’s testimony was inconsistent, but Volk’s testimony was supported in large part by Vecchi’s testimony. A number of third parties provided testimony consistent with Volk’s and showed that third parties did believe the couple to be married. The couple did refer to one another as husband and wife. Vecchi’s provided a few witnesses that knew that the marriage had not been solemnized; however, even these witnesses testified that the couple was exclusive and committed. However, awareness by a few of the legal status of the couple’s union is not fatal to a common law argument.

Holding (Common Law Marriage – Consent): Yes, the parties consented. “While the best evidence of marital consent is a written agreement by both parties…our courts have noted that consent may be established by evidence of certain circumstances in the parties’ relationship, such as maintenance of joint banking and credit accounts, purchase and joint ownership of property, the sharing of a spouse’s surname and/or the children of the union, the filing of joint tax returns, speaking of each other in the presence of third parties as being married, and declaring the relationship in documents executed by them while living together, such as deed, wills, and other formal instruments.” Whyte, 885 P.2d at 794-95; see also Hansen v. Hansen, 958 P.2d 931, 935 (Utah Ct. App. 1998).


Koehler v. Allen, 2020 UT App 73

Utah Court of Appeals

Attorneys: Scott N. Weight; Albert N. Pranno; Justin T. Ashworth

District Court: Fourth District – Honorable M. James Brady

Summary: The district court found Allen in contempt when he emailed Koehler despite a stalking injunction. The court of appeals upholds on the fact that he knew he was subject to the injunction but remands on whether he “intentionally violated” the order.

Holding (Contempt – Knew He was Subject to Stalking Injunction): An ex-parte stalking injunction was entered because Allen did not request a hearing. The ex-parte injunction clear stated that it lasts three years and can only be changed by the court. Then, Allen requested a hearing on the ex-parte stalking injunction late. A hearing was scheduled to determine if it would be heard on the merits. Allen’s attorney requested a continuance, but there was never a follow up to the continuance and the matter was never heard. Therefore, the ex-parte order remained in effect. Allen then began emailing Koehler again. Allen asserts that his attorney said there was no hearing because the injunction had been dismissed, but he never received any official documents showing it has been dismissed. Before he sent the emails, he had pled no contest to a criminal charge on another violation. That court had heard the arguments about his attorney not communicating properly with him. Therefore, the status of the stalking injunction was made clear to Allen before he sent the emails. The court was right to find that Allen knew he was subject to the stalking injunction.

Holding (Contempt – Intentionally Violated – Voluntary Intoxication): Allen states that he does not remember sending the email because he had taken Trazodone and Unisom together and could not remember anything from that night. The court found that the email was sent at 7 PM, used proper grammar and spelling, used proper punctuation, and was not rambling or in a stupor. The court found that he intentionally violated the order or was voluntarily intoxicated. However, the court needed to specify which it was. “Voluntary intoxication is not a defense ‘unless the intoxication negates the existence of the mental state which is an element of the offense.’” State v. Bell, 2016 UT App 157; U.C.A. § 76-2-306. It is not enough for a defendant to allege voluntary intoxication. Instead, he must “point to evidence showing that he was so intoxicated that he was incapable of forming the requisite mental state for the acts committed.” Id. The court incorrectly assumed that voluntary intoxication is not a defense and seemed to dismiss the argument. The case is remanded to see if the defense applies.

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