Larkins v. Larkins, 364 P.3d 1006

Background

Mother married Southard (2001); annulled (2006). They later remarried (July 2009). They have three children, including AR (born 2008).
Between those marriages, mother remarried Larkins (June 2007), divorced (Feb 2008), then remarried him (Aug 2008); record about that second Larkins marriage was contested and not presented at the dissolution trial.
AR’s birth certificate listed Southard as father after mother falsely told hospital staff she and Southard were married; Southard was nonbiological but acted as AR’s father for years.
Southard filed for dissolution (2012); dissolution court (2013) dissolved the marriage and awarded custody of three children to Southard. Mother later pled guilty to bigamy (2013).
Mother moved under ORCP 71 to set aside the dissolution judgment, arguing the second Southard marriage was void (because she was married to Larkins), so custody award and dissolution were void; the trial court denied relief.
On appeal mother argued the court lacked authority to dissolve and award custody if the Southard marriage was void; appellate court affirmed.

Issues

Issue	Mother’s Argument	Southard’s Argument	Held
Validity of second Southard marriage	The second marriage was void because mother remained married to Larkins; court therefore lacked authority to dissolve	Husband disputed or disputed that issue was properly presented at trial; record lacked proof of ongoing Larkins marriage	Mother failed to preserve/develop issue at trial; no timely evidence that marriage was void, so court did not err in treating marriage as effective for dissolution purposes
Whether dissolution judgment was void for lack of authority	Because marriage was void, dissolution and custody determinations were void and should be set aside under ORCP 71	Court had subject-matter and personal jurisdiction; even if annulled/void, court may award custody; post-judgment evidence of voidness does not render judgment void	Judgment was not void; court had authority to award custody even if marriage proved void; ORCP 71 relief not warranted
Requirement to present evidence of prior marriage status	Mother: later affidavits and stipulation should suffice to show bigamy and void marriage	Trial record lacked proof that prior marriage had not been dissolved; Davis requires proof the prior marriage persisted	Party asserting invalidity must allege and prove prior marriage existed and was undissolved; mother did not meet preservation/evidentiary requirements
Standard of review for custody on appeal	Mother requested de novo review	Respondents opposed de novo review; trial court’s custody decision was within discretion	Appellate court declined de novo review (not an exceptional case) and reviewed for abuse of discretion; no abuse found

Key Cases Cited

Nice v. Townley, 248 Or. App. 616 (appellate factual-review standard)
Kirkpatrick v. Kirkpatrick, 248 Or. App. 539 (review consistent with trial court findings)
Davis v. Davis, 55 Or. App. 982 (party asserting prior marriage invalidity must plead and prove eligibility and undissolved prior marriage)
Davis v. Davis, 57 Or. App. 145 (court will not extend stipulations beyond expressly stipulated facts)
Peeples v. Lampert, 345 Or. 209 (preservation of error principles)
Denis v. Denis, 153 Or. App. 655 (court may award spousal support/custody even if marriage later declared void)
PGE v. Ebasco Servs., Inc., 353 Or. 849 (judgment not void where court had jurisdiction despite statutory error)
Geranghadr v. Entagh, 189 Or. App. 567 (statutory violation does not necessarily render judgment void)
State of Oregon v. Davis, 192 Or. 575 (requirements for newly discovered evidence)
Sjomeling v. Lasser, 251 Or. App. 172 (abuse-of-discretion standard for custody determinations)