Dodrill v. DodrillDodrill v. Dodrill
- Reporters:
- Before:
- Roger L. Kline
DECISION AND JUDGMENT ENTRY
{¶ 1} Appellant Carol B. Dodrill, executor of the estate of James Garfield Dodrill, and her two adult children, cross-appellants James G. Dodrill, II and Gina Dodrill Stelluti, separately appeal the Vinton County Probate Court‘s judgment, which found that Marie L. Dodrill was the surviving spouse of James Garfield Dodrill (“decedent“). Carol, James and Gina argue that Marie is not the surviving spouse of the decedent because R.C.
I
{¶ 2} On October 13, 1995, the Vinton County Probate Court issued a marriage license to Marie and the decedent. Judy McKee, a minister and the decedent‘s sister, solemnized the marriage on October 21, 1995 and returned the executed marriage certificate to the probate court. After the marriage ceremony, Marie and the decedent thought that they were legally married.
{¶ 3} The decedent adopted Marie‘s three minor children — Kimberly Ann Dodrill, Lauren Marie Dodrill and Garrion Eugene Dodrill. In his petition to adopt the children, the decedent indicated that he was married. Marie and the decedent jointly purchased property and filed joint income tax returns.
{¶ 4} On September 25, 2000, Marie filed an alimony only action against the decedent in the Jackson County Common Pleas Court. The decedent filed an answer and a counterclaim for divorce. Marie and the decedent indicated that they were married in these pleadings. The court dismissed this case without a final judgment after the decedent died on August 22, 2001.
{¶ 5} The Vinton County Probate Court appointed Carol, the decedent‘s former spouse, as the executor of the decedent‘s estate. Carol filed an action pursuant to R.C.
{¶ 6} During a deposition, McKee testified that she had obtained a license as a minister from Bishop Storms but did not obtain a second license from the Ohio Secretary of State that allowed her to solemnize marriages in 1995. After discovery, Carol, Marie, James and Gina filed motions for summary judgment. The trial court found that Marie was the decedent‘s surviving spouse and granted her motion for summary judgment.
{¶ 7} Carol appeals the trial court‘s judgment and assigns the following assignment of error: “The Trial Court erred in ruling that Marie L. Dodrill was the spouse of the decedent James Garfield Dodrill.” Carol states the issue for our review: “Are the provisions of Ohio Revised Code Section
II
{¶ 8} Carol, James and Gina argue that common law marriages were abolished on October 10, 1991. They maintain that, pursuant to R.C.
{¶ 9} Summary judgment is appropriate when the court finds that the following factors have been established: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed in his or her favor.
{¶ 10} The burden of showing that no genuine issue of material fact exists falls upon the party requesting summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, 294, citing Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. The moving party bears this burden even for issues that the nonmoving party may have the burden of proof at trial. Id. “However, once the movant has supported his motion with appropriate evidentiary materials, the nonmoving party may not rely upon the allegations and/or denials in his pleadings. * * *. He must present evidentiary materials showing that a material issue of fact does exist.” Morehead at 413.
{¶ 11} Here, the parties do not dispute any material fact. Instead, they disagree on whether Marie and the decedent complied with R.C.
{¶ 12} “[T]he marriage of a man and woman may occur in this state only if the marriage is solemnized by a person described in section
{¶ 13} Here, we will assume arguendo that R.C.
{¶ 14} “There are major conceptual differences between void and voidable marriages. A voidable marriage is valid when entered and remains valid until either party secures a lawful court order dissolving the marital relationship. By contrast, a void marriage is invalid from its inception, and the parties thereto may simply separate without benefit of a court order of divorce or annulment.” (Citations omitted.) Darling v. Darling (1975), 44 Ohio App.2d 5, 7.
{¶ 15} “The policy of the law is to sustain marriages, where they are not incestuous, polygamous, shocking to good morals, unalterably opposed to a well defined public policy, or prohibited.” Mazzolini v. Mazzolini (1958), 168 Ohio St. 357, 358. Stated differently, Ohio courts label a defective marriage voidable unless such a label is against policy considerations.
{¶ 16} In Carmichael v. State (1861), 12 Ohio St. 553, the officiating person did not have a license or authority as required by statute to solemnize the marriage. The court did not find that this defect rendered the marriage void because the statute did not expressly say so.
{¶ 17} A marriage is void when it is against public policy. See In re Marriage License for Nash, 2003-Ohio-7221, Ohio App. 11 Dist., Dec 31, 2003 (public policy prohibited post-operative female-to-male transsexual marriage to biological female); In re Stiles Estate (1979), 59 Ohio St.2d 73 (marriage of uncle to his niece was incestuous and void); Johnson v. Wolford (1927), 117 Ohio St. 136 (when a person with a living spouse purports to marry again, the second marriage is “void“).
{¶ 18} A defective marriage is voidable when it is not against public policy. See In re Ababseh (Mar. 12, 1996), Mahoning App. No. 95CA179 (a marriage between persons under legal age, but over the common law age of consent, is not void, but only voidable); Soley v. Soley (1995), 101 Ohio App.3d 540 (marriage between first cousins was voidable, not void) following Mazzolini, supra, at paragraph three of the syllabus (“Although a marriage in Ohio between first cousins is not approved by law, it is not expressly prohibited and made void by any statutory enactment, and, where first cousins by blood, one a resident of Massachusetts and the other a resident of Ohio, are lawfully married in Massachusetts and remove to Ohio to live, such marriage is not void in Ohio, and an action by the Ohio resident instituted in Ohio to annul the marriage on the ground that it is void ab initio can not be maintained.“).
{¶ 19} Other states have addressed the “void” versus “voidable” issue as it relates to a failure to have a legally authorized person solemnize the marriage. Courts in Maryland, Texas, Nebraska and Wisconsin have found the marriage voidable when an unauthorized person solemnizes it. See Knapp v. Knapp (1925), 149 Md. 263; Holder v. State (1895), 35 Tex.Crim. 19; Haggin v. Haggin (1892), 35 Neb. 375; Martin v. Ryan (1847, Wis.), 2 Pinney 24. Courts in North Carolina, New York and Maine have found this type of marriage void. See State v. Lynch (1980), 301 N.C. 479; Ravenal v. Ravenal (1972), 72 Misc.2d 100, 338 N.Y.S.2d 324; Ligonia v. Buxton (1822), 2 Me. 102.
{¶ 20} Here, Marie and the decedent‘s marriage did violate R.C.
{¶ 21} Accordingly, we overrule Carol‘s assignment of error and James and Gina‘s assignment of error and affirm the judgment of the trial court.
Judgment affirmed.
Abele and Evans, JJ., concur in judgment and opinion.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that Appellee/Cross-Appellee Marie L. Dodrill recover from James G. Dodrill, II, Gina Dodrill Stelluti, and Carol B. Dodrill, Executor of the estate of James Garfield Dodrill the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Vinton County Court of Common Pleas, Probate Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Abele, J. and Evans, J.: Concur in Ju