Opinion
NO. 2012-CA-000602-MR
05-03-2013
CASSIE TAULBEE; CRYSTAL MAYS; and SHEENA REECE APPELLANTS v. IZETTA JOHNSON "COOPER," Individually and as Administratrix of the ESTATE OF DENTON COOPER APPELLEES
BRIEF AND ORAL ARGUMENTS FOR APPELLANTS: James T. Harris Lexington, Kentucky BRIEF AND ORAL ARGUMENTS FOR APPELLEES: Charnel M. Burton Booneville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LEE CIRCUIT COURT
HONORABLE THOMAS P. JONES, JUDGE
ACTION NO. 10-CI-00068
OPINION
REVERSING AND REMANDING
BEFORE: DIXON, MOORE, AND TAYLOR, JUDGES. MOORE, JUDGE: The daughters of decedent Denton Cooper (i.e., Cassie Taulbee, Crystal Mays, and Sheena Reece, hereafter the "Cooper daughters") petitioned the Lee Circuit Court to declare that a purported marriage between their father and appellee Izetta Johnson amounted to a "legal nullity." The Cooper daughters further petitioned the circuit court to revoke Johnson's status as administratrix of Denton Cooper's estate for the same reason. The circuit court dismissed their action on the basis of the statute of limitations. After careful review, we reverse.
FACTUAL AND PROCEDURAL HISTORY
On June 10, 2009, at approximately 9:35 p.m., Denton Cooper passed away from cardiopulmonary failure due to his long battle with esophageal cancer. Earlier that day, at approximately 5 p.m. and as he laid in a hospital bed in his living room, Denton Cooper was also purportedly married to Izetta Johnson.
Cooper and Johnson had previously been married, but divorced in 1995. They began living together in 2003.
Among those attending the "marriage ceremony" were Phillip Cooper (Denton's brother), Betty Phillips (Johnson's sister), Arnold Caudill (Denton's uncle), and Garret Thomas (the officiating minister and Denton's distant cousin). According to Johnson, Cooper signified his agreement to their marriage by drawing a "Y"-shaped mark on a blank marriage license form. She then completed filling out the particulars of the marriage license following the ceremony and returned the license to the Lee County Clerk. The marriage license is dated June 11, 2009, and Johnson does not contest that it was indeed issued by the clerk on that date. Cooper's death certificate shows that he died the day before the license was issued.
On April 19, 2010, after Johnson successfully petitioned the Lee District Court to be appointed administratrix of Denton Cooper's estate based upon what she asserted was her status as Denton Cooper's widow, the Cooper daughters filed their own petition in Lee Circuit Court alleging, in relevant part,
5. That any pretended ceremony or marriage between [Izetta Johnson] and [Denton Cooper] was and is a nullity and mockery and was and is absolutely void in its inception, and that being void ab initio has no legal purpose nor existence as to any martial [sic] status, therefore permitting this Court to make a declaration that the purported ceremony never had the semblance of a real existence and was in truth void ab initio; the applicants further submit that [Denton Cooper] on June 10, 2009 was dying of cancer and was under the influence of narcotics and other medications and as a result did not have the capacity to consent or comprehend the effect or nature of any ceremony.
6. The purported ceremonial marriage is prohibited and void, and occurred without issuance of a marriage license or meeting the requirements of KRS 402.020, 402.050, 402.080 and 402.100; that [Izetta Johnson] and [Denton Cooper] failed and were incapable of complying with the statutorily prescribed requirements, and there never was, nor ever will be, a license legally issued. . . .
Kentucky Revised Statutes.
In short, the Cooper daughters sought a declaration from the circuit court that Johnson's purported marriage to their father was a legal nullity. They also sought to remove Johnson from her position as administratrix of their father's estate.
For her part, Johnson answered by claiming that the Cooper daughters' action was essentially seeking to challenge her marriage with their father on the basis that he "lacked capacity to consent to the marriage at the time the marriage was solemnized," as specified in KRS 403.120(1)(a). Pursuant to KRS 403.120(2)(a), their action was untimely.
KRS 403.120(1)(a) provides that the Circuit Court shall enter its decree declaring the invalidity of a marriage entered into under the following circumstances:
A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or deformity or because of the influence of alcohol, drugs, or other incapacitating substances, or a party was induced to enter into a marriage by force or duress, or by fraud involving the essentials of marriage.
In relevant part, KRS 403.120(2)(a) provides that a declaration of invalidity sought under KRS 403.120(1)(a) may be sought after the death of either party to the marriage, "by party or by the legal representative of the party who lacked capacity to consent, who was the offended party or did not know of the incapacity, no later than 90 days after the petitioner obtained knowledge of the described condition[.]"
After a period of motion practice and discovery, the circuit court made two determinations. First, that even though evidence demonstrated no marriage license had been issued to Johnson and Cooper until the day after the ceremony and Cooper's death, this fact did not invalidate their marriage, and was merely some evidence of fraud that could have been considered by a finder of fact. Second, the circuit court determined that the Cooper daughters' suit was untimely because it was essentially an action to invalidate a marital relationship on the basis of capacity to consent, or fraud involving the essentials of marriage, and it was therefore barred by the 90-day limitation period specified in KRS 403.120(2)(a). This appeal followed, and additional details relative to this matter will be discussed as they become relevant to our analysis.
STANDARD OF REVIEW
The circuit court's order dismissing this action considered matters outside the pleadings, as did the motions and responses of the respective parties relating to that order. As such, the circuit court's order will be treated as an order of summary judgment. Bear, Inc. v. Smith, 303 S.W.3d 137, 141 (Ky. App. 2010). Summary judgment serves to terminate litigation where "the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Kentucky Rule of Civil Procedure (CR) 56.03. Summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). Summary judgment "is proper where the movant shows that the adverse party could not prevail under any circumstances." Id., (citing Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255 (Ky. 1985)).
On appeal, we must consider whether the circuit court correctly determined that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779 (Ky. App. 1996). Because summary judgment involves only questions of law and not the resolution of disputed material facts, an appellate court does not defer to the circuit court's decision. Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378 (Ky. 1992). Likewise, we review the circuit court's interpretations of law de novo. Cumberland Valley Contrs., Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007).
ANALYSIS
"Marriage is a civil status, arising out of a civil contract[.]" Johnson v. Sands, 245 Ky. 529, 53 S.W.2d 929, 930 (1932). Johnson and the circuit court framed the issue presented in this case as whether the daughters were permitted to rescind, avoid, or revoke Johnson's marital contract with Cooper. In framing the issue in this manner, Johnson and the circuit court labored under the assumption that a marital contract of some kind, whether void, voidable, or illegal, had been established between Johnson and Cooper, and that the limitation periods specified in KRS 403.120 for filing suit to challenge the contract were therefore implicated.
This case is not about avoiding, invalidating, or prohibiting a contract; rather, it is about whether any kind of contract was ever formed and whether any marital relationship ever therefore existed. KRS 403.120 and its periods of limitation have no application where the claim is made, and substantial evidence supports, that no marriage ceremony was ever performed as contemplated under Kentucky law. Damron v. Damron, 301 Ky. 636, 192 S.W.2d 741, 745 (1946); see also Vest's Adm'r v. Vest, 234 Ky. 587, 28 S.W.2d 782, 783 (1930) ("Where a marriage ceremony is shown, every presumption will be indulged that it was legally performed" (emphasis added)). This point was more recently emphasized in Pinkhasov v. Petocz, 331 S.W.3d 285, 294-95 (Ky. App. 2011), in the context of the requirement for securing a marriage license prior to a marriage ceremony:
KRS 402.080 declares "[n]o marriage shall be solemnized without a license therefore." In construing this succinct and unambiguous statutory language, we hold the General Assembly intended two essential requisites of a legally valid civil marriage which are inviolable. First, the parties intending to be married must obtain a marriage license from a county clerk. Second, having obtained a marriage license, the parties intending to be married must solemnize their intent to be married before a person or society believed in good faith to possess authority to solemnize the marriage. While functionaries, such as county clerks and marriage officiants, who contravene statutorily imposed duties relative to the licensing, establishment, and recording of a legally valid civil marriage may be exposed to penalties under KRS 402.990, conformity with the two foregoing requirements deduced from KRS 402.080 is entirely within the power, control, and responsibility of the parties intending to be legally married, and we hold strict compliance therewith is necessary for the establishment of a legally valid and binding civil marriage.Petocz, 331 S.W.3d at 294-95 (emphasis added).
. . . .
. . . Pursuant to our interpretation of KRS 402.080, where parties fail to obtain the requisite marriage license prior to the solemnization of their intent to be joined in marriage, there is nothing of a civil nature for an otherwise authorized officiant to solemnize, no legally valid civil marriage can arise, and there is no civil marriage to be otherwise prohibited, voided, or declared invalid. See KRS 402.010-030 and 403.120.
Similarly, Petocz explains that "de facto" or common law marriages arising in Kentucky are also not considered "void" or "illegal"; rather, they simply do not exist as a "marriage" of any kind. Id. at 296.
Here, the date on marriage license shows that it was issued on June 11, 2009, and the date on Cooper's death certificate shows that he passed away on June 10, 2009. This fact alone warrants reversing the circuit court's summary judgment.
Where the evidence demonstrates that a marriage ceremony prescribed under Kentucky law took place, it is presumed that a marriage license was properly issued. Petocz, 331 S.W.3d at 293 (citing Vest, 28 S.W.2d at 783). However, this presumption is "indulged only so long as there is no substantial evidence to the contrary." Petocz, 331 S.W.3d at 294.
Another basis for reversing, however, is that Kentucky law does not contemplate that a ceremonial marriage can be completed, or that any other contract could be formed, in the absence of a manifestation of assent by both parties to the contract. See, e.g., Walton's Ex'r v. Franks, 191 Ky. 32, 228 S.W. 1025, 1026 (1921) ("As no contract is complete without the mutual assent of the parties, an offer imposes no obligation until it is accepted according to its terms." (Citation omitted)). Stated differently, it is unnecessary to attempt to avoid, invalidate, or prohibit a contract of marriage for any reason, let alone those reasons specified in KRS 402.010-.030 and 403.120, if the evidence of record demonstrates that the offer of marriage was refused or went altogether unanswered.
In that regard it is apparent that in dismissing the daughters' action on the basis of KRS 403.120(2)(a) the circuit court confused the factual issue of whether Cooper physically manifested assent to be married with the separate legal issue of whether Cooper had the "mental capacity" to consent to a marriage. The difference between these two concepts was succinctly defined in Guthery v. Ball, 206 Mo. App. 570, 228 S.W. 887 (1921), and, for our purposes, we find that case persuasive:
[A] marriage entered into by a person who is physically able to go through the form of the ceremony, but is mentally incapacitated to make a contract, is voidable only and not absolutely void.Id. at 889.
. . . .
. . . While the petition in this case pleads mental incapacity on the part of the deceased to understand the effect of the marriage ceremony, it pleads something more than that. It alleges that the deceased was dying at the time of the ceremony and was in a stupor, or, in other words, that he was in an unconscious state at that time. As before stated, the evidence sustains the allegation to the effect that deceased was unconscious.
We take it that there are two things necessary for the making of a contract; one, mental consent, which cannot be had if a party is mentally incapacitated, and the other, physical assent to the agreement. The physical part might be manifested by word of mouth, writing, sign, or even in some negative manner on the part of a contracting party. One might have perfect mental capacity and desire to enter into a contract, but unless some physical assent is manifested there would be a total absence of any contract of any kind, either void or voidable. The evidence in this case shows that deceased was not only mentally incapacitated but that he was in such state that he could not have gone through the form of a marriage ceremony; that he was unconscious, or inert, and could have given no physical assent to the contract. Under the circumstances deceased might as well have been in some foreign country, ignorant of the alleged ceremony performed in Daviess county, as to have been in the situation described. It is quite apparent that no contract was entered into. The whole proceeding wherein the justice attempted to perform a marriage ceremony was ineffective for any purpose. While it might not have been necessary to have brought a suit to annul the alleged proceedings, we have no doubt that a suit is proper in order to prevent misapprehension and confusion as to the real status following the attempted ceremony.
A total of five people were deposed in this matter: Crystal Mays, Cassie Taulbee, Garret Thomas, Arnold Caudill, and Izetta Johnson. To summarize, Mays testified that when she arrived at Cooper's house prior to the ceremony at about 5 p.m., Cooper was "just laid out in his living room" with his eyes closed, unable to speak, "didn't even look at you when you talked to him," and that she "wouldn't guess [Cooper] would know who or what was going on or whatever."
Taulbee arrived at approximately the same time and testified to the same effect, adding that Cooper had been unable to swallow and that the only movement she witnessed from Cooper was that "he would move his legs up and down every now and then just like he was hurting maybe or something." Taulbee also testified that she had worked as a certified nurse's assistant for seventeen years, had witnessed the process of death many times, and that Cooper appeared at that time to be actively dying by the way he was breathing.
Garret and Caudill (i.e., the officiating minister and one of the witnesses to the purported ceremony) both testified that on June 10, 2009, Cooper did not open his eyes or respond to any of their attempts to communicate with him before, during, or after the purported marriage ceremony, and that Cooper appeared unconscious to them at those times.
Moreover, Johnson herself conceded that Cooper did not recite any vows, or say or do anything else during their purported marriage ceremony. She also testified that Cooper demonstrated his assent to their union after the ceremony through making his above-referenced "mark" on the marriage license form. However, Caudill testified that Cooper had been unresponsive at that time as well, that Cooper's eyes were still closed at that point, and that Cooper's "mark" was merely the product of Johnson placing a pen in Cooper's hand and moving it.
On the marriage license, Caudill's signature appears with Phillip Cooper's signature above where it calls for the "groom's signature," and to the right of what Johnson asserts is Cooper's "Y"-shaped "mark." Caudill testified that he and Phillip Cooper signed the marriage license prior to when Cooper's "mark" was made upon it. Caudill also testified that he did not read the marriage license, understand what it was, or understand that he was being asked to sign it in the capacity of a witness to a marriage or the veracity of Cooper's signature.
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In sum, the evidence of record appears to sustain the contention that Cooper was "not only mentally incapacitated but that he was in such state that he could not have gone through the form of a marriage ceremony; that he was unconscious, or inert, and could have given no physical assent to the contract." Id. Upon remand, Johnson must further establish that Cooper manifested some form of assent to their marital union prior to the completion of their ceremony, and, assuming she is able to do so, Johnson must also carry the burden of persuasion regarding that issue. See Civil Rule (CR) 43.01.
CONCLUSION
Substantial evidence of record demonstrates that no marriage license was issued prior to Johnson's purported ceremonial marriage to Cooper, Cooper was physically unable to assent to any marriage at the time the purported ceremony was performed, and, consequently, that no contract of marriage was ever formed or existed between Johnson and Cooper. For those reasons, before it becomes necessary to discuss the applicability of the limitation periods specified under KRS 403.120 for attempting to have any kind of marital relationship between Johnson and Cooper declared void, invalid, or illegal, it is first Johnson's burden to 1) prove that a marriage license was issued prior to her purported ceremonial marriage and prior to Cooper's death; 2) prove that Cooper manifested some form of assent at that purported ceremonial marriage; and 3) carry the burden of persuasion on both issues. Therefore, we REVERSE the summary judgment of the Lee Circuit Court and REMAND for further proceedings not inconsistent with this opinion.
ALL CONCUR. BRIEF AND ORAL ARGUMENTS
FOR APPELLANTS:
James T. Harris
Lexington, Kentucky
BRIEF AND ORAL ARGUMENTS
FOR APPELLEES:
Charnel M. Burton
Booneville, Kentucky