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Batey v. Batey (3/7/97), 933 P 2d 551
Notice: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring
errors to the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, phone (907) 264-0607, fax (907)
THE SUPREME COURT OF THE STATE OF ALASKA
MICHAEL D. BATEY, )
) Supreme Court No. S-7143
) Superior Court No.
v. ) 3PA-93-1040 CI
EARLINE M. BATEY, ) O P I N I O N
Appellee. ) [No. 4787 - March 7, 1997]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer,
Beverly W. Cutler, Judge.
Appearances: David A. Golter, Tull &
Associates, Palmer, for Appellant. Allison E.
Mendel, Mendel & Huntington, Anchorage, for
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
COMPTON, Chief Justice.
FABE, Justice, with whom RABINOWITZ, Justice,
Michael Batey appeals the superior court's property
division, alimony award, and attorney's fees award. We reverse.
II. FACTS AND PROCEEDINGS
Michael Batey and Peggy Lampley were married in Alaska in
March 1967. They separated in the fall of 1969. In February 1971
Michael and Earline Batey participated in a marriage ceremony in
Nevada. Michael and Peggy were divorced in September 1971.
The superior court found that at the time of Earline's
marriage to Michael, Earline "was aware that [Michael] was still
married and knew that the ceremony was invalid." The court further
found that after Michael's divorce from Peggy, Earline "became
convinced that the marriage was now valid." Eventually, both
Michael and Earline "came to believe that they were in fact
Michael and Earline held themselves out as husband and
wife for over twenty years. Throughout that period they filed
joint federal tax returns, and Michael named Earline as his spouse
with his health care provider. In 1977, after the birth of their
only child, Earline expressed a desire to remarry, but they never
In September 1993 Michael filed for divorce. In
January 1994 Michael amended his complaint to allege that the
marriage was void. The amended complaint sought only custody,
child support, and a partition of the residence. Earline
counterclaimed for child custody and support.
The superior court bifurcated the trial, considering
first the issue of the validity of the marriage. The court
concluded that the parties' marriage was void, but that "there
exists a valid putative marriage between the parties entitling
[Earline] to a decree of divorce, equitable division of the
parties' property, and spousal support." The superior court
proceeded to hear and decide issues of custody, support, and
Earline does not dispute that her marriage to Michael was
void. See AS 25.05.021(1) ("Marriage is prohibited and void if
performed when  either party to the proposed marriage has a
husband or wife living . . . ."). Instead, she argues the superior
court properly found a "putative marriage." We have recently held
that the superior court has the power to divide property acquired
during a putative marriage which is found to be void. See
Rodriguez v. Rodriguez, 908 P.2d 1007, 1011 (Alaska 1995). (EN1)
In the present case we must decide for the first time what
constitutes a putative marriage. This is a question of law to
which we apply our independent judgment. See Burcina v. City of
Ketchikan, 902 P.2d 817, 820 n.4 (Alaska 1995).
The putative marriage doctrine has been codified in
Alaska at AS 25.05.051, which provides in part:
If, during the lifetime of a husband or wife
with whom a marriage is still in force, a
person remarries and the parties to the
subsequent marriage live together as husband
and wife, and one of the parties to the
subsequent marriage believes in good faith
that the former husband or wife is dead or
that the former marriage has been annulled or
dissolved by a divorce or is without knowledge
of the former marriage, then after the death
or divorce of the other party to the former
marriage, if they continue to live together as
husband and wife in good faith on the part of
one of them, they are legally married from the
time of removal of the impediment . . . .
The essential basis of a putative marriage is a good faith belief
by at least one of the parties in the validity of the marriage.
Id. In finding that a putative marriage existed, the superior
court assumed the requisite good faith could develop over time, in
this case sometime after Michael was divorced from Peggy. But we
read AS 25.05.051 to require good faith to exist at the time of the
Our interpretation of AS 25.05.051 is based first on the
language of the statute itself. See Borg-Warner Corp. v. AVCO
Corp., 850 P.2d 628, 633 n.12 (Alaska 1993) ("Statutory
construction begins with an analysis of the language of the statute
construed in view of its purpose."). The statute provides that if
a good faith belief in the validity of a marriage is present, then
after the impediment to the marriage's validity is removed the
parties will be considered legally married as long as they
"continue to live together as husband and wife in good faith on the
part of one of them . . . ." AS 25.05.051 (emphasis added). The
clear implication is that good faith must be present at all times,
and must at the very least precede the removal of the impediment.
The purpose of AS 25.05.051 is to provide relief to an
innocent spouse who enters into a marriage without knowledge of its
invalidity. Allowing a person who knowingly enters into a bigamous
marriage to claim later he or she eventually developed a good faith
belief in the validity of that marriage would vitiate this purpose.
(EN2) The better rule, in light of reason and policy, is to
require good faith at the inception of the putative marriage. See
M.R.S. v. State, 897 P.2d 63, 66 (Alaska 1995) ("In interpreting a
statute or rule, this court will adopt 'the rule of law which is
most persuasive in light of precedent, reason and policy.'")
(quoting Hernandez-Robaina v. State, 849 P.2d 783, 785 n.2 (Alaska
1993)). Since Earline lacked a good faith belief in the validity
of the marriage at its inception, (EN3) she cannot take advantage
of the protections afforded a putative spouse in AS 25.05.051.
Earline argues AS 25.05.051 does not limit this court's
ability to create its own putative marriage doctrine. However, the
legislature's intent in enacting the marriage code, which includes
AS 25.05.051, was "to provide a comprehensive marriage code for the
state of Alaska." Preamble, ch. 58, SLA 1963 (emphasis added). A
common law definition of putative marriage which expands or alters
the definition found in AS 25.05.051 would run counter to the
expressly stated legislative intent.
The superior court erred in finding a putative marriage.
The court's property division, alimony award, and attorney's fees
award, all of which flowed from the putative marriage finding, must
therefore be reversed. See Rosson v. Rosson, 635 P.2d 469, 470 n.4
(Alaska 1981) ("[P]arties who enter into a relationship that is
neither a lawful marriage nor a bona fide putative marriage must be
treated as unmarried . . . ."). We leave it in the first instance
to the superior court on remand to determine the appropriate
REVERSED and REMANDED.
FABE, Justice, with whom RABINOWITZ, Justice, joins, dissenting.
I dissent from the opinion of the court because it is my
view that Michael should be estopped from denying the validity of
his marriage to Earline.
Michael and Earline lived together as husband and wife
for over twenty years. They obtained a marriage license and
participated in a formal marriage ceremony. They had a son and
raised him together. Throughout the 1970s and 1980s they filed
joint federal tax returns. Michael named Earline as his spouse
with his health care insurer. When asked if he thought he was
married, Michael testified: "I'm not sure how to answer that, your
Honor. . . . I guess at the back of my mind, I've always known that
we weren't, but yes, I have played and gone through life and acted
with Earline as if she was my wife." In fact, Michael never
questioned the validity of the marriage until after he had filed an
action for divorce, (EN1) and it became financially advantageous
for him to do so. Basic notions of equity, fairness, and justice
require that he be estopped from denying the validity of the
marriage in an attempt to avoid sharing what would be marital
assets or paying otherwise appropriate spousal support.
I agree with the court that Michael and Earline's
marriage was not a putative marriage under the definition of
AS 25.05.051 because both Michael and Earline knew that their
marriage was not valid at the time of their wedding ceremony. This
fact, however, does not preclude application of the doctrine of
Quasi-estoppel "precludes a party from taking a position
inconsistent with one he [or she] has previously taken where
circumstances render assertion of the second position
unconscionable." Jamison v. Consolidated Utils., Inc., 576 P.2d
97, 102 (Alaska 1978). Quasi-estoppel does not require the injured
party to have relied on the estopped party's conduct or statements,
nor does it require the injured party to be ignorant of the truth.
Id. at 102. In determining if quasi-estoppel applies, the court
considers "whether the party asserting the inconsistent position
has gained an advantage or produced some disadvantage through the
first position; whether the inconsistency was of such significance
as to make the present assertion unconscionable; and whether the
first assertion was based on full knowledge of the facts." Id.
The California Court of Appeal has applied estoppel in a
case similar to this one. In In re Marriage of Recknor, 187 Cal.
Rptr. 887, 892 (Cal. App. 1982), the Recknors participated in a
formal marriage ceremony knowing that Eve Recknor's divorce from
her first husband was not final and that their marriage was void.
The Recknors' marriage did not meet the statutory definition of a
putative marriage because neither party possessed a good faith
belief in the marriage's validity. Id. at 890. However, the trial
court ordered Ralph Recknor to pay Eve spousal support pendente
lite and attorney's fees, citing previous support cases estopping
a party from denying the validity of a marriage. Id.
In affirming the trial court's decision, the California
Court of Appeal held that "the award may be upheld on the
independent, equitable ground of estoppel." Id. at 891. The Court
In this case, Ralph was properly estopped
to deny that he was validly married to Eve.
He went through a formal marriage ceremony
with her, knowing that her divorce was not
final, and continued to live with her as her
husband for 15 years, during which time they
had two children. Further, Ralph waited
almost 15 years to attempt to assert the
invalidity of his marriage to Eve.
Id. at 892.
Following the reasoning of the Recknor court, the
doctrine of quasi-estoppel provides the appropriate remedy in this
case. After Michael has reaped the benefits of holding himself out
as married to Earline for more than twenty years, it is
unconscionable for him to assert now that his marriage to her is
void. The majority's resolution of this case penalizes Earline for
the seven-month period in which Michael's divorce was not yet final
and ignores the more than twenty years during which they held
themselves out as husband and wife. Equity requires that Michael
be estopped from denying the existence of his marriage to Earline
simply because it benefits him financially to do so.
Estopping Michael from denying the validity of his
marriage to Earline does not validate a marriage which AS 25.05.021
and 25.05.051 render void. Nor does estoppel contravene the strong
public policy expressed by our marriage statute. There is a
difference between declaring a marriage void and preventing a party
from asserting its invalidity. It would be inimical to our law
supporting committed family relationships to allow Michael Batey to
now avoid his marital obligations.
I would therefore affirm the trial court's division of
property and award of spousal support.
1. Earline relies on Rodriguez to argue that the superior court
has the power to divide property and award alimony whether or not
the parties are married. In Rodriguez we held that "[b]y including
the phrase 'or action declaring a marriage void,' [in
AS 25.24.160(a)] the legislature must have intended to allow the
division of property acquired during a putative marriage which is
found to be void . . . ." Rodriguez, 908 P.2d at 1011. Thus,
where a marriage is void, the superior court may divide property
and award alimony under AS 25.24.160(a) only if the requirements of
the putative marriage statute, AS 25.05.051, see infra, are
2. The dissent's proposed application of the doctrine of quasi-
estoppel also would run counter to the purpose of AS 25.05.051, for
it would permit a person who knowingly enters into a bigamous
marriage to obtain the protections reserved for putative spouses.
Though not universally so, putative marriage cases often involve
parties who have lived together and "held themselves out to the
public"as married. We decline to permit a person to evade the
"good faith"requirement simply by basing his or her claim on a
theory of quasi-estoppel rather than on the existence of a putative
3. Earline objects to the superior court's finding, over
conflicting testimony, that she knew Michael was still married when
she married him. This finding is not clearly erroneous and
therefore will not be disturbed. See Wright v. Wright, 904 P.2d
403, 405 n.1 (Alaska 1995) ("This court will set aside a superior
court's factual determination only upon a finding of clear
error."); Parker v. Northern Mixing Co., 756 P.2d 881, 892 (Alaska
1988) ("It is the function of the trial court, not of this court,
to judge witnesses' credibility and to weigh conflicting
4. Other courts interpreting similar statutes have reached the
same conclusion we reach today. See, e.g., Succession of Pigg, 84
So. 2d 196, 197 (La. 1955) (requiring good faith belief in validity
of marriage at the time of its inception); Spearman v. Spearman,
482 F.2d 1203, 1206 (5th Cir. 1973) ("A putative spouse is one
whose marriage is legally invalid but who has engaged in (1) a
marriage ceremony or a solemnization, on the (2) good faith belief
in the validity of the marriage."); see also 52 Am. Jur. 2d
Marriage sec. 114 (1970) ("The term 'good faith,' when used in
connection with putative marriage, means an honest and reasonable
belief that the marriage was valid at its inception . . . ."). The
superior court acknowledged "[t]here really aren't any cases
suggesting . . . if you later on during the marriage believe
somehow it's been ratified that . . . you're in the same position
as the putative spouse who believed she was married at the time of
entering into the marriage."
1. His complaint averred that he and Earline were married in
February 1971 "and ever since that date have been and are now
husband and wife."