You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Gurney v. Gurney (11/21/2003) sp-5755
Gurney v. Gurney (11/21/2003) sp-5755
Notice: This opinion is subject to 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) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
KELVIN LEE GURNEY, )
) Supreme Court No. S-10744
Appellant, )
) Superior Court No.
v. ) 4FA-01-1140 CI
)
CONNIE DIANE GURNEY, ) O P I N I O N
a/k/a CONNIE DIANE FRANKS, )
)
Appellee. ) [No. 5755 - November 21, 2003]
)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Mary E. Greene, Judge.
Appearances: Terri-Lynn Coleman, Law Office
of Rita Allee, P.C., Fairbanks, for
Appellant. Thomas R. Wickwire, Law Office of
Thomas Wickwire, Fairbanks, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
Kelvin Lee Gurney and Connie Diane Gurney were married
in July 1992. Kelvin filed the current complaint for divorce in
May 2001. Kelvin's divorce complaint contained a second count
alleging that the marriage was void because Connie had previously
been married and that her prior marriage had not been annulled or
dissolved. Connie was married to Angelo Melito in a ceremony
performed March 18, 1978. After six months the couple separated.
In 1979 Connie discovered that Angelo was in jail in Florida.
This was the last that she heard of him. She is not aware of any
divorce proceedings or whether Angelo is dead or alive. After a
hearing, the superior court ruled that the marriage between
Kelvin and Connie is void. The court ruled that Kelvin "did not
know that [Connie] was still married to her former husband at the
time of the parties' marriage on July 11, 1992"; that Connie
"does not know whether her marriage to Mr. Melito was terminated
prior to her marriage to [Kelvin] either through a divorce or
through the death of Mr. Melito"; and that "[t]herefore, this
court finds that the marriage between the parties in this case is
void."
Subsequently the court held a trial concerning issues
of child custody, child support, and property division. Only
property division is relevant to this appeal. The court ruled,
in reliance on Tolan v. Kimball,1 that the standard for division
of property accumulated during the period of the parties'
cohabitation was based on the parties' intent, either express or
implied. The court found that the parties intended to have equal
ownership shares in much of the property that was accumulated
during the marriage and divided it equally. But the court did
not rule exactly as would have been appropriate if the parties
had been validly married, for the court declined to divide that
portion of Kelvin's pension that was earned during the period of
cohabitation.
Only Kelvin appeals. He argues that the trial court's
findings concerning the parties' intent are erroneous. He also
argues that the court erred in failing to find that Connie
committed a fraud, and therefore that she had unclean hands and
was ineligible for equitable relief.2
In our view the trial court's findings as to intent and
the trial court's refusal to find fraud are sufficiently
supported by the evidence and are not clearly erroneous. We
conclude that the division of property ordered by the court is
not an abuse of discretion. We therefore affirm the judgment.3
AFFIRMED.
_______________________________
133 P.3d 1152 (Alaska 2001).
2The standard of review for claims involving a trial court's
findings that parties intended to treat property as marital is
the clearly erroneous standard. Cox v. Cox, 882 P.2d 909, 913
(Alaska 1994). The trial court's refusal to find fraud and
unclean hands is also reviewed under the clearly erroneous
standard. Wood v. Collins, 812 P.2d 951, 954 n.2 (Alaska 1991).
The equitable division of property "is reviewable under an abuse
of discretion standard and will not be reversed unless it is
clearly unjust." Harrelson v. Harrelson, 932 P.2d 247, 250
(Alaska 1997) (citations omitted).
3Connie did not argue before the superior court or before this
court that her marriage with Kelvin should be presumed to be
valid. Many jurisdictions recognize that there is a presumption
favoring the validity of a second marriage. According to the
American Law Reports, "[i]t is well established that when a
person has entered into two successive marriages, a presumption
arises in favor of the validity of the second marriage."
Annotation, Presumption as to Validity of Second Marriage, 14
A.L.R.2d 7 (1950). "[O]n proof of a second marriage, a
presumption arises that the prior marriage was terminated by
death . . . or divorce." Id. at 11 n.19. A few states have
rejected this presumption. See, e.g., Bajurczak v. Estate of
Bajurczak, 742 N.E.2d 1191 (Ohio App. 2000); Liberty Mut. Ins.
Co. v. Ellis, 109 S.E.2d 70 (Ga. App. 1959); Application of Carr,
134 N.Y.S.2d 513 (N.Y. Sur. 1953), aff'd without op., In re
Carr's Estate, 134 N.Y.S.2d 280 (N.Y. App. Div. 1954). Alaska
has no published case law concerning the presumption.
