Summary 2006 WY 21

Summary of Decision issued February 21, 2006

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Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Powell v. Estate of Fletcher

Citation: 2006 WY 21

Docket Number: 05-84

Appeal from the District Court of Sweetwater County, Honorable Nena R. James, Judge

Representing Appellant (Petitioner): Jody L. James of James and Scott, PC, Rock Springs, Wyoming and Edward G. Collister, Jr. of Collister & Kampschroeder, Lawrence, Kansas.

Representing Appellee (Respondent): George Lemich and Clark Stith of Greenhalgh, Beckwith, Lemich, Stith & Cannon, PC, Rock Springs, Wyoming.

Date of Decision: February 21, 2006

Issues: Whether the district court erred when it placed the burden on Appellant to prove her marriage to Fletcher had not been dissolved and found that Appellant had not sustained that burden.

Holdings: The probate court’s findings of fact are reviewed to determine whether they are clearly erroneous, inconsistent with the evidence, or contrary to the great weight of the evidence. The district court’s conclusions of law are reviewed de novo. As a general rule, one who is already married cannot subsequently marry another and any such marriage is void. However, there is a countervailing preference in the law to uphold the validity of a marriage, even when it appears that one of the parties to the marriage has been married before. In light of these competing propositions, a presumption exists that a subsequent marriage is valid and, as a consequence, any prior marriage entered into by one of the parties is presumed to be dissolved through death or divorce. To overcome this presumption, the party asserting the validity of the first marriage must prove to the trier of fact, through clear and convincing evidence, that the previous marriage had not been dissolved by death or divorce when the second marriage was contracted. Evidence that the spouse asserting the validity of the prior marriage thoroughly searched records in any jurisdiction where unavailable spouse lived and may have legally sought a divorce will normally be sufficient. In the instant case, Appellant did not search for records of any divorce that may have been obtained by Fletcher. Because no search was conducted in the instant case, the probate court did not err in concluding that Appellant did not satisfy her burden.

The decree of the district court was affirmed.

J. Voigt delivered the opinion for the court.

Link to the case: http://tinyurl.com/ksmwq .