By Rice Divorce Team | November 27, 2019
Divorce litigation normally deals with property division, parenting, and alimony. Occasionally, it deals with grounds. Only rarely is the actual marriage an issue.
There is no common law marriage in Tennessee. We argued for a “Husband” that a Universal Life Church (Internet) minister cannot validly marry people in Tennessee and that the party’s marriage was void from the beginning.
There were no children, and the ceremony was ten years ago.
“Wife’s” counsel asserted that it was unconstitutional for the State of Tennessee to say who could marry who.
This brought in the Tennessee Attorney General’s office to defend the constitutionality of the statute. If that failed, opposing counsel argued that it was so unfair for the marriage to be declared invalid that the marriage should be enforced under the doctrine of marriage by estoppel.
For months, I predicted the estoppel issue would be the critical issue.
The hearing was specially set for 9:00 the Thursday before Good Friday. We were as prepared as we could be. We had filed our memorandum and briefs on time and were prepared for trial. The other side had presented a lengthy list of possible witnesses.
We deposed and prepared to cross exam the three witnesses that we thought to be critical: the opposing party, a Universal Life Certificate holder, and a Methodist minister. Trying to prepare for all the witnesses the opposing party listed was cost-prohibitive.
Nothing goes like it is supposed to go. Our court reporter, who always shows up 15 minutes before court, was not there. Scurrying around, we found her dog was sick and a replacement court reporter would not arrive until 9:30. You never want to be the cause for delaying a special setting. But, fortunately, the wife had not shown up at all.
Wise judges set other matters so that if there is downtime, the Court stays busy. In this case, the Court had set some status matters that kept it busy until 9:30.
Practice Pointer 1: Make sure your client shows up for Court on time.
On the morning of trial, opposing counsel filed a memorandum raising an entirely new issue, and he cited one sentence from the Tennessee Supreme Court case Guzman v. Alvares for support of his argument of marriage by estoppel. The memorandum asserted that a court in Tennessee had no jurisdiction to decide an ecclesiastic issue, who could be ordained to marry people. Since subject matter jurisdiction cannot be waived, he was allowed his last-minute argument.
The Judge retired to her chambers to read his very late-filed memorandum. She returned to the courtroom with notes in the margin of the document. She asked both the Attorney General and me if we were able to go forward with this new issue. We both agreed that we were, and then the Judge took arguments on the jurisdiction issue and asked questions. Her sharp analysis and penetrating questions made it feel like the Court of Appeals. My argument was that the law and the court concerned themselves with acts, not doctrine.
As such, the law could prohibit poisonous snake handling by minors even during church services.
I did concede that if she ruled that courts could not hear any matter touched by religion, the Chancellors in Chancery would all be her new best friends because they heard church cases and bemoaned those cases were worse than divorce cases.
After deciding that she had subject matter jurisdiction, the Court turned to the constitutional issue. Opposing counsel argued that the law authorizing who could marry persons in the State of Tennessee unconstitutionally infringes on religion by excluding Universal Life Church (ULC) ministers.
The Attorney General’s office and I argued that Tennessee provided a long list of secular officials (Judges, county clerks, and about 20 others) who were authorized to solemnize a marriage. Tennessee is not concerned with religious beliefs, but only inquires as to acts. Specifically, did the minister become ordained through a “considered, deliberate and responsible” act?
There was argument and questions.
The Attorney General’s lawyer presented a wonderful technical-detailed argument. I argued that the constitutionality revolved around the interest of the balance of religious freedom and if there is a legitimate interest of the state involved. I pointed out that someone who came by their “ordination” through a “considered, deliberate and responsible act” was necessary to impress upon the parties the seriousness of the enormous contract that is marriage. I discussed how broad the effect of marriage has on any community and through generations going forward in time. The Judge thanked us, and we began to put on proof.
The “Wife’s” lawyer asked to put on a witness out-of-turn, and this was granted. He called a Methodist minister. Before the minister could testify, the State Attorney General asserted her motion in limine, to exclude the minister from testifying as to the constitutionality, as he had no credentials to do so. The Court rightly granted that motion, which left the Methodist minister testifying to only different forms of ordination in different churches. With that limitation to the minister’s testimony, it was not going to be of significant help to the “Wife’s” case. The wise decision would have been to not put him on, but they forged ahead.
The minister testified about various forms of ordination then was turned over to me for cross-examination. He represented that he had a license to practice law in Tennessee. I asked him if he had represented under oath in this case and to others that his Tennessee law license had lapsed. He said that he had. I asked him if his license to practice in Tennessee was actually suspended. When he began to stall on his answer, I confronted him with the order from the Board of Professional Responsibility suspending his license.
I then took him through the extensive training and commitment and the many “considered, deliberate and responsible” acts that he underwent to become a Methodist minister. I compared that to the ULC, which only requires the online entry in the form of a name, an email address, and a statement that the applicant is over the age of 13. Then, under cross-examination, he admitted he knows of no one who was in a position of authority at ULC, nor anyone who was on any governing body at ULC. His only research had been to read the ULC’s website. He admitted his lack of knowledge about the beliefs and doctrines of ULC. At this point, he was discredited, and that discredit began to wash on the opposing case.
My client went on the stand next. He was polite, prepared, and well organized, three qualities that endure a witness to a Judge. One of the main issues in the marriage by estoppel was that the “wife” demanded that her childhood friend, the ULC “minister” marry the parties. While my client wanted a traditional wedding in a Catholic church with a priest, his fiancé was adamant that this had to be her way. This was my client’s testimony from the stand. Opposing counsel took over for his cross-examination and began to insist that my client had free will and could have made his own choice. The lawyer asserted that the “wife” was not so domineering, to which my client responded, “Have you met her?” There was laughter in the courtroom, but the point was well made.
Opposing counsel had two witnesses in the hall to testify that they were present at the wedding, that there was a ceremony, and that the parties held themselves out to others that they were married for almost 10 years. I told the Court that none of that was in question. I had admitted to all of that in the memorandum I had filed, in my opening statement, and would so stipulate in open Court. But, opposing counsel said that they were short witnesses who had waited to testify. He just wanted to put them on for a few minutes.
Practice Pointer 2: Don’t put on witnesses that you don’t need. They could hurt your case.
Opposing counsel puts the first witness on. She testifies that she had been the “wife’s” friend since they were 10 years old, that she had been at the wedding, that she sang at the wedding, and that they held themselves out as husband and wife for 10 years since then. The witness was then turned over to me.
My questions to her went something like this:
“Is your friend that you have known since you were 10 years old domineering?”
“Is your friend that you have known since you were 10 years old very domineering?”
“Is your friend that you have known since you were 10 years old a bully?”
“Not if you can stand up to her.”
“So, she is a bully to people who can’t stand up to her?”
So, for the other side, this witness gave them nothing that they didn’t already have, but it gave us that the “wife” who chose the ULC officiate was a domineering bully.
The opposing counsel called his next witness, an insurance salesman, who testified that he was there at the wedding, the parties held themselves out as husband and wife, and that he had known my client for 20 years. On cross-examination it went somewhat like this:
“You just testified under oath in this case that you have known my client for 20 years.”
“My client is 35 years of age, so you met him when he was 15 years old?”
“Well you see, no.”
“You understand you have committed perjury in this court?”
A nervous smile crossed his face and he responded, “Well…”
“You have committed perjury, under oath in this courtroom and are sitting there smiling about it.”
But that’s not all. Before he left the stand, he admitted that he had warned our client against marrying his fiancé.
Opposing counsel again had added nothing to his case but appears to have taken a hit to the credibility of their witnesses.
Now they called the Universal Life Church minister who officiated at the parties’ ceremony. He got on the stand and tried to say he had researched before applying for ordination through the ULC. He tried to make it sound serious, but in doing so, he stepped beyond the story he told during his deposition. That put me in a position to ask him:
“You thought it would be neat to become a ULC minister?”
“Well, I wouldn’t use the word neat.”
“You remember I took your deposition on March 1, 2018, and what you said under oath was, “I thought it would be neat to get online and get ordained.”
After two or three more corrections, I asked him about the ten couples he married. I asked him something along these lines:
“Were you aware of the 1997 Attorney General’s opinion that said ULC ministers were not qualified to marry people in TN?”
“No, I was not.”
“You became aware of that opinion when I took your deposition in 2018, correct?”
“Were you aware of the 2015 Attorney General’s opinion that we are double sure that the ULC was not qualified?”
“I was when you pointed it out to me in my deposition.”
“What ethical duties do you, as an ordained minister, have to notify the other 9 couples that there may be an issue to the validity of their marriage?”
“I don’t know, I was waiting on the outcome of this case.”
I believe his behavior was appallingly unethical and did not even live up to the standards of a make-believe minister.
Now they turned to their last witness, the alleged “wife”. She’d shown up late for court in a tight black dress and an angry look on her face. On direct, she had insisted that nothing was her fault and that she had done nothing wrong. On cross-examination, she was combative, disruptive, and would not follow the Judge’s instructions. What was said by her was secondary to the way she said it. Her testimony was so angry, her attitude was so domineering, that even had the questions and answers been in gibberish, her demeanor proved beyond any doubt that she considered herself rightly in charge. She chose the minister, and that was that. No dissent would be tolerated.
We gave closing statements; none were long. All were to the point because it was already after 6:00 pm. The Judge retired to her chambers to organize her notes. While we waited, the opposing counsel, who I had known since 2nd grade, turned to me with hand extended as we congratulated each other on a hard-fought case.
The Judge came back to rule on the case. She identified 3 issues:
- Is the statute constitutional?
- Was the marriage validly performed?
- Did the doctrine of marriage by estoppel apply?
I leaned over to my associate, Erin O’Dea, and said with the way the Judge formulated the issues, we would have to win three out of three. With the last being the key.
First, the Judge finds that the “wife” suffered no loss of religious freedom in that she never alleged nor testified that her beliefs were interfered with in any way. The State had an interest in marriages being taken seriously, and this was a reasonable exercise of the States’ powers and therefore, constitutional. One out of three.
To the validity of the marriage, the Court said that the Attorney General’s opinions and the statute were clear and had been clear before the parties’ marriage. That a ULC minister does not come by their “ordination” by a “considered, deliberate and responsible action.” Therefore, the Court had no alternative than to declare the parties’ marriage invalid. Two out of three.
Marriage by estoppel. The Court finds that the legal standard for marriage by estoppel is clear. It is only to be used in “exceptional circumstances to prevent fraud or to protect innocent third parties”. The Court finds that there was no fraud. The closest there was to an innocent third party was the State of Tennessee; therefore, the doctrine of equitable estoppel did not apply in this case. Three out of three.
With dignity and solemnity, our client and our team left the courtroom, left the Courthouse, and returned to my office where we cheered and drank in celebration.
If you had an Internet minister marry you, there is a way to fix this. If you are interested call Larry Rice at 901- 526-6701 or email me at firstname.lastname@example.org
Epilogue: Since this trial, the marital statute in Tennessee was amended to disqualify all Internet ministers, but a Federal Court in Nashville issued an Injunction suspending the Amendment, so we are still under the law as it was in the case above.