Estate of Marler

Filed 10/19/07 Estate of Marler CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Louie L. Vega, Commissioner.

Hulsy & Hulsy Law Offices and James R. Hulsy, for Petitioner and Appellant.

John J. Burke, Jr., for Objector and Respondent.

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Petitioner Anna M. Hester-Marler appeals from the trial courts denial of her petition for priority appointment as administrator of the Estate of Dan Adrian Marler as his putative spouse. Dan Marler died on October 2, 2005. Hester-Marler filed her petition on November 2, 2005, seeking appointment as a surviving spouse. Hester-Marler and Marler were married on March 29, 1997 (although they did not live together as man and wife until 1999).

Marlers son from an earlier marriage to Mary Ann, whom Marler married in 1949, appeared and objected to Hester-Marlers appointment as administrator. Marlers son filed objections and a competing petition for appointment of administrator, alleging that Marlers marriage to Hester-Marler was invalid because Marler was not divorced from Mary Ann at the time he married Hester-Marler. The parties agree that, although Marler filed for divorce from Mary Ann on March 5, 1997, the judgment of dissolution was not entered until October 7, 1997. The parties also agree that Hester-Marler can seek priority appointment as administrator only if she is found to be a putative spouse. The dispute here centers on whether Hester-Marler had a good-faith belief that her marriage to Marler was valid. The trial court found that she did not. We affirm.

Factual and procedural histories

Hester-Marler and Marler lived together until his death. According to Hester-Marler, she knew that Marler had been married twice before, to Mary Ann and to Susan, whom he married in 1968. She also admits that when Marler asked her to marry him in January 1997, he told her that he had divorced Susan but was still married to Mary Ann. She testified that Marler told her that he would take care of the divorce and she believed that he had done so. She stated that, before they got married, Marler either showed her a document indicating that he had filed for a divorce from Mary Ann or told Hester-Marler that it had been done. She made no further inquiries about the divorce. Hester-Marler herself is twice divorced.

The court ruled that Hester-Marler was not a putative spouse as defined by Family Code section 2251^[1]because she knew that Marlers divorce from Mary Ann may not have been final at the time of their marriage. The court discredited Hester-Marlers testimony that she did not believe Marler would marry her if he was not free to do so, given Hester-Marlers knowledge of Marlers marriage to Susan while still married to Mary Ann. The court found that Hester-Marlers previous divorces should have placed her on notice that one is not free to remarry so soon after filing for divorce from another.

DISCUSSION

[The] power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, to support the trial courts findings. The evidence must be viewed in the light most favorable to the prevailing party, including resolving all conflicts in his or her favor. (Estate of Leslie (1984) 37 Cal.3d 186, 201.) The evidence presented must be substantial evidence, meaning that it must be more than a mere scintilla, but less than a preponderance, i.e., such evidence as a reasonable mind might accept as adequate to support a conclusion. (Knott v. Barnhart (2003) 269 F.Supp.2d 1228, 1230.)

Section 2251 states that, [i]f a determination is made that a marriage is void or voidable and the court finds that either party or both parties believed in good faith that the marriage was valid, the court shall: [] (1) Declare the party or parties to have the status of a putative spouse. [] (2) If the division of property is in issue, divide, in accordance with Division 7 (commencing with Section 2500), that property acquired during the union which would have been community property or quasi-community property if the union had not been void or voidable . This determination of good faith is tested by an objective standard. A proper assertion of putative-spouse status rests on facts that would cause a reasonable person to harbor a good-faith belief that his or her marriage was valid. (Estate of DePasse (2002) 97 Cal.App.4th 92, 107; Welch v. State of California (2000) 83 Cal.App.4th 1374, 1378.) We conclude that substantial evidence supports the trial courts finding that Hester-Marler failed to meet the objective reasonable-person standard required of a putative spouse.

Once Hester-Marler was directly informed by Marler that he had not divorced Mary Ann, she had the obligation to follow-up and see that a divorce had been completed prior to marrying him. This is especially true given her knowledge that Marler had married Susan even though still married to Mary Ann. The court correctly held that a purely subjective belief in a valid California marriage is not enough to confer putative-spouse status if the belief is totally unreasonable. (In re Marriage of Vryonis (1988) 202 Cal.App.3d 712, 718-719.) Hester-Marlers failure to confirm a divorce from Mary Ann renders unreasonable her subjective belief that she was married to Marler.

Hester-Marler argues that, because her conversation with Marler was in January of 1997, as a reasonable person, she was entitled to a good-faith belief that the divorce had been obtained by March 1997 when she married Marler. To the contrary, the timing of the conversation is irrelevant. Whether Hester-Marler found out in January or March that Marler was married makes no difference. A reasonable person would not in good faith believe that her marriage was valid unless she first determined that the divorce to Mary Ann was final.

We reject Hester-Marlers contention that the court is attempting to hold her to a higher standard than that of a reasonable person. The court identified the proper standard in its opinion and we see no evidence that it applied a different one. No reasonable person would believe in good faith that two months after Marler said he was still married to Mary Ann that he would be free to enter into a valid marriage with Hester-Marler. All of the facts and circumstances point to the contrary.

[A] subjective good faith belief in a valid marriage by itself, even when held by a credible and sympathetic party, is not sufficient to establish putative spouse status. (Welch v. State of California, supra, 83 Cal.App.4th at p. 1378, italics omitted.) A finding of putative-spouse status requires Hester-Marler to show, through substantial evidence, all facts which would support a finding that she knew or had an objective good-faith reason to believe that her marriage to Marler was valid. There are no facts of this kind presented here.

The court expressly rejected Hester-Marlers claim that she believed in good faith her marriage was valid, and the evidence supports this conclusion.

DISPOSITION

The judgment is affirmed.

_____________________

Wiseman, Acting P.J.

WE CONCUR:

_____________________

Levy, J.

_____________________

Gomes, J.

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^[1]All further references are to the Family Code unless otherwise indicated.