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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.