Virginia Family Law Appeals

No 401(k) benefits or other relief for "widow" of bigamy, but proving earlier spouses weren't divorced is daunting burden

The widow of a long marriage that she didn't know was bigamous cannot get the deceased's 401(k), Alexandria federal judge T.S. Ellis ruled in Bonner v. SYG Associates Inc., 498 F.Supp.3d 859 (E.D.Va. 2020). That result may not be surprising, but the federal court cites many interesting points of what it says is Virginia law, especially the burdens and standards for proving or disproving bigamy.

The man Ms. Bonner thought she was married to for 18 years had previously been married to another woman, lived with her about a year, and neither of them had ever gotten a divorce. So "Plaintiff was a bigamous spouse and therefore not a "spouse" within the meaning of ERISA and Decedent's 401(k) Plan." And the benefits must go to his "spouse," if any, because he had never designated a beneficiary. 

Nor was the innocent putative spouse entitled to equitable reformation of the Plan or a constructive trust under ERISA. For those, she would have to prove "(1) an act or practice that violates an ERISA or plan provision; and (2) entitlement to a specific form of "equitable relief" that has been deemed "appropriate." But none of the steps in the process of bigamy -- the real wife's alleged desertion, the husband's failure to tell the new wife he wasn't sure he was divorced, or his children's unsportsmanlike decision to tell the real wife about his death -- was any sort of violation of ERISA. And none of the parties breached a fiduciary duty either because nobody was a legal fiduciary at the time, or the putative wife was not a beneficiary whom fiduciaries had any duty to. And when the children did become fiduciaries, they in fact had a fiduciary duty to find and inform the actual widow.

Also,  reformation of the plan is an equitable remedy that is only available to one of the original contracting parties to the plan, not a third-party beneficiary. And

A constructive trust may not be imposed unless the party seeking creation of a constructive trust puts forth clear and convincing evidence of an "interest" in the "action, fund, or other property which is to be made the subject of the trust." Powell, 292 Va. at 15, 785 S.E.2d 788. In this regard, bigamous marriages "confer[] no legal rights" on the parties to the marriage. Chitwood, 206 Va. at 318, 143 S.E.2d 915; Martian v. Berryhill, No. 1:18-cv-12, 2018 WL 4572715, *9 (E.D. Va. Aug. 30, 2018) 

But could the term "spouse" under ERISA perhaps include an innocent bigamous spouse? The parties agreed that Virginia law controlled who the spouse was, and that Virginia law does not recognize a bigamous spouse as a spouse. But proving bigamy in this situation is proving a negative -- that neither spouse in the earlier marriage had ever gotten a divorce in any place that ever had jurisdiction to divorce either of them. So who, then, had the burden of proving or disproving that there was any divorce? And how can that burden be met?

The burden is on those who allege bigamy, Judge Ellis says:

Defendants have the burden of proving that Decedent's marriage to de la Vega did not end in divorce. This is so because re-marriage is common and therefore there is a strong evidentiary presumption in Virginia that a previously married person obtained a divorce from their former spouse before marrying again, thereby making the later-in-time marriage valid. See DeRyder v. Metro. Life Ins. Co., 206 Va. 602, 604-05, 145 S.E.2d 177 (1965); see also Hewitt, 490 F. Supp. at 1362. The evidentiary presumption that the earlier-in-time marriage ended in divorce is a "rebuttable presumption" and therefore may be rebutted by contrary evidence. Parker v. Am. Lumber Corp., 190 Va. 181, 186, 56 S.E.2d 214 (1949); DeRyder, 206 Va. at 604-05, 145 S.E.2d 177. Specifically, the party seeking to invalidate a later-in-time marriage as bigamous may rebut the presumption that the earlier-in-time marriage ended in divorce by adducing clear and convincing evidence that there is no record of a divorce decree for the earlier-in-time marriage (1) "in jurisdictions where the parties resided" or (2) "where on any reasonable basis a decree might have been obtained." Hewitt, 490 F. Supp. at 1365; Woolery, 406 F. Supp. at 644; Rahnema v. Rahnema, 47 Va. App. 645, 664-65, 626 S.E.2d 448 (2006) (requiring clear and convincing evidence to rebut the presumption that the earlier-in-time marriage ended in divorce). But importantly, to rebut the presumption of divorce, it is not necessary to document the absence of a divorce decree in every jurisdiction where a divorce "could possibly have been obtained," for if that were the case then the rebuttable presumption "would not be rebuttable, but effectively irrebuttable." Hewitt, 490 F. Supp. at 1365; see also Parker 190 Va. at 186-87, 56 S.E.2d 214; Woolery, 406 F. Supp. at 644.

So what rebuts? Apparently it does not always require a search in every county of a state, probably depending on the state's record-keeping:

• The Commonwealth of Virginia Department of Health, Division of Vital Records has no record of any divorce between Decedent and de la Vega from the date of their marriage through Decedent's date of death.

• No Superior Court in Arizona has a record of a divorce between Decedent and de la Vega at any time from the date of their marriage through Decedent's date of death.

• Neither party contends that the state of Hawaii has a record of a divorce between Decedent and de la Vega.

• De la Vega has not filed for divorce from Decedent in any state, nor has she learned, from any source, that Decedent ever filed for divorce from her in any state.

Defendants have successfully rebutted the presumption that Decedent's earlier-in-time marriage to de la Vega ended in divorce. This is so because the undisputed facts establish (1) that no divorce was ever entered in any jurisdiction where de la Vega or Decedent resided and (2) that there are no other jurisdictions where on any reasonable basis a decree might have been obtained. Neither Virginia, Decedent's lifelong state of residence, nor Arizona, de la Vega's state of residence after she left Virginia, has any record of a divorce between them from the date of their marriage through January 31, 2020. Additionally, there are no other jurisdictions where on any reasonable basis a divorce decree might have been obtained. In this regard, no record of divorce was found in Hawaii and further, Plaintiff's half-hearted suggestion in a footnote that Decedent might have obtained a divorce while vacationing in another state or country ignores well-established residency requirements that forecloses this remote possibility.

Wife's lying about hidden painting was intrinsic not extrinsic fraud.

Wagner v. Wagner, 2016 Va. App. LEXIS 257, Record No. 1733-15-4 (Va. Ct. App. unpublished, October 4, 2016)

The couple went through divorce proceedings in 1999, and during those proceedings there was a question about the value of a painting owned by the couple. The wife testified under oath that she had given the painting away at a flea market. The husband wanted to have an expert witness testify about the value of the painting, but the expert was excluded due to the husband’s failure to designate the witness in a timely manner. The judge, consequently, assigned a $2000 value to the painting based on the cost incurred to restore it. That value was used in the equitable distribution award and the final decree was issued. However, in 2016 the case was reopened when the husband filed a complaint alleging  the wife “hid the painting, lied about it during discovery, and committed perjury when she testified that she had given it away.” After a three-day hearing, the circuit court found that the wife had not given away the painting but rather had hidden it during the divorce, and that “her testimony at the divorce hearing, that she did not have knowledge of the whereabouts of this asset and did not have control of the whereabouts of this asset . . . [was] completely false.” The court even remarked that the wife was “the least credible witness in this case of all the witnesses.”  The circuit court determined that the wife’s actions constituted intrinsic rather than extrinsic fraud because those actions “did not prevent ‘a fair submission’ of the equitable distribution matter.” Examples of extrinsic fraud, the court suggested, included “a litigant’s ‘[k]eeping the unsuccessful party away from the court by a false promise of a compromise, . . . purposely keeping him in ignorance of the suit; [and] . . . an attorney[’s] fraudulently pretend[ing] to represent a party[] and conniv[ing] at his defeat.’”Intrinsic fraud, on the other hand, included “perjury, forged documents, [and] other incidents of trial related to issues material to the judgment.” In essence, the court stated, intrinsic fraud was“obscuring facts.” The distinction was critical, the court further observed, because intrinsic fraud is voidable by direct attack but only until the judgment becomes final. Based on this definition, the court affirmed the lower court’s ruling, stating that the husband failed to prove extrinsic fraud and therefore no longer had any grounds for reopening the claim against his wife for fraud related to the equitable distribution of martial property.

Adoption reversed because adoptive parent caused the mother's lack of relationship and contact with child

The Court of Appeals reversed a trial court that mis-applied the best-interests-of-the-child standard in approving an adoption by finding that the mother withheld consent to it contrary to the child's best interests. It said the trial court put too much emphasis on the mother's long time without contact, and lack of a relationship with, the child, and not enough emphasis on how that separation from the child was lengthened and worsened by the adoptive parent's deliberately interfering with and preventing contact, and lengthy litigation.

Gregory v. Martin, Record No. 0816-15-3 (July 19, 2018, unpublished)

The mother had a long history of drug abuse was incarcerated for grand larceny, breaking and entering, and larceny with intent to steal when the child turned one. The father also had a problem with drug abuse, therefore the child stayed with the paternal grandfather and the child's father's sister, who filed a petition for adoption. The child's father gave consent, but the mother did not. Upon the mother's release, she filed a motion to amend visitation, but the court denied her motion because it was not in the best interests of the child, and found that the mother unreasonably withheld her consent for the aunt to adopt her child. There was a court appointed GAL on the case, and the GAL stated that the mother never really had a relationship with the child. The court found that the child was in a good place and should stay with the aunt, and that the mother refused the child's best interest by withholding her consent for adoption.

Modest-income mom of 5 must pay ex's costs for her dishonest appeal; current actual earnings averaged to get presumptive support income

The Court of Appeals rejected an appeal as totally baseless and thus awarded the Appellee father his fees and costs in the appeal in Ranghelli v. Ranghelli (5/7/19). The mother’s commission-based earnings varied greatly, and she had been unemployed or on unpaid leave for parts of the past two years. The trial court used a monthly average of her earnings during her current period of continuous employment, based on her pay stubs, as her income for support purposes. The mother argued on appeal that the trial court had averaged her earnings while working over the past three years, not counting periods when she was not working, and that it thus imputed income to her, which deviated from the “presumptive amount” without making the required written findings to justify that. But the numbers showed that “the court did precisely what is required under the case law and based its presumptive child support” on her “most recent actual income.” And because she based her appeal on alternative facts of the case and “failed to address what the trial court actually did, her arguments are not fairly debatable” and the husband is entitled to his fees and costs for the appeal.

Litigant must have lawyer representing her directly, not just representing her “authorized representative.”

Virginia’s Court of Appeals dismissed an appeal filed in the name of a party to the trial court case, but filed and signed by a lawyer who said he represented not the party, but a rehab facility that was not named as a party in the case. Lynch v. Bedford Co. DSS (6/11/19, unpublished). Rule 1:4(c) and Virginia Code §8.01-271.13 require all pleadings to be signed by the litigant’s lawyer, or the litigant herself if she does not have a lawyer. The party had named the facility as her “authorized representative” in contesting a denial of Medicaid coverage. Although federal regulations allow that, this “does not supplant or erode the requirement that there must be an attorney-client relationship between the litigant … and counsel appearing and signing pleadings on her behalf,” who must have an ethical duty to the litigant.

Pro-se lawyer comes to court in shorts, judge makes him go change, keeps on with his trial while he's gone

Barrett v. Minor (Va. Ct. App. unpublished 10/23/18) is a routine affirmation of a fee award in an earlier appeal in extraordinarily typically miserable family law litigation, against a lawyer who was disbarred for things he did in that litigation. The Court says he was extremely litigious and turned even small, routine steps in the process into huge controversies with voluminous briefs. Probably the only remarkable thing about this is that he came to the hearing about attorney's fees in the earlier appeal in shorts and a polo shirt. The judge sent him home to change clothes, and while he was gone, ruled against him on all pretrial motions and heard the other side's opening statement. This too is heartily affirmed.

'The trial court found on the record that father “is or was a lawyer . . . is highly trained . . . and very intelligent and this [appearing at court inappropriately dressed] is just another ploy ...'"

Courts don't have to give spouse any survivor benefit, nor half the marital share of retirement

The Court of Appeals upholds a divorce order that let a severely disabled military retiree keep 55% of the marital share of his retirement. Pederson v. Pederson, Va. Ct. App. Unpub. 8/2/16 His incapacity alone would justify that, the Court says, and the wife was able to earn $100,000 per year while the husband was unemployable. It also cited evidence of the wife contacting his superiors, which judges around here don't like, these days:

Evidence related to wife’s inappropriate e-mail exchanges with husband’s superior officer, her reports to authorities of alleged professional misconduct by her husband (reports that ultimately were deemed unsubstantiated by those authorities), and the circumstances surrounding husband’s decision not to accept the promotion to Wing Commander provided a sufficient basis for a reasonable factfinder to conclude that wife was less than supportive of husband’s career.

The Court also upheld the refusal to include in the retirement-division order a requirement to indemnify the wife for reducing disposable retired pay by electing disability.  Though that was considered legal at that time, nothing required the trial court to do so. 

Survivor benefits: Code § 20-107.3(G)(2) gives the court discretion to award any survivor benefit, or not to.

The opinion includes many other points about appellate procedure, life insurance beneficiary designations, and conservatorship, but I don't believe they break any new ground.

Court can let divorcee pay money judgment to ex by transfer of pre-tax funds from IRA, 401k

The Court of Appeals upheld a post-decree order letting a man transfer parts of an IRA and a 401(k) to satisfy a monetary award under Code § 20-107.3(D) in Johnson v. Johnson, 56 Va. App. 511, 694 S.E.2d 797 (2010). He had been ordered to pay $1.2 million in ten equal, annual installments, and said he had no other way to pay the $120,000 that had come due. Wife had a tax expert testify that if she cashed out the $120,000 in retirement funds after receiving them, she would only have $60,736 after taxes and early withdrawal penalties.

The trial court had the discretion to approve this particular property transfer, and to justify it by interpreting what it had intended in the original award, the Court said.

Neither the opinion, nor the trial judge's statements that it quotes, say why the difference between the pre-tax $120,000 value, and the post-tax, post-penalties $56,000, does not matter. The trial judge is quoted on that only as saying,

And when I ordered that in this case the award could be satisfied by the transfer of property, I think that intended to mean the value of the property. It was $120,000. What she decides to do with it is up to her. And I don't think the Court should take any consideration of the fact that she's going to say she wants to cash out.

Essentially, it seems that this is considered an exercise of the broad discretion that Code § 20-107.3(D) gave the trial judge. I think the trial judge and Court of Appeals understood very well the difference that it made, but the trial judge had the discretion to decide what was equitable in the circumstances. The trial judge may have been saying that at the time of the original award, he was basing the award on pre-tax assets and intended all along to divide that, not post-tax dollars. But not necessarily.

Court stresses limits of "manifest injustice" exception to rule against alimony for adulterers, especially if millionaires

Virginia's Court of Appeals overturned an alimony award that had been made despite the recipient's adultery under the "manifest injustice" exception. The Court said manifest injustice must be obvious, not speculative, and amount to destitution in terms of potentially income-producing assets as well as income, at least in a case where the payor does not share much of the fault during the course of the marriage and its breakdown.

Code § 20-107.1(B) allows alimony despite adultery

if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties. 

In this case,"Wife admitted to numerous acts of adultery," which the trial court found was the “primary reason for the destruction of the marriage.” The trial court wrote:

counsel for [wife] conceded that there was no significant fault on [husband]’s part. The [c]ourt agrees. [Husband] made nearly all of the monetary contributions to the well-being of the family, and made significant and consistent non-monetary contributions. [Husband] dedicated virtually all of his non-working hours to his family. He was involved in the daily care of the children and made substantial contributions to their extracurricular activities.

As the appeals court recounts,

... wife received assets worth approximately $1.8 million, including about $397,000 in cash and over $1.3 million in retirement funds. Husband’s net worth is about $1 million. Husband received the marital home, which has a net worth of $779,695. Husband also agreed to pay all of the education expenses of the parties’ two children. One of the children was in college, and the other child was in medical school. The trial court relied upon the disparity in earning capacity between husband and wife to find a “manifest injustice.”

That disparity was great. As the husband earned $850,000 a year, the disparity would have been great even if the wife had an ample income and no need for support. The trial court found that the wife had not worked for most of the marriage, but could be earning $22 per hour within a few months, and would earn between $27,500 and $33,000 per year if she worked 25 to 30 hours a week. 

The standard for finding MIJ is "clear and convincing" proof, the Court reminds us. And 

the expression “manifest injustice,” outside of domestic relations law, “has been used synonymously with the phrase ‘miscarriage of justice.’ Harris v. DiMattina, 250 Va. 306, 318, 462 S.E.2d 338, 343 (1995).

Further, this is not a typical "balancing of several factors" test. It is based on only two factors: (i) relative degrees of fault and (ii) economic disparities. Quoting Congdon v. Congdon, 40 Va. App. 255, 263, 578 S.E.2d 833, 837 (2003):

the court must base that finding on the parties’ comparative economic circumstances and the respective degrees of fault.” Barnes v. Barnes, 16 Va. App. 98, 101-03, 428 S.E.2d 294, 298 (1993) (emphasis in original). We italicized the word “and” in Barnes precisely because the statute makes clear that the decision must be rooted in both factors.  

Quoting Giraldi v. Giraldi, 64 Va. App. 676, 685-86, 771 S.E.2d 687, 692 (2015):

“By its very definition, . . . a ‘manifest injustice’ cannot be speculative. See Black’s Law Dictionary 974 (7th ed. 1999) (defining ‘manifest injustice’ as ‘direct, obvious, and observable’).”

The Court continues,

Neither requires proof by clear and convincing evidence independently. Rather, it is the confluence of both streams of evidence—of fault and of relative economic circumstances—that must rise, by the clear and convincing standard, to constitute manifest injustice.

It contrasts the present case with Congdon, which (according to the facts available to it in that case) combined the husband's "twenty years of profane and base behavior" with “extreme disparities” in assets, incomes and earning capacity; it says Mrs. Congdon had no significant "separate assets" and earned $10/hr. as a receptionist.

This wife's potential earnings of $25,000 to $33,000 do not seem that different from those in Congdon, considering that it went to trial around 2000. But the Court notes that at age 55, the wife is very few years away from being able to draw on the retirement accounts she received. Therefore,

We discern the legislative impulse behind the manifest injustice exception is to prevent leaving a spouse destitute as a result of an act of adultery. It would be a manifest injustice to require a faultless spouse to pay support to a work-capable, millionaire spouse, guilty of repeated acts of adultery with several co-respondents. The disparity in earning capacity, on these facts, is not sufficient to rise to the level of a manifest injustice.

An award of reasonable fees for the appeal is appropriate, the Court said.

Mundy v. Mundy, 66 Va. App. 177, 783 S.E.2d 535 (2016)

See also: Court of Appeals reverses alimony reservation award to adulteress; uncertain future cannot be "manifest injustice" (2015)

 

Late license justifies annulment of marriage AND of marital financial agreement, other fallout

The case of MacDougall v. Levick and Levick v. MacDougall (2/23/16) is a big mess for everyone but provides superbly-written and useful guidance on many issues at a time of change in family law.

The couple's wedding was in 2002. They apparently -- rather incredibly, but no one seems to have ever questioned their honesty on this -- had not realized they needed a marriage license. Their rabbi was completely unfamiliar with Virginia, and prudently went to the Fairfax Circuit Court beforehand to register as clergy so he could perform the wedding. The day of wedding,  he asked the couple for the license, and they said there wasn't one. He thought that was odd and unprecedented, but then again many things about Virginia seem odd to people from Montgomery Co., Md. Everyone decided to "deal with it later" and the wedding proceeded. Two weeks later, the couple got a marriage license, but instead of then having a brief additional ceremony with the rabbi or a civil magistrate, they mailed it to the rabbi in Maryland, and he signed it, certifying the marriage as occurring on the day he signed it.

The couple lived together, assuming they were married. In 2009 they entered a Va. Code § 20-155 "Marital Agreement", which is like a prenup but after the wedding, and in fact they are often done when a marriage seems to be breaking down.  Indeed, many complete separation/property settlement agreements claim to be Marital Agreements, citing 20-155. It gave the wife $150,000 a year in alimony -- not too much more than the average income and cost of living in the Northern Virginia suburbs -- and it said  it “shall form the foundation of a divorce or separation agreement, should either come to pass”.

And it came to pass that the wife filed for divorce in 2011, asked the court to incorporate the agreement and grant pendente lite alimony based on it, and received a pendente lite award of about two-thirds what the agreement said.

You Gotta Getta License

Virginia has required some form of licensing by church or state BEFORE marriage since 1628, the Court points out. Licensing first, then "solemnization". The wife had argued that the rabbi's signing of the certificate was a solemnization, or alternatively that the whole process of the wedding, the licensing and the signing was one single comprehensive event of the formalizing of the marriage. No, the Court says, because license always means something you get BEFORE you can do something -- hunting driving, practicing law -- and "To “solemnize” means “[t]o enter into (a marriage, contract, etc.) by a formal act, usu[ally] before witnesses.” Black’s Law Dictionary." Or "“to perform with pomp or ceremony or according to legal forms; esp : to unite a couple in (marriage) with religious ceremony : celebrate (a marriage) with religious rites”). " (Webster's) 

Mailing a license via express mail for a signature when the parties are not even present does not constitute “solemnization” under any reasonable definition of the term. FN 3: We reached a similar conclusion in Davidson v. Davidson, No. 2356-08-3, 2009 Va. App. LEXIS 313, at *4-5 (Va. Ct. App. July 14, 2009) (“The marriage license presupposes a ‘marriage ceremony’ solemnizing the union. And whatever formalities the ceremony requires, at the very least it requires the attendance of both the prospective bride and groom . . . .” (quoting Code § 32.1-267(C)))

... Offield, 100 Va. at 251, 40 S.E. at 910, ... observ[ed] that Virginians, “from the passage of our earliest statutes on the subject of marriage,” had regarded the statutory formalities as mandatory rather than directory. Id. at 260, 40 S.E. at 913. The Court acknowledged that this holding “‘may result in hardship in some cases’” but took the view that “‘the lesser injury will come from an adherence to the statutory requisite than otherwise.’” Id. at 261, 40 S.E. at 914 (quoting In re Estate of McLaughlin, 30 P. 651, 659 (Wash. 1892)). The Court observed that “‘[o]ur marital laws are plain and simple, not difficult to understand by the humblest citizen.’” Id. at 262-63, 40 S.E. at 914 (quoting Eldred, 97 Va. at 629, 34 S.E. at 485). 

Rules of Equity Don't Apply?

What I find disturbing in this case is this:

We generally reject the application of equitable doctrines in modern divorce suits because this body of law is now chiefly statutory in character. See Bajgain v. Bajgain, 64 Va. App. 439, - 15 - 457-58, 769 S.E.2d 267, 276 (2015).

I learned the maxims of equity in law school, starting with cases governed by the Uniform Commercial Code, and have dealt with them in many divorce cases in my 20 years of practice. I had never heard that they were not supposed to apply in divorce, or in other areas of law dominated by statutes instead of pure common law. Indeed, all family law cases  in Circuit Court were administered on the "Chancery" side of the courts until the structure of Chancery, but not the substance of equity, was abolished around 2006. Judges and lawyers in family law cases frequently invoke equitable doctrines, especially estoppel (which usually means a rule that a part can't claim in court the opposite of what he claimed before, in or out of court). Estoppel is often a key issue in cases about the validity of a marriage or recognition of a foreign divorce. 

But the Court notes that annulment is a creature of "the inherent power of equity, inherited by it from the ecclesiastical courts of England", whereas divorce is created purely by statutes. Pretlow v. Pretlow, 177 Va. 524, 548-49, 14 S.E.2d 381, 387 (1941).  There are statutes about annulments but they codify and set procedures and rules for a remedy that was already available. (Citing Heflinger, 136 Va. at 296, 118 S.E. at 318).

And so, assuming only for the sake of argument that equity defenses to the attack on the marriage are available, it rejects them. Laches does not apply because it is the unexplained failure to pursue a known claim, and here, the person challenging the marriage acted fast once someone told him that the marriage might not be valid. Also, a case chiding a wife for a late challenge to her divorce decree, after the husband and new wife relied on that divorce and got married, does not apply to someone challenging his own existing marriage.

Also, the wife cannot claim that the husband should have known about the problem earlier, when she herself knew all the same facts at the same time. There can be no estoppel when both parties had the same knowledge of the operative facts and the same ability to investigate them. (Citing Fitzgerald v. Fitzgerald, 194 Va. 925, 930, 76 S.E.2d 204, 207 (1953) (quoting Lindsay v. James, 188 Va. 646, 659, 51 S.E.2d 326, 332 (1949)).

Void or Voidable?

The Court finds the marriage merely voidable (by an annulment sought by a qualifying party to the marriage), not absolutely void (regardless of what anyone wants). 

Curative Statute

Va. Code § 20-31 validates good-faith marriages despite any technical problems with the license or the celebrant. But it does not apply to this couple, the Court said, because of the phrase in its first line, "solemnized under a license":

No marriage solemnized under a license issued in this Commonwealth by any person professing to be authorized to solemnize the same shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected on account of any want of authority in such person, or any defect, omission or imperfection in such license, if the marriage be in all other respects lawful, and be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.

Ratification of Marriage

This certainly could have been a decisive issue, but "The parties have not raised the question of whether they could and did ratify the marriage. Cf. Toler, 173 Va. at 432, 4 S.E.2d at 367. Accordingly, we do not address the question of whether a marriage such as this one may be ratified."

This ground for annulment is not among the grounds which Va. Code. § 20-89.1 says cannot "be decreed if it appears that the party applying for such annulment has cohabited with the other after knowledge of the facts giving rise to what otherwise would have been grounds for annulment; and, in no event shall any such decree be entered if the parties had been married for a period of two years prior to the institution of such suit for annulment."

Interpretation and Construction of Wording

In analyzing a statute, we give each word “‘its ordinary meaning, given the context in which it is used.’” Sansom v. Bd. of Supervisors, 257 Va. 589, 594-95, 514 S.E.2d 345, 349 (1999) (quoting Dep’t of Taxation v. Orange-Madison Coop. Farm Serv., 220 Va. 655, 658, 261 S.E.2d 532, 533-34 (1980)).