August 13, 2010 – Heidi Caroline Barton Rivera v. Jaime Rivera, No. 29,511

CORRECTION PAGE: FILED 8/13/10 (FySVz) #29,511, Rivera v. Rivera: Cover page, line 16, changed “Terrance” to Terrence”
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	AUGUST 13, 2010
NO. 29,511
HEIDI CAROLINE BARTON RIVERA,
Petitioner-Appellee,
v.
JAIME RIVERA,
Respondent-Appellant.
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
J. Richard Brown, District Judge
Max Houston Proctor
Hobbs, NM
for Appellee
Reagan & Sanchez, P.A.
Mark Terrence Sanchez
Hobbs, NM
for Appellant

OPINION
FRY, Chief Judge.
{1} 	This appeal stems from divorce proceedings initiated in 2008 by Wife, Heidi
Rivera, against Husband, Jaime Rivera. Prior to trial, Wife filed a motion to dismiss
the case for lack of jurisdiction, arguing that the marriage was void due to the fact that
the parties were married in New Mexico but had only a Texas marriage license. The
district court agreed and dismissed the divorce proceedings. Prior to the dismissal,
Husband had sought to invalidate a premarital agreement he signed shortly before the
wedding on the ground that the agreement was unconscionable due to the terms of the
agreement and his inability to understand what he was agreeing to. In its dismissal
order, the district court noted that if the marriage had been valid, the court would have
ruled that the premarital agreement was valid and enforceable. Husband appeals the
district court’s dismissal of the divorce proceedings and its conclusion that the
premarital agreement was enforceable. 	For the following reasons, we reverse the
judgment of the district court.
BACKGROUND
{2} 	Husband and Wife met while Wife was on vacation in Mexico where Husband
resided. A romantic relationship ensued, and Husband and Wife dated for over a year.
The parties decided to get married, and Husband moved to the United States to marry

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Wife. A few days prior to the wedding, Husband and Wife went to Wife’s attorney’s
office in Hobbs, New Mexico, to sign a prenuptial agreement that Wife had asked her
attorney to prepare. 	According to Husband, he was under the impression that the
agreement was a formality required for the marriage, and he did not understand
English well enough to know exactly what he was signing. 	The district court’s
uncontested findings, however, indicate that Husband declined an offer to have the
document interpreted.
{3} 	On February 14, 2000, Husband and Wife were married during a ceremony
before the Reverend Jothen Kinney in Hobbs. Prior to the ceremony, the parties had
obtained a marriage license from the Gaines County clerk’s office in Seminole, Texas,
which is located approximately thirty miles from Hobbs. The marriage license issued
to the parties granted “authoriz[ation] to solemnize the rites of matrimony between
Mr. Jaime Armando Rivera and Miss Heidi Caroline Barton” to “any person
authorized by the laws of the state of Texas to celebrate the rites of matrimony in the
state of Texas.” The parties took this license to Rev. Kinney, who was authorized to
perform marriage ceremonies in both New Mexico and Texas, and who performed the
marriage ceremony and filled out the information required on the license. Under the
“county of marriage” section, “Lea” was written in, “Texas” was crossed out, and
“New Mexico” was written in its place. The license was then returned to the Gaines

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County clerk, who accepted the returned license and recorded it in the county records
on March 17, 2000.
{4} 	Following the marriage, the couple resided in Hobbs and had two children. In
April 2008, after eight years of marriage, Wife filed a petition for dissolution of
marriage, citing incompatibility between herself and Husband. In November 2008,
despite having filed numerous pleadings presuming the validity of the marriage, Wife
filed a motion to dismiss her petition, arguing that the district court lacked
jurisdiction. 	Wife contended that her petition was premised on her belief that the
parties were lawfully married in the State of New Mexico when in fact the parties
were not lawfully married in New Mexico. Wife argued that she and Husband had
failed to obtain a marriage license and medical certificate as required by New Mexico
law and that their marriage was therefore invalid. 	Wife noted that while she had
obtained and recorded a marriage license in Texas, she had not met Texas’ statutory
requirements for a valid marriage because she did not have a ceremony in Texas.
Wife also contended that the ceremony in New Mexico was invalid because the pastor
who officiated had no authority to perform the marriage ceremony in New Mexico
without a valid New Mexico marriage license.
{5} 	The district court agreed with Wife and found that it did not have jurisdiction
over the parties’ divorce. Specifically, the court found that “the parties celebrated a

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marriage ceremony in the State of New Mexico that was never authorized by the laws
of New Mexico” and that the marriage was therefore invalid. The court concluded
that “the laws of Texas are irrelevant to any decision necessary to a resolution of th[e]
matter.” The court explained that New Mexico law requires couples desiring to marry
to obtain a license in New Mexico and present the license to the person officiating at
the ceremony and that without a valid license, the marriage ceremony has no legal
effect. 	Based on this conclusion, the district court dismissed the divorce action.
Because Husband had also contested the validity of the premarital agreement, the
court concluded that “[i]f the marriage had been valid, the prenuptial agreement would
have likewise been valid and enforceable.” 	Husband appeals the district court’s
dismissal of the divorce proceedings and its conclusion that the premarital agreement
was valid.
DISCUSSION
Standard of Review
{6} 	The facts in this case are generally undisputed. At issue is whether a marriage
performed in New Mexico without a New Mexico license is valid. 	Because this
involves a question of law, we review the district court’s conclusions of law de novo.
Jacob v. Spurlin, 1999-NMCA-049, ¶ 7, 127 N.M. 127, 978 P.2d 334.

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Choice of Law
{7} 	Because the marriage was celebrated in New Mexico but licensed in Texas, we
briefly address the conflict-of-law issue that this case appears to present. According
to Texas law, the “validity of a marriage is generally determined by the law of the
place where it is celebrated.” 	Husband v. Pierce, 800 S.W.2d 661, 663 (Tex. App.
1990). New Mexico, like Texas, “applies the rule of comity, that the law of the place
of contract governs the validity of a marriage.” In re Bivians’ Estate, 98 N.M. 722,
726, 652 P.2d 744, 748 (Ct. App. 1982). Because the place of the marriage ceremony
is the place of the contract, see Restatement (First) of Conflict of Laws § 121 comment
c (1934) (explaining that “[t]he contract of marriage comprises any form of mutual
consent from a formal ceremony to a mere exchange of written or oral promises,
which may be required by the law of the place where the ceremony takes place”), and
because the marriage ceremony was performed in New Mexico, New Mexico law
governs the validity of Husband’s and Wife’s marriage whether we look at Texas’ or
New Mexico’s choice-of-law laws. We thus address whether the marriage was valid
under New Mexico’s substantive law.
The Marriage Was Valid Even Though No New Mexico License Was Obtained
{8} 	Our Supreme Court has stated that “[f]or a marriage to be valid, it must be
formally entered into by contract and solemnized before an appropriate official.”

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Merrill v. Davis, 100 N.M. 552, 553, 673 P.2d 1285, 1286 (1983). The purpose of the
requirements that a marriage be formal and solemnized are based on our State’s
rejection of common law marriage and the need to avoid “the possibility of fraud
arising from claims of common [] law marriage.” Id. (internal quotation marks and
citation omitted). Because New Mexico does not recognize common law marriage,
something more than mere cohabitation and reputation as husband and wife is
required to create a valid marriage in this state. See In re Bivians’ Estate, 98 N.M. at
726, 652 P.2d at 748.
{9} 	Thus, our case law requires that for a New Mexico marriage to be valid, it must
be solemnized before an appropriate official and be formally entered into by contract.
While this Court has noted on a number of occasions that “[m]arriage is a civil
contract requiring a license,” see, e.g., State v. Lard, 86 N.M. 71, 74, 519 P.2d 307,
310 (Ct. App. 1974) (internal quotation marks omitted), and In re Bivians’ Estate, 98
N.M. at 726, 652 P.2d at 748, and that a marriage “is also a contract in which the
public is interested and to which the state is a party,” id., we have never directly
addressed the issue of whether a couple who has a marriage ceremony but fails to
obtain a New Mexico license has a valid marriage.
{10} 	NMSA 1978, Section 40-1-10 (1973) provides that “[e]ach couple desiring to
marry in New Mexico shall obtain a license from a county clerk and file the same for

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recording in the county issuing the license, following the marriage ceremony.” In
addition to the requirement that the couple desiring to be married obtain a license,
NMSA 1978, Section 40-1-14 (1905), provides that “[a]ll persons authorized to
solemnize marriage shall require the parties contemplating marriage to produce a
license signed and sealed by the county clerk authorizing said marriage.” After the
completion of the marriage ceremony, the “person[] performing the marriage
ceremony” has “the duty . . . to certify said marriage to the county clerk within ninety
days from the date of marriage.” NMSA 1978, § 40-1-15 (1905).
{11} 	In the event that the person authorized to solemnize the marriage “neglect[s] or
fail[s] to comply with the provisions” requiring the parties to produce a license or fails
to certify the marriage, he or she “shall be deemed guilty of a misdemeanor.” NMSA
1978, § 40-1-19 (1905). In addition, a person who “willfully violate[s] the law by
deceiving or attempting to deceive or mislead any officer or person authorized to
perform the marriage ceremony in order to obtain a marriage license or to be married,
contrary to law,” is also guilty of a misdemeanor. Id.
{12} 	Based on the text of NMSA 1978, Sections 40-1-1 to -20 (1859-1860, as
amended through 2001), it is clear that a license from a New Mexico county clerk is
required in order for a couple to be married within this state. The question before us,
however, is whether the parties’ marriage in this case was valid even though their

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marriage ceremony was performed in a New Mexico county but the license was
obtained in another state. 	Other courts considering this question have hinged the
validity of an unlicensed marriage on whether the licensing aspect of the statute is
viewed as mandatory or directory. 	If the statute is directory, then an unlicensed
marriage is valid. 	See, e.g., De Potty v. De Potty, 295 S.W.2d 330, 330-31 (Ark.
1956). If the statute is mandatory, then any marriage performed without a license is
automatically void. 	See, e.g., Moran v. Moran, 933 P.2d 1207, 1211-12 (Ariz. Ct.
App. 1996).
{13} 	In De Potty, the Arkansas Supreme Court was confronted with a question
identical to the one before us today—“whether residents of [Arkansas] may legally
contract marriage in [Arkansas] with a license issued by a foreign state.” 295 S.W.2d
at 330 (internal quotation marks omitted). The parties in De Potty lived in Texarkana,
Arkansas, which apparently borders Texas to such an extent that a portion of the city
is in Texas. Id. The parties obtained a Texas marriage license on the Texas side of
Texarkana, but they were married by a duly ordained minister on the Arkansas side
of the city. 	Id. 	In determining that its licensing statute was directory and that an
Arkansas marriage performed without an Arkansas license was therefore not void, the
court noted that generally “a statutory provision for a license to marry shall not be
regarded as mandatory, and vital to the validity of a marriage, in the absence of a clear

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indication of a legislative purpose that it should be so construed.” Id. at 331 (internal
quotation marks and citation omitted).
{14} 	The Connecticut Supreme Court made a similar holding in a case where it
addressed whether a ceremonial marriage performed by an authorized person but
without a license was void. See Carabetta v. Carabetta, 438 A.2d 109, 110 (Conn.
1980). In concluding that such a marriage was not void, the court noted that “[i]n the
absence of express language in the governing statute declaring a marriage void for
failure to observe a statutory requirement . . . such a marriage, though imperfect, is
dissoluble rather than void.” 	Id. at 112. 	More recently, the Washington Court of
Appeals determined that because “Washington does not have a statute plainly making
an unlicensed marriage invalid[,] . . . the purpose of the license requirement is purely
regulatory.” State v. Denton, 983 P.2d 693, 696 (Wash. Ct. App. 1999). The court
explained that “[t]he regulatory purpose cannot be enforced by the radical process of
rendering void and immoral a matrimonial union otherwise validly contracted and
solemnized” and that an “[i]ntentional failure to procure a license is punishable as a
misdemeanor, but it does not render a marriage void or even voidable.” Id. (internal
quotation marks and citations omitted); see also Boysen v. Boysen, 23 N.E.2d 231,
234 (Ill. App. Ct. 1939) (noting that an unlicensed marriage is not void unless the
legislature expressly declares it so); McPeek v. McCardle, 888 N.E.2d 171, 174-75

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(Ind. 2008) (noting that under Ohio law, a marriage performed without a license
would likely be valid because there is no directive that an unlicensed marriage is
automatically void).
{15} 	Jurisdictions holding that marriage ceremonies performed without a license are
invalid typically base their decisions on the fact that the statutory licensing scheme
expressly states that a marriage performed without a license is invalid or void. 	In
Arizona, for example, a license is mandatory and, therefore, any marriage performed
without one is invalid because Arizona’s licensure statute provides that “[a] marriage
contracted [in Arizona] is not valid unless . . . [a] license is issued.” Moran, 933 P.2d
at 1211 (quoting Ariz. Rev. Stat. Ann. § 25-111(B)[(1) (1999)]). In holding that this
language made an unlicensed ceremony invalid, the court explained that the express
language invalidating the marriage indicated that the statute is mandatory, not
directory. 	Id. at 1211-12. Other jurisdictions interpreting their marriage licensing
statutes as mandatory base their holdings on similar express language that voids or
invalidates marriages performed without a license. See, e.g., Nelson v. Marshall, 869
S.W.2d 132, 134 (Mo. Ct. App. 1993) (explaining that a statute which provided that
“no marriage hereafter contracted shall be recognized as valid unless the license has
been previously obtained” was mandatory and made any unlicensed marriage void
(emphasis omitted) (internal quotation marks and citation omitted)). Thus, the general

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consensus among jurisdictions is that in the absence of express statutory language
invalidating an unlicensed marriage, ceremonial marriages performed without a
license are valid. 	But see Beverlin v. Beverlin, 3 S.E. 36, 39-40 (W. Va. 1887)
(holding that language implying that an unlicensed marriage is invalid is sufficient).
We agree with the view expressed by the majority of jurisdictions considering the
question that in order for an unlicensed marriage to be invalid, the licensure statute
must expressly state that an unlicensed marriage is invalid.
{16} 	Here, while the district court determined that the marriage of the partes in this
case was void and therefore “not recognizable in the State of New Mexico,” there is
no express statement in Sections 40-1-1 to -20 that our Legislature intended that
marriages properly solemnized in New Mexico were void based on the absence of a
New Mexico license alone. In fact, the only type of marriages our Legislature has
expressly declared to be void are incestuous marriages and marriages between or with
infants under the age of majority. See §§ 40-1-5, -7, -9. Because our Legislature has
demonstrated the ability to expressly make certain types of marriages void and
because our Legislature has declined to do so in the case of marriages performed
without a New Mexico license, we conclude that our Legislature did not intend to
make such marriages void.
{17} 	We also note that although Section 40-1-20 could be viewed as implying that

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an unlicensed marriage is void, we are not persuaded that it does. 	That statute
provides that
[a]ll marriages celebrated or contracted in the territory of New Mexico,
during the year A.D. 1905, without the persons entering into the
marriage relation, having first obtained a license . . . but which marriages
were valid according to the law as it existed prior to April 13, 1905, are
hereby validated and legalized and shall have the same force and effect
as if . . . the parties contracting such marriage had first obtained a license
to marry from the probate clerk of the county wherein such marriage
occurred.
Id. 	But see Beverlin, 3 S.E. at 39-40 (holding that similar language in a marriage
license statute created the inference that marriages conducted without a license are
void). 	We conclude that this section serves merely to clarify the status of those
individuals who were married during the first year that licenses were required in this
state, 1905. 	We follow the reasoning of those states requiring express statutory
language “plainly making an unlicensed marriage invalid” before holding an
unlicensed ceremonial marriage invalid. See, e.g., Denton, 983 P.2d at 696. Because
there is no express language in Sections 40-1-1 to -20 invalidating a marriage
performed without a license, we conclude that our marriage licensure statute is merely
directory, that ceremonial marriages performed without a license are valid, and that
the district court erred in dismissing the case for lack of jurisdiction.
{18} 	We are mindful that the case before us is limited to the question of whether a
marriage can be deemed valid when a marriage ceremony is performed but the parties

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fail to obtain a New Mexico license. This was not an attempt to circumvent the laws
of this state by engaging in a marriage that would otherwise be contrary to New
Mexico’s statutory scheme that prohibits incestuous marriages and marriages between
or with minors without parental consent. Neither party disputes that they intended to
be married in February 2000. They obtained a marriage license from a county clerk,
they participated in a marriage ceremony before an ordained and authorized minister,
and they recorded their marriage license with the same county clerk’s office from
which they obtained the license. The couple lived together as husband and wife and
had children together. Wife changed her last name to reflect her marriage to Husband,
and the parties filed joint tax returns for the eight years that they were married. In
addition, Wife filed two petitions for dissolution of marriage in which she stated her
understanding and belief that she and Husband were validly married. Perhaps due
only to the proximity of the marital residence to Seminole, Texas, where the Gaines
County clerk’s office is located, the parties obtained their marriage license from and
filed it with a Texas county clerk and not a New Mexico county clerk. However, this
is not a case where one of parties denies that a marriage ever took place, nor is there
evidence that the marriage was somehow contrary to New Mexico’s statutory
prohibition against incestuous marriages and marriages between or with minors
without parental consent.

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{19} 	We emphasize that our decision today does not in any way render the marriage
license meaningless. Marriage licenses continue to be required under New Mexico
law as evidence that a marriage fully complies with all requirements of the law. The
parties in this case applied for the issuance of a marriage license although they did so
in another state. They held a valid ceremony and intended to enter into a contract of
marriage. 	We conclude that given the facts in this case, the couple met the legal
requirements of a marriage in this state despite their failure to obtain a New Mexico
marriage license. 	See Merrill, 100 N.M. at 553, 673 P.2d at 1286 (explaining that
“[f]or a marriage to be valid, it must be formally entered into by contract and
solemnized before an appropriate official”). We also note that our decision today has
no effect on our state’s prohibition of common law marriages. 	Common law
marriages and marriages in which no ceremony is performed and no contract is
entered into continue to be unlawful in this state.
The Premarital Agreement Executed by the Parties Is Unconscionable
{20} 	Because we conclude that the marriage between Husband and Wife was valid,
we also address whether the district court erred in determining that the prenuptial
agreement signed by Husband is valid and enforceable. The district court concluded
that “[i]f the marriage had been valid, the prenuptial agreement would have likewise
been valid and enforceable.” 	On appeal, Husband argues that the prenuptial

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agreement he signed is unenforceable because he was told that it was just a formality,
he did not understand the content of the agreement, and the terms of the agreement are
unconscionable.
{21} 	We have not previously considered the applicable standard of review when
reviewing a district court’s conclusion that a premarital agreement is valid. 	The
Uniform Premarital Agreement Act, NMSA 1978, §§ 40-3A-1 to -10 (1995), provides
that the “issue of unconscionability or voluntariness of a premarital agreement shall
be decided by the court as a matter of law.” Section 40-3A-7(B). Because the issue
is decided as a matter of law, our review is de novo. See Truong v. Allstate Ins. Co.,
2010-NMSC-009, ¶ 27, 147 N.M. 583, 227 P.3d 73 (noting that “[w]e review these
questions of law de novo, without deference to the district court’s legal conclusions”
(internal quotation marks and citation omitted)). Underlying this question of law are
factual determinations regarding the circumstances surrounding the execution of the
agreement. We review the district court’s findings regarding these circumstances for
substantial evidence. Calkins v. Stearley, 2006-NMCA-153, ¶ 2, 140 N.M. 802, 149
P.3d 118.
{22} 	The Uniform Premarital Agreement Act provides in part that
[a] premarital agreement is not enforceable if the party against whom
enforcement is sought proves that:
(1) 	that party did not execute the agreement voluntarily; or

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(2) 	the agreement was unconscionable when it was executed
and, before execution of the agreement, that party:
(a) 	was not provided a fair and reasonable disclosure of
the property or financial obligations of the other party;
(b) 	did not voluntarily and expressly waive, in writing,
any right to disclosure of the property or financial obligations of the
other party beyond the disclosure provided; and
(c) 	did not have, or reasonably could not have had, an
adequate knowledge of the property or financial obligations of the other
party.
Section 40-3A-7(A). We conclude that Subsection (2) is dispositive.
{23} 	With respect to the requirements listed as (a), (b), and (c) above, Wife does not
dispute Husband’s assertion that she did not disclose the extent of her assets prior to
the execution of the agreement, and there is no evidence that Husband either waived
his right to disclosure of Wife’s property or that he had or could have had an adequate
knowledge of her property and financial obligations. See § 40-3A-7(A)(2). Thus, the
sole issue before us is whether the agreement was unconscionable.
{24} 	Husband argues that the agreement was unconscionable because (1) it conflicts
with New Mexico’s public policy, and (2) he had a limited understanding of the
English language at the time he executed the agreement and he “had been given to
understand that the premarital agreement was a formality associated with marriage.”
Unconscionability has “two prongs: 	substantive unconscionability and procedural

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unconscionability.” Fiser v. Dell Computer Corp., 2008-NMSC-046, ¶ 20, 144 N.M.
464, 188 P.3d 1215. 	“Substantive unconscionability relates to the content of the
contract terms and whether they are illegal, contrary to public policy, or grossly
unfair,” while “[p]rocedural unconscionability is determined by analyzing the
circumstances surrounding the contract’s formation, such as whether it was an
adhesive contract and the relative bargaining power of the parties.” Id.
{25} 	Husband 	contends 	that 	the 	premarital 	agreement 	is 	substantively
unconscionable because it “affects . . . the right to seek spousal support after divorce
or separation,” in violation of Section 40-3A-4(B). Wife makes no response to this
argument and contends only that “[t]here is no evidence in the record, whatsoever, that
the [premarital a]greement was unconscionable.” 	Section 40-3A-4(B) provides that
“[a] premarital agreement may not adversely affect the right of a child or spouse to
support.” In violation of this requirement, the agreement provides that Husband and
Wife “waive any right to be supported by the other from the other’s property,
including but not by way of limitation, any claim for support, maintenance, medical
expenses or otherwise, after the death, divorce or permanent separation of the parties.”
The paragraphs of the agreement in which the parties agree that their separate property
will remain separate also provide that the parties “shall have no claim for support,
maintenance or claim, of any kind.” 	Because these provisions of the premarital

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agreement adversely affect the right of the spouses to support, the agreement is
contrary to the public policy expressed in Section 40-3A-4(B) and is therefore
unconscionable. See Fiser, 2008-NMSC-046, ¶ 20.
{26} 	While we conclude that the provisions of the agreement that violate Section 40-
3A-4(B) are unconscionable, we must determine the effect the unconscionability of
these provisions has on the agreement as a whole. The agreement does not contain a
severability clause, and Wife makes no argument that the remainder of the agreement
should not be affected by the invalidity of the support provisions. 	Because Wife
makes no argument and because we are unable to discern whether the parties
bargained for the waiver of spousal support in exchange for other benefits or
concessions, we are unable to conclude that any portion of the agreement is valid
without the unconscionable provisions. Thus, we conclude that the entire agreement
is unconscionable and reverse the district court’s conclusion that the agreement is
valid and enforceable.
CONCLUSION
{27} 	For the foregoing reasons, we reverse the judgment of the district court.

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{28} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Chief Judge
WE CONCUR:
JONATHAN B. SUTIN, Judge
LINDA M. VANZI, Judge