COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Senior Judge Hodges 

Argued at Norfolk, Virginia 

LENA VICTORIA KELDERHAUS 

v. Record No. 0569-95-1 OPINION BY 

 JUDGE RICHARD S. BRAY 

BRUCE LYNN KELDERHAUS FEBRUARY 27, 1996 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

A. Bonwill Shockley, Judge 

 Richard F. Popp (John Max Barger, Third-Year 

Student Practice; Davis, Irwin & Brynteson, 

P.C., on brief), for appellant. 

 No brief or argument for appellee. 

 

 These proceedings were initiated upon the bill of complaint 

of Lena Victoria Kelderhaus (wife) praying for a divorce from 

Bruce Lynn Kelderhaus (husband) and attendant relief, including 

spousal support. In response, husband challenged the validity of 

the marriage. Following an ore tenus hearing, the trial court 

concluded that the parties were not married and dismissed wife's 

bill. On appeal, wife complains that the trial court erroneously 

declined to recognize her common-law marriage to husband or, in 

the alternative, award her relief as a "putative spouse." We 

disagree and affirm the judgment of the trial court. 

 Under familiar principles, "'we view [the] evidence and all 

reasonable inferences in the light most favorable to the 

prevailing party below[,]'" husband in this instance. Pommerenke 

v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988) 

(citation omitted). The judgment of the trial court is presumed 
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to be correct, Broom v. Broom, 15 Va. App. 497, 504, 425 S.E.2d 

90, 94 (1992), and will not be disturbed unless plainly wrong or 

without evidence to support it. Dodge v. Dodge, 2 Va. App. 238, 

242, 343 S.E.2d 363, 365 (1986). "The burden is upon the party 

appealing to point out the error in the decree and to show how 

and why it is wrong." Kaufman v. Kaufman, 7 Va. App. 488, 499, 

375 S.E.2d 374, 380 (1988). 

 Bruce and Lena Kelderhaus obtained a marriage license in 

California on December 21, 1992. When applying for the license, 

husband knowingly misrepresented that his marriage to another had 

been previously dissolved.1

 Several days later, the parties 

ostensibly married in California, then traveled to Flagstaff, 

Arizona, residing together there as husband and wife. On July 

26, 1993, an Arizona decree divorced husband from his former wife 

and, on August 1, 1993, husband and wife participated in a second 

marriage "ceremony."2 The parties thereafter continued to reside 

together and represented themselves as husband and wife in 

Arizona until early August, 1993, when they relocated to 

Virginia. In driving from Arizona to Virginia, the parties 

"travers[ed] the country" as "husband and wife," stopping 

"overnight" in Texas and Oklahoma. 

THE MARRIAGE

 

 1Wife claimed no knowledge of this circumstance, but husband 

testified otherwise. 

 2For reasons unspecified in the record, it is uncontroverted 

that this was not a "legal ceremony." 
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 "A marriage's validity is to be determined by the law of the 

state where the marriage took place, unless the result would be 

repugnant to Virginia public policy." Kleinfield v. Veruki, 

7 Va. App. 183, 186, 372 S.E.2d 407, 409 (1988); Hager v. Hager, 

3 Va. App. 415, 416, 349 S.E.2d 908, 909 (1986). "A marriage 

entered into prior to the dissolution of an earlier marriage of 

one of the parties is [bigamous, and consequently,] a void 

marriage in . . . Virginia." Kleinfield, 7 Va. App. at 186, 372 

S.E.2d at 409 (citing Code §§ 20-38.1 and 20-45.1(a)). Bigamous 

marriages "confer[] no legal rights" and are "contrary to the 

laws of Virginia and [its] public policy." Id. at 190, 372 

S.E.2d at 411. Thus, when the parties purportedly married in 

California, the union was bigamous and void as a matter of law.3

See Code § 20-43. 

 Wife, however, argues that this impediment to husband's 

remarriage was removed by the subsequent Arizona divorce decree, 

and, therefore, the ensuing relationship as husband and wife 

during their passage through Texas and Oklahoma, states which 

recognize common-law marriages, resulted in marriage. See

Metropolitan Life Ins. Co. v. Holding, 293 F. Supp. 854, 858 

(E.D. Va. 1968). Although Virginia does not recognize domestic 

common-law marriages, Offield v. Davis, 100 Va. 250, 253, 40 S.E. 

 

 3We note that the marriage entered into by the parties in 

California would also be considered void ab initio under 

California law. See Cal. Fam. Code § 2201 (West 1995) ("A 

subsequent marriage contracted by a person during the life of a 

former husband or wife of the person, with a person other than 

the former husband or wife, is illegal and void from the 

beginning."). 
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910, 911 (1902), it does extend comity to such unions "valid 

under the laws of the jurisdiction where the common-law 

relationship was created." Farah v. Farah, 16 Va. App. 329, 334, 

429 S.E.2d 626, 629 (1993). 

TEXAS

 By statute, Texas provides that ". . . the marriage of a man 

and woman may be proved by evidence that . . . they agreed to be 

married, and after the agreement they lived together in this 

state as husband and wife and there represented to others that 

they were married." Tex. Fam. Code Ann. § 1.91(a)(2) (West 

1996). The parties must represent to others while in the state 

of Texas that they are husband and wife. Winfield v. Renfro, 

821 S.W.2d 640, 648 (Tex. Ct. App. 1991). Residing together as 

husband and wife in another state does not satisfy the Texas 

statute. See Williams v. Home Indem. Co., 722 S.W.2d 786, 788 

(Tex. Ct. App. 1987). "Strict compliance with these requirements 

is a necessity, and each one must be established by sufficient 

proof before [Texas] courts will lend judicial sanction to any 

assertion . . . that . . . a [marital] relationship exists." 

Middlebrook v. Wideman, 203 S.W.2d 686, 688 (Tex. Civ. App. 

1947). 

 Here, the record does not support the requisite finding that 

the parties "lived together . . . as husband and wife" in Texas 

and "there represented to others that they were married." See

Tex. Fam. Code Ann. § 1.91(a)(2) (emphasis added). The limited 

testimony that they migrated through Texas as "husband and wife" 
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establishes only a brief, transitory contact with the state which 

clearly does not constitute "strict compliance" with the 

statutory requirements. Hence, wife's claim to a valid 

common-law Texas marriage is without merit. 
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OKLAHOMA

 A party asserting common-law marriage in Oklahoma must 

prove: (1) an actual and mutual agreement between spouses to be 

husband and wife, (2) a permanent relationship, (3) an exclusive 

relationship, accompanied by cohabitation as man and wife, and 

(4) a mutual representation to the public as husband and wife,4

Estate of Stinchcomb, 674 P.2d 26, 28-29 (Okla. 1983), all by 

clear and convincing evidence. Maxfield v. Maxfield, 258 P.2d 

915, 921 (Okla. 1953). Although Oklahoma courts have not 

determined that the requisite mutual representation must occur 

within the state, several jurisdictions have addressed the issue 

relative to other common-law jurisdictions, and we are persuaded 

by their conclusion that this element must be satisfied within 

the common-law state. See Kennedy v. Damron, 268 S.W.2d 22 

(Ky. Ct. App. 1954); Laikola v. Engineered Concrete, 277 N.W.2d 

653 (Minn. 1979); Andrews v. Signal Auto Parts, Inc., 492 S.W.2d 

222 (Tenn. 1972). 

 In Kennedy, the Kentucky court declined to recognize mere 

visits to Ohio, a common-law state, by persons as sufficient to 

support a common-law marriage in that jurisdiction. 268 S.W.2d 

at 24. The court found "[i]t . . . obvious that if . . . conduct 

and reputation of . . . parties as man and wife are to be 

accepted as evidence of a contract of marriage entered into in a 

state which recognizes common-law marriages, the conduct must be 

 

 4Because we find insufficient evidence of this indispensable 

element to an Oklahoma common-law marriage, we decline to 

consider the remaining prerequisites. 
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carried on and the reputation acquired . . . [as] established 

members of a community." Id. at 23-24. Citing Kennedy with 

approval, the Supreme Court of Minnesota reached a similar 

conclusion in reviewing a Montana relationship, noting that 

"[t]he general . . . rule . . . is that the . . . holding out as 

husband and wife must be of sufficient duration in the common-law 

state to create a public reputation of husband and wife." 

Laikola, 277 N.W.2d at 658. 

 Here, the record reveals only minimal contact with Oklahoma 

and no evidence of specific conduct or representations by the 

parties, as husband and wife, in that jurisdiction. To sanction 

marriage arising from such an insignificant nexus with the 

common-law state would at once distort and trivialize the concept 

of common-law marriage and ignore the principles which govern 

such unions in Oklahoma. We, therefore, find the evidence 

insufficient to prove a common-law marriage in Oklahoma. 

 PUTATIVE SPOUSE

 Lastly, wife claims that the trial court, after finding her 

marriage to husband either "void or voidable," should have 

awarded putative spousal support in accordance with California 

law. See Cal. Fam. Code §§ 2251, 2254 (West 1995). Assuming, 

without deciding, that these provisions are relevant to the 

instant proceeding, relief as a putative spouse requires that he 

or she "believed in good faith that the marriage was valid." 

Id. at § 2251. Here, husband testified that wife was aware that 

he remained married to another at the time of the void California 
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nuptials. Consequently, wife could not have entertained the 

requisite good faith belief that the California marriage was 

valid and, therefore, was not a putative spouse within the 

intendment of the California statute. 

 Accordingly, we find that the trial court correctly 

concluded that the parties were not married to one another and 

affirm the decree dismissing the bill of complaint. 

 Affirmed.