ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE

Leanna Weissmann Alison T. Frazier 

Lawrenceburg, Indiana Dupont, Indiana 

______________________________________________________________________________ 

In the 

Indiana Supreme Court 

_________________________________ 

No. 58S01-0708-CV-305 

EMMA MCPEEK (Petitioner Below), 

CAROLL VANTYLE, AND BRENDA ALLEN, 

 Appellants (Plaintiffs below), 

v. 

CHARLES MCCARDLE, 

 Appellee (Defendant below). 

_________________________________ 

Appeal from the Ohio Circuit Court, No. 58C01-0412-PL-0005 

The Honorable James Humphrey, Judge 

_________________________________ 

On Petition To Transfer from the Indiana Court of Appeals, No. 58A01-0609-CV-400 

_________________________________ 

June 10, 2008 

Rucker, Justice. 

Summary 

 The question raised in this opinion is whether a marriage solemnized in another state in 

violation of that state’s law may be recognized as valid in this state if the marriage complies with 

this state’s law. The answer is yes. 
Facts and Procedural History 

As a result of her first husband’s death, Edwina VanTyle became the sole owner of the 

family farm located in Ohio County and Switzerland County, Indiana. On June 30, 1994, armed 

with a marriage license obtained from the clerk of the circuit court in Ohio County, Indiana, 

Edwina and Charles McCardle, both residents of Indiana, traveled across state lines and were 

ostensibly married in the state of Ohio. The Reverend Donald S. Campbell performed the 

wedding ceremony and filled out the marriage certificate. Although Rev. Campbell was 

apparently authorized by his church to solemnize marriages in the state of Ohio, no marriage 

license was issued by the state of Ohio. Further, no ceremony took place in the state of Indiana. 

On July 1, 1994, the clerk of the circuit court in Ohio County, Indiana filed and recorded the 

marriage license and certificate. Shortly thereafter, in August 1994, Edwina executed a warranty 

deed transferring ownership of the farm to Charles McCardle and herself as husband and wife. 

On July 26, 2004, Edwina died intestate. In December 2004, Edwina’s two daughters 

and one son from her first marriage – Emma McPeek, Brenda Allen, and Caroll VanTyle 

(referred to collectively as “McPeek”) – filed a complaint for declaratory judgment. In the 

complaint McPeek contended that the marriage between her mother and McCardle was void, and 

therefore she and her siblings were the proper owners of one-half the farm, which had been in the 

family for three generations. McPeek also filed a motion for summary judgment. 

McCardle responded with a motion to dismiss the declaratory judgment action, 

contending McPeek was not a party to the marriage and therefore lacked standing to challenge its 

validity. McCardle also filed a motion seeking attorney fees, contending McPeek’s complaint 

was frivolous and brought in bad faith. After a hearing based on certain stipulated facts alleged 

in the complaint, the trial court granted the motion to dismiss. In so doing, the trial court agreed 

that McPeek lacked standing. However, the trial court concluded that the marriage was voidable 

under Indiana law and the weight of legal authority indicated that such marriages may not be 

attacked after the death of one of the parties. Noting the significant legal issues in this case, the 

trial court denied McCardle’s request for attorney fees. 

 

2
 McPeek appealed the dismissal of her complaint, and McCardle cross-appealed the denial 

of his request for attorney fees. The Court of Appeals affirmed the judgment of the trial court. 

McPeek v. McCardle, 866 N.E.2d 387, 391 (Ind. Ct. App. 2007). Having previously granted 

McPeek’s petition to transfer, we also affirm the judgment of the trial court. We summarily 

affirm the Court of Appeals’ disposition of McCardle’s cross-appeal. 

Standard of Review 

A claim of lack of standing is properly treated as a motion to dismiss under Indiana Trial 

Rule 12(B)(6) for failure to state a claim upon which relief can be granted. Huffman v. Office 

of Envtl. Adjudication, 811 N.E.2d 806, 813 (Ind. 2004). Such a motion tests the legal 

sufficiency of a claim, not the facts supporting it. Charter One Mortgage Corp. v. Condra, 865 

N.E.2d 602, 604 (Ind. 2007). We review de novo the trial court’s dismissal pursuant to Indiana 

Trial Rule 12(B)(6). Id. Viewing the complaint in the light most favorable to the non-moving 

party, we must determine whether the complaint states any facts on which the trial court could 

have granted relief. If a complaint states a set of facts that, even if true, would not support the 

relief requested, we will affirm the dismissal. Id. at 605. And we may affirm the grant of a 

motion to dismiss if it is sustainable on any theory. Right Reason Publ’n v. Silva, 691 N.E.2d 

1347, 1349 (Ind. Ct. App. 1998). 

Discussion 

 McPeek argues that her mother’s marriage to McCardle is void because it was 

solemnized in the state of Ohio without the benefit of an Ohio marriage license in violation of 

Ohio Revised Code section 3101.05.1

 McCardle does not respond to this argument head on. 

 

1

 McPeek also contends that the marriage was conducted by a minister not authorized to solemnize 

marriages in the state of Ohio in violation of Ohio Revised Code section 3101.09. To support this 

contention, McPeek relies on her own affidavit submitted in support of her motion for summary 

judgment. Appellant’s App. at 29-30. McCardle challenged the accuracy of the allegations claiming they 

were false, and this in part formed the bases for his request for attorney fees. In any event, the trial court 

did not rule on McPeek’s summary judgment motion. Rather, relying on the parties’ stipulated facts, 

which did not include those alleged in the affidavit, the trial court ruled on McPeek’s complaint for 

declaratory judgment, which it dismissed. Accordingly, the McPeek affidavit is not properly before us. 

3
Instead he makes the same argument made before the trial court, namely, “once a party to a 

marriage is dead, her marriage may not be challenged by anyone other than the other party to the 

marriage.” Resp. to Pet. to Trans. at 4. As recounted above, the trial court had a slightly 

different view. The Court of Appeals pursued a different analysis altogether, ultimately 

concluding that the judgment of the trial court should be affirmed. We agree with the Court of 

Appeals’ ultimate conclusion. However, our analysis is slightly different than our colleagues. 

 Unless strong public policy exceptions require otherwise,2 the law of the place where a 

marriage occurs generally determines the validity of a marriage. Bolkovac v. State, 229 Ind. 

294, 98 N.E.2d 250, 254 (1951); Sweigart v. State, 213 Ind. 157, 12 N.E.2d 134, 139 (1938); 

Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App. 2002); Gunter v. Dealer’s Transp. Co., 

120 Ind. App. 409, 91 N.E.2d 377, 379 (1950). As a corollary, the general rule of law is that a 

marriage valid where it is performed is valid everywhere. Loughran v. Loughran, 292 U.S. 

216, 223 (1934). The converse of this proposition is equally well settled: a marriage void 

where it is performed is void everywhere. 

McPeek insists that her mother’s Ohio marriage to McCardle is void. More specifically, 

according to McPeek, “[b]ecause the McCardle union which took place in Ohio did not meet the 

legal requirements for a lawful marriage to exist under Ohio law, Indiana must give Full Faith 

and Credit to the Ohio law and recognize that a lawful marriage did not occur and that their 

relationship was nothing more than a void common law marriage.” Pet. to Trans. at 7. However, 

our research reveals no authority declaring that a marriage solemnized in the state of Ohio 

without the benefit of a marriage license obtained from that state is considered a void marriage. 

Instead Ohio, like Indiana, draws a distinction between marriages that are void in contrast to 

those that are merely voidable. See 19 I.L.E., Marriage § 16 at 245-46 (2003). According to 

Ohio law, “There are major conceptual differences between void and voidable marriages. A 

voidable marriage is one which is valid when entered and which remains valid until either party 

secures a lawful court order dissolving the marital relationship.” Darling v. Darling, 335 N.E.2d 

708, 710 (Ohio Ct. App. 1975). Conversely, “a void marriage is invalid from its inception, and 

 

2 See e.g., Ind. Code § 31-11-1-1(b) (“A marriage between persons of the same gender is void in Indiana 

even if the marriage is lawful in the place where it is solemnized.”).

4
the parties thereto may simply separate without benefit of a court order of divorce or annulment.” 

Id. at 710-11. The policy of Ohio is to sustain marriages “where they are not incestuous, 

polygamous, shocking to good morals, unalterably opposed to a well defined public policy, or 

prohibited.” Mazzolini v. Mazzolini, 155 N.E.2d 206, 208 (Ohio 1958). Thus, Ohio appears to 

label a defective marriage voidable rather than void, unless such a label is against policy 

considerations. “A marriage contract is a nullity ab initio only where expressly so declared by 

statute. In such a case it is absolutely void, requiring no judicial decree for its dissolution.” Id.

at 209 (emphasis added). This jurisdiction has embraced a similar view. See Mason v. Mason, 

101 Ind. 25, 27 (1885) (“[A] marriage, contracted in violation [of the statute] . . . is not 

absolutely void unless declared to be so by the statute under which the order was made.”). 

Our review of Ohio case and statutory authority has not revealed that a marriage 

solemnized in that state without the benefit of an Ohio marriage license is void as against public 

policy. It therefore appears that the Ohio marriage, although defective, was nonetheless valid 

from its inception under the laws of Ohio and remained so at least until Edwina’s death because 

the parties did not seek dissolution. As indicated earlier, unless strong public policy exceptions 

require otherwise, the law of the place where a marriage occurs generally determines the validity 

of a marriage. Bolkovac, 98 N.E.2d at 254. 

We acknowledge however that Ohio’s court of last resort has not spoken on this subject 

in fifty years. And the latest reported decision by its intermediate Appellate Court occurred over 

thirty years ago. We are therefore hesitant to ground the resolution of this case solely on what 

may or may not be the current law of our sister state. We thus advance an alternative ground as 

well. 

Not all jurisdictions adhere to the general rule that the law of the place where the 

marriage occurs determines the validity of the marriage. The Restatement (Second) Conflict of 

Laws § 283(1) (1971) advises, “The validity of a marriage will be determined by the local law of 

the state which, with respect to the particular issue, has the most significant relationship to the 

spouses and the marriage . . . .” And following the Restatement’s guidance several jurisdictions 

have determined that even if invalid where solemnized, a marriage can be recognized as valid 

5
under the law of the forum state. See e.g., Donlann v. Macgurn, 55 P.3d 74, 77-79 (Ariz. Ct. 

App. 2002) (Applying Arizona law to recognize an invalid marriage under the law of Mexico, 

the court declared that a marriage invalid under the law where the ceremony occurred was valid 

in Arizona if it would have been valid had the ceremony been performed in Arizona.); Matter of 

Estate of Murnion, 686 P.2d 893, 898-99 (Mont. 1984) (Applying Montana law, the court 

recognized a marriage which was invalid in the state of Washington because Washington 

retained no interest in the case.); In re Estate of Shippy, 678 P.2d 848, 851-52 (Wash. Ct. App. 

1984) (Applying Washington law, the court recognized as valid a marriage that was invalid in 

the state of Alaska and declared that, although the validity of a marriage is generally governed by 

the law of the state where it is contracted, the state of Washington had a dominant interest in the 

validity of the decedent’s marriage because decedent and wife were domiciled in Washington, 

decedent’s property was located in Washington, and probate proceedings were pending there.). 

See also John C. Williams, Recognition by Forum State of Marriage Which, Although Invalid 

Where Contracted, Would Have Been Valid if Contracted Within Forum State, 82 A.L.R.3d 1240 

(1978) (collecting cases). 

We think the foregoing authorities express the better view as applied to this case. Before 

and after their marriage, Indiana was the domiciliary of both McCardle and Edwina, and both 

owned real and personal property in the state of Indiana. It appears that the only contact the 

parties had with Ohio is that the ceremony was conducted in that state. In essence any interest 

Ohio may have in the McCardles’ marriage is overcome by the more substantial interest this 

state has in recognizing the marriage of the parties who, after all, obviously anticipated that their 

marriage would be valid. See Restatement § 283 cmt. i (noting that the basic policy underlying 

the rule recognizing a marriage even where invalid where contracted is “protection of the 

justified expectations of the parties”). 

Accordingly, we measure the McCardles’ marriage against Indiana’s solemnization 

provisions. Before two people may marry in Indiana they must negotiate a multi-step process. 

The parties must first obtain a marriage license from the clerk of the circuit court of either 

person’s county of residence. I.C. §§ 31-11-4-1, -3. The marriage license issued by the circuit 

court is the legal authority for an authorized person to marry the betrothed couple. I.C. § 31-11-

6
4-14. The parties must then present the marriage license to a person who is authorized to 

solemnize marriages. I.C. § 31-11-4-13. Marriages may be solemnized by, among others, a 

member of the clergy of a religious organization. I.C. § 31-11-6-1(1). The person solemnizing 

the marriage must complete a marriage certificate and file the certificate and license with the 

clerk of the circuit court that issued the license; the clerk must then record the certificate and 

license. I.C. § 31-11-4-16. 

It is undisputed that Edwina and McCardle complied with the requisite statutes in 

obtaining and filing their Indiana marriage license and certificate of marriage with the clerk of 

the Ohio County Circuit Court. And there was no evidence presented to the trial court, and no 

argument made on appeal, that the couple were married in Ohio with the intent of evading the 

laws of this state.3 We conclude that where, as here, a couple has complied with Indiana’s 

statutory requirements regarding marriage licenses, certificates, and solemnization, such that the 

marriage would have been valid if solemnized in this state, we will recognize the marriage as 

valid even if the marriage ceremony took place in another state and did not comply with that 

state’s law or public policy.4

 It is worth emphasizing however that a couple intending to use or, 

 

3

 Indiana Code section 31-11-8-6 provides: 

A marriage is void if the parties to the marriage: 

(1) are residents of Indiana; 

(2) had their marriage solemnized in another state with the intent to 

(A) evade IC 31-11-4-4 or IC 31-11-4-11 (or IC 31-7-3-3 or IC 31-

7-3-10 before their repeal); and 

 (B) subsequently return to Indiana and reside in Indiana; and 

(3) without having established residence in another state in good faith, 

return to Indiana and reside in Indiana after the marriage is 

solemnized. 

4

 We acknowledge that the Indiana Attorney General concluded that “compliance with Indiana’s statutory 

requirements has no effect if the marriage does not comply with the legal requirements of the jurisdiction 

in which the marriage actually occurs.” Solemnization of Marriages under Indiana Law, 2004 Ind. Op. 

Att’y Gen. No. 3 (2004), available at http://www.in.gov/attorneygeneral/legal/advisory/opinions.html. 

However, Attorney General opinions are not binding on the Court. Illinois-Indiana Cable Television 

Ass’n v. Pub. Serv. Comm’n, 427 N.E.2d 1100, 1111 (Ind. Ct. App. 1981). We do agree however with 

the following conclusion: 

[A] couple obtaining an Indiana marriage license but intending to be 

married outside of Indiana should be advised to check the legal 

requirements of the jurisdiction in which they will be married to 

7
8

as occurred here, has already used an Indiana marriage license for an out-of-state marriage 

should take the additional step of re-solemnizing their marriage in Indiana in order to avoid 

future questions about its validity. See fn. 4. 

Conclusion 

 The trial court granted McCardle’s motion to dismiss based on the lack of standing. We 

affirm the judgment of the trial court albeit on a different theory. 

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur. 

 

determine what is necessary for a legally binding marriage in that 

jurisdiction. If a couple intends to use (or has used) an Indiana marriage 

license for an out-of-state marriage, it is advisable to recommend that the 

marriage be re-solemnized in Indiana to avoid future question about its 

validity. 

2004 Ind. Op. Att’y Gen. No. 3 (2004).