IN THE COURT OF APPEALS OF IOWA

No. 22

- 0001

Filed October 5, 2022

IN RE THE MARRIAGE OF AIMEE J. HEIDE

AND JEFFREY T. HEIDE SR.

Upon the Petition of

AIMEE J. HEIDE

, Petitioner

- Appell ee

,

And Concerning

JEFFREY T. HEIDE SR.

, Respondent

- Appell ant

.

________________________________________________________________

Appeal from the Iowa District Court for Sioux County, Jeffrey A. Neary

,

Judge.

A former husband appeals the decree dissolving his marriage. AFFIRMED.

Jacquelyn Johnson

, Sioux City

, for appellant.

Kelly J. Goslinga of Clabaugh & Goslinga, PLC

, Sioux Center

, for appellee.

Considered by Bower, C.J.

, Tabor, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022 ).2

BLANE

, Senior Judge

.

This case has an unusual twist. The parties agree they got married, but

cannot agree on how, where

, and when. Jeffrey Heide contends he and Aimee

Heide entered into a common law marriage when they had a destination wedding

in Costa Rica o n June 5, 2013. Aimee argu es they were married o n July 13 when

they flew to Las Vegas and received a Nevada marriage certificate

. The date is

important because the parties signed a pre

- marit al agreement on June 18 that

would only be valid if their marriage occurred on the later date in Las Vegas. The

district court held that the parties ’ ceremony in Costa Rica did not establish a

common law marriage

, their marriage commenced in Las Vegas on July 13, and

the pre

- marit al agreement was valid and controlling in their dissolution

proceedings

. Upon our de novo review, we affirm the district court’s determination

that the parties did not enter in to a common law marriage during their destination

wedding.

I. Fac tual and procedural background

.

Jeffrey and Aimee were each previously married, had children

, and were

divorced. They became acquainted while serving as volunteers for the Sioux

Center ambulance service in 2011. In 2012, they began discussing marriage and

,

in September

, Aimee contacted an attorney to prepare a pre

- marital agreement.

A draft of the pre

- marital agreement was sent to Jeffrey

, and he responded with a

list of changes and inclusions he wanted. The agreement was completed and

ready for signing by May 2013. On January 17, 2013, Jeffrey signed a warranty

deed that conveyed an interest in his house to Aimee as tenants in common since3

Aimee had financially contributed to the remodel of what was to be the marital

home

. In the deed b oth were identified as “single” persons.

The parties planned a destination wedding on a beach in Costa Rica for

June 5, 2013. Because of logistical hassle, they did not obtain a marriage license

in Costa Rica. But there were all the trappings of a wedding on June 5

. Many

friends and family members attended, including Aimee’s mother and father

identified in photos as “parents of the bride,” her son and two d aughters, her two

sisters, her nieces

, and Jeffrey’s children

. Aimee assembled an album that

contained memorabilia of the ceremony, including the wedding program and

photos

. These show what would be classified as a typical ceremony. 1 The

program was entitled “Celebrating the Marriage of Jeffrey Heide and Aimee

Pla si er.” Aimee is identifie d as the “bride,” who wore a white dress and was

accompanied by “bride’s maids.” There was a processional

, and Aimee was

escorted down the aisle by her son. There was an exchange of marriage vows

,

wedding rings

, and a “[ d ] eclaration of [ m ] arriage

. ” There is a photo of “the wedding

party” and one on the beach after the ceremony of Aimee and Jeffrey where they

wrote in the sand “Just married.” A r eception was held on the beach after the

ceremony.

Upon their return to Iowa, Jeffrey and Aimee held a reception for family and

friends who were unable to attend the ceremony in Costa Rica. They cohabitated

1 The officiant listed in the wedding program was Aimee’s niece. The record does

not disclose whether she would be recognized in Costa Rica as a person

authorized to conduct wedding ceremonies. Jeffrey does not contend that the

ceremony in Costa Rica met that country’s legal requirements so as to qualify for

issuance of a marriage certificate.4

in their home and continued to w ear their wedding rings. Aimee however

continued to use her last name of Pla si er.

On June 1 8

, Aimee and Jeffrey went to the attorney’s office and signed the

pre

- marital agreement

, which contained the following language : “contemplated

marriage” ; “ [a] marriage is intended and desired to be solemnized between the

parties.”; “the proposed marriage”; “ [i] n anticipation of their marriage” ; “ [i] n

consideration of mutual covenants contained herein, prospective husband and

prospective wife agree as follows

. . .”; “ [t] his agreement is to become effective

only upon the solemnization of the marriage.” Also on tha t date, Jeffrey and Aimee

signed a warranty deed showing that “ Jeffrey T. Heide, Sr., single, and Aimee

Pla si er, single, hereby convey to Jeffrey T. Heide, Sr., and Aimee Plas i er as joint

tenants with full rights of survivorship and not as tenants in common.” The deed

also states the same address for both Aimee and Jeffrey

. 2

Jeffrey and Aimee traveled to Las Vegas and obtained a Nevada marriage

certificate on July 13

, signed by the minister and one witness

. Aimee’s maiden

name of “Pla si er” appears on the certificate. Jeffrey testified that there was no

ceremony in Las Vegas and that both he and Aimee were still wearing the wedding

rings exchanged at the Costa Rica ceremony. When they returned to Iowa from

Las Vegas, Aimee used the Nevada marriage certificate to change her last name

to Heide and supplied it to her employer to have Jeffrey covered by her health

insurance program.

2 The drafting attorney was not present when Aimee and Jeffrey signed the pre

marital agreement and warranty deed. And she was not aware they held a

ceremony in Cos ta Rica.5

Fast forward to July 7, 2020

, Aimee filed her Petition for Dissolution of

Marriage. Jeffrey answered on August 10, 2020. Following a three

- day trial in

June 2021, the district court judge in October 2021 filed a thorough

, fifty

- nine

- page

dissolution decree in which all issues were addressed

. The court found that the

parties did not enter into a common law marriage based upon the ceremony in

Costa Rica on June 5, 2013 and that their marriage commenced upon their

marriage ceremony in Las Vegas on July 13 when the Nevada marriage certificate

was issued. The court decided the pre

- marital agreement signed by the parties on

June 13 was valid and controlling. Jeffrey filed a rule 1.904 motion to re consider

,

raising several issues, particularly the ruling on common law marriage and the pre

marital agreement. Aimee also filed a post

- trial motion to amend, modify

, and

enlarge the decree but did not raise the common law marriage or pre

- marital

agreement. On December 22, 2021, the district court denied Jeffrey ’s motion,

leaving intact the ruling against a common law marriage and enforcement of the

pre

- marital agreement. The court also addressed various issues raised by Aimee’s

motion. Jeffrey appeals.

II. Standard of review.

We review claims of a common law marriage de novo. In re Marriage of

Martin

, 681 N.W.2d 612, 616 (Iowa 2004)

. A ppellate court s review appeals

regarding dissolution of marriage de novo because such actions are equitable

proceedings. In re Marriage of Sullins

, 715 N.W.2d 242, 247 (Iowa 2006); see also

Iowa Code § 598.3 (202 0 ) ; Iowa R. App. P. 6.907 (“Review in equity cases shall

be de novo. ” ) In equity cases, especially when considering the credibility of

witnesses, the court gives weight to the fact findings of the district court, but is not6

bound by them. Iowa R. App. P. 6.904(3)(g). Each case depends upon its own

unique facts; “precedents are not greatly valuable.” In re Marriage of Hiller &

Nelsen

, No. 16

- 0997, 2017 WL 5185424, at *2 (Iowa Ct. App. Nov. 8 2017)

.

III. Discussion.

A. Common law marriage claim.

In this appeal, Jeffrey continues to put forth his argument that he and Aimee

entered into a common law marriage at their destination wedding ceremony in

Costa Rica. The parties basically agree as to the facts and the law

. It is on the

application of our law regarding common law marriage to those facts that they

disagree. Our supreme court has said:

Two forms of marriage are recognized in Iowa. One is

ceremonial, governed by statute. This form of marriage was

recognized in our first code in 1851 and the requirements established

then are essentially the same now. The second form of marriage is

informal, known as a common law marriage. This type of marriage

has been recognized in Iowa for well over a century. Although a

common law marriage is as valid as a ceremonial marriage, there is

no public policy favoring this type of marriage. Thus, claims of

common law marriage are carefully scrutinized and the burden of

proof rests with the party asserting the claim.

Martin

, 681 N.W.2d at 616

– 17 ( internal citations omitted)

.

To have a common law marriage

, three elements must be met: ( 1) present

intent and agreement to be married; ( 2) continuous cohabitation; and ( 3) public

declaration that the parties are spouses. Johnson

- Conklin v. MacMillan Oil Co.

,

557 N.W.2d 102, 105 (Iowa Ct. App. 1996). The agreement can be either express

or implied. Martin

, 681 N.W.2d at 617. C ircumstantial evidence may be relied

upon to demonstrate a common law marriage. Marriage of Winegard

, 257 N.W.2d

609, 617 (Io w a 1977).7

1. Continuous cohabitation.

We first address this element as Aimee does not contest its existence.

“Although [continuous cohabitation] is circumstantial evidence of a common law

marriage, it cannot alone establish a common law marriage.” Martin

, 681 N.W.2d

at 617

. T he district court found that “ [g] iven the fact that Aimee’s name was on the

deed prior to the ceremony in Costa Rica, it is likely that they were living in the

same residence and that she had unrestricted access to the house. ” In addition,

when Jeffrey and Aimee returned to Iowa after the Costa Rica ceremony, they

continued to cohabitate in the residence. On June 18, days after the Costa Rica

ceremony, Aimee’s address on the warranty deed is listed as the same as

Jeffrey ’s. We agree that Jeffrey established by a preponderance of the evidence

that the cohabitation element was met.

2. P ublic declaration that the parties are spouses

.

Our supreme court has held that the public declaration is the “ acid test ” of

the common law marriage in Iowa because there can be “no secret common law

marriage.” Winegard

, 257 N.W.2d at 61 6

. Factors used to determine if a couple

is holding themselves out as married are: failing to deny there is a marriage,

allowing the other party to use their last name, showing them as their spouse on

insurance, making hotel reservations as “Mr. and Mrs.

, ” and by witnesses testifying

to the general reputation of the couple as married. Id

. Simply holding one’s self

out as married to the public is not always sufficient to create a common law

marriage, but it is circumstantial evidence that a common law marriage exists.

Johnson

- Conklin

, 557 N.W.2d at 105

. Parties may hold themselves out as married

in some circumstances and single in others. This can particularly be true when the8

parties change their marriage status based on whether it is convenient for them to

be single or married. Martin

, 681 N.W.2d at 618 ( f inding that the couple did not

have a common law marriage because they only publicl y presented themselves as

married based on personal convenience).

Jeffrey points to the fact that during the Costa Rica ceremony he and Aimee

said the words and performed the traditions of a wedding, including exchanging

marriage vows and wedding rings. The question is whether going through an

unofficial ceremony constitutes a public declaration that the parties are spouses.

Since most claims of common law marriage do not involve a wedding ceremony,

the courts have established factors set out above for determining if the parties have

publicly presented themselves as married. When it comes to the Costa Rica

ceremony, it depends on whether the parties’ intende d it to be a basis for a

common law marriage.

Based upon the facts here, we conclude the destination wedding ceremony

in Costa Rica was for show and not a true public declaration of a marriage. Jeffrey

concedes that he and Aimee were not “officially” married in Costa Rica. He

acknowledges that both he and Aimee did not want to go through the “hassle” of

obtaining a marriage license in Costa Rica, no marriage certificate was issued, and

the wedding “officia nt ” was Aimee’s niece, presumably not one authorized to

perform an official wedding in Costa Rica.

We acknowledge that following the Costa Rica ceremony, there is additional

evidence of a public declaration. Both Jeffrey and Aimee continued to wear the

wedding rings they exchanged in Costa Rica. Also, upon their return to Iowa, a

second wedding reception was held for those who did not travel to Costa Rica.9

However, we find these do not overcome the evidence discussed below that show

Jeffrey and Aimee did not intend the Costa Rica ceremony to initiate a common

law marriage.

3. P resent intent and agreement to be married

.

In line with the nature of a contract, it is crucial for there to be a present

intent to be married in order to establish common law marriage. In re Allen ’s

Estate

, 100 N.W. 2d 10, 13 (Iowa 1959)

. To have present intent and agreement

the couple may subjectively or objectively intend to be married in the present.

Winegard

, 257 N.W.2d at 61 6

. The intent to be married in the future is not

sufficient. In re Fisher’s Est. , 176 N.W.2d 801 , 806 (Iowa 1970)

. As the district

court found

, “ the fact that Jeffrey states they got the statutory marriage done in Las

Vegas to avoid the complications and fees of doing it in Costa Rica indicates that

he knew at the time of the ceremony that the intention was for the future sta tutory

marriage. ” We agree with the district court finding in this regard. Additional

evidence as to the parties’ intent is reflected in the fact that they both signed the

pre

- marital agreement as single persons on June 1 8

, after they had returned from

Costa Rica. And on the same date, both signed a second warranty deed as to the

marital home, where they were both again designated as single persons. Aimee

used her last name of Plasier on the Nevada wedding license and continued to

use tha t last name until she legal ly changed it to Heide after obtaining the Las

Vegas marriage certificate. 3 Aimee also did not add Jeffrey as a dependent on her

3 There are two ways Aimee could have changed her last name to Heide. If she

and Jeffrey had applied for a marriage license in Iowa, Iowa Code section 595.5

would allow her to change her name as part of that process. Since they did not

apply for an Iowa marriage license, we can only assume Aimee pursued her name10

employment health insurance until after the Las Vegas marriage. All of the indicia

leads us to the conclusion that Jeffrey and Aimee did not enter into a common law

marriage at their destination wedding ceremony in Costa Rica. They were instead

legally married in Las Vegas. The pre

- marital agreement was therefore timely

signed on June 18, and the district court correctly found it applied to the division of

assets in the dissolution action

.

B. Appellate attorney fee request.

Both Jeffrey and Aimee request that the court award them appellate

attorney fees. In determining whether to award appellate attorney fees

, we

consider the needs of the party seeking the award, the ability of the other party to

pay, and the relative merit s of the appeal

. In re Marriage of McDermott , 827

N.W.2d 671, 687 ( Iowa 2013)

. Appellate attorney fees are not a matter of right,

but rest in our discretion. Id. After carefully considering each of these factors, we

determine no award of attorney fees in this appeal is appropriate.

AFFIRMED.

change as authorized under Iowa Code section 674.1. Notice of the petition to

change name must be served on the spouse. See Iowa Code § 674.6. Jeffrey

would have had notice when Aimee sought her name change to Heide. And one

spouse’s acquiescence to another spouse’s change of name is a factor that bears

on the existence of a marital relationship. See Winegard , 257 N.W.2d at 616.

Aimee and Jeffrey did not go th ro ugh the name change process until after the Las

Vegas trip.