IN THE COURT OF APPEALS OF IOWA

No. 13-0408

Filed June 25, 2014

IN RE THE MARRIAGE OF DIANE M. DERRYBERRY

AND BOB R. DERRYBERRY

Upon the Petition of

DIANE M. DERRYBERRY,

Petitioner-Appellee/Cross-Appellant,

And Concerning

BOB R. DERRYBERRY,

Respondent-Appellant/Cross-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Sherman Phipps 

(common law marriage ruling) and Richard Clogg (dissolution decree), Judges. 

An ex-husband appeals the district court’s determination he entered into a 

common law marriage with his ex-wife. REVERSED.

Carmen E. Eichmann, Des Moines, for appellant.

Patricia A. Shoff and Espnola F. Cartmill of Belin McCormick, P.C., Des 

Moines, for appellee.

Heard by Vaitheswaran, P.J., and Tabor and Bower, JJ.
2

TABOR, J.

The threshold question in this appeal is whether the parties entered into a 

common law marriage. The burden rested with petitioner Diane Derryberry to 

show she and her ex-husband Bob Derryberry agreed and had the present intent 

to be re-married, publicly declared their intent, and continuously cohabitated. 

Because she did not satisfy that burden, we reverse the district court’s order 

finding a common law marriage. Because no marriage existed, the dissolution 

decree is void and its provisions are vacated.

I. Background facts and proceedings

Sometimes “[y]ou got to know when to hold ’em, know when to fold ’em, 

know when to walk away, know when to run.”

1

 Twice before, Bob and Diane 

have been ceremonially married and divorced from each other. At the time of the

most recent dissolution trial, Bob was seventy years old and Diane was sixty 

years old. 

Bob is a professional gambler. Diane did not work during their marriages. 

Bob and Diane met in 1974 and shortly thereafter discovered they made quite a 

pair. Diane moved in with Bob in 1976, and they formally wed on August 23, 

1980. From his prior marriage Bob had two children, Melanie and Dawn. Diane 

had one daughter from a prior marriage. Bob adopted Diane’s daughter, 

Jennifer, in 1984. Their first marriage lasted nine years, ending when Bob 

started serving eighteen months in prison for going armed with intent. On the 

advice of Bob’s lawyer, they obtained a divorce on February 16, 1989.

 

1 Kenny Rogers, The Gambler (United Artists) (1978).
3

Bob was released from prison in 1990 and the parties resumed living 

together. In 1994, Bob and Diane purchased a home in Norwalk. On July 26, 

1995, Bob and Diane got married for the second time, exchanging vows in 

Lawton, Oklahoma. The Norwalk house was originally purchased in Bob’s name 

only, Diane’s name was added to the deed following the second marriage. In 

1996, Bob received land in Arkansas from his aunt. On March 4, 1996, Bob 

deeded that land to Diane and himself. 

Bob and Diane separated for the second time in 1998. Diane moved out 

of the Norwalk home and back in with her parents. The parties’ second divorce 

was finalized on April 19, 1999. In the second divorce, Diane received a $70,000 

property settlement, representing her share of the Norwalk home. Neither party 

was awarded alimony. The decree did not divide the Arkansas property, leaving 

it in the names of both parties. Diane went to work for Convergent 

Communications. 

In early 2001, Bob and his then-girlfriend were planning a trip to St. Lucia. 

When his girlfriend was unable to go, Bob invited Diane instead. After that trip,

Diane and Bob started to see each other again. Diane began spending 

significant time at the Norwalk home, but kept personal belongings at her 

parents’ place. 

In 2003, Bob was implicated in an illegal gambling and bookmaking ring. 

State agents raided the Norwalk home on January 9, 2003. Bob pleaded guilty

to money laundering and illegal betting in 2004. Bob forfeited $475,000 in cash 
4

and other assets as part of an agreement with the State. The State accused 

Diane of perjury in connection with the raid, but eventually dismissed the charge.

Shortly thereafter, while playing poker in Kansas City, Bob suffered his 

first heart attack and Diane slowly began to move back into the Norwalk home. 

Diane alleges her return in 2003 marked the beginning of the common law 

marriage. Bob testified she did not move in on a full-time basis until late 2005 

when he had a stent implanted in his heart. Bob testified:

My health was an issue. She was living in her mom’s 

basement; that was an issue. She didn’t have a job, and she didn’t 

even have a checking account. So it kind of worked out for both of 

us that when I was traveling she could be at the house and I didn’t 

have to worry about anybody breaking in.

Bob and Diane separated for a third time in late 2010. On February 15, 

2011, Diane filed a petition to dissolve the common law marriage. Following a 

hearing on temporary matters, Bob was ordered to pay temporary alimony of 

$1300 per month. On October 19, 2011, the district court granted Bob’s motion 

to bifurcate the issues of common law marriage and dissolution. 

On February 8, 23, and 24, 2012, the district court held a trial on the issue 

of common law marriage. On June 5, 2012, the district court ruled the parties 

had entered into a common law marriage. The trial for dissolution occurred over 

four days in late October and early November of 2012. On December 31, 2012, 

the district court entered its dissolution decree. In the process, it adopted the 

findings of the common law marriage ruling. 

On January 14, 2013, Diane filed a motion to reconsider under Iowa Rule 

of Civil Procedure 1.904(2). Bob resisted and filed his own rule 1.904 motion on 
5

February 4. The district court denied both motions on February 20, 2013. Bob 

appeals. Bob argues Diane did not prove by a preponderance of the evidence 

the elements to establish a common law marriage. He argues the trial court 

denied his right to a fair trial by admitting irrelevant evidence and hearsay. He 

also claims the court improperly distributed property divided in a prior decree and

erroneously awarded alimony. He also requests appellate attorney fees. 

Diane cross-appeals, arguing she is entitled to a greater alimony award, a 

greater property award, trial attorney fees, and appellate attorney fees. 

II. Standard of Review

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

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

III. Analysis

Iowa recognizes both ceremonial and common law marriages. Our state’s 

recognition of common law marriage stretches well over a century.2In re 

Marriage of Martin, 681 N.W.2d 612, 617 (Iowa 2004); In re Estate of Fisher, 176 

N.W.2d 801, 804 (Iowa 1970); Gammelgaard v. Gammelgaard, 77 N.W.2d 479, 

480 (Iowa 1956); In re Stopp’s Estate, 57 N.W.2d 221, 222 (Iowa 1953); 

Blanchard v. Lambert, 43 Iowa 228, 231 (Iowa 1876). The burden of proof lies 

with the party asserting the existence of a common law marriage. In re Marriage 

of Winegard, 278 N.W.2d 505, 510 (Iowa 1979) (hereinafter Winegard II). We 

 

2

Iowa is one of only nine states which still recognize common law marriages, the others 

being Alabama, Colorado, Kansas, Rhode Island, South Carolina, Montana, Oklahoma, 

and Texas. Common-Law Marriage, National Conference of State Legislatures 

http://www.ncsl.org/research/human-services/marriage-issues-family-law.aspx#clmar

(last visited May 20, 2014). 
6

regard that assertion with suspicion because Iowa has not adopted a public 

policy favoring common law marriage. Id. 

The district court found the existence of a common law marriage because 

“[a]fter 2003 Bob and Diane returned to their usual married routine—Diane 

staying home, gardening, canning, et cetera; Bob gambling and bookmaking for 

a living.” The fact that the parties fell into familiar roles does not dictate the 

resolution of the question. Our supreme court has not recognized a public policy 

that favors a common law marriage when parties resume living together following 

a divorce. See Martin, 681 N.W.2d at 617 n.1. Like most states, in determining 

whether the facts show a common law remarriage between divorced spouses, 

we apply the same test as used in deciding whether persons having no previous 

matrimonial history entered into a common law marriage.

3

 

To establish she and Bob entered into a common law marriage, Diane had

the burden to prove by a preponderance of evidence these three elements: (1) a 

present intent and agreement by both parties to be married, (2) continuous 

cohabitation, and (3) public declaration they were husband and wife. See 

Winegard II, 278 N.W.2d at 510; see also Iowa Admin. Code r. 701-73.25(425)

(2013). A failure to prove any of the three elements dooms the claim to a 

common law marriage. Winegard II, 278 N.W.2d at 510.

 

3 See Common-law marriage between parties previously divorced, 82 A.L.R.2d 688 

(originally published in 1961). But compare In re Wagner Estate, 159 A.2d 495, 533 (Pa. 

1960) (finding state law more tolerant of common law relationship after divorce) with

Goodman v. McMillan, 61 So.2d 55, 60 (Ala. 1952) (indicating prior ceremonial marriage 

weighed against finding of common-law remarriage).
7

A. Present Intent and Agreement

“The requirement of a present intent and agreement to be married reflects 

the contractual nature of marriage.” Martin, 681 N.W.2d at 617. Either an 

express or an implied agreement may support the finding of a common law 

marriage. Id. In fact, a person may be entitled to marital rights if he or she 

intends to be married, even if the other would-be spouse does not share that

intent—provided the conduct of the person not sharing the intent justifies the first 

person’s belief both of them intended to be married and they are cohabitating. In 

re Marriage of Gebhardt, 426 N.W.2d 651, 653 (Iowa Ct. App. 1988); see 

McFarland v. McFarland, 2 N.W. 269, 273–74 (Iowa 1879). 

In this case, the district court concluded: “There is no doubt Diane 

considered she and Bob to have returned to their previous status as husband 

and wife and that Bob was aware of this and did nothing to dispel or counter that 

belief on Diane’s part or on the part of the public.”

In our de novo review, we see the facts differently. The record reveals no 

clear intention by the parties to be married for a third time. Some of their conduct 

suggested a present intent and agreement to be married, while other actions 

pointed toward a reunion of mutual expediency that did not rise to the level of a 

formal marriage. Bob testified he and Diane never discussed re-entering a 

marriage relationship. He also testified at one point “towards the end” he 

expressly told her he never intended to get married again. Bob testified his last 

will and testament was dated November 1998, and acknowledged he was then in 

the process of divorcing Diane and did not intend to bequeath her anything. He 
8

recalled that in 2006 or 2007 Diane asked him if he had a will and he told her she 

would not be receiving anything. Diane did not rebut any of that testimony.

Diane maintains she demonstrated her intent to be married again by 

returning her wedding ring to her left hand. Bob testified he never saw her with 

her wedding ring on, but that she always wore her diamond engagement ring, 

“she had it on all the time.” He also testified he had not worn his wedding ring 

since 1998. 

We will discuss the parties’ economic arrangements and taxes in greater 

detail when addressing the public-declaration element below, but we generally 

note they maintained joint accounts when it saved them money or was otherwise 

mutually beneficial, but they also conducted certain financial dealings 

independently of one another. 

The instant facts are similar to the situation considered in Martin. In that 

case, the supreme court reasoned: “The fluctuating status of their relationship 

was, from the beginning, largely based on personal convenience or benefit, 

which is inconsistent with the concept of marriage.” See Martin, 681 N.W.2d at 

618. We find the inconsistent signals regarding their intent to be married weighs 

against finding Bob and Diane entered into a common law marriage. Diane has 

not established a “meeting of the minds” regarding a marital contract.

In addition, Diane cites instances after 2003 when Bob’s daughter 

introduced Diane as her stepmother and instructed her children to call Diane 

grandma. Diane also points to the obituary for Bob’s mother, which identified 

Diane as a daughter-in-law. We do not find these relational references to be 
9

convincing evidence of the parties’ intent to be remarried. The situation is 

clouded by the fact Diane and Bob have been married twice before; members of 

their families developed identifiers for them that they would continue to be used

whether Diane and Bob were married again or not.

B. Cohabitation

While continuous cohabitation is considered an element of common law 

marriage, the partners are not required to live together for any particular length of 

time. See Martin, 681 N.W.2d at 617. It is circumstantial evidence a common 

law marriage exists, but it cannot establish a common law marriage standing 

alone. Conklin by Johnson-Conklin v. MacMillan Oil Co., 557 N.W.2d 102, 105

(Iowa Ct. App. 1996). Cohabitation needs to be tied to the present intent and 

agreement to be married. See In re Estate of Wittick, 145 N.W. 913, 916-17 

(Iowa 1914). 

Cohabitation often includes the concept of intimacy or sexual relations. 

See In re Marriage of Gibson, 320 N.W.2d 822, 823–24 (Iowa 1982); see also 

State v. Kellogg, 542 N.W.2d 514, 518 (Iowa 1996) (defining cohabitation under 

Iowa Code section 236.2 as including, but not requiring, the element of sexual 

relations between parties sharing the same living quarters). Cohabitation is 

generally defined as “the fact or state of living together, esp. as partners in life 

usually with the suggestion of sexual relations.” Black’s Law Dictionary 296 (9th 

ed. 2009). 

Diane offered varying dates as to when the cohabitation supporting their 

common law marriage commenced. She claimed she started gradually moving 
10

into the Norwalk home in 2003, and also said they did not live together until after 

Bob’s conviction in 2004. Bob testified they started living together full time in late 

2005 so that Diane could help him in case of a medical emergency.

On appeal, Bob argues he and Diane did not “cohabitate”—in common 

law marriage terms—because they did not engage in sexual relations. Bob 

testified for the five years she lived in the house, Diane slept in the master 

bedroom and he slept on the sofa in the living room. He testified it was more of a 

friendship than a romance. Bob’s daughter Melanie confirmed: “They behaved 

as friends. They slept—They did not sleep in the same bed. They essentially 

cohabitated in the same house.” Diane testified they did occasionally have sex, 

but acknowledged Bob slept on the couch.

Diane was able to show she and Bob lived together in the Norwalk house 

from late 2005 until she moved out in November 2010. But their living 

arrangement did not definitively prove their present intent and agreement to be 

married. While we do not hold sexual relations to be an indispensible element of 

cohabitation, at the same time, the parties’ treatment of one another as 

housemates rather than intimate partners did not support the finding of a 

common law marriage. 

C. Public Declaration of Marriage

Finally, we analyze Diane’s proof of the third element—public declaration. 

Common law marriages cannot be secret. See In re Marriage of Winegard, 257 

N.W.2d 609, 616 (Iowa 1977) (hereinafter Winegard I). The parties must engage 

in a public declaration or “holding out” of their union to others. Id.; Martin, 681 
11

N.W.2d at 618. Our supreme court considers this element to be the “acid test” of 

a common law marriage. Martin, 681 N.W.2d at 618. 

Not all of the parties’ declarations must be completely consistent with 

marriage, because every marital relationship is different. See generally Fisher, 

176 N.W.2d at 804; In re Estate of Stodola, 519 N.W.2d 97, 100 (Iowa Ct. App. 

1994). A substantial holding out to the public is sufficient. See Winegard I, 257 

N.W.2d at 616; Conklin, 557 N.W.2d at 105. Parties often can provide 

documentation of “holding out” through joint tax returns, joint checking account 

statements, or insurance policies naming the common law spouse as such. 

Diane contends the district court was correct in finding she and Bob held 

themselves out to the public as married between 2003 and 2010. She points out 

they shared a checking account, a cell phone plan, and car insurance.

4

 She also 

testified she told her doctor, her insurance agent, and a neighbor that she was 

married to Bob. She also highlights evidence they represented themselves to be 

married when trying to obtain a refund on a time-share property in Branson, 

Missouri.5 Diane’s mother, step-father, and sister testified they believed Diane 

and Bob were married. But Diane acknowledged neither she nor Bob told family

members they were common law married. 

Bob argues they did not substantially hold themselves out as married after 

2003. His family members and friends testified he never intended to remarry 

Diane. Bob’s long-time poker-playing friend, Bret Sampson, testified Bob never 

 

4 The record shows Bob and Diane signed up for joint insurance because they received 

a two-car discount.

5 Bob testified to get his refund, he had no choice but to sign the release agreement 

drafted by Diane’s nephew, which indicated they were husband and wife.
12

mentioned being married to Diane for a third time and never referred to Diane as 

his wife after the second divorce. 

Bob points to inconsistent public acts and declarations on Diane’s part. In 

2009 she filled out a health insurance form indicating she was legally married, 

instead of marking the common law marriage box which required a notarized 

affidavit. Diane had credit cards in her own name and the billing statements 

were mailed to her mother’s address. Diane also bought a car in 2009 without 

using Bob’s credit. In early 2011, before filing for dissolution, she listed herself 

as single on an application for group life insurance. When she filed for 

dissolution, she did not know Bob’s Social Security number. 

For his part, Bob filled out three different health benefit renewal forms 

during the period in question. On all three forms, he said he was divorced. On 

the 2009 form, he indicated Diane as next of kin, and signified her relationship to 

him as ex-wife. Bob also signed listing agreements and seller disclosure reports 

on three occasions in his effort to sell the Norwalk house. Diane was not listed 

as a spouse or seller on any of those documents, though she was aware of the 

house listings.

From 1999 through 2007, Bob filed both federal and state income taxes as 

a single person.

6

 Diane testified she did not see these returns and did not know 

what tax status he was claiming. By contrast, in 1995 through 1997 when they 

were married, Bob prepared his tax returns as married filing jointly. He recalled 

that Diane signed those jointly filed forms because her name was on them. In 

 

6 On the advice of his accountant, Bob did not file tax returns in 2008 through 2010. His 

accountant’s affidavit certified Bob was a single person. 
13

1998, when Bob and Diane were still in their second marriage, Bob indicated he 

was married, and Diane would be filing separately. Diane filed her taxes as 

married filing separately in 1998, and as single in 1999, 2000, 2001, and 2011. 

She did not tax returns from 2002 to 2010.

When parties do not file their tax returns as married persons, that conduct 

tips the scales away from a public declaration. See Winegard II, 278 N.W.2d at 

511 (noting “[c]onsidered alone, the tax information would weigh against the 

finding of a common-law marriage, but the remainder of the record sufficiently 

overcomes the contrary inferences which might be drawn”); but see In re 

Marriage of Gebhardt, 426 N.W.2d 651, 653 (Iowa Ct. App. 1988) (finding tax 

returns filed to facilitate an early retirement program do not defeat a claim of 

common law marriage). 

We find it significant that in public declarations such as house listings and 

income tax returns, Bob made it clear he was a single person. Diane’s assertion 

she did not see his tax returns from 1999 through 2007 does not counteract his 

declarations. If Bob had been filing as a married person after 2003, she would 

have been asked to sign the forms as she had during their marriage. In this 

case, Diane’s proof of holding out is not sufficient to overcome the weight of 

Bob’s tax returns and house listings. We conclude the parties did not 

substantially hold themselves out as married, beyond their pre-existing 

relationship as former spouses. Unlike the parties in Gebhardt, 426 N.W.2d at 

653, who were not sophisticated in regard to official documents, the Derryberrys 
14

had been married and divorced twice before and understood the difference 

between married and single status. 

When we view all of the evidence de novo, we determine Diane did not 

carry her burden to prove by a preponderance of the evidence she and Bob 

entered into a common law marriage when she moved back into his house.

Their living arrangement was one of mutual convenience, not a relationship

consistent with the general reputation and intent to be remarried. See Martin, 

681 N.W.2d at 618.

D. Proposed Modifications and Attorney Fees

Iowa courts may divide property and order spousal support under laws 

relating to the dissolution of a marriage only in the event a marriage is dissolved. 

See In re Marriage of Reed, 226 N.W.2d 795, 796-97 (Iowa 1975). Iowa courts 

do not have broad equitable powers to divide property between unmarried people 

based on cohabitation alone. Martin, 681 N.W.2d at 619. Because Bob and 

Diane were not married, the divorce decree entered on December 31, 2012 is 

void. Bob’s obligation to pay spousal support is terminated. We need not 

consider the parties’ other proposed modifications to the decree.

The Martin court held attorney fees incurred to prosecute or defend an 

action to establish and dissolve a common law marriage were allowable under 

Iowa Code section 598.11 (2011), as long as there was a fair presumption of the 

existence of a common law marriage, even if the court finds no such marriage 

existed. Id. at 619–20. Regardless of whether attorney fees would be available 
15

to the parties in this case, we decline to award them. Each party shall pay his or 

her own fees and court costs shall be divided equally.

REVERSED.