Kelvin Lee Gurney v. Connie Diane Gurney, a/k/a Connie Diane Franks

Kelvin Lee Gurney and Connie Diane Gurney were married in July 1992.
Kelvin filed the current complaint for divorce in May 2001. Kelvin's divorce complaint
contained a second count alleging that the marriage was void because Connie had
previously been married and that her prior marriage had not been annulled or dissolved.
Connie was married to Angelo Melito in a ceremony performed March 18, 1978. After
six months the couple separated. In 1979 Connie discovered that A ngelo was in jail in Florida. This was the last that she heard of him. She is not aware of any divorce
proceedings or whether Angelo is dead or alive. After a hearing, the superior court ruled
that the marriage between Kelvin and Connie is void. The court ruled that Kelvin "did
not know that [Connie] was still married to her former husband at the time of the parties'
marriage on July 11, 1992"; that Connie "does not know whether her marriage to Mr.
Melito was terminated prior to her marriage to [Kelvin] either through a divorce or
through the death of Mr. Melito"; and that "[t]herefore, this court finds that the marriage
between the parties in this case is void."

Subsequently the court held a trial concerning issues of child custody, child
support, and property division. Only property division is relevant to this appeal. The
court ruled, in reliance on Tolan v. Kimball,1 that the standard for division of property
accumulated during the period of the parties' cohabitation was based on the parties'
intent, either express or implied. The court found that the parties intended to have equal
ownership shares in much of the property that was accumulated during the marriage and
divided it equally. B ut the court did not rule exactly as would have been appropriate if
the parties had been validly married, for the court declined to divide that portion of
Kelvin's pension that was earned during the period of cohabitation.

Only Kelvin appeals. He argues that the trial court's findings concerning
the parties' intent are erroneous. He also argues that the court erred in failing to find that
Connie committed a fraud, and therefore that she had unclean hands and was ineligible
for equitable relief.2

In our view the trial court's findings as to intent and the trial court's refusal
to find fraud are sufficiently supported by the evidence and are not clearly erroneous.
We conclude that the division of property ordered by the court is not an abuse of
discretion. We therefore affirm the judgment.3

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