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Adoption reversed; parents still married, court says Thursday, Feb 14, 2008 By Rob Moritz Arkansas News Bureau LITTLE ROCK - A divided Arkansas Court of Appeals Wednesday reversed a Polk County adoption, saying the circuit judge incorrectly ruled the birth father, who had protested the adoption, was never married to the birth mother. In a 5-4 ruling, the court also said the "key to a valid marriage is solemnization, not licensing." "The marriage licensing statute ... is merely directory and is neither mandatory nor vital to the validity of a marriage," Judge Brian Miller for the majority. The court ordered the adoption case back to circuit court for further proceedings. In late 1996, Jason Powell and Davelynn Felkel wed in a ceremony at the First Baptist Church in Pencil Bluff. The wedding, in front of family and friends, was presided over by a reverend. The couple had a child the next year and lived together until the spring of 2004, but never got the preacher's signature on the marriage license. The license also was never returned to the county clerk for filing. In June 2004, Felkel petitioned Montgomery County Circuit Court to establish paternity of the child. Powell, however, failed to answer the petition and a judge ruled he was the child's father. A visitation schedule was set and Powell was ordered to pay $75 a week in child support and half of the child's medical expenses. In September 2004, Felkel married Wendell Ray Lane in Branson, Mo., and in 2006 the couple petitioned Polk County Circuit Court to allow Lane to adopt the child without Powell's consent. Felkel argued Powell had failed to support the minor for at least a year. Powell refused to consent to the adoption and later filed a petition for divorce. During a trial, the woman testified she and Powell never intended to file the marriage license or to become legally married. She also said Powell had not paid child support in almost two years and had not paid any of the child's medical bills. Powell testified that while he lived at home he was the child's primary medication giver. He also said that although he had stopped paying child support, he had been depositing money into a bank account he set up for the child. Circuit Judge J.W. Looney later dismissed Powell's divorce petition and ruled that the couple had never been married since the license had not been signed by the preacher and was never filed with the circuit clerk. The judge also approved the adoption and ruled Powell's consent was not required because he had failed to support the minor child. In his appeal, Powell argued he and the mother of the child were married, he was never given the opportunity to repay any back child support, and that there was no convincing evidence that he failed without justifiable cause to support the child. A divided state Court of Appeals agreed. Writing for the majority, Miller said a marriage license filed in the county clerk's office is "presumptive proof of marriage," but when "that does not occur, the party wishing to prove a marriage must do so by introducing evidence of the couple's reputation as a married coupled, their declarations and conduct, and other circumstances accompanying their relationship." The appeals court said it did not rule on other points in the lower court decision because they were based on an erroneous conclusion that the couple was not married. Siding with Miller in the majority were Judges Robert Gladwin, John Robbins, Mac Glover and Karen Baker. In a dissenting opinion, Judge Larry Vaught wrote the circuit judge was correct in ruling the marriage invalid, noting there was no evidence indicating the preacher was licensed, which is required under state statutes. Also, Vaught wrote, because Powell was not paying child support, his permission was not needed for the adoption. Chief Judge John Mauzy Pittman and Judge Sarah Heffley joined the dissent. In a separate dissent, Judge Karen Baker wrote that Powell's consent to the adoption was not required and that the decision to grant the adoption was correct. |
