CANDELARIA VS. KELLY

Statutes cited

Key holdings

Practitioner summary

Standard of review. The court reviews the disposition of community property for abuse of discretion, citing Kogod v. Cioffi-Kogod, 135 Nev. 64, 75, 439 P.3d 397, 406 (2019), and reviews interpretation of caselaw and statutes de novo, citing Liu v. Christopher Homes, LLC, 130 Nev. 147, 151, 321 P.3d 875, 877 (2014), and Zohar v. Zbiegien, 130 Nev. 733, 737, 334 P.3d 402, 405 (2014). Retroactivity of Obergefell's recognition holding. Relying on Harper v. Virginia Department of Taxation, 509 U.S. 86, 94, 97 (1993), the court reaffirms the general rule that constitutional decisions of the U.S. Supreme Court receive retrospective effect in cases still on direct review. Joining other jurisdictions (LaFleur v. Pyfer, 479 P.3d 869, 874 (Colo. 2021); In re J.K.N.A., 454 P.3d 642, 649 (Mont. 2019)), and consistent with the unpublished order in LaFrance v. Cline, No. 76161, 2020 WL 7663476, at *2 (Nev. Dec. 23, 2020), the court holds that Obergefell's recognition holding applies retroactively, so Nevada courts must recognize the parties' 2008 California marriage notwithstanding then-existing Nevada law (NRS 122.020(1) (1991); Nev. Const. art. 1, § 21 (repealed 2020)) and the Ninth Circuit's later decision in Latta v. Otter, 771 F.3d 456, 476-77 (9th Cir. 2014). Limits of Obergefell's right-to-marry holding. The court distinguishes Obergefell's recognition holding from its right-to-marry holding. In states that recognize common-law marriage, the right-to-marry holding has retroactive force because opposite-sex couples can prove pre-Obergefell common-law marriages, so same-sex couples must have the same opportunity (LaFleur, 479 P.3d at 882; In re J.K.N.A., 454 P.3d at 649). Nevada, however, statutorily bans common-law marriage. Under NRS 122.010(1), consent alone is insufficient; solemnization under NRS Chapter 122 is required, with declarations before an authorized official and at least one witness pursuant to NRS 122.110(1) and (2). NRS 122.010(2) bars common-law marriages formed after March 29, 1943, and the court has consistently reaffirmed that ban (Gilman v. Gilman, 114 Nev. 416, 421 n.1, 956 P.2d 761, 764 n.1 (1998); Watson v. Watson, 95 Nev. 495, 496, 596 P.2d 507, 507 (1979)). The court distinguishes Schuett v. FedEx Corp., 119 F. Supp. 3d 1155 (N.D. Cal. 2016), because there the parties' marriage had been solemnized; here, undisputedly, no solemnization occurred before 2008. The court aligns with jurisdictions that have refused to construct a marriage retroactively absent a common-law marriage doctrine: Phillip Morris USA, Inc. v. Rintoul, 342 So. 3d 656, 665-66 (Fla. Dist. Ct. App. 2022); In re Estate of Leyton, 22 N.Y.S.3d 422, 423 (App. Div. 2016); Anderson v. S.D. Retirement System, 924 N.W.2d 146, 150 (S.D. 2019); see also Charron v. Amaral, 889 N.E.2d 946, 950-51 (Mass. 2008). Rejection of a "but-for" factor test. Richard urged adoption of the multi-factor approach in In re Madrone, 350 P.3d 495 (Or. Ct. App. 2015), to determine whether the parties would have married earlier but for the unconstitutional ban. The court holds that the proposed factors -- holding out as spouses, commingling assets, joint financial decisions -- mirror the elements used in jurisdictions recognizing common-law marriage (e.g., In re Marriage of Winegard, 278 N.W.2d 505, 510 (Iowa 1979); In re Estate of Hunsaker, 968 P.2d 281, 285 (Mont. 1998)). Adoption of the test would create a judicial exception to NRS 122.010, which Richard does not constitutionally challenge. Citing Beazer Homes Nevada, Inc. v. Eighth Judicial District Court, 120 Nev. 575, 578 n.4, 97 P.3d 1132, 1134 n.4 (2004), and Holiday Retirement Corp. v. State, Division of Industrial Relations, 128 Nev. 150, 154, 274 P.3d 759, 761 (2012), the court holds that it lacks authority to disregard or rewrite an unambiguous, constitutional statute on equitable or public-policy grounds. The court notes that Michael could have transferred separate property to the community by gift had he so chosen, citing Schmanski v. Schmanski, 115 Nev. 247, 250, 984 P.2d 752, 755 (1999). Distinguishing common-law / equitable doctrines. The court distinguishes cases extending judicially created doctrines to same-sex couples -- Mueller v. Tepler, 95 A.3d 1011, 1029-30 (Conn. 2014) (loss of consortium), and Rainey v. Sutton, 362 P.3d 217, 218-21 (Okla. 2015) (in loco parentis equitable standing) -- on the ground that those decisions modified judge-made law, not statutes. The court also addresses the recent decision in Pueblo v. Haas (Mich. July 24, 2023), agreeing with the dissent's view that Obergefell does not itself compel construction of a marriage in such circumstances. Federal Social Security cases relied on by Richard -- Ely v. Saul, 572 F. Supp. 3d 751 (D. Ariz. 2020), and Thornton v. Commissioner Social Security, 570 F. Supp. 3d 1010 (W.D. Wash. 2020) -- are distinguished as waiving durational eligibility requirements rather than judicially backdating a marriage. Holding and disposition. Because Obergefell's recognition holding compels recognition of the 2008 marriage but does not authorize backdating, and because adopting a but-for factor test would conflict with NRS 122.010's ban on common-law marriage, the district court's refusal to backdate is affirmed.

In plain language

Richard Candelaria and Michael Kelly met in 1991 and began a long-term relationship. They moved in together that November, exchanged rings in July 1992, and lived together for years. But they could not legally marry in Nevada because, at the time, Nevada law and later the Nevada Constitution prohibited same-sex marriage. When California legalized same-sex marriage in 2008, the couple traveled there and formally married. In 2020, Michael filed for divorce. The fight in this case is about how to divide two assets: Michael's 401(k) retirement account (opened in 1984 with no contributions after 2008) and shares of stock he received through his job between 1996 and 2004. Under Nevada community property rules, assets acquired during marriage are generally split, but assets acquired before marriage stay with the spouse who owns them. So the question is: when did the marriage start? Michael said the marriage began in 2008, when they actually wed in California. Richard said the marriage should be treated as starting in November 1991 or July 1992, because they would have married then if Nevada had not unconstitutionally banned same-sex marriage. The district court sided with Michael and used 2008 as the marriage date, treating the 401(k) and stock as Michael's separate property. The Nevada Supreme Court affirmed. The court explained two related but distinct points. First, the U.S. Supreme Court's 2015 decision in Obergefell v. Hodges, which established that same-sex couples have the right to marry and that states must recognize same-sex marriages performed in other states, applies retroactively. So Nevada must recognize the couple's 2008 California marriage even though Nevada did not recognize such marriages in 2008. That part favored Richard, in the sense that the marriage is treated as valid from 2008 forward. Second, however, Obergefell does not require courts to pretend a marriage existed before a couple actually got married. Nevada does not recognize "common-law marriage" -- the idea that a couple who lives together long enough and acts married is legally married without a ceremony. A 1943 Nevada statute bans common-law marriage, and that ban applies to everyone regardless of sexual orientation. Richard asked the court to apply a multi-factor "but-for" test (borrowed from an Oregon case) to decide whether the couple would have married earlier had they been allowed to. The court concluded that doing so would amount to recognizing a common-law marriage, which Nevada law forbids. The court said it had no power to carve out a judicial exception to the statutory ban, especially since Richard did not argue that the ban itself was unconstitutional. The practical result: the marriage is dated from the 2008 California ceremony, and assets Michael acquired before then remain his separate property.