IN THE COURT OF APPEALS OF IOWA

                                    No. 16-0552
                             Filed December 21, 2016


IN RE THE MARRIAGE OF LISA RAE COLVIN
AND FAU VAN HOANG

Upon the Petition of
LISA RAE COLVIN,
      Petitioner-Appellee,

And Concerning
FAU VAN HOANG,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Patrick R. Grady

(temporary hearing) and Lars G. Anderson (dissolution), Judges.



      Respondent appeals the district court decision finding the parties had a

common law marriage and its dissolution of the marriage. REVERSED AND

REMANDED.




      David M. Cox of Bray & Klockau, P.L.C., Iowa City, for appellant.

      Paul K. Waterman of Cronk & Waterman, P.L.C., Iowa City, for appellee.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.

       Fau Hoang appeals the district court decision finding he was in a common

law marriage with Lisa Colvin and the court’s dissolution of the marriage. The

issue raised on appeal, whether Lisa established her claim of a common law

marriage by a preponderance of the evidence, was not properly addressed by

the district court.   We determine the decision of the district court should be

reversed and the matter remanded for further proceedings.

       I.     Background Facts & Proceedings

       Fau moved to Iowa from Laos in 1981. Soon thereafter he met Lisa and

began a relationship with her. The parties cohabited for a number of years. The

parties had three children together, who are all now adults. In 1988, Fau and

Lisa signed an “Affidavit of Common Law Marriage.” They both testified this was

done in order to provide coverage for their second child under Fau’s health

insurance. Fau separated from Lisa in 2010 and married Phetsamone.

       On August 8, 2013, Lisa filed a petition for dissolution of marriage,

claiming she and Fau had a common law marriage. Fau denied the parties were

married. Lisa filed a request for temporary spousal support and attorney fees.

The district court entered an order stating, “the parties should be given a hearing

to address the issue of whether there are sufficient indicia of a common law

marriage to justify the granting of temporary spousal support.” The order also

stated, “Hearing on the existence of a common law marriage and temporary

support is set for February 28, 2014 at 9:00 a.m. for one hour.”

       At the hearing, Fau appeared with a Laotian interpreter.       The hearing

lasted two hours and forty-eight minutes, with a thirty-one minute break to
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change interpreters, meaning there was two hours and seventeen minutes of

testimony. Much of this time was spent having the testimony interpreted and the

interpreter asking to have statements repeated. Fau and Lisa each testified and

presented exhibits.    No other witnesses were called to testify.     The parties

submitted legal briefs after the hearing.

       On April 22, 2014, the district court ruled, “Lisa has established the

existence of a common law marriage that began in 1988.” The court denied

Lisa’s request for temporary spousal support but ordered Fau to pay $1000 for

temporary attorney fees. Lisa filed a supplemental affidavit to support her claim

for spousal support and the court modified its previous order to grant her $650

per month in spousal support.

       An order setting the dissolution hearing for January 20, 2016, listed

“Common Law Marriage,” among the issues to be determined. The parties’ joint

pretrial statement listed the existence of a common law marriage as one of the

issues, but noted Lisa claimed the issue had already been litigated at a previous

hearing.

       The district court examined the record prior to the dissolution hearing and

on January 14, 2016, entered a ruling stating: “Since a final decision on the

existence of a common law marriage has previously been made, it is not

appropriately an issue at the scheduled trial, and the Court will not receive

evidence or argument concerning the same.” Fau responded, claiming the prior

order determined only whether there was sufficient indicia of a common law

marriage to award Lisa spousal support and was not dispositive on the existence

of a common law marriage. The court then set a hearing on the issue of whether
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the existence of a common law marriage had already been determined and

heard arguments of counsel. The court concluded it would not revisit the issue of

whether there was a common law marriage, stating, “It appears that the issue of

a common law marriage was fully and fairly litigated previously.”

       After the dissolution hearing, the court entered a decree on February 29,

2016. The court divided the parties’ assets and ordered Fau to pay spousal

support of $750 per month until Lisa dies, Lisa remarries, or Fau reaches the age

of sixty-five. Fau was ordered to pay $1500 for Lisa’s attorney fees. Fau now

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). “In equity cases, especially when

considering the credibility of witnesses, the court gives weight to the fact findings

of the district court, but is not bound by them.” Iowa R. App. P. 6.904(3)(g).

       III.   Preliminary Order

       Fau claims he was not given an adequate opportunity to fully litigate the

issue of whether the parties had a common law marriage.             He relies on the

language of the order setting the hearing on temporary matters and the fact the

hearing was set for one hour in length. Fau states he believed the court would

enter a preliminary order, not establish entirely whether there had been a

common law marriage. He states that if he had known the issue would have

been fully decided, he would have asked for a continuance so he could present

the testimony of witnesses to support his claims the parties did not hold

themselves out as husband and wife and that he knew limited English when he
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signed the affidavit of common law marriage in 1988. Fau asks to have the case

remanded for a full hearing on the issue of whether the parties had a common

law marriage.

         In the case In re Marriage of Winegard (Winegard I), 257 N.W.2d 609, 610

(Iowa 1977), the parties agreed to bifurcated proceedings and after a four-day

evidentiary hearing the district court concluded the petitioner established the

parties had a common law marriage. The petitioner then requested temporary

attorney fees. Winegard I, 257 N.W.2d at 610-11. The court stated:

         However, for purposes of determining the propriety of an order
         allowing temporary attorney fees in a dissolution proceeding, the
         marriage relation need not be established by a preponderance. If
         the proof be such as to make out a fair presumption of the fact of
         the existence of the marital relationship, then it is sufficient to
         warrant the court in granting an order for temporary attorney fees.

Id. at 615. On appeal, the court limited its review to the issue of whether there

was a sufficient quantum of evidence to create “a fair presumption of the

existence of the marital relationship.” Id.; see also In re Marriage of Stogdill, 428

N.W.2d 667, 671 (Iowa 1988) (stating if there is sufficient proof to make out a fair

presumption of a common law marriage, the court may award temporary attorney

fees).

         The same parties appeared in In re Marriage of Winegard (Winegard II),

278 N.W.2d 505, 507 (Iowa 1979), when they appealed following the dissolution

decree. One of the issues on appeal was whether there was sufficient evidence

of a common law marriage. Winegard II, 278 N.W.2d at 507. The court noted a

party claiming a common law marriage has the burden of proof, “and such a
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claim of marriage will be regarded with suspicion, there being no public policy in

Iowa favoring common law marriage.” Id. at 510. The court stated:

                In our holding with respect to the trial court’s award of
         temporary attorney fees to Sally we found, on the record at that
         stage of the proceedings, that Sally had presented sufficient proof
         to create a fair presumption of the existence of a common law
         marriage. We made clear we were not, at that time, finding that a
         preponderance of the evidence indicated a common law marriage.
         The precise issue now before us has not been previously
         determined. In addition, more evidence was presented at the trial
         court level subsequent to our earlier Winegard decision.

Id. at 510-11 (citation omitted).

         Thus, in order to receive temporary attorney fees in a case involving a

claim of a common law marriage, a party needs to create only “a fair presumption

of the existence of the marital relationship.” Winegard I, 257 N.W.2d at 615. On

the other hand, in order to establish a common law marriage, a petitioner has the

burden to show by a preponderance of the evidence (1) present intent and

agreement to be married, (2) continuous cohabitation, and (3) public declaration

the parties are married. In re Marriage of Gebhardt, 426 N.W.2d 651, 652 (Iowa

1988).     “[C]laims 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

617.

         The district court’s order of February 5, 2014, setting the hearing on

temporary matters for February 28, set up the type of hearing discussed in

Winegard I, 257 N.W.2d at 615. The court ruled, “the parties should be given a

hearing to address the issue of whether there are sufficient indicia of a common

law marriage to justify the granting of temporary spousal support.” This is similar

to Winegard I, which states a party need only to establish proof “as to make out a
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fair presumption of the fact of the existence of the marital relation,” to warrant a

grant of temporary attorney fees. 257 N.W.2d at 615. In Hanford v. Hanford,

240 N.W. 732, 734 (Iowa 1932), the Iowa Supreme Court applied the “fair

presumption of the existence of the marital relation” rule in an award of

temporary alimony. Additionally, the hearing was set for one hour, which would

further the conclusion the hearing was set to determine the issue of whether

there was “sufficient indicia” or a “fair presumption” of a common law marriage to

warrant an award of temporary spousal support or temporary attorney fees,

which were the two claims presented to the court at that time.

       The transcript of the hearing on temporary matters does not show any

discussion or agreement by the parties to submit the full issue of whether there

was a common law marriage at that time. In Fau’s brief submitted after the

hearing, he stated Lisa did not present sufficient proof to create a fair

presumption of the existence of a marital relationship. In Lisa’s brief, she stated

there was sufficient evidence to prove a common law marriage, but separately

addressed the issue of whether she should be awarded temporary attorney fees

based on a “fair presumption” of a common law marriage. We conclude the

issue of whether Lisa established a common law marriage by a preponderance of

the evidence was not tried by the consent of the parties, as Fau’s brief shows he

believed the only issue to be whether Lisa established a “fair presumption” of a

common law marriage. See Meincke v. Nw. Bank & Tr. Co., 756 N.W.2d 223,

229 (Iowa 2008) (noting issues may be establish either by the pleadings or the

consent of the parties).
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      The issue raised on appeal, whether Lisa established her claim of a

common law marriage by a preponderance of the evidence, was not properly

addressed by the district court. “The precise issue now before us has not been

previously determined.” See Winegard II, 278 N.W.2d at 511. We conclude the

decision of the district court should be reversed and the matter remanded for

further proceedings. The court should permit the parties to present additional

evidence on the issue of whether they had a common law marriage. See id.

Rather than presenting “sufficient proof to create a fair presumption of the

existence of a common law marriage,” Lisa must establish her claim by a

preponderance of the evidence. See id.

      REVERSED AND REMANDED.