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Cook v. Cook1/13/2005
AFFIRMED
In 1996, the Arizona legislature amended this state's marriage statutes to provide that certain marriages, even though "valid by the laws of the place where contracted," were nonetheless "void and prohibited" in Arizona. S.B. 1038, 42d Leg., 2d Reg. Sess. (Ariz. 1996); Ariz. Rev. Stat. ("A.R.S.") § 25-112(A) ("1996 amendments"). We resolve statutory, choice-of-law, and constitutional issues that arise out of the 1996 amendments.
I.
Alan R. Cook ("appellant") appeals from a decree of dissolution. He contests the trial court's jurisdiction, alleging that there was no valid marriage.
Appellant and Peggy Cook ("appellee") were married on April 7, 1984 in Virginia. They are first cousins. Marriage between first cousins was then (and is now) valid in Virginia. See Va. Code Ann. §§ 20-38.1 (1978) and 20-45.1 (1975) (statutes listing void and prohibited marriages do not include marriage between first cousins); Va. Code Ann. §§ 20-38.1 and 20-45.1 (West, WESTLAW through 2004 Spec. Sess. II) (same). The parties have one minor child, born July 11, 1986.
In 1989 the parties moved to Arizona. Arizona's statutory scheme (then and now) provides that a marriage between first cousins in Arizona is "void." A.R.S. § 25-101. However, when the Cooks moved to Arizona, our law also provided that " arriages valid by the laws of the place where contracted are valid in this state." Arizona Code of 1939, § 63-108 (currently codified as A.R.S. § 25-112(A)) (emphasis added). Effective July 20, 1996, the legislature amended § 25-112(A) to add the phrase, "except marriages that are void and prohibited by § 25-101." 1996 amendments. The text of A.R.S. § 25-112, with the 1996 amendments in bold, is as follows:
A. Marriages valid by the laws of the place where contracted are valid in this state, except marriages that are void and prohibited by § 25-101.
B. Marriages solemnized in another state or country by parties intending at the time to reside in this state shall have the same legal consequences and effect as if solemnized in this state, except marriages that are void and prohibited by § 25-101.
C. Parties residing in this state may not evade the laws of this state relating to marriage by going to another state or country for solemnization of the marriage.
A.R.S. § 25-112. Thus, under the plain language of § 25-112(A), the Cook's marriage was "valid" in Arizona in 1989 (when they moved here) but subsequently declared "void" by the 1996 amendments.
On January 3, 1997, appellant filed a petition for marital dissolution in the superior court. Though initially alleging there was a marriage, appellant subsequently filed a motion to amend/dismiss dissolution proceedings alleging that the parties' marriage was void and prohibited under A.R.S. §§ 25-101 and -112 (A). The trial court denied the motion. It held, in part, that Arizona law prior to the 1996 amendments did not preclude recognition of a marriage valid in other states that was void in Arizona pursuant to § 25-101. It then reasoned that because the law prior to the 1996 amendments permitted recognition of the first cousin marriage in this circumstance, the 1996 amendments could not be retroactively applied to void a marriage that was valid at the time the parties moved to Arizona.
After denial of the motion, trial ensued. The trial court entered various orders as to property, spousal maintenance, and other issues. Appellant timely appealed. The only issue we take up in this opinion is that of the validity of the marriage.
II.
The first question we must decide is whether the validity o
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