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Cook v. Cook1/13/2005
oid" to apply to all marriages existing in the state of Arizona at the time of the 1996 amendments. We agree this is a plausible construction, as a "void" marriage has been construed to mean that the marriage "shall have no force and effect for any purpose within the State of Arizona." In re Mortenson's Estate, 83 Ariz. at 90, 316 P.2d at 1107. However, as we have discussed above, giving such a reading creates a significant constitutional concern.
Further, A.R.S. ยง 1-244 (2000) expressly provides that " o statute is retroactive unless expressly declared therein." We can give effect to the legislature's use of the word "void" in the 1996 amendments by applying that term to exclude vested rights in existing marriages as we have described them. Had the legislature chosen to nullify existing marriages (thus having the retroactive effect described) it could have expressly stated so. It did not.
Accordingly, we can give legitimate meaning to the term "void" in the 1996 amendments by applying it to marriages from other jurisdictions in which the parties had no vested right to have their marriage recognized in Arizona. As to these marriages, the use of the term "void" applies and means that such a marriage "shall have no force and effect for any purpose within the State of Arizona." In re Mortenson's Estate, 83 Ariz. at 90, 316 P.2d at 1107. By construing the term "void" to apply to marriages where rights in Arizona have not "vested," we adopt an "alternate construction " that "avoids constitutional difficulty" as required by our law. Slayton, 166 Ariz. at 92, 800 P.2d at 595.
IV.
For the reasons set forth above, and those in the separately filed memorandum decision, we affirm the judgment of the trial court.
DANIEL A. BARKER, Judge CONCURRING
MAURICE PORTLEY, Presiding Judge
JON W. THOMPSON, Judge
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