The Break-Up, Part Four

A marriage that never was will come up for review in the Supreme Court of Virginia later this year.

The court has decided to hear Deborah MacDougall’s appeal of a lower court decision that her marriage to Richard Levick, ceremonially performed by a rabbi, was not legal because the parties obtained their marriage license after their backyard wedding in their new home.

That omission did not come to light until well into the parties’ divorce litigation. The oversight, discovered when the husband’s lawyer noticed the 2002 wedding date did not match the date on the marriage license, allowed the husband to escape legal liability for a division of “marital” property or for the $8,000 in monthly spousal support he owed under a marital agreement.

A Fairfax Circuit Court first nixed the marriage in 2013. The Court of Appeals upheld the decision that the parties were never husband and wife – twice.

On its first hearing of the case, the appellate panel said that whether void or voidable, a declaration that the marriage was void meant it was a nullity. The panel reheard the case to fine-tune its reasoning, but did not change the result, in an opinion by then-Judge Stephen R. McCullough. McCullough later was elected to the high court.

Now the Supreme Court has decided to take another look at the case. Its Dec. 21 orders grant each side’s petition for appeal and identify a wide range of claimed errors.

MacDougall argues the Court of Appeals erred in holding that the parties’ marriage was voidable, in refusing to apply equitable estoppel to Levick’s challenge to the marriage and in upholding the trial court decision that Levick did not waive his right to contest the validity of the parties’ agreement.

Levick contends the intermediate appellate court should not have held that the couple’s unlicensed attempted marriage was voidable, and not void ab initio, and its decision was essentially a judicial nullification of Va. Code § 20-13 that effectively approved a form of common law marriage for Virginia.

Oral arguments have not yet been scheduled, according to court records.