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STATE v. SEDLACK
March 2, 1990.
STATE OF KANSAS, Appellant,
TROY M. SEDLACK, Appellee.
The opinion of the court was delivered by
This case concerns the legal capacity of a minor to enter into
a common-law marriage. The issue comes to us in a criminal
procedure context. The State has appealed the dismissal of a
criminal complaint against Troy Sedlack. K.S.A. 22-3602(b)(1).
Sedlack was charged with indecent liberties with a child, K.S.A.
21-3503. The trial court held that Sedlack and the child,
fifteen-year-old Stephanie Ebberts, were common-law married and
dismissed the complaint.
Troy Sedlack and Stephanie Ebberts began a dating relationship
in October of 1987. They commenced living together in February of
1988. Their living arrangement continued off and on throughout
1988. At the preliminary hearing, Stephanie, who was pregnant,
testified that she and Sedlack had had sexual intercourse during
the fall of 1988. Stephanie identified Sedlack as the future
Stephanie testified that, during the time they were living
together, Sedlack supported her. They considered themselves to be
husband and wife. According to Stephanie, she and Sedlack had
agreed that they were married. Stephanie said that she introduced
herself to people as Stephanie Sedlack. She had signed documents
such as credit applications as "Stephanie Sedlack."
Frances Larson, Stephanie's mother, had never heard her
daughter refer to herself as Stephanie Sedlack. Stephanie had
indicated to her mother, however, that she considered herself to
be married to Sedlack. Larson said that Stephanie did not use the
term "common-law married." Larson did not think that Stephanie
knew what those words meant. Stephanie did, however, tell her
mother that she and Sedlack were living together as husband and
wife. When asked why Stephanie would not use the name Sedlack in
her mother's presence, Larson said:
"She knew that we disliked Mr. Sedlack and had bound
[sic] him from our house and from calling our house,
and she was not allowed to see him. They have run off
together five different times, and she knew it would
be trouble if she used that name around me."
Larson also testified that Stephanie had asked her to consent
to a formal marriage ceremony before the court. Larson refused.
The State's complaint filed against Sedlack stated the
"[O]n or about September, 1988 through October, 1988,
in the County of Johnson and State of Kansas,
TROY M. SEDLAK [sic]
did then and there unlawfully, knowingly, willfully
and feloniously engage in sexual intercourse with a
child under the age of sixteen years, to-wit:
Stefanie [sic] Ebberts, who was not his spouse, with
the intent to arouse or satisfy his sexual desires,
in violation of K.S.A. 21-3503 and K.S.A.
At the close of the preliminary hearing, Sedlack moved to
dismiss the complaint. After further legal argument the trial
court held that Sedlack and Stephanie were common-law married at
the time of the alleged offense. The trial court found that (1)
they had the capacity to enter into such an arrangement, (2) a
present marriage agreement existed, and (3) they held themselves
out to the public as husband and wife. The court dismissed the
complaint. The crime charged requires that the parties not be
married at the time of the alleged offense.
Capacity to Enter Into a Common-Law Marriage
In State v. Johnson, 216 Kan. 445
, 448, 532 P.2d 1325 (1975),
we identified the three requirements which must coexist to
establish a common-law marriage in Kansas:
"(1) [a] capacity to marry; (2) a present marriage
agreement, and (3) a holding out of each other as
husband and wife to the public. [Citations omitted.]
"The common law sets the ages of consent to be
fourteen for the male and twelve for the female."
The State argues that pursuant to K.S.A. 23-106, the marriage
license statute, persons under the age of eighteen may not enter
into a marriage relationship without parental consent. Since
there was no evidence that Stephanie's parents had consented to
her marriage (in fact, Stephanie's mother refused to consent),
the State reasons that Stephanie did not have the capacity
required for a common-law marriage.
K.S.A. 23-106 merely prohibits a clerk or judge from issuing a
marriage license to any person under age eighteen without the
consent of such person's father, mother, or legal guardian, and a
judge of the district court. It does not prohibit a party under
the age of eighteen from entering into a marriage.
During oral argument the State conceded that we must overrule
Browning v. Browning, 89 Kan. 98, 130 P. 852 (1913), if we
adopt the State's view and reverse the trial court. We decline to
do so. In Browning we said:
"The issuance of a license for the marriage of a
minor is forbidden, except with the consent of the
father, mother or guardian. [Citation omitted.] The
statute does not declare that the marriage of a minor
entered into without the consent of the parent or
guardian is void, and in the absence of a provision
to that effect such legislation is construed as
intended to prevent such marriages as far as
possible, but not to [void] them if they are once
entered into." 89 Kan. at 99.
K.S.A. 23-106 has been amended several times since 1913, when
Browning was ...
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