HomeMy WebLinkAbout2022-00685 Gibson V Crozier (2)
JODY GIBSON, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION (IN DIVORCE)
:
DAVID CROZIER, :
Defendant : NO. 2022-00685 CIVIL TERM
IN RE: DEFENDANTS PRELIMINARY
OBJECTIONS TO PLAINTIFFS COMPLAINT
BEFORE HYAMS, J.
OPINION and ORDER OF COURT
Hyams, J., March 21, 2023.
1
In this divorce action premised upon a common-law marriage, in which equitable
2
distribution of marital property is an issue, Defendant has filed preliminary objections to
3
Plaintiffs complaint challenging the existence of a marriage. A hearing on the
preliminary objections was held by the court on February 9, 2023.
For the reasons stated in this opinion, Defendants preliminary objections will be
sustained.
STATEMENT OF FACTS
This action was commenced by the filing of a complaint in divorce on January 26,
2022. The facts alleged in Plaintiffs complaint may be summarized as follows:
Plaintiff is Jody Gibson, an adult individual residing in Mount Holly Springs,
4
Cumberland County, Pennsylvania. Defendant is an adult individual residing in
5
Gardners, Cumberland County, Pennsylvania. The Plaintiff and the Defendant have
1
See Complaint in Divorce, filed January 26, 2022 (hereinafter Plaintiffs Complaint).
2
See Petition for Economic Relief, filed October 4, 2022 (hereinafter Plaintiffs Petition for Economic
Relief).
3
Preliminary Objections to Plaintiffs Complaint in Divorce, filed January 11, 2023 (hereinafter
Defendants Preliminary Objections).
4
Plaintiffs Complaint, ¶1.
5
Plaintiffs Complaint, ¶2.
been common law married since 2003, \[s\]upporting documentation of the common law
marriage incudes the \[d\]eed to the marital home, where the parties are listed as Husband
and Wife and the insurance card, which lists Plaintiff on Defendants health insurance as
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a spouse, and they have three children together.
8
At this time, the parties marriage is irretrievably broken. Relief requested by
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Plaintiff is a no-fault divorce decree pursuant to Section 3301(c) of the Divorce Code,
10
and an equitable division of the parties marital property, including the marital
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residence where Defendant currently lives.
Defendants preliminary objections to Plaintiffs complaint were filed on January
11, 2023. They allege that Plaintiff and Defendant began dating on December 29,
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2002, that Plaintiff and Defendant did not declare marriage in or before 2003, and
14
that the parties were never married. It is further alleged as follows:
14. Plaintiff and Defendant held no joint financial accounts.
15. Plaintiff and Defendant consistently declared they were single when filing
taxes.
16. In August 2003, Plaintiff, while pregnant with Defendants child, was added
to Defendants health insurance as a domestic partner.
* * * *
18. In 2007 or 2008, Plaintiff and Defendant became engaged to marry, but this
engagement did not result in marriage.
6
Plaintiffs Complaint, ¶4.
7
Plaintiffs Complaint, ¶7.
It appears from the record made at the hearing on Defendants preliminary objections that Plaintiff is
the parent of one child by a prior relationship and the parties together are the parents of two children. N.T.
___. A transcript of this hearing has not been prepared as of the filing of this opinion.
8
Plaintiffs Complaint, ¶10,
9
Plaintiffs Complaint, ¶10 and prayer for relief.
10
Plaintiffs Petition for Economic Relief, prayer for relief.
11
Plaintiffs Petition for Economic Relief, ¶5.
12
Defendants Preliminary Objections, ¶11.
13
Defendants Preliminary Objections, ¶12.
14
Defendants Preliminary Objections, ¶13.
2
19. Plaintiff remained on Defendants insurance until April 2018, when she was
required to produce evidence of their purported common law marriage.
20. Plaintiff was unable to produce evidence substantiating a common law
marriage, so her insurance coverage was terminated.
* * * *
28. Plaintiff and Defendant never declared they were married.
29. Plaintiff and Defendant maintained separate financial accounts, filed taxes
separately, and never co-mingled utilities or other accounts.
30. Plaintiff and Defendant never held themselves out as married.
31. Plaintiff never utilized Defendants last name, as evidence of marriage, but
rather used her prior married name in conjunction with her maiden name.
32. When required to produce documents to prove a common law marriage for
medical insurance purposes, Plaintiff was unable to produce any documents to evidence
the parties were in a common law marriage; therefore, the medical insurance was
15
terminated on Plaintiff.
Defendants preliminary objections request dismissal of Plaintiffs complaint on
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the basis of a lack of capacity to sue for divorce and legal insufficiency of the
17
pleading.
As noted, a hearing on Defendants preliminary objections was held on February
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9, 2023. At this proceeding, Plaintiff presented the testimony of herself and her father,
2021
and secured the admission of ten exhibits, and Defendant testified on his own behalf
22
and secured the admission of eleven exhibits. The testimony of Plaintiff may be
summarized as follows:
15
Defendants Preliminary Objections, ¶¶14-16, 18-20, 28-32.
16
Defendants Preliminary Objections, Count I, prayer for relief.
17
Defendants Preliminary Objections, Count II, prayer for relief.
18
N.T. ___-___, Hearing, February 9, 2023.
19
N.T. ___-___, Hearing, February 9, 2023.
20
Plaintiffs Exhibits 1-10, Hearing, February 9, 2023.
21
N.T. ___-___, Hearing, February 9, 2023.
22
Defendants Exhibits 1-9, 11-12, Hearing, February 9, 2023.
3
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The parties met on December 29, 2002, and became romantically involved.
Following Plaintiffs discovery in July of 2003 that she might be pregnant, they went to a
notary public in the third week of August, 2003, and executed a document
24
acknowledging that they were parties to a common-law marriage, thereby facilitating
25
her inclusion on Defendants medical insurance policy. They lived together until June
26
of 2021, punctuated by a seven-month period of separation in 2018, produced two
27
children, and held themselves out to the children in their household, to their other
relatives, being referenced by parents as daughter-in-law and son-in-law, and to the
28
public as a married couple, introducing themselves as my husband and my wife.
Items representing indicia of the marriage included copies of (a) an insurance card,
issued after 2005, pursuant to the health care plan utilized by Defendants employer
29
listing Plaintiff as a named insured, (b) rings given to Plaintiff by Defendant, and a ring
30
given by Plaintiff to Defendant, (c) a deed to the parties residence, recorded December
31
18, 2015, in which the parties were identified as husband and wife, (d) a motor vehicle
insurance policy application, dated February 4, 2016, in which they were both to be
32
named insureds, (e) a mortgage, recorded June 27, 2016, in which they were referred to
3334
as husband and wife, (f) a 16th-year anniversary card from Defendant to Plaintiff, (g)
23
N.T. ___, Hearing, February 9, 2023.
24
N.T. ___, Hearing, February 9, 2023.
25
N.T. ___, Hearing, February 9, 2023
26
N.T. ___, Hearing, February 9, 2023
27
N.T. ___, Hearing, February 9, 2023
28
N.T. ___, Hearing, February 9, 2023.
29
N.T ___ and Plaintiffs Exhibit 4, Hearing, February 9, 2023.
30
N.T. ___ and Plaintiffs Exhibit 10, Hearing, February 9, 2023.
31
N.T. ___ and Plaintiffs Exhibit 1, Hearing, February 9, 2023.
32
N.T. ___ and Plaintiffs Exhibit 5, Hearing, February 9, 2023.
33
N.T. ___ and Plaintiffs Exhibit 2, Hearing, February 9, 2023.
34
N.T. ___ and Plaintiffs Exhibit 6, Hearing, February 9, 2023. This card included the language: We are
coming to a new year and I cant help but look back and say WTF . . . Everything normal any
4
35
an anniversary card from the three children in their household, and (h) a mortgage
related to refinancing, recorded April 29, 2021, in which they were referred to as husband
36
and wife.
With respect to the insurance card, it was typical of the cards issued in 2003 and
37
thereafter, evidencing Plaintiffs coverage as Defendants spouse. Of the rings, three
had been given by Defendant to Plaintiff in 2005, and the fourth had been given by
Plaintiff to Defendant in 2007; as tokens of the parties marriage, Defendant wore his
ring, and Plaintiff wore two of her rings every day from 2005 until the parties separated
in 2018, put them on again following their reconciliation, and ceased wearing them upon
38
their final separation in 2021. The anniversary card from Defendant was sent to Plaintiff
39
in September of 2018 in the course of the parties separation at that time, and the
40
anniversary card from the children was given to them the same year.
In addition, the parties filed a joint income tax return in the year they purchased
41
the aforesaid residence, designating themselves as married, and Plaintiff specified
42
Defendant as the beneficiary on her life insurance policy. Admittedly, however, the
43
parties had also filed separate tax returns in other years, as non-married taxpayers,
more. . . . Just know Im always going to consider the last 16 year as my best. . . . Plaintiffs Exhibit 7,
Hearing, February 9, 2023.
35
N.T. ___ and Plaintiffs Exhibit 7, Hearing, February 9, 2023. This card included the language:.
36
N.T. ___ and Plaintiffs Exhibit 3, hearing, February 9, 2023.
37
N.T. ___, Hearing, February 9, 2023.
38
N.T. ___, Hearing, February 9, 2023.
39
N.T. ___, Hearing, February 9, 2023.
40
N.T. ___, Hearing, February 9, 2023.
41
N.T. ___, Hearing, February 9, 2023.
42
N.T. ___, Hearing, February 9, 2023.
43
N.T. ___, Hearing, February 9, 2023.
5
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Plaintiff had never changed her name to that of Defendant, they maintained separate
4546
bank accounts, and they never owned a vehicle jointly.
In 2018, a letter was received by Defendant from the administrator of the health
care plan provided through his employment advising that a continuation of Plaintiffs
health care benefits would require documentation of Plaintiffs status as a common-law
47
spouse. By a subsequent letter dated June 8, 2018, the organization that administered
Defendants health care plan sent notice of the termination of Plaintiffs coverage due to
its failure to receive an attestation for \[Defendants\] common law spouse to remain
48
enrolled in the program. Reinstatement of the coverage, according to the letter, would
require submission of a 2018 Attestation of Common Law Marriage Form; in this
regard, paperwork reading as follows was enclosed:
2018 ATTESTATION OF COMMON LAW MARRIAGE
We, ___________________ and __________________, the undersigned, hereby attest
that each of the following is true and correct:
Each of us is the common law spouse of the other.
If our common law marriage was established in the Commonwealth of
Pennsylvania, each of us spoke words necessary and sufficient under
Pennsylvania law to become each others spouse prior to September 17, 2003
\[sic\].
We present ourselves to the community and for all legal purposes as married.
This includes but is not limited to filing federal, state, and local taxes either as
Married Filing Jointly or Married Filing Separately.
If the common law marriage was established outside of the Commonwealth of
Pennsylvania, it was established in accordance with the laws of the applicable
jurisdiction in which it was entered, and the marriage is recognized by the
Commonwealth of Pennsylvania (or the jurisdiction in which we reside) as valid
and binding.
44
N.T. ___, Hearing, February 9, 2023.
45
N.T. ___, Hearing, February 9, 2023.
46
N.T. ___, Hearing, February 9, 2023.
47
N.T. ___, Hearing, February 9, 2023; see Defendants Exhibit 6, Hearing, February 9, 2023.
48
N.T. ___, Hearing, February 9, 2023; see Defendants Exhibit 6, Hearing, February 9, 2023.
6
We understand that our marriage may be terminated only through an
appropriate court proceeding and that we have not obtained a
divorce, annulment, or other dissolution of our marriage.
We understand that this Attestation may be used as evidence of our marriage. We hereby
agree to provide additional information that the \[plans administrator\] may reasonably
request as proof of our marriage. Each of us further agrees to indemnify the
\[administrator\] and the Commonwealth of Pennsylvania\[, Defendants employer\], as well
as any of the health plans in which we participate or have participated for any expenses,
costs, losses, or liabilities of any nature that any of them incurs as a result of any failure
of this confirmation to be completely true and accurate or any false statement or other
information that either of us has provided in the past with regard to our marital status.
Employees Name (Please Print): _______________________
Spouses Name: _____________________________________
Employees Signature: ________________________________
Spouses Signature: ___________________________________
AFFIDAVIT ATTESTING TO THE EXISTENCE
OF COMMON LAW MARRIAGE
By signing this affidavit below, you represent that you have established a valid marriage
under common law. A valid common law marriage is a marriage under state law having
all the legal consequences of a ceremonially performed marriage. Not all states provide
for the establishment of common law marriage. Pennsylvania does not recognize
common law marriages entered into on or after September 17, 2003 \[sic\]. If the
relationship you identify below is not a valid common law marriage, you may not, for
example enroll your intended spouse for coverage as a dependent under the
\[administrator-provided\] Medical Plan.
Employee and Common Law Spouse Information
We, _____________ and ________________, the undersigned do hereby affirm, under
penalty of perjury, that we meet all legal requirements to be married under common law.
As evidence of our marriage, we represent that we
1) have cohabited for ____ years; and
2) hold ourselves out to the community as husband and wife; and
3) neither one of us is currently married to another individual; and
4) expressly agreed to and entered into a common law marriage on
___________________ (enter date of marriage).
We each sign this affidavit as evidence of our marriage and represent that we have been
married since the date in 4) above and have filed federal and/or state income tax returns
indicating that we are married. As evidence of our marriage, we agree to provide to the
\[administrator of the plan\], through the local HR office, two of the documents identified
below. We understand that the \[administrator of the plan\] may copy the documents for its
records.
The original deed to the employees home, if owned jointly.
The original automobile title, if owned jointly.
7
The original statement of a current bank account that is held in joint
name \[sic\].
The original copy of the employees Will, identifying the spouse.
A copy of the cover page (indicating filing status) and signature page
(if a different page) of the employees Federal income tax return,
which indicates marital status, from 2002. For privacy reasons, the
numbers showing income and deductions should be blanked out.
We also agree to provide to the \[administrator of the plan\] a copy of any applicable
divorce decree if either of us was previously married. Although Pennsylvania recognizes
certain common law marriages, you may obtain divorce only through the appropriate
legal process.
________________________ _____________________
Signature of the Employee Signature of the Spouse
________________________
Employee Number
On this _________ day of _______________, 20___, before me appeared
_______________ and __________________, the affiants who being duly sworn, affirm
that the facts contained therein are true and correct and acknowledge that they executed
in the same for the purpose therein recited.
_______________________________
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Notary Public
Plaintiff was unable to locate a copy of the original attestation as to the existence
of a common-law marriage which the parties had supplied in August of 2003, nor was she
50
able to submit at least two of the supporting documents referred to in the affidavit, and
51
Defendant declined at that time to cooperate in facilitating the process.
Plaintiffs father testified at the hearing that his contact with his daughter had been
52
continuous over the past twenty years, that he had always been under the impression
5354
that the parties were married at common law, and that they did everything together.
49
N.T. ___, Hearing, February 9, 2023; see Defendants Exhibit 6, Hearing, February 9, 2023.
50
N.T. ___, Hearing, February 9, 2023.
51
N.T. ___, Hearing, February 9, 2023.
52
N.T. ___, Hearing, February 9, 2023.
53
N.T. ___, Hearing, February 9, 2023.
54
N.T. ___, Hearing, February 9, 2023.
8
He referred to Defendant as his son-in-law, and Defendant called him Dad, according
55
to his testimony.
In support of this testimony, Plaintiffs father identified a photograph he had
posted on Facebook with an inscription reading Id like to wish my son in law David
Crozier a very special Veterans Day, along with my Dad and Brothers in law, Dave and
56
Leroy and all Veteranswith Jody L. Shields-Gibson \[i.e., Plaintiff\]. He identified
another of his posts on Facebook, dated August 20, 2020, which read Id like to send out
a special Thank You to my son in law David Crozier for helping me get the flagpole back
5758
up. He also noted that Defendant helped \[him\] with everything, that he was taken
5960
on excursions by Defendant, and that he shared every holiday with the parties.
The testimony of Defendant at the hearing may be summarized as follows: He had
61
commenced his current employment with the Commonwealth of Pennsylvania in 2000,
had consulted the personnel department about including Plaintiff on his health insurance
62
coverage in order to confirm her pregnancy and provide care for his unborn child, and
63
had followed the departments instructions as to acquisition of that coverage. The
64
parties never exchanged marriage vows, were understood by their closer acquaintances
6566
to be unmarried, rarely, if ever, filed tax returns depicting themselves as married,
55
N.T. ___, Hearing, February 9, 2023.
56
N.T. ___ and Plaintiffs Exhibit 8, Hearing, February 9, 2023.
57
N.T. ___ and Plaintiffs Exhibit 9, Hearing, February 9, 2023.
58
N.T. ___, Hearing, February 9, 2023.
59
N.T. ___, Hearing, February 9, 2023.
60
N.T. ___, Hearing, February 9, 2023.
61
N.T. ___, Hearing, February 9, 2023.
62
N.T. ___, Hearing, February 9, 2023
63
N.T. ___, Hearing, February 9, 2023
64
N.T. ___, Hearing, February 9, 2023
65
N.T. ___, Hearing, February 9, 2023
66
N.T. ___, Hearing, February 9, 2023.
9
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owned no property together other than the house, and maintained no joint bank
68
accounts
The ring given to him by Plaintiff represented an engagement ring that she
presented to him during a Valentines Day excursion in 2007, accompanied by an explicit
69
proposal of marriage. The deed in which they were identified as husband and wife
represented an altered version of the deed provided at settlement, which did not so
70
identify them. The anniversary card from him to Plaintiff represented a commemoration
71
of the date they met, not of a marriage date. And his refusal to facilitate retention of her
coverage on his insurance in 2018 was based on the fact that it would have required
72
dishonesty.
Indicia of the parties non-marital status included copies of (a) a 2004 Statement
of \[Defendant Retirement\] Account naming his mother, and not Plaintiff, as
73
beneficiary, (b) a federal 2005 income tax return in which Defendants status was listed
as single, and returns for 2006 and 2007 in which his status was listed as head-of-
74
household, without designation of a spouse, (c) income tax returns of Plaintiff for 2006
75
and 2007 in which her status was listed as single, (d) a domestic relations office
conference summary dated March 7, 2006, in a child support case filed by Plaintiff
against her ex husband stating that TF LIVES WITH HER BOYFRIEND AND HE
67
N.T. ___, Hearing, February 9, 2023.
68
N.T. ___, Hearing, February 9, 2023.
69
N.T. ___, Hearing, February 9, 2023.
70
N.T. ___, Hearing, February 9, 2023. In Defendants recollection, the deed provided at settlement,
which he had assumed was the recorded instrument, was revised without his knowledge to correct the
name of the seller and, in the process of revision, revised the status of the grantees to that of husband and
wife.
71
N.T. ___, Hearing, February 9, 2023.
72
N.T. ___, Hearing, February 9, 2023.
73
N.T. ___ and Defendantxhibit 11, Hearing, February 9, 2023
74
N.T. ___ and Defendants Exhibit 1, Hearing, February 9, 2023.
75
N.T. ___ and Defendant2, Hearing, February 9, 2023.
10
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WORKS, (e) a 2010 discharge of Defendant as a debtor in bankruptcy proceedings to
77
which Plaintiff was not a party, (f) a 2015 deed conveying the parties prior residence,
78
from Defendant, its owner, as a single man, (g) the 2015 deed to the parties
residence produced at settlement, which identified each of the grantees simply as an
79
adult individual, of even date with the deed recorded identifying them otherwise, (h)
an application for a loan to Plaintiff dated December 20, 2018 (during the parties
80
separation) identifying Plaintiffs then-landlord as DAVID CROZIER -EX, and (i)
paperwork from Defendants personnel file, issued around October 24, 2022, describing
81
his marital status as \[s\]ingle.
Admittedly, Plaintiffs father had referred to Defendant as his son-in-law, and
82
Defendant on occasion referred to him as Dad. In addition, Plaintiff would sometimes
introduce Defendant as her husband, and Defendant would not correct the statement
83
when she did so. Finally, about half of the parties acquaintances probably thought that
84
they were married.
At the conclusion of the February 9, 2023, hearing on Defendants preliminary
objections to Plaintiffs complaint, an order was issued providing for the submission of
8586
briefs on behalf of the parties. Briefs have now been filed.
76
N.T. ___ and Defendants Exhibit 9, Hearing, February 9, 2023.
77
N.T. ___ and Defendant7, Hearing, February 9, 2023.
78
N.T. ___ and Defendantbit 3, Hearing, February 9, 2023.
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N.T. ___ and Defendants Exhibit 4.
80
N.T. ___ and Defendant8, Hearing, February 9, 2023.
81
N.T. ___ and Defendant5, Hearing, February 9, 2023.
82
N.T. ___, Hearing, February 9, 2023.
83
N.T. ___, Hearing, February 9, 2023.
84
N.T. ___, Hearing, February 9, 2023.
85
Order of Court, dated February 9, 2023 (Hyams, J.).
86
See Defendants Brief in Support of Preliminary Objections, filed March 7, 2023; Plaintiffs Brief in
Opposition to Defendants Preliminary Objections, filed March 9, 2023.
11
DISCUSSION
Statement of law. Although no \[Pennsylvania\] common-law marriage contracted
87
after January 1, 2005, is valid, those contracted before that date remain legitimate. See
Costello v. W.C.A.B., 916 A.2d 1242 (Pa. Cmwlth 2007). The burden of proof with
respect to the existence of a common law marriage rests upon the proponent of the
marriage. In re Estate of Carter, 2017 PA Super 104, 159 A.3d 970. This burden has
been characterized as vy, \[w\]hen an attempt is made to establish a marriage
without the usual formalities, the claim must be reviewed with great scrutiny.
Staudenmayer v. Staudenmayer, 552 Pa. 253, 262, 714 A.2d 1016, 1020 (1998).
The formation of a common-law marriage has been described by the Pennsylvania
Superior Court as follows:
To create a common-law marriage, there must be an exchange of words in the
present tense, verba de praesenti, spoken with the specific purpose that the legal
relationship of husband and wife be thereby created. Commonwealth v. Smith, 511 Pa.
343, 352, 513 A.2d 1371, 1375-1376 (1986), cert. denied, Smith v. Pennsylvania, 480
U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987). Because it is hard to prove such verba
de praesenti, there is a rebuttable presumption of marriage where two essential elements
exist: constant, not irregular or inconstant, cohabitation plus a broad and general, not
partial or divided, reputation of marriage. In re Estate of Rees, 331 Pa. Super. \[225,\] 228,
480 A.2d 327, 328 \[1984\]. Cohabitation and reputation are merely circumstances from
which the existence of a contract of marriage can be inferred and not requisites per se to
prove a common-law marriage. In re Estate of Kovalchick, 345 Pa.Super. 229, 235, 498
A.2d 374, 377 (1985).
Commonwealth v. McLean, 387 Pa. Super. 354, 364, 564 A.2d 216, 220-21 (1989).!!
The \[common law\] marriage contract does not require any specific form of
words, and all that is essential is proof of an agreement to enter into the legal relationship
of marriage at the present time. Estate of Gavula, 490 Pa. 535, 540, 417 A.2d 168, 171
(1980).!! Stated differently, common law marriage will still be recognized without use
of verba de praesenti, where the intention of the parties\[,\] as expressed by their words, is
that they were married. In re Estate of Carter, 2017 PA Super 104, ¶__, 159 A.3d 970,
979 (citation omitted).
87
23 Pa. C.S. 1103.
12
The proof requisite for a finding of a common law marriage has been said to be
partially disjunctivein nature; ewed equationally, the elements \[can be\] expressed
as common-law marriage = verba de praesenti or = (rebuttable presumption: constant
cohabitation + general reputation).Commonwealth v. McLean, 387 Pa. Super. 354, 364,
564 A.3d 216, 221 (1989). Thus, it has been said to be error to require proof of verba de
praesenti and proof of constant cohabitation and general reputation which is unrebutted,
for a finding of a common-law marriage. Id.
However, the Pennsylvania Supreme Court has clarified the law as follows:
. . . We have starule which permits a finding of marriage duly
entered into based upon reputation and cohabitation alone is one of necessity to be
applie In re Nikitkas Estate, 346 Pa.
63, 65, 29 A.2d 521, 522 (1943). Thuction of
evidence concerning cohabitation and reputation of marriage is the inability to present
direct testimony regarding the exchange of verba in praesenti. We held in In re Estate of
Stauffer, 504 Pa. 626, 476 A.2d 354 (1984), that the Dead Man's Act prohibited the
purported wife's testimony regarding the exchange of marital vows with her alleged
common law husband. There, we noted that the inability of the putative widow to present
any testimony regarding the exchange of vows did not prevent her from proving a
permits a finding of marriage based upon reputation and cohabitation when established
by satisfactory proof. Id. at 632, 476 A.2d at 357.
We have not, however, dispensed with the rule that a common law marriage does
not come into existence unless the parties uttered the verba in praesenti, the exchange of
words in the present tense for the purpose of establishing the relationship of husband and
wife. See Commonwealth v. Wilson, 543 Pa. 429, ___, 672 A.2d 293, 301 (1996)
(discussing common law marriage in context of a claim of spousal testimonial immunity).
We have allowed, as a remedial measure, a rebuttable presumption in favor of a common
law marriage based on sufficient proof of cohabitation and reputation of marriage where
the parties are otherwise disabled from testifying regarding verba in praesenti. However,
where the parties are available to testify regarding verba in praesenti, the burden rests
with the party claiming a common law marriage to produce clear and convincing
evidence of the exchange of words in the present tense spoken with the purpose of
establishing the relationship of husband and wife, in other words, the marriage contract.
In those situations, the rebuttable presumption in favor of a common law marriage upon
sufficient proof of constant cohabitation and reputation for marriage, does not arise.
By requiring proof of verba in praesenti where both parties are able to testify, we
do not discount the relevance of evidence of constant cohabitation and reputation of
marriage. When faced with contradictory testimony regarding verba in praesenti, the
party claiming a common law marriage may introduce evidence of constant cohabitation
and reputation of marriage in support of his or her claim. We merely hold that if a
putative spouse who is able to testify and fails to prove, by clear and convincing
evidence, the establishment of the marriage contract through the exchange of verba in
praesenti, then that part
13
marriage, since he or she does not enjoy any presumption based on evidence of constant
cohabitation and reputation of marriage. See Pierce v. Pierce, 355 Pa. 175, 181, 49 A.2d
346, 349 (1946) (\[p\]roof of reputation and cohabitation could not establish marriage;
nor, in the absence of evidence regarding a marriage contract, is it sufficient to warrant a
presumption of marital relat
Staudenmayer v. Staudenmayer, 552 Pa. 253, 263-65, 714 A.2d 1016, 1021 (1998)
(footnote omitted); see Perrotti v. Meredith, 2005 PA Super 57, 868 A.2d 1240.
A deed in which the parties are identified as husband and wife provides some
independent corroborative evidence of a common-law marriage proponents testimony,
but is not necessarily dispositive of the issue. Staudenmayer v. Staudenmayer, 552 Pa.
253, 266 n.9, 714 A.2d 1016, 1022 n.9 (1998). Nor is an affidavit of the parties attesting
to a common-law marriage for purposes of obtaining insurance coverage necessarily
conclusive. Bell v. Ferraro, 2004 PA Super 144, 849 A.2d 1233.
Application of law to facts. As is often true, in this case \[t\]he difficulty is not with
88
the law, but in the application of it. With respect to credibility, the court believed that
the witnesses at the hearing testified as to their recollections to the best of their abilities,
and without any attempt at misdirection. It appeared to the court that Defendants
recollection that the 16th-year anniversary card he sent to Plaintiff in 2018 was intended
to commemorate the date that they met in December of 2002 rather than the August,
2003, date when they attested to the existence of a common-law marriage was probably
89
more accurate than Plaintiffs, given the language \[w\]e are coming to a new year. In
addition, the court found Defendants testimony as to the revision, without his
knowledge, of the 2015 deed to the parties residence, as well as the testimony he gave as
to his motivation for declining to participate in the process of perpetuating Plaintiffs
90
inclusion on his health insurance coverage, to be credible.
88
Knouse v. Knouse, 6 Northumberland Law Journal 15, ___, 3 Pa. D. & C. 534, 535, 1922 WL 4017,
1922 WL 4017, at 2 (1922).
89
See note 34 supra.
90
In this regard, however, it must be noted that the insurers criteria for proof of a common-law marriage
are not to be equated with legal requirements.
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On the merits, in the courts view two factorstendedtodepreciate the strength of
Plaintiffscase. First, the evidence of an eventin which verba in praesenti,or their
equivalent, wereexchanged by the parties, was weak, at best.And, second, the record
wasreplete with instances in which the parties did not characterize themselves as
married.
With regard to the first factor, thepartiesattestation ofmarriage in August of
2003to facilitate Plaintiffs inclusion on Defendants health insurance coverage was, in
the courts view, more in the nature ofarepresentation of the existenceof a common-law
marriage, for a particular purpose, than theformation of one.The evidence respecting this
eventdoes not appear to satisfy the conditionfor recognition of a common-law marriage
set forth inStaudenmayer,where both parties are available to testify.
Withregard to the second factor,the partiesinconsistencies in characterizations
of theirmarital status werenot compatible with a broad and general,not partial or
divided,reputation of marriage,requisite for circumstantial proof of a common-law
marriage.
Given that the burden ofproving a common-law marriage is aheavyone, and
thata claim of the existence of a common-law marriage is to be subjected to great
scrutiny,the court does not find itselfin a position to deny Defendants preliminary
objectionsto Plaintiffs complaint.Accordingly, the following order will be entered.
ORDEROF COURT
st
AND NOW, this 21day of March, 2023, upon consideration of Preliminary
Objections to Plaintiffs Complaint in Divorce, filedby DefendantonJanuary 11, 2023,
following a hearing held on February 9, 2023, and for the reasons stated in the
accompanying opinion, Defendantspreliminary objections are sustainedand Plaintiffs
complaint is dismissed.
BY THE COURT,
________________
Carrie E. Hyams, J.
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DISTRIBUTION:
Jane Adams, Esq.
17 W. South Street
Carlisle, PA 17013
Attorney for Plaintiff
Kara W. Haggerty, Esq.
LAW OFFICES OF PETER J. RUSSO, P.C.
Suite 102
245 Grandview Avenue
Camp Hill, PA 17011
Attorney for Defendant
16