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HomeMy WebLinkAbout04-1887 CivilAMY M. EWING, PLAINTIFF V. DANIEL R. ICKES, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: 04-1887 CIVIL TERM DECLARATION AS TO MARRIAGE BEFORE BAYLEY, J. OPINION AND JUDGMENT Bayley, J., September 2, 2004:-- On April 28, 2004, plaintiff, Amy M. Ewing, filed a complaint in divorce against defendant Daniel R. Ickes. Plaintiff avers that the parties were married on July 28, 1992, in Enola, Cumberland County, Pennsylvania. Defendant filed an answer denying that he and plaintiff are married. He then sought a declaratory judgment that he is not married to plaintiff.~ A hearing was conducted on August 23, 2004. Amy Ewing and Daniel R. Ickes never had a ceremonial marriage. They started dating in April, 1991. On July 28, 1992, they moved into a residence that he purchased. On February 13, 1995, they had a daughter, Cayenne Ickes. On June 30, 1999, they purchased and moved into a property in Newberry Township, York County. The deed was titled: The Divorce Code, at 23 Pa.C.S. 3306, provides: When the validity of a marriage is denied or doubted, either or both of the parties to the marriage may bring an action for a declaratory judgment seeking a declaration of the validity or invalidity of the marriage and, upon proof of the validity or invalidity of the marriage, the marriage shall be declared valid or invalid by decree of the court and, unless reversed upon 04-1887 CIVIL TERM "DANIEL R. ICKES and AMY M. EWlNG, As Joint Tenants With The Right Of Survivorship." On October 24, 1999, they had a son, Daniel Ickes. The parties had joint financial accounts. They have, for many years, employed an accountant to prepare their tax returns which they have always filed as single persons. In numerous documents executed over the years they are identified as single persons except for one signed by both of them on February 12, 2001. They both testified that a notarized document was used to obtain medical insurance for her through his employment. It sets forth: AFFIDAVIT OF COMMON-LAW MARRIAGE We, Daniel R. Ickes and Amy Ewing, the undersigned, being duly sworn, do hereby state that on 7/28/92, being freely able to contract, we entered into the relationship of husband and wife under common-law at Enola/East Pennsboro/West Fairview, PA, intending to be legally bound thereby and in full recognition of the rights, duties, obligations associated therewith. At that time we had the present intent to be married, evidenced by words in the present tense uttered with a view and purpose of establishing the relationship of husband and wife. Daniel Ickes testified that although they have discussed getting married over the years neither he nor Amy have ever agreed that they were married. They have not spoken words in the present tense to that extent. He does not introduce her to others as his wife. Amy Ewing testified that she has considered herself the wife of Daniel Ickes since July 28, 1992, when they moved into this property. When asked why there was no formal ceremony at that time, she testified: "Just the expense at the time with buying the new house and he just never formally asked me to marry him at that time." She testified that since they started living together, they have considered each other husband and wife and are known as such to their appeal, the declaration shall be conclusive upon all persons concerned. -2- 04-1887 CIVIL TERM families and friends. Her mother testified that she has considered Daniel Ickes as her son-in- law since 1992. No friends of either party testified. When Amy was asked why the Affidavit Of Common Law Marriage which was signed by both of them on February 12, 2001, listed July 28, 1992 as the date of a common law marriage, she testified: "That is the date that we moved in together and began a monogamous relationship together." She was questioned: Q Is it your testimony that since this date then you considered yourself married to Mr. Ickes? A Yes. Q And you believe that he considered himself married as well? A Yes. In Bell v. Ferraro, 849 A.2d 1233 (Pa. Super. 2004), the Superior Court of Pennsylvania recently stated: A common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created by such exchange. Staudenmayer v. Staudenmayer, 714 A.2d 1016 (Pa.1998). The burden to prove a common law marriage rests on the proponent of the marriage and such a claim must be reviewed with great scrutiny. Id. (Footnote omitted.) In Bell, Debra Bell appealed from an order of a trial court finding that no common law marriage existed between her and Edward Ferraro.2 The facts were: The Superior Court noted: We recognize that the Commonwealth Court has purported to prospectively abolish common law marriage in the context of Workers' Compensation Claims. PNC Bank Corp. v. W.C.A.B., 831 A.2d 1269 (Pa. Cmwlth.2004). We point out, however, that (1) we are not bound by decisions of the Commonwealth Court, and (2) both this Court and our Supreme Court have declined the invitation to abolish common law marriage, deferring such action to the legislature. See e.g., Staudenmayer, 714 A.2d 1016 (Pa.1998); Interest of Miller, 448 A.2d 25 -3- 04-1887 CIVIL TERM Both parties testified and also presented documentary evidence to support their respective positions. Appellant presented an "Affidavit of Common Law Marriage" which was signed by both parties, as well as correspondence referring to the parties as married. Appellee presented deeds executed subsequent to the affidavit which evidenced the parties' purchase of real estate as single individuals as well as tax returns in which Appellant's status was listed as "Head of Household" and Appellee's status was listed as "Single." Regarding the "Affidavit of Common Law Marriage," Appellant testified that the parties did indeed exchange the requisite verba in praesenti and that they informed their friends and relatives of the marriage. Appellee testified that the affidavit was executed solely to enable him to add Appellant to his health insurance and that they did not present themselves to the community as married persons. Appellant had children from a previous relationship. The Superior Court stated: Regarding the Affidavit of Common Law Marriage, we recognize that it is admissible and probative evidence. It is not, however, irrebuttable evidence. The statute which allows the contents of a notarized document to be admitted as proof of the facts stated therein, also recognizes that a litigant "may be permitted to contradict by other evidence any such certificate." 42 Pa.C.S.A. § 6105(a). That is precisely what happened in the present case when Appellee testified that the affidavit was intended solely to allow Appellant to be added to his health insurance. As the trial court made a specific determination that this testimony was more credible than Appellant's, we cannot find error or an abuse of discretion in the trial court's finding that the affidavit was not dispositive. In the case sub judice, both parties testified that their Affidavit Of Common Law Marriage was used to add Amy to Daniel's health insurance provided by his employer. All other documents referring to the parties and executed by them over the years identify them as single persons. In 1999, almost seven years after they started living together they purchased property titled as joint tenants with right of survivorship, not as tenant by the entireties. While Amy maintains that she considers herself married she did not testify that she and Daniel ever (Pa. Super. 1982) -4- 04-1887 CIVIL TERM exchanged words in the present tense, spoken with a specific purpose that a legal relationship of husband and wife was created. Daniel testified that no such words were ever spoken. His testimony is credible and is supported by other credible evidence. The Affidavit Of Common Law Marriage was only executed for the purpose of her obtaining health insurance. The parties are not married at common law. Accordingly, the following judgment is entered. JUDGMENT AND NOW, this day of September, 2004, IT IS DECLARED THAT Daniel R. Ickes and Amy M. Ewing ARE NOT MARRIED. By the Court, Linda A. Clotfelter, Esquire For Plaintiff Andrew C. Spears, Esquire For Defendant :sal Edgar B. Bayley, J. -5- AMY M. EWING, PLAINTIFF V. DANIEL R. ICKES, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: 04-1887 CIVIL TERM DECLARATION AS TO MARRIAGE BEFORE BAYLEY, J. JUDGMENT AND NOW, this day of September, 2004, IT IS DECLARED THAT Daniel R. Ickes and Amy M. Ewing ARE NOT MARRIED. By the Court, Linda A. Clotfelter, Esquire For Plaintiff Andrew C. Spears, Esquire For Defendant :sal Edgar B. Bayley, J.