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HomeMy WebLinkAbout21-2003-1065 Orphans IN RE: ESTATE OF DAVID M. GROSS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 21-03-1065 ORPHANS' COURT IN RE: PETITION TO REVOKE LETTERS OF ADMINISTRATION OPINION AND ORDER OF COURT Bayley, J., April 13, 2005:-- David M. Gross, born April 27, 1957, died intestate on August 17, 2003. On December 26, 2003, his mother, Ramona Gross, was granted letters of administration of his estate. Ramona Gross died on February 4, 2004. On April 12, 2004, Elizabeth Barth, representing by affidavit that she was the common law wife of David M. Gross, filed a petition to revoke the letters of administration that had been issued to Ramona Gross and petitioned that letters of administration be issued to her. On April 20, 2004, the Register of Wills granted letters of administration to Elizabeth Barth. On May 11, 2004, Brian J. Gross, a brother of decedent, filed a petition for revocation of the letters, claiming that Elizabeth Barth was not the wife of decedent and was not entitled to be issued letters of administration of his estate. A hearing was conducted before the Register of Wills on November 22, 2004. On November 30, 2004, the Register issued an order denying the petition.1 On December 9, 2004, Brian Gross filed an appeal from that order. This court has not taken additional evidence. The issues were briefed and argued on March 18, 2005. The evidence before the Register of Wills was as follows. Elizabeth Barth, age 36, is a classified advertising manager for a newspaper. She testified that she met 21-03-1065 ORPHANS' COURT 1 No opinion was filed in support of the order. -2- 21-03-1065 ORPHANS' COURT David Gross on September 8, 1995. In either December 1995 or January 1996, at St. Patrick's cathedral in New York City, Gross asked her to marry him in the future. They started living together in February of 1996, and were "going to be married." They wanted to have a church wedding although they talked numerous times about getting married before a justice of the peace. They were never ceremonially married. Gross was seriously injured in a construction accident on September 22, 1998. He gave Barth a ring and published an engagement announcement in a newspaper in 2000 or 2001. Barth testified that she and Gross had been "engaged forever, we were just holding out until we were well enough and had enough money to actually have a very nice wedding." After Gross died, Barth participated in the preparation of his obituary which lists her as his fiancee. Under a question on his death certificate, "MARITAL STATUS - Married, Never Married, Widowed, Divorced (Specify)," Gross is listed as "Divorced." Barth was the "informant" for the preparation of that certificate, and she testified that the information is accurate. Barth never described Gross to third parties as her husband. She and Gross never described her to anyone as his wife. Gross referred to her as his "angel." He would say, "there's my angel, but someday I'm going to make it legal." On April 8, 2002, Barth and Gross signed a notarized Affidavit of Common Law Marriage on the letterhead of Health America, a medical insurance company. The preprinted form for which the date "3/1/96" was written, sets forth that "we have lived together continuously as husband and wife from 311196 to the present time. During this -3- 21-03-1065 ORPHANS' COURT period we have professed to be husband and wife and we have held ourselves out to the community as being married." Barth testified that the reason for executing the Affidavit was to secure health care for Gross; it was "because of the financial situation he was in." Gross insisted on executing the Affidavit "because it was one other way to help us monetarily just get through. I mean we were drowning in medical debt." On May 12, 2000, in a deposition involving litigation for injuries that Gross incurred in his construction accident, he gave sworn testimony that he was divorced, and that was his first and only marriage. Gross's mother, Ramona Gross, testified at a deposition on November 12, 2003, that Barth was her son's girlfriend. On December 16,2003, to the question: "Petitioner(s) after a proper search haslhave ascertained that Decedent left no Will and was survived by the following spouse (if any) and heirs," Ramona Gross swore under oath in support of her petition for a grant of letters of administration, by stating her name and the name of her husband Anthony Gross. Barth testified at a deposition on August 13, 2004, that she was engaged to the late David Gross. Barth and Gross filed tax returns as single persons. Barth did not challenge the appointment of Gross's mother as administratrix of his estate. She testified that after Gross died she told a clergyman that she was "David's fiancee." During Gross's last illness she never identified herself as his wife to any of the staff or doctors caring for him. Petitioner, Brian J. Gross, testified that his family regarded Barth as his brother's girlfriend, not his wife. Neither his brother nor Barth ever described Barth to him as his -4- 21-03-1065 ORPHANS' COURT brother's wife. Janelle Augsberger, a friend of Barth and Gross, testified that she was introduced to Gross somewhere in 1995-96. Barth and Gross were planning a marriage ceremony although she considered them husband and wife. Sometime in 2001, she started introducing them to others that way, although she was never told to do that. William Dallon, a friend, testified that Barth and Gross were treated the same way as another unmarried couple in a club where he, Barth and Gross were members. Dallon, however, thought Barth and Gross were married. Susanne Fern Barth, the mother of Elizabeth Barth, testified that she advised her daughter and Gross to get married after his accident, but they did not. She referred to Gross as her son-in-law. She testified that the only reason there was no marriage ceremony was because it kept being put off as a result of the serious injuries Gross incurred in the accident in 1998. Introduced into evidence was a card sent by Gross's parents to Barth titled, "To a Special Daughter-in-law with Love." There is another card from the parents titled, "For Son and Daughter on Valentines Day." There is a card from Danielle, the daughter of the sister of Brian Gross to "Uncle Dave - Aunt Beth." At Christmas in 2001, Gross gave Barth a card titled "For My Wife." However, inside he wrote a note which stated: "Even though you technically aren't my wife - yet, !IY to convince my heart we're not married!" Barth's father sent a card to Gross titled, "For a Special Son- in-law." On Barth's application, the Social Security Administration sent Barth a notice -5- 21-03-1065 ORPHANS' COURT that she would receive a $255 payment as a result of the death of Gross.2 2 Discovery was sought by petitioner to obtain the application that Barth made to the Social Security Administration, but the Federal government has not produced the document. -6- 21-03-1065 ORPHANS' COURT LEGAL PRINCIPLES In Staudenmayer v. Staudenmayer, 714 A.2d 1016 (Pa. 1998), the Supreme Court of Pennsylvania, in a plurality opinion, stated that claims for a common law marriage "are disfavored."3 The Court 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 that. Commonwealth v. Groby, 527 Pa. 98, 110, 588 A.2d 902, 907 (1991). Regarding this requirement for an exchange of words in the present tense, this Court has noted: [I]t is too often forgotten that a common law marriage is a marriage by the express agreement of the parties without ceremony, and almost invariably without a witness, by words-not in futuro or in postea, but-in praesenti, uttered with a view and for the purpose of establishing the relationship of husband and wife. Estate of Manfredi, 399 Pa. at 291, 159 A.2d at 700 (citations omitted). 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). The burden to prove the marriage is on the party alleging a marriage, and we have described this as a "heavy" burden where there is an allegation of a common law marriage. Id. at 540, 417 A.2d at 171. When an attempt is made to establish a marriage without the usual formalities, the claim must be reviewed with "great scrutiny." Id. at 541, 417 A.2d at 171. Generally, words in the present tense are required to prove common law marriage. Estate of Wagner, 398 Pa. at 535-36, 159 A.2d at 498. Because common law marriage cases arose most frequently because of claims for a putative surviving spouse's share of an estate, however, we developed a rebuttable presumption in favor of a common law marriage where there is an absence of testimony regarding the exchange of verba in praesenti. When applicable, the party claiming a common law marriage who proves: (1) constant cohabitation; and, (2) a reputation of marriage "which is not partial or divided but is broad and general," raises the rebuttable presumption of marriage. See Estate of Manfredi, 399 Pa. at 291, 159 A.2d at 3 The law now provides that "[n]o common-law marriage, contracted after January 1 , 2005, shall be valid." 23 Pa.C.S. S 1103. -7- 21-03-1065 ORPHANS' COURT 700. Constant cohabitation, however, "even when conjoined with general reputation are not marriage, they are merely circumstances which give rise to a rebuttable presumption of marriage." Id. (Footnotes omitted.) (Emphasis added.) Having chosen to take no additional evidence our review is to determine if the Register of Wills abused her discretion in the issuance of the letters to Barth. See In re Estate of Dodge, 361 Pa. Super. 188 (1987). Discretion is abused when the course pursed represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will. Ellenbogen Estate v. PNC Bank, N.A., 731 A.2d 175 (Pa. Super. 1999). In In re Estate of Dodge, supra, the Register of Wills of Bradford County issued letters of administration in the estate of Ronald A. Dodge to Tonia Yoder, whose petition averred that she was the widow of the decedent. The mother and guardian of decedent's son filed a petition to revoke the letters alleging that Tonia Yoder was never married to the decedent and had no interest in his estate. Following a hearing the Register of Wills, finding that a common law marriage existed between Yoder and the decedent, denied the petition to revoke the letters. On appeal, the Orphans' Court, after reviewing the record established before the Register of Wills, held that the Register abused her discretion, that Yoder's evidence was insufficient to prove a common law marriage, and that the letters of administration should be revoked. Yoder filed an appeal to the Superior Court of Pennsylvania. The Court affirmed the order of the Orphans' Court that the Register of -8- 21-03-1065 ORPHANS' COURT Wills abused her discretion when she refused to revoke the letters of administration granted to Yoder. The Court stated: In the instant case, the relationship between Yoder and the decedent was initially meretricious. At that time Yoder was still married to another man. She attempted to show that a change in the meretricious status had occurred following her divorce when, in December, 1982, the decedent offered her a wedding ring. Thereafter, Yoder testified, she and the decedent had referred to themselves as husband and wife. Several other witnesses also said that they had heard the decedent refer to Yoder as his "old lady" and that the two of them were reputed to be husband and wife. This evidence, however, was sharply contradicted. It was contradicted by hospital records prepared about one month before the decedent's death. Yoder, when admitted for the purpose of giving birth to a son, told hospital personnel that she was unmarried. When, following Dodge's death, the funeral director sought information from the family to be placed on the certificate of death, he was told by a member of the decedents' family in Yoder's presence that the decedent was single. Yoder did not dissent, her only response being that she and the decedent "had lived together at the farm." A death certificate was issued thereafter which recited that the decedent was "never married." Finally, there was evidence that the decedent on various occasions, the last being three days before his death, had told a friend that he and Yoder did not intend to marry.1 One who reviews the record of the hearing before the Register of Wills must of necessity conclude that Yoder's evidence of a civil contract of marriage was inadequate to withstand close judicial scrutiny. Her evidence failed to show either constant cohabitation or a general reputation that she and the decedent had been married. The evidence which she offered, moreover, was sharply contradicted by statements and conduct of Yoder herself. At best, it can be said that her evidence of a common law marriage was inconclusive. Therefore, her claim that she was entitled to receive letters of administration as the widow of the decedent was not clearly established. 1 There was also an offer to prove that Yoder had represented herself to be a single woman when she applied for public assistance and that she had never advised the Department of Public Welfare that her status had changed. For -9- 21-03-1065 ORPHANS' COURT reasons which we are unable to comprehend, the Register of Wills refused to receive or consider evidence of admissions made by Yoder in her application for public assistance. DISCUSSION Barth argues in her brief: In the instant case, ample evidence was presented to the Register of Wills to support the decision. An Affidavit of Common Law Marriage was presented. Testimony of Elizabeth Barth as well as family and friends was likewise presented. Cards and letters were presented as exhibits which supported the common law marriage. While, the Brief of Petition [sic] cites contrary evidence, this is not enough to support reversal. Only a clear abuse of discretion would justify a finding contrary to the Register. It is submitted that evidence submitted clearly supports the Register's decision. The Judicial Code at 42 PaC.S. Section 61 05(a), provides: General rule.- The official acts, protests and attestations of all notaries public, certified under their respective hands and seals of office. . . may be received and read in evidence, as proof of the facts therein stated. Any litigant may be permitted to contradict by other evidence any such certificate. (Emphasis added.) In Bell v. Ferraro, 849 A.2d 1233 (Pa Super. 2004), the Superior Court of Pennsylvania 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 PaC.S.A. S 6105(a). In the case sub judice, Barth testified that the purpose of the notarized Affidavit of Common Law Marriage executed on April 8, 2002, was to secure health care for Gross because they "were drowning in medical debt." There were no occasions before or after that date that Barth and Gross held themselves out as husband and wife. All other documents and -10- 21-03-1065 ORPHANS' COURT writings they executed or prepared, all sworn testimony in depositions, and the sworn Affidavit of Ramona Gross in her petition for the grant of letters of administration, did not refer to them as being married. Barth's own testimony clearly contradicts the assertion in the Affidavit that she and Gross were married at Common Law. Notwithstanding what some people who testified before the Register might have thought, the record is devoid of evidence sufficient to draw a conclusion that there was a reputation of a marriage between Barth and Gross that was broad and general. Accordingly, there is not even a rebuttal presumption of the marriage notwithstanding their constant cohabitation from the early part of 1996 until his death on August 17, 2003. The facts here parallel the facts in In re Estate of Dodge, supra. We find that the Register of Wills abused her discretion in concluding that Barth, as the widow of Gross, was entitled to letters of administration. That judgment was manifestly unreasonable and the law was not applied. Absent a marital relationship with decedent, Barth is a stranger to his estate. Because there are intestate heirs, she is not entitled to letters of administration. Brokans v. Melnick, 391 Pa. Super. 21 (1989). In Estate of Osborne, 363 Pa. Super. 200 (1987), the Superior Court of Pennsylvania stated that, "upon finding that the Register abused its discretion in choosing an administrator, the Orphans' Court may determine the proper individual to act as administrator, and direct the Register to issue letters of administration to that individual." We are satisfied that letters of administration should be issued to petitioner Brian J. Gross.4 4 Decedent is survived by another brother Anthony Gross and a sister Mary Ellen Brouse. His father Anthony Gross is deceased. -11- 21-03-1065 ORPHANS' COURT Accordingly, the following order is entered.5 ORDER OF COURT AND NOW, this day of April, 2005: (1) The order of the Register of Wills of Cumberland County denying the petition of Brian J. Gross to revoke the letters of administration to Elizabeth Barth in the Estate of David M. Gross, IS REVERSED. (2) The Register of Wills of Cumberland County IS DIRECTED to revoke letters of administration to Elizabeth Barth, and on petition issue letters of administration to Brian J. Gross. By the Court, Edgar B. Bayley, J. James J. Kutz, Esquire For Petitioner Brian Gross James G. Nealon, III, Esquire For Elizabeth Barth Johnna Kopecky, Esquire For Mary Ellen Brouse and Anthony Gross :sal 5 This resolution renders moot the pending petition of Brian J. Gross to remove -12- 21-03-1065 ORPHANS' COURT Elizabeth Barth as administratrix of the Estate of David M. Gross. -13- IN RE: ESTATE OF DAVID M. GROSS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 21-03-1065 ORPHANS' COURT IN RE: PETITION TO REVOKE LETTERS OF ADMINISTRATION ORDER OF COURT AND NOW, this day of April, 2005: (1) The order of the Register of Wills of Cumberland County denying the petition of Brian J. Gross to revoke the letters of administration to Elizabeth Barth in the Estate of David M. Gross, IS REVERSED. (2) The Register of Wills of Cumberland County IS DIRECTED to revoke letters of administration to Elizabeth Barth, and on petition issue letters of administration to Brian J. Gross. By the Court, Edgar B. Bayley, J. James J. Kutz, Esquire For Petitioner Brian Gross James G. Nealon, III, Esquire For Elizabeth Barth Johnna Kopecky, Esquire For Mary Ellen Brouse and Anthony Gross :sal