J-A18036-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SHERRILYN D. WASHINGTON IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HARRY HAMILTON
Appellant No. 857 MDA 2013
Appeal from the Order April 9, 2013
In the Court of Common Pleas of Centre County
Civil Division at No(s): 2004-2534
*****
SHERRILYN D. WASHINGTON IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HARRY HAMILTON
Appellant No. 1582 MDA 2013
Appeal from the Order July 11, 2013
In the Court of Common Pleas of Centre County
Civil Division at No(s): 2004-2534
BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 26, 2015
Harry Hamilton appeals from an order of the Court of Common Pleas of
Centre County divorcing him from Sherrilyn D. Washington. After careful
review, we affirm.
J-A18036-14
This case began on June 8, 2004, when Washington filed a complaint
in divorce, alleging that the parties were married in the Bahamas on June 1,
1996. In her complaint, Washington also sought, inter alia, custody of the
parties’ son, who was born on August 5, 2001.
Since its inception, “this case has had a protracted procedural history
including several previous appeals to this Court and the Pennsylvania
Supreme Court.” Hamilton v. Hamilton, No. 992 MDA 2011, unpublished
memorandum at 1 (Pa. Super. filed February 22, 2012).
On January 17, 2013, Washington filed a petition for bifurcation, a
section 3301(d) affidavit and a notice to Hamilton that if he failed to file a
counter affidavit, the statements in the petition would be admitted. On the
same date she filed an affidavit of service indicating she served the petition
and affidavit by U.S. mail. On February 1, 2013, Washington filed a second
affidavit of service indicating that the petition and affidavit were also hand
delivered to Hamilton. On March 13, 2013, Washington filed a praecipe to
transmit the record to the court for entry of a divorce decree, a notice of
intention to request entry of divorce decree, a form counter affidavit for
Hamilton, and an affidavit of service for these documents indicating that she
served them by U.S. mail.
The court issued a rule to show cause on March 15, 2013, scheduling a
hearing on the bifurcation petition for April 9, 2013. A copy of the rule
returnable was mailed to both parties. Washington appeared for the
hearing, but Hamilton did not. Accordingly, on that date the court issued an
-2-
J-A18036-14
order granting bifurcation, and entered a divorce decree erroneously
referencing mutual consent pursuant to 23 Pa.C.S. § 3301(c).
On May 9, 2013, Hamilton filed a timely notice of appeal, and on July
11, 2013, the trial court issued an order vacating the divorce decree.
However, the same day the trial court issued a new divorce decree on the
grounds of irretrievable breakdown (parties having lived separate and apart
for at least two years) pursuant to 23 Pa.C.S. § 3301(d). On August 10,
2013, Hamilton filed a notice of appeal from the July 11, 2013 divorce
decree. By order filed September 25, 2013, this Court consolidated the
appeals from the April 9, 2013 and July 11, 2013 orders.
On appeal, Hamilton raises the following issues for our review:
1. Whether the court improperly exercises jurisdiction, errs as a
matter of law, abuses its discretion, or demonstrates bias
when failing to make any record essentially upholding a
challenged finding of marriage from a separate support action
in the absence of verba in praesenti expressed for the specific
purpose of creating a marriage and failing to follow rules
respecting joinder of interested parties, request for jury trial,
and the absence of a validly executed affidavit of consent?
2. Does the court err as a matter of law when entering a decree
of divorce rather than annulment based on 23 Pa.C.S. §
3304(a)(1) and the record shows no constant cohabitation
after affidavits were executed on different dates and in
different locations?
3. Does a trial court err as a matter of law when vacating a
decree and entering another decree sua sponte or upon an
unnoticed motion by one party while the initial decree is
pending appeal?
4. If the trial court does not retain jurisdiction of matters of
custody and declares all claims determined, may the parties
appeal the actions in custody and the trial court’s failure for
-3-
J-A18036-14
three years to conduct a hearing or make any of the
consideration under Title 23 Chapter 51 of the Pennsylvania
Statutes (particularly section 5328(a)(1) and (6-12) and
5331?
5. Does a trial court abuse its discretion and err as a matter of
law when exercising contempt powers after an appeal and
requiring a party to purge the contempt by providing
discovery on matters sought prior to the appeal?
Appellant’s Brief, at 6.
Hamilton first asserts that the trial court erred by entering a divorce
decree because the parties were never married. In his Pa.R.A.P. 1925(a)
opinion, the Honorable Bradley P. Lunsford relied on an opinion in a related
support matter in which the Honorable David E. Grine held that a valid
common law marriage existed between Washington and Hamilton.
Washington-Hamilton v. Hamilton, Centre County CCP No. 2004-339-S,
Trial Court Opinion, 4/27/05.
In Staudenmayer v. Staudenmayer, 714 A.2d 1016 (Pa. 1998), our
Supreme Court noted that when both parties are available to testify, the
party alleging common law marriage bears the burden of proving the
exchange of words in the present tense (verba in praesenti). Here, the court
held that although Washington testified that the captain of a cruise ship
performed a wedding ceremony for the parties in 1996, she failed to provide
any documentation in support of this claim. However, the Court noted:
Subsequent to the 1996 cruise, the parties resided together,
filed joint income tax returns, and held themselves out as
husband and wife to their families and the community at large.
Coupled to this growing reputation of marriage, in 2000 the
parties each executed an affidavit affirming their marriage.
Paragraph 2 of [Hamilton’s] affidavit states:
-4-
J-A18036-14
That I have been and currently desire to be the lawful
husband of Sherrilyn Washington. We made the
commitment and contract to marry on 1 June 1996 and
continue in our relationship of man and wife. We have
renewed our commitment to one the other several times
since then and do so again by this affidavit.
Likewise, Paragraph 2 of [Washington’s] affidavit states:
That I have been and currently desire to be the lawful wife
of Harry Hamilton. We made the commitment and
contract to marry on 1 June 1996. We have renewed our
commitment to one the other several times since then and
do so again by this affidavit.
These affidavits were duly signed and notarized on November 7,
2000, and November 3, 2000, respectively. Likewise, shortly
after these affidavits were signed, [Hamilton] applied for and
received benefits for [Washington] as his dependent. The
application made to the U.S. Army, which [Washington] signed,
acknowledged [Washington] as his wife.
***
The affidavits executed by both parties in 2000 alone are
sufficient enough for this court to conclude that [Washington]
carried her burden of establishing by clear and convincing
evidence that verba in praesenti were exchanged and that a
valid common law marriage existed between [Washington] and
[Hamilton] as of November 7, 2000.
Washington-Hamilton v. Hamilton, supra, at 7-8.
In light of the evidence before the trial court, we find no abuse of
discretion in its determination that the parties formed a common law
marriage “by an exchange of words in the present tense, spoken with the
specific purpose that the legal relationship of husband and wife [was]
created.” Staudenmayer, supra at 1020 (citing Commonwealth v.
-5-
J-A18036-14
Gorby, 588 A.2d 902, 907 (Pa. 1991)).1 Accordingly, the trial court did not
err in holding that the parties had a valid common law marriage.
Hamilton’s next argument is that the trial court erred by granting a
decree of divorce instead of an annulment. However, the section of his brief
dedicated to this issue does not discuss annulment or 23 Pa.C.S. § 3304
(grounds for annulment of void marriages). Because Hamilton has failed to
develop this issue in his brief, it is waived. See Umbelina v. Adams, 34
A.3d 151 (Pa. Super. 2011) (issues waived for lack of development where
appellant offers no citation to authority or further analysis other than
statement of argument).
Within the same section of his brief, Hamilton raises the unrelated
issue of the parties’ cohabitation. His argument is limited to the following
statements: “Hamilton could not have been co-habitating with Washington
on a constant basis and Washington testified as to sporadic co-habitation.
The Court in 04-339 also referenced the absence of constant co-habitation
noting it was sporadic.” Appellant’s Brief, at 21. Again, we find the issue
waived. See Umbelina, supra. However, we note that the “the ‘necessity’
that would require the introduction of evidence concerning cohabitation and
____________________________________________
1
23 Pa.C.S. § 1103, which became effective in 2005, provides: “No
common law marriage contracted after January 1, 2005, shall be valid.
Nothing in this part shall be deemed or taken to render any common law
marriage otherwise lawful and contracted on or before January 1, 2005,
invalid.
-6-
J-A18036-14
reputation of marriage is the inability to present direct testimony regarding
the exchange of verba in praesenti.” Staudenmayer, supra at 1021.
Here, the trial court concluded that the exchange of verba in praesenti was
established by clear and convincing evidence, and therefore no
determination with respect to cohabitation was required.
Hamilton further argues that the trial court erred by vacating the July
9, 2013 decree and entering a new decree on July 11, 2013, while the July 9
2013 decree was on appeal. With respect to this issue, we rely on the
analysis of Judge Lunsford, in which he explains:
The court took these actions pursuant to its inherent authority to
correct mistakes in its orders. Even after an appeal has been
filed, a trial court may correct patent and obvious mistakes or
supply omissions in the record. See e.g. Manack v. Sandlin,
812 A.2d 676, 681 (Pa. Super. 2002) (“We find that it was within
the inherent power of the trial court to enter a corrective order.
The fact that the correction was made more than thirty days
after entry of the original order and after the filing of a notice of
appeal is inapposite.”); see also In re K.R.B., 851 A.2d 914,
918 (Pa. Super. 2004). The error in citing § 3301(c) was a
patent and obvious defect. The affidavit clearly was filed
pursuant to § 3301(d) on the ground of irretrievable breakdown
of the marriage, not mutual consent. It is clear from hundreds
of filings over nearly a decade that [Hamilton] has denied even
the existence of a valid marriage. The court was not rendering a
new judgment about the grounds for the divorce but was merely
correcting the decree to accurately reflect the record.
Trial Court Opinion, 9/27/13, at 3-4.
Accordingly, the trial court did not err by issuing a new decree
reflecting that the grounds for divorce was irretrievable breakdown.
-7-
J-A18036-14
Hamilton further asserts a variety of claims related to custody
determinations made by the trial court with respect to the parties’ son.
However, Hamilton has not filed an appeal from a custody order. Rather, he
has filed an appeal from a final decree of divorce. It is well settled that “an
appellate court does not sit to review questions that were neither raised,
tried, nor considered in the trial court.” Commonwealth, Dep’t of
Transp., Bureau of Driver Licensing v. Boros, 620 A.2d 1139, 1143 (Pa.
1993). Because the order appealed from is limited to the issue of divorce,
we may not review issues related to custody,
Hamilton’s final issue is that the trial court erred by holding him in
contempt of a discovery order. However, it is apparent that the order on
appeal has nothing to do with discovery matters. Rather, Hamilton’s
dissatisfaction with the trial court’s handling of discovery is the subject of an
appeal docketed at 1765 MDA 2015, which is the subject of a separate
memorandum.
For the foregoing reasons, we affirm the order of the Court of Common
Pleas of Centre County.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/26/2015
-8-