J-A04040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SANDRA RUTKOWSKI, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CHARLES W. STENGER,
Appellee No. 506 WDA 2015
Appeal from the Order March 4, 2015
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD09-001894-017
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.
MEMORANDUM BY SHOGAN, J.: FILED MAY 3, 2016
Appellant, Sandra Rutkowski, appeals from the order entered on March
4, 2015, in the Allegheny County Court of Common Pleas declaring that no
common law marriage existed between Appellant and Appellee, Charles W.
Stenger. We affirm.
Appellant and Appellee met in 1987, and the parties lived together
from 1987 to 2009. When the parties’ relationship ended, Appellant filed a
complaint in equity and breach of contract seeking a division of shared
assets. Complaint, 4/9/10, at 4-10. The parties filed numerous pleadings
over the next three years. On January 28, 2014, Appellee filed a motion to
transfer this matter to the Family Division of the Allegheny County Court of
Common Pleas, and Appellee’s motion was granted in an order filed that
same day. In August 2014, Appellee filed a petition for declaratory
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judgment pursuant to 23 Pa.C.S. § 3306, requesting that the trial court find
no common law marriage existed. At a hearing held on February 24, 2015,
the parties offered conflicting testimony regarding the existence of a
common law marriage. Following the hearing, the trial court found
Appellee’s testimony to be credible and Appellant’s testimony to be
incredible. On March 4, 2015, the trial court filed an order in which it
concluded that “no common law marriage ever existed between the parties.”
Order, 3/4/15. This timely appeal followed.
On appeal, Appellant presents the following issue for this Court’s
consideration:
Whether the trial court erred and abused its discretion in its
determination that no common law marriage existed between
the parties when clear and convincing evidence was presented
that both parties had capacity and gave present intent to marry
in 1987 as well as supporting evidence of decades of continuous
cohabitation and general reputation as a married couple?
Appellant’s Brief at 5. Our standard of review in such matters is well
settled:
In reviewing a declaratory judgment action, we are limited to
determining whether the trial court clearly abused its discretion
or committed an error of law. If the trial court’s determination is
supported by the record, we may not substitute our own
judgment for that of the trial court. The application of the law,
however, is always subject to our review.
Vignola v. Vignola, 39 A.3d 390, 393 (Pa. Super. 2012) (citation omitted).
The trial court addressed common law marriage principles and
Appellant’s claim of error as follows:
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In Pennsylvania, marriage is a civil contract that can be
formed either by ceremony or common law. Staudenmayer v.
Staudenmayer, 714 A.2d 1016, 1019 (Pa. 1998).1 It has long
been established that 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.” Id. at 1020. The Pennsylvania
Supreme Court has stated that common law marriages should be
viewed with “hostility” and are “tolerated, but not encouraged.”
Id. at 1019. The Supreme Court has explained that courts
should treat common law marriages as hostile “because claims
for the existence of a marriage in the absence of a certified
ceremonial marriage present a fruitful source of perjury and
fraud.” Id.
1
The Pa. Act 2004-144 abolished common law
marriages contracted after January 1, 2005.
[Appellant] asserted that the common law marriage
was formed in November 1987. Thus, the issue was
ripe for adjudication.
Regarding what constitutes a sufficient exchange of words
to form a common law marriage, the Pa Supreme Court has
explained:
It 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 future or in
postea, but - in praesenti, uttered with a view and
for the purpose of establishing the relationship of
husband and wife.
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.
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.
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When an attempt is made to establish a marriage
without the usual formalities, the claim must be
reviewed with great scrutiny.
[Staudenmayer, 714 A.2d] at 1020-22.
In other words, a common law marriage does not come
into existence unless the parties uttered the verba in praesenti,
meaning the exchange of words in the present tense for the
purpose of establishing the relationship of husband and wife.
[Staudenmayer, 714 A.2d] at 1021. A rebuttable presumption
may be entered 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. Id. Where the parties are available to
testify, however, the party claiming a common law marriage
bears the burden of producing clear and convincing evidence of
the words exchanged. Id.
The credibility of the witnesses in this particular case holds
great significance as so much of the testimony presented was
contradictory. It is within the sole province of the trial court to
assess the credibility of witnesses. McKolanis v. McKolanic, 644
A.2d 1256, 1257 (Pa. Super. Ct. 1994). This means that “the
trial court, as the finder of fact, is the sole determiner of the
credibility of witnesses and all conflicts in testimony are to be
resolved by the finder of fact.” In re B.C., 36 A.[3]d 601, 605
(Pa. Super. Ct. 2012).
Both parties were available to testify in this case.
[Appellant] testified that she first met [Appellee] in August 1987.
Then in November 1987, [Appellant] stated that she and
[Appellee] discussed their future together. [Appellant] testified
that the parties agreed to be married while [Appellee] attempted
to get an annulment from his previous marriage. [Appellant]
stated that they celebrated this discussion by sharing a bottle of
wine.
On the contrary, [Appellee] testified that there was never
a discussion about pledging themselves to each other.
[Appellee] acknowledged that he loved [Appellant], but they
never discussed marriage. The Court finds [Appellee’s]
testimony on this issue to be credible.
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The parties did live together. During that time, the parties
shared in entertaining and attended events together.
[Appellant] testified that she told her Mother, sisters, and friends
about vows that the parties exchanged. This Court finds
[Appellant’s] testimony on this matter not credible. [Appellant’s]
own family members testified that [Appellant] and [Appellee]
were not husband and wife. [Appellant’s] brother, Gary
Rutkowski, testified that there was never a ceremony between
the parties. He stated that [Appellant] and [Appellee] never
appeared to be married. Rather, their relationship was more for
convenience rather than commitment. Cheryl Rutkowski
testified that neither party wanted to be married to the other.
[Appellant’s] sister, Elizabeth Griffin, stated that the parties
acted like a married couple, but the [Appellant] did not tell her
that they pledged themselves to be husband and wife until years
later.
[Appellant] testified that in September 1988, the parties
bought wedding bands in the Caribbean. On cross-examination,
however, [Appellant] admitted that the wedding band receipt
lists [Appellant’s] sister’s name. [Appellant] stated that
[Appellee] later bought [Appellant] a diamond ring, but she sold
it because she needed money.
[Appellant] was listed as [Appellee’s] common law spouse
on [Appellee’s] insurance. [Appellee] testified that [Appellant]
was put on his insurance and other documents so that she could
build up her credit. There was conflicting testimony as to
whether the parties also accrued a vehicle jointly. Eventually,
the parties ventured into real estate in order to make money as
landlords. When the properties were purchased, however, they
were only in [Appellee’s] name. In fact, all six of the properties
that were discussed by [Appellant] were titled solely in
[Appellee’s] name. [Appellant] acknowledged that [Appellee] is
listed as “unmarried” on all of the deeds. Additionally, a deed
transferred between the parties reflects that a transfer tax was
paid. [Appellant] testified that she did not know that married
couples were not required to pay transfer tax when they moved
property between each other despite the fact that [Appellant]
herself is a real estate agent. Of further significance is the fact
that all of [Appellee’s] tax returns for the period in question list
[Appellee] as single, unmarried.2
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2
From 1994 through 2010, [Appellee] filed his taxes
as single, unmarried. Then from 2011 through 2014,
[Appellee] filed as “married” as he had married
Shirley Stenger in October 2011.
[Appellant] stated that the parties presented themselves
as husband and wife. [Appellee] stated, however, that he never
introduced [Appellant] as his wife. The Court finds [Appellee’s]
testimony on this issue to be credible. It is supported by the
fact that the plethora of cards and love letters exchanged by the
parties never referenced each other as husband or wife. Some
of the letters were short insignificant exchanges while some
were cards for Valentine’s Day. Regardless of the occasion or
content in the card or letter, “Husband” or “Wife” was never
referenced by either party.
Further, despite [Appellant’s] assertions that the parties
were “married,” she never changed her name to Stenger. Nor
did the [Appellant] change her license or other important
documents to reflect [Appellee’s] name.
For the aforementioned reasons, this Court finds
[Appellee’s] testimony to be more credible overall than
[Appellant’s]. This Court holds that there was no verba in
praesenti; the parties never exchanged words in the present
tense for the purpose of establishing the relationship of husband
and wife. Further the evidence submitted to the Court supports
[Appellee’s] testimony that the parties did not enter a common
law marriage. [Appellant] had a heavy burden to overcome and
she failed to do so through the testimony and evidence
presented.
Trial Court Opinion, 5/6/15, at 2-6 (emphasis in original).
After careful review, we discern no error. Both parties were able to
testify, and Appellant was required to prove that words in the present tense
establishing the intention to be husband and wife were exchanged. In her
brief on appeal, Appellant focuses on the trial court’s explanation regarding
tax returns, real estate holdings, and the fact that Appellant did not take
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Appellee’s last name.1 We conclude that the trial court thoroughly
addressed the arguments made by Appellant, and we agree that Appellant’s
claims of error entitle her to no relief.
However, one aspect of Appellant’s argument the trial court did not
address in detail was a letter Appellee wrote to Appellant during their
relationship. Appellant argues that the letter reveals the existence of the
parties’ common law marriage. We disagree.
During the February 24, 2015 hearing, Appellant read the letter into
the record, and the letter was admitted into evidence without objection.
N.T., 2/24/15, at 70-71; Exhibit CC. The language of that letter is as
follows:
Hi [Appellant]. By now I should be in Canada, and you can be
sure that I miss you. But if I would have taken you, the guys
might find out that I am a wus buck or even a wimp. Just so
you don’t think so. Well, you know what they say, something or
other makes the heart grow fonder. Ha-ha. That’s supposed to
be funny. Or should I have said ho-ho-ho? Well, anyway,
another reason I am writing this note is if anything happens
to me, I am saying that this should hold up in any court of
law, that I want all of my possessions, everything that I
own, all of my money, property and coins to go to
[Appellant]. And if this letter isn’t worth anything, how
about common law in the state? Well, I don’t think
anything will happen. I miss you and I love you with all my
heart. I will be back soon so you can sing your song again,
you’re a pain in my balls. Love for ever and ever, [Appellee].
____________________________________________
1
While the trial court does mention that Appellant did not change her name
to Stenger, Trial Court Opinion, 5/6/15, at 6, this appears in one sentence
only. We conclude that this factor is but one consideration, and ultimately,
we concede it is of little significance in this Court’s analysis.
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N.T., Hearing, 2/24/15, at 70-71 (emphasis added).
We conclude that the letter may have been an attempt to draft a
holographic will or perhaps a rhetorical question regarding common law
marriage; however, it cannot be construed as verba in praesenti such that it
establishes a marriage at common law. Indeed, the only mention of
“common law” is phrased as a question—it is not a statement of fact or
demonstration of the parties’ then-existing circumstances. After reviewing
the letter, we do not discern any abuse of discretion or error of law in the
trial court’s conclusion.
For the reasons set forth above, we conclude that Appellant is entitled
to no relief. Accordingly, we affirm the March 4, 2015 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2016
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