J-S48029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF DENNIS SMITH, IN THE SUPERIOR COURT OF
DECEASED PENNSYLVANIA
v.
APPEAL OF: JEANETTE SHIRES
No. 280 MDA 2017
Appeal from the Order Entered January 10, 2017
In the Court of Common Pleas of Lycoming County
Orphans' Court at No: 41-16-0105
BEFORE: OTT, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 09, 2017
Appellant, Jeanette Shires, appeals from the January 10, 2017
orphans’ court order denying her request for letters of administration of the
estate of Dennis Smith (“Decedent”). We affirm.
Decedent died intestate on January 31, 2016. The orphans’ court
appointed an administrator, subsequent to which Appellant, on March 23,
2016, filed a caveat in which she requested letters of administration as the
Decedent’s surviving spouse. The orphans’ court conducted two days of
hearings, on July 15, 2016 and August 19, 2016. The orphans’ court denied
relief by order of January 10, 2017. Appellant filed this timely appeal on
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* Retired Senior Judge assigned to the Superior Court.
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February 9, 2017.1 Appellant raises one issue: “Whether the [orphans’]
court erred as a matter of law in failing to find [Appellant] to be the common
law wife of [Decedent], when evidence of verba in praesenti was presented
and not contested by the Estate?” Appellant’s Brief at 4.
The applicable standard of review requires this court to be
“deferential” to an orphans’ court’s findings. In re Fielder, 132 A.3d 1010,
1018 (Pa. Super. 2016), appeal denied, 145 A.3d 66 (Pa. 2016).
[T]this Court must determine whether the record is free
from legal error and the court’s factual findings are supported by
the evidence. Because the [o]rphans’ [c]ourt sits as the fact-
finder, it determines the credibility of the witnesses and, on
review, we will not reverse its credibility determinations absent
an abuse of that discretion.
Id. “The [o]rphans’ [c]ourt decision will not be reversed unless there has
been an abuse of discretion or a fundamental error in applying the correct
principles of law.” Id.
Our Supreme Court addressed the doctrine of common law marriage in
Staudenmayer v. Staudenmayer, 714 A.2d 1016 (Pa. 1998) (plurality).2
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1 We exercise jurisdiction pursuant to Pa.R.A.P. 342(a)(5) (“An appeal may
be taken as of right from the following orders of the [o]rphans’ [c]ourt
Division: […] An order determining the status of fiduciaries, beneficiaries,
or creditors in an estate[.]”)
2 Six justices participated in Staudenmayer. Justice Newman authored the
majority opinion, joined by Chief Justice Flaherty and then-Justice Cappy.
Justice Nigro, joined by then-Justice Castille, authored a concurring opinion.
Justice Nigro wrote: “I concur in the Majority Opinion. However, I would go
one step further and advocate the abolition of common law marriage in this
(Footnote Continued Next Page)
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Marriage in Pennsylvania is a civil contract by which a man
and a woman take each other for husband and wife. There are
two kinds of marriage: (1) ceremonial; and (2) common law. A
ceremonial marriage is a wedding or marriage performed by a
religious or civil authority with the usual or customary ceremony
or formalities.
Because claims for the existence of a marriage in the
absence of a certified ceremonial marriage present a fruitful
source of perjury and fraud, Pennsylvania courts have long
viewed such claims with hostility. Common law marriages are
tolerated, but not encouraged. While we do not today abolish
common law marriages in Pennsylvania, we reaffirm that claims
for this type of marriage are disfavored.
Id. at 1019–20 (internal citations and quotation marks omitted).
Common law marriages must be created by verba in praesenti, that is,
“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. No specific form of words is required. Id. Absent evidence of
verba in praesenti, the proponent of the common law marriage may enjoy a
rebuttable presumption upon proof of “(1) constant cohabitation; and, (2) a
reputation of marriage which is not partial or divided but is broad and
general.” Id. Proofs concerning the rebuttable presumption become
necessary where one party to the marriage is deceased. In that case, direct
(Footnote Continued) _______________________
Commonwealth[.]” Staudenmayer, 714 A.2d at 1022 (Nigro, J.
concurring). Then-Justice Zappala concurred in the result only. Thus, it
appears that five Justices supported the rationale of Justice Newman’s
majority opinion. We observe that our General Assembly abolished common
law marriages contracted after January 1, 2005. 23 Pa.C.S.A. § 1103.
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testimony of verba in praesenti is unavailable because the Dead Man’s Act3
prohibits the surviving spouse from putting words in the mouth of the
deceased. Id. at 1021.
Instantly, Appellant testified as to the verba in praesenti between she
and Decedent without objection from the Appellee Estate (the “Estate”). In
Appellant’s view, the Estate’s failure to object under the Dead Man’s Act
renders her testimony of verba in praesenti uncontested. She therefore
argues that the orphans’ court erred in denying her request for letters of
administration as the surviving spouse. Appellant’s Brief at 11-12.
The orphans’ court summarized Appellant’s testimony as follows:
[Appellant] testified that Decedent was her husband. They
began dating in 1974 and Decedent moved in with her in 1987
(i.e. twenty-nine years ago). She testified that shortly
thereafter, he paid for a ring for her and she bought him a ring
and when they exchanged rings, he said ‘forever.’ She also
testified that Decedent told her that they were just as married as
any other couple but did not have the paper that said it.
[Appellant] went on to testify regarding Decedent’s
involvement with her family life, including walking her niece
down the aisle and dancing the father daughter dance with her
niece at the wedding. [Appellant] testified that she called
Decedent ‘sweetie’ and ‘significant other.’ She testified that they
did not spend time with his family, that in fact he had never
introduced her to his family.
[…]
[Appellant] was unable to testify to an exact date that the
rings were exchanged, however, and she did not produce the
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3 See 42 Pa.C.S.A. § 5930.
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ring or Decedent’s ring at either hearing. [Appellant] submitted
only one exhibit, an invitation to a wedding in 2006 that was
addressed to ‘Mr. and Mrs. Denny Smith’ [at the address of the
couple’s alleged cohabitation]. Further, [Appellant] admitted
that she and Decedent held no joint bank accounts. She
testified that Decedent gave her money ‘for the light bill, the fuel
bill, and if I needed help on something else he would help me
with that, too.’ Finally, she testified that they both had vehicles
titled solely in their own names.
Orphans’ Court Opinion, 1/10/17, at 1-2, 11-12.
The orphans’ court also noted that the Estate introduced emergency
clinic records on which the Decedent identified his younger sister as his next
of kin. Id. at 12. Decedent’s younger sister was listed as the beneficiary on
his life insurance policy. On other emergency clinic records, the Decedent
listed Appellant as his next of kin but described her as a friend, and he did
not list the address of their alleged cohabitation as his home address. Id.
Decedent’s tax returns identified him as single and did not list the address of
alleged cohabitation. Id. Appellant does not dispute these facts.
The parties and the orphans’ court relied heavily on Staudenmayer,
and we agree that Staudenmayer is on point and controlling.
Staudenmayer, like the instant matter, involved a claim of verba in
praesenti rather than the rebuttable presumption of marriage.
Staudenmayer was an equitable distribution case in which the wife alleged
that the couple contracted a common law marriage in 1978 prior to their civil
ceremony in 1984. In dispute were assets that the husband acquired prior
to the civil marriage but subsequent to the alleged common law marriage.
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Staudenmayer, 714 A.2d at 1018. The wife testified that the couple had a
joint checking account in 1978, that they owned a home as tenants by the
entirety in 1978, and that they began filing joint tax returns in 1978. Id. In
prior child support paper work, however, the wife identified herself as not
married as of the birth of the couple’s daughter, and she specified that the
couple’s marriage occurred in December of 1985, one year after the civil
ceremony. Wife was unable to recall the exact moment when she and her
husband said to each other that they were husband and wife, and wife could
not explain why the civil ceremony in 1984 was necessary if the couple was
already married. Id. at 1022.
The Supreme Court noted that the party alleging verba in praesenti
must establish by clear and convincing evidence that the couple exchanged
words “in the present tense with the purpose of establishing the relationship
of husband and wife, in other words, a marriage contract.” Id. at 1021.
The Supreme Court also recognized the orphans’ court’s authority to
determine the credibility of witnesses. Id. at 1022. Given the contradiction
between the wife’s testimony and her representations in earlier paper work
that she and her husband were not married as of the birth of their daughter,
the Supreme Court concluded that the wife failed to produce clear and
convincing evidence to meet her heavy burden of establishing a common law
marriage. Id. at 1022.
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The Supreme Court’s analysis in Staudenmayer illustrates the flaw in
Appellant’s argument. The proponent of a common law marriage cannot
prevail simply by giving his or her own account of the alleged verba in
praesenti. Rather, the proponent’s account must be clear and convincing,
and credible in the eyes of the orphans’ court. The proponent failed in
Staudenmayer because her account of the couple’s marriage contract was
vague, and because other evidence did not support her testimony. Indeed,
her claim failed even though, as of the date of the alleged common law
marriage, the couple owned joint bank accounts, filed joint tax returns,
owned a home together, and shared a surname.
Appellant’s case is considerably weaker. She alleged that the couple
exchanged rings and said “forever,” but she was unable to produce either
ring. She also could not identify the date of the alleged marriage, other than
to say it occurred in 1987. The Decedent filed single tax returns, and his tax
returns and medical records did not identify the address of alleged
cohabitation. The couple did not own a home or joint bank accounts, nor did
Appellant take the Decedent’s surname. Various exhibits indicate that
Decedent consistently identified Appellant as a friend rather than a spouse or
significant other. Appellant admitted that Decedent never introduced her to
his family. All of the foregoing undermines Appellant’s claim of common law
marriage, regardless of the Estate’s failure to lodge an objection under the
Dead Man’s Act. We therefore conclude the orphans’ court acted within its
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permissible discretion in finding that Appellant did not produce clear and
convincing evidence in support of her account of verba in praesenti.
Because Appellant offered evidence of verba in praesenti, we do not consider
whether the presumption of marriage applies. Staudenmayer, 714 A.2d at
1021. Appellant was not entitled to letters of administration as Decedent’s
surviving spouse.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2017
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