J-A30035-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: THE ESTATE OF: JOHN : IN THE SUPERIOR COURT OF
SAMUEL FITZ, DECEASED : PENNSYLVANIA
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APPEAL OF: SANDRA HOFFMAN :
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: No. 337 MDA 2019
Appeal from the Order Entered January 22, 2019
In the Court of Common Pleas of York County Orphans' Court at No(s):
6715-1697
BEFORE: DUBOW, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED JANUARY 14, 2020
Appellant, Sandra Hoffman, appeals from the order of the orphans’ court
denying Appellant’s petition for declaratory relief that she and John Samuel
Fitz, the Decedent, had entered into a valid common law marriage in
September 2003. We affirm.
Appellant and Decedent began dating in 2001, and in 2002, Appellant
moved in with Decedent at Decedent’s house in York, Pennsylvania. Decedent
died intestate on September 17, 2015, and on September 30, 2015, letters of
administration were granted to John C. Fitz, Decedent’s son.
Appellant filed the declaratory judgment petition on February 12, 2016.
In the petition, Appellant asserts that during Labor Day celebrations in
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* Retired Senior Judge assigned to the Superior Court.
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September 20031 she and Decedent announced to Appellant’s son and his
partner that they were “cohabitating and committed to each other as Husband
and Wife.” Petition ¶5. Appellant alleged that they upheld their marital
obligations to each other until Decedent’s death, including by living and
socializing together, sharing bank accounts, and providing care for each other.
Petition ¶¶7-13. Decedent’s son, the administrator of Decedent’s estate, filed
an answer to the petition stating that the estate did not oppose the petition.
A hearing was held on the petition on September 27, 2016. At the
hearing, an attorney for the Department of Revenue (Department) appeared,
but he explained that he had only been retained the day prior to the hearing;
the parties therefore agreed that Appellant would take direct examination of
the witnesses who were present, but that cross-examination would be
reserved for a future hearing after the exchange of discovery. N.T., 9/27/16,
at 3-4, 31.
At the hearing, Appellant testified that she and Decedent met in 2001,
began cohabitating in 2002, and they declared their intention to enter into a
marital agreement during the Labor Day holiday in September 2003. Id. at
6-8. Appellant provide the following testimony concerning her and Decedent’s
2003 declaration of marriage during direct examination by her counsel:
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1Appellant stated in the petition that the announcement of the agreement to
marry occurred in September 2002, but she clarified at the orphans’ court
hearing that it was in fact during the Labor Day holiday weekend of 2003.
Petition ¶5; N.T., 9/27/16, at 6.
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Q. Well, . . . [Paragraph] Number 5 [of the petition for declaratory
judgment] indicates that on September, 2nd, 2002, during Labor
Day celebrations, [Decedent]--
A. Yes.
Q. --and . . . you, announced to [Appellant’s] son and significant
other partner that they were cohabitating and committed to each
other as husband and wife. Is that statement true as an
exception?
A. It is true except the date was 2003, not 2002.
...
Q. And [in] September 2003, as we said earlier, you made a
declaration to all present, concerning the marriage that you had
contracted with [Decedent]?
A. Yes, we did.
Q. And he was present?
A. Yes, he was.
Q. He made that declaration with you?
A. Yes, he was.
Q. And can you indicate who was present during that period of
time?
A. At that time --
Q. Or at that time, I’m sorry.
A. At that time my son Chad was present and his girlfriend at that
time, Jessica Smith.
Q. Was there any [others] present?
A. No.
Id.
Appellant further testified that after she moved in with Decedent in
2002, she sold her home, and she and Decedent opened a joint home equity
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line of credit and borrowed money to remodel his home. Id. at 9-11.
Appellant and Decedent also purchased a time share together in Virginia in
2008. Id. at 10. After Appellant ultimately retired in 2013, she and Decedent
largely lived off his pension, and Decedent informed her that she would be
listed as his beneficiary on his retirement benefits. Id. at 12-13. Appellant
stated that, when Decedent’s health began to fail in 2015 and he was admitted
to University of Maryland Medical Center, they discussed the steps to formally
marry with a social worker; however, by the time her son was able to obtain
the information necessary to complete the application for the marriage license,
Decedent’s health had deteriorated to the point where he could not sign the
application. Id. at 14-15.
Chad Hoffman, Appellant’s son, testified at the hearing that he was
present during the Labor Day celebrations in 2003 when Appellant and
Decedent declared their intent to marry each other.2 Id. at 19. Hoffman also
stated that in 2015 when Decedent was ill, he assisted in Appellant and
Decedent’s unsuccessful attempt to obtain a marriage license. Id. at 20. In
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2Appellant provided the following testimony regarding the formation of the
marital relationship:
Q. Your mother had indicated that you had been present in--during
Labor Day of 2003?
A. Yeah.
Q. And that you were present for their declaration concerning their
marriage and their living together as man and wife?
A. Yes, I was.
N.T., 9/27/16, at 19.
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addition, several friends and neighbors of Decedent and Appellant testified at
the hearing regarding the couple’s behavior as husband and wife and their
reputation in the community as a married couple. Id. at 21-30.
Following the hearing, the Department filed an answer to the petition
denying that Appellant and Decedent had entered into a common law marriage
and requesting that the orphans’ court deny the petition for declaratory
judgment. Appellant and the Department then engaged in discovery
concerning the petition and entered into settlement negotiations. At an
August 20, 2018 status conference, Appellant and the Department presented
the orphans’ court a settlement agreement that was contingent on the
orphans’ court entering an order declaring that Appellant and Decedent had
entered into a common law marriage. Stipulation of Settlement, 8/14/18, ¶6.
After the status conference, the orphans’ court entered an order stating that
it was prepared to approve the settlement but could not rule on the petition
based on the incomplete record set forth at the hearing; therefore, the court
directed the parties to advise the court whether they wished to resume the
hearing or permit the court to rule on the current state of the record. Order,
8/22/18. Pursuant to that order, counsel for Appellant and the Department
each advised the orphans’ court to rule on the petition for declaratory
judgment based on the current state of the record.
On January 22, 2019, the orphans’ court entered an order denying the
petition. In the order, the orphans’ court concluded that, based on the
evidence presented at the hearing, which the court determined to be credible,
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Appellant had not met the “heavy” burden of establishing that she and
Decedent married during Labor Day weekend in 2003. Order, 1/22/19, ¶34.
The orphans’ court found “compelling” Appellant’s testimony that she and
Decedent unsuccessfully attempted to obtain a marriage license in the days
prior to Decedent’s death, stating that it did not believe Appellant and
Decedent would have attempted to marry if they had already been married.
Id. ¶¶32-33. The orphans’ court found notable that Appellant had not called
as a witness, Jessica Smith, Appellant’s girlfriend who had also been present
at the Labor Day 2003 celebration, and did not offer an explanation for her
reasons for not calling Smith. Id. ¶¶25, 31. Finally, regarding Appellant’s
and Decedent’s reputation as a married couple, the orphans’ court stated that
the descriptions of their relationship by their friends and neighbors applied to
any couple who had lived together for a long time in a romantic relationship,
but they do not indicate that the couple has taken the final, permanent step
of legally marrying. Id. ¶30. Appellant filed a timely appeal of this order.3
Appellant presents one issue for our review: “Whether based on the
evidence a Decree of Common Law Marriage should issue.” Appellant’s Brief
at 4. Our standard of review in a declaratory judgment action is
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
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3Appellant filed her statement of errors complained of on appeal on March 11,
2019, and the orphans’ court entered its opinion on March 12, 2019.
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our own judgment for that of the trial court. The application of
the law, however, is always subject to our review.
In re Estate of Carter, 159 A.3d 970, 974 (Pa. Super. 2017) (citation
omitted).
Historically, two types of marriage were recognized in Pennsylvania:
ceremonial and common law. Staudenmayer v. Staudenmayer, 714 A.2d
1016, 1019 (Pa. 1998); Estate of Carter, 159 A.3d at 974. “A ceremonial
marriage is a wedding or marriage performed by a religious or civil authority
with the usual or customary ceremony or formalities.” Staudenmayer, 714
A.2d at 1019. A common law marriage, on the other hand “can only be
created by an exchange of words in the present tense, spoken with the specific
purpose that the legal relationship of [a marital partnership] is created by
that” exchange. Id. at 1020. Effective January 24, 2005, the General
Assembly amended the Domestic Relations Code to abolish common law
marriage, but the legislature provided that common law marriages lawfully
entered into on or before January 1, 2005 would continue to be recognized.
See 23 Pa.C.S. § 1103, as amended by Act of Nov. 23, 2004, P.L. 954, No.
144; Estate of Carter, 159 A.3d at 974 & n.1.
“The proper procedure for obtaining legal recognition of a common law
marriage is the filing of a declaratory judgment action.” Estate of Carter,
159 A.3d at 974; see also 23 Pa.C.S. § 3306.4 To prove the existence of a
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4 Section 3306 of the Divorce Code provides that:
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common law marriage, a party must generally show that the couple came to
“express agreement” through words spoken in the present tense – or verba in
praesenti – “uttered with a view and for the purpose of establishing” the
marital relationship. Staudenmayer, 714 A.2d at 1020 (citation omitted).
“The requirement of ‘words in the present tense’ is designed to ensure the
existence of a present intent to marry, like the present intent established in a
formal wedding ceremony, rather than a plan to marry in the future or a claim
to have wed in the past.” Estate of Carter, 159 A.3d at 979. “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.” Staudenmayer, 714 A.2d at 1020; see also
Estate of Carter, 159 A.3d at 979.
“Even before it was abolished in 2005, common law marriage was
generally disfavored in Pennsylvania.” Estate of Carter, 159 A.3d at 978.
“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” that must be
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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 appeal, the declaration shall be conclusive
upon all persons concerned.
23 Pa.C.S. § 3306.
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reviewed with “great scrutiny.” Staudenmayer, 714 A.2d at 1019-20
(citations omitted). The party alleging the common law marriage bears the
burden of proof, and our Supreme Court has described this burden as a
“heavy” one. Id. at 1020 (citation omitted); see also Estate of Carter, 159
A.3d at 978. Thus, “where the parties are available to testify regarding verba
in praesenti, the . . . party claiming a common law marriage [must] produce
clear and convincing evidence of the exchange of words in the present tense
spoken with the purpose of establishing the . . . marriage contract.”
Staudenmayer, 714 A.2d at 1021.
On appeal, Appellant contends that her testimony regarding the
exchange of words setting forth the couples’ intentions to marry during a
Labor Day celebration in 2003, along with the confirming testimony of her son,
established that Appellant and Decedent entered into a common law marital
relationship. Appellant notes that the orphans’ court found this testimony
credible and that no contrary evidence was submitted by the Department at
the hearing. Appellant argues that the orphans’ court erred in relying on the
fact that Appellant and Decedent attempted to obtain a marriage license while
Decedent lay ill in the hospital, stating that this determination is contrary to
our decision in Estate of Carter, holding that a couple planning a future
formal wedding ceremony was “fully consistent with an existing common law
marriage.” 159 A.3d at 982.
Upon a thorough review of the record, we are not persuaded that the
orphans’ court abused its discretion in finding that Appellant had not met her
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burden of proving by clear and convincing evidence that she and Decedent
had formed a common law marriage prior to January 1, 2005. At the orphans’
court hearing, Appellant did not provide any description of the words that she
said to Decedent or that Decedent said to her that established the couple’s
present intent to marry. Instead, Appellant simply provided one word
affirmative responses to her counsel’s recitation of the pleadings in the
declaratory judgment petition. Similarly, Appellant’s son did not describe the
words that either Appellant or Decedent used to establish their marital bond
but simply indicated that he was present when these words were exchanged.
As the orphans’ court further explained, Appellant did not produce Jessica
Smith, Appellant’s son’s girlfriend and the only other witness at the 2003
Labor Day celebration, to testify at the hearing, which, as the court stated,
“could possibly have corroborated and/or more fully articulated [Appellant’s]
testimony” regarding the declaration of marriage.5 Order, 1/22/19, ¶31.
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5 In her reply brief, Appellant argues that the orphans’ court improperly found
an adverse inference based upon the absence of Smith’s testimony, because
Smith was equally available as a witness for the Department, which could have
requested that the hearing be resumed so that it could call her as a witness,
and because Smith’s testimony was cumulative of the testimony of other
parties. See Commonwealth v. Miller, 172 A.3d 632, 645 (Pa. Super. 2017)
(fact-finder may draw a “missing witness” adverse inference based on a
party’s failure to produce a witness for testimony where the potential witness
was available to only that party, the witness appears to have knowledge of
special information relevant to the proceedings, and the testimony would be
non-cumulative). Contrary to this argument, however, the orphans’ court did
not find that Smith’s testimony would have been unfavorable to Appellant but
only that Smith’s testimony could have filled in the details regarding the
alleged declaration of common law marriage that were lacking in Appellant’s
presentation of the evidence.
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While it was not necessary that Appellant and Decedent made a declaration of
common law marriage using a specific set of words, Estate of Carter, 159
A.3d at 979, the expression of the present intent to marry is an essential
aspect of the court’s analysis of whether a common law marriage was created.
Staudenmayer, 714 A.2d at 1020. The orphans’ court properly determined
in its discretion that the perfunctory testimony regarding the verba in
praesenti uttered at the 2003 Labor Day celebration did not rise to this level.
Furthermore, the orphans’ court did not err in concluding that Appellant
and Decedent’s unsuccessful 2015 attempt to obtain a marriage license while
Decedent lay gravely ill in a Maryland hospital was evidence that the couple
had not previously entered into a common law marriage contract in 2003.
Estate of Carter, which Appellant relies on for this argument, is inapposite.
In that case, a same-sex couple exchanged rings and words indicating their
intent to marry in 1997 and planned to have a “formal wedding ceremony”
and “big party” after Pennsylvania legalized same-sex marriage, but one
member of the couple died in 2013 before same-sex marriage became legal
in Pennsylvania. 159 A.3d at 973, 981-82. The trial court determined that
the couple’s expression of a future intention to formally celebrate their
marriage vitiated their 1997 common law contract, but this Court disagreed,
concluding that the plan for a future formal ceremony was “fully consistent
with an existing common law marriage.” Id. at 982. Unlike Estate of Carter,
no evidence was presented in this case that Appellant and Decedent had
planned a ceremony to celebrate their wedding with friends and family that
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they had already established through a common law agreement. Cf. id.; see
also In re Belcher’s Estate, 112 A.2d 129, 130-31 (Pa. 1955) (spouse’s
“statements relative to intention to marry related solely to a ceremonial
marriage” and therefore did not undermine the common law marriage that
had already been formed) (emphasis in original); Brandywine Paperboard
Mills v. Workers’ Compensation Appeal Board (Zittle), 751 A.2d 1205,
1206, 1208 (Pa. Cmwlth. 2000) (holding that a common law marriage was
established even though the parties had made plans to have a “church
wedding” prior to the decedent’s death). Instead, the evidence establishes
that Appellant and Decedent attempted to obtain a marriage license in
Maryland in the days prior to Decedent’s death, which the orphans’ court fairly
determined was evidence that they had not previously established a marital
relationship.
In addition, Appellant argues that even if the evidence was found lacking
as to the formation of a common law marriage in 2003, she was entitled to a
rebuttable presumption of common law marriage under our case law based on
the evidence of her cohabitation with Decedent from 2002 until Decedent’s
death in 2015 and the testimony of Appellant and Decedent’s friends and
family that the couple described themselves and were known as a married
couple. As the Department presented no contrary evidence to rebut this
presumption, Appellant asserts that this evidence should have conclusively
established the existence of the common law marriage.
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The rebuttable presumption of a common law marriage may be raised
where the proponent of the marriage demonstrates (i) constant cohabitation
by the parties and (ii) a reputation of marriage “which is not partial or divided
but is broad and general.” Staudenmayer, 714 A.2d at 1020-21 (citation
omitted); see also Carter, 159 A.3d at 979. However, this rebuttable
presumption is “is one of necessity to be applied only in cases . . . [where
there is an] inability to present direct testimony regarding the exchange of
verba in praesenti.” Staudenmayer, 714 A.2d at 1021 (citation omitted).
The rebuttable presumption is thus most often applied in the context of a claim
for a putative surviving spouse’s share of an estate where the Dead Man’s Act6
prohibits the surviving party from testifying regarding the exchange of marital
vows with the common law spouse. Id.; In re Estate of Stauffer, 476 A.2d
354, 356-57 (Pa. 1984). On the other hand, however, our Supreme Court
has held that
if a putative spouse who is able to testify and fails to prove, by
clear and convincing evidence, the establishment of the marriage
contract through the exchange of verba in praesenti, then that
party has not met its “heavy” burden to prove a common law
marriage, since he or she does not enjoy any presumption based
on evidence of constant cohabitation and reputation of marriage.
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6 42 Pa.C.S. § 5930. The purpose of the Dead Man’s Act is to “to prevent
the injustice that might flow from permitting a surviving, adverse party to
give testimony that is favorable to himself and unfavorable to the decedent’s
interest, but which the decedent’s representative is in no position to rebut.”
Schroeder v. Jaquiss, 861 A.2d 885, 889 (Pa. 2004).
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Staudenmayer, 714 A.2d at 1021.7
In the instant matter, Appellant, the surviving putative spouse, offered
her own testimony and the testimony of her son regarding the formation of a
common law marriage with Decedent. Decedent’s estate, however, notified
the orphans’ court that it was not taking a position on whether the orphans’
court should rule that Appellant and Decedent had formed a common law
marriage. In any event, no objection was made based upon the Dead Man’s
Act, and therefore the protection of that statute is waived. See Olson v.
North American Industrial Supply, Inc., 658 A.2d 358, 364-65 (Pa. Super.
1995). Accordingly, because Appellant was able to offer evidence regarding
the exchange of verba in praesenti with Decedent, the rebuttable presumption
based on cohabitation and reputation does not apply. Staudenmayer, 714
A.2d at 1021. As the orphans’ court conclusion that Appellant’s evidence
regarding the exchange of words did not meet her heavy burden did not
constitute an abuse of discretion or error of law, Appellant is entitled to no
relief on appeal.
Order affirmed.
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7 In Staudenmeyer, our Supreme Court addressed a situation where both
parties to a putative common law marriage were alive and able to testify as
to the exchange of verba in praesenti. 714 A.2d at 1021. However, as this
Court explained in Estate of Carter, the holding of Staudenmeyer is equally
applicable in cases where one party to the purported common law marriage is
deceased, but no objection is made based on the Dead Man’s Act, and
therefore the putative surviving spouse offers testimony regarding the
exchange of words. Estate of Carter, 159 A.3d at 980 n.9.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2020
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