J-S79039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    KIMBERLY L. VALENTINE,                     :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MELISSA M. WETZEL                          :       No. 790 MDA 2018

                  Appeal from the Order Entered April 12, 2018
                 in the Court of Common Pleas of Adams County
                     Civil Division at No(s): 2017-SU-0001093

BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 12, 2019

       Kimberly L. Valentine (“Valentine”) appeals from the Order declaring

that the common law marriage, which she alleged to have taken place with

Melissa M. Wetzel (“Wetzel”), is invalid.1 We affirm.

       In its Opinion, the trial court set forth the relevant factual history and

evidence underlying the instant appeal, which we adopt as though fully

restated herein. See Trial Court Opinion, 4/12/18, at 2-7.

       On October 4, 2017, Valentine filed a Complaint pursuant to sections

3301(c) and (d) of the Divorce Code, as well as economic claims. Specifically,

Valentine claimed that the parties had entered into a common law marriage

____________________________________________


1 Rule 341 provides that an appeal may be taken as of right from any final
order of a lower court. Pa.R.A.P. 341(a). In relevant part, a final order is any
order that disposes of all claims of all parties. Pa.R.A.P. 341(a)(1). The trial
court’s Order disposed of all claims of all parties, and accordingly, is final and
appealable.
J-S79039-18


on December 25, 2003, in Frederick County, Maryland.               Wetzel filed

Preliminary Objections to the Complaint, claiming that in 2003, Maryland had

not yet recognized same-sex marriage. On December 4, 2017, Valentine filed

an Amended Complaint, which additionally averred that the parties had

entered into a common law marriage in Adams County, Pennsylvania, on

December 25, 2004.           Valentine asked that the trial court declare their

marriage valid.2        Wetzel filed Preliminary Objections to the Amended

Complaint. After an evidentiary hearing, the trial court entered its April 12,

2018 Order declaring that Valentine had failed to establish, by clear and

convincing evidence, a valid common law marriage. See Trial Court Order,

4/12/18. Thereafter, Valentine filed the instant timely appeal, followed by a

court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of

on appeal.

       Valentine presents the following claims for our review:

       1. Whether the [t]rial [c]ourt abused its discretion and/or made
          an error of law when it concluded, against the weight of the
          evidence, that no common law marriage existed[?]

       2. Whether the [t]rial [c]ourt abused its discretion and/or made
          an error of law when it concluded, against the weight of the
          evidence, that the evidence did not establish that the parties
          intended to enter into a marriage contract[?]

Brief for Appellant at 4.


____________________________________________


2 See 23 Pa.C.S.A. § 3306 (allowing a party or parties to the marriage to file
a declaratory judgment action seeking a declaration that the marriage is valid
or invalid).

                                           -2-
J-S79039-18


      Valentine first claims that the clear and convincing evidence established

that she and Wetzel had entered into a common law marriage contract, “and

that they intended to, and indeed did, live as a married couple for

approximately 13 years.” Id. at 12. Valentine acknowledges that the trial

court “point[ed] to contradictory accounts of the parties’ witnesses in holding

that the parties had failed to “utter present tense words sufficient to establish

a marital contract.” Id. Valentine argues, however, that this is not fatal to

her claim of a common law marriage. Id. According to Valentine, she put

forth evidence that she had presented Wetzel with a ring and had asked Wetzel

to “be mine”; the parties purchased a home and moved to Adams County; the

home was to be for their blended family; they purchased rings in 2004; and

on December 25, 2004, they exchanged the rings and reaffirmed their

intention to live as a married couple. Id. at 13-14.

      Valentine further argues that it was unreasonable for the trial court not

to consider corroborating evidence of their common law marriage. Id. at 15.

Valentine directs our attention to evidence that she and Wetzel cohabitated

continuously from November 2004 until May 2017; they had a joint insurance

policy for the home; they comingled their money and had joint bank accounts;

they started a business together; they celebrated their anniversary every year

and exchanged anniversary cards; they were jointly named on bills; Wetzel

named Valentine a beneficiary on her accounts; and each had executed a will

designating the other as beneficiary and power-of-attorney. Id. at 15-16. In


                                      -3-
J-S79039-18


addition, Valentine claims that she publicly introduced Wetzel as her “wife,”

and the two attended social events as a married couple. Id. at 17.        Finally,

Valentine directs our attention to evidence that her daughter considered

Wetzel to be a step-parent; Wetzel was listed on the school emergency contact

card; and Wetzel attended school functions as a parent. Id.

     As this Court has explained,

        [w]hen reviewing the decision of the trial court in a
        declaratory judgment action, our scope of review is narrow.
        O’Brien v. Nationwide Mutual Insurance Co., 455 Pa.
        Super. 568, 689 A.2d 254, 257 (1997). Consequently, we
        are limited to determining whether the trial court’s findings
        are supported by substantial evidence, whether an error of
        law was committed or whether the trial court abused its
        discretion, Walker v. Ehlinger, 544 Pa. 298, 300 n.[]2, 676
        A.2d 213, 214 n.[]2 (1996).

        The test is not whether we would have reached the same
        result on the evidence presented, but whether the trial court’s
        conclusion can reasonably be drawn from the evidence.
        Where the trial court’s factual determinations are adequately
        supported by the evidence we may not substitute our
        judgment for that of the trial court. Clearfield Volunteer
        Fire Department v. BP Oil, 412 Pa. Super. 29, 602 A.2d
        877, 879 (1992), appeal denied, 531 Pa. 650, 613 A.2d 556
        (1992) (citations omitted).

PARC Holdings, Inc. v. Killian, 785 A.2d 106, 110 (Pa. Super. 2001)

(quoting Fred E. Young, Inc. v. Brush Mt. Sportsmen’s Ass’n, 697 A.2d

984, 987 (Pa. Super. 1997). Moreover, the

        findings of the trial judge in a non-jury case must be given
        the same weight and effect on appeal as a verdict of a jury
        and will not be disturbed on appeal absent error of law or
        abuse of discretion. When this [C]ourt reviews the findings of
        the trial judge, the evidence is viewed in the light most
        favorable to the victorious party below and all evidence and

                                     -4-
J-S79039-18


        proper inferences favorable to that party must be taken as
        true and all unfavorable inferences rejected.

PARC Holdings, Inc., 785 A.2d at 110 (citation omitted).

      In its Opinion, the trial court set forth the applicable law, addressed

Valentine’s claim, and concluded that it lacks merit. See Trial Court Opinion,

4/12/18, at 7-12. We agree with and adopt the sound reasoning of the trial

court, and affirm on this basis with regard to Valentine’s claim. See id.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/12/2019




                                    -5-
                                                                               Circulated 02/14/2019 04:24 PM




   IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
                              CIVIL


K.L.V.,                                                      2017-5-1093
                 Plaintiff

                     v.

M.M.W.,
                 Defendants




                                             OPINION
          K.L.V. (hereinafter "Kimberly") seeks a declaratory judgment from this Court to

establish that she and M.M.W (hereinafter "Melissa") established a valid common law marriage

on December 25, 2004, which will then allow Kimberly to proceed with her Amended Complaint

in Divorce. For the reasons stated below, Kimberly has failed to establish, by clear and

convincing evidence, that the parties entered into a common law marriage on December 25,

2004.

                                   PROCEDURAL HISTORY


          Kimberly filed a Complaint under Sections 3301(c) and (d) of the Pennsylvania Divorce

Code on October 4, 2017, along with related economic claims. The parties are the same gender.

In her Complaint, Kimberly verified under penalty of unswom falsification that the parties

entered into a common law marriage on December 25, 2003 in Frederick County, Maryland.

Melissa filed a timely Preliminary Objection to Kimberly's Complaint, alleging a lack of subject

matter jurisdiction, because Maryland did not recognize same-sex marriage in 2003. No Answer

was filed. Without leave of Court, Kimberly subsequently filed an "Amended Complaint In




                                                  1
Divorce Seeking Declaratory Judgment of Common Law Marriage" on December 4, 20171• In

her Amended Complaint, Kimberly averred alternatively that the parties entered into a common

law marriage on December 25, 2004 in Adams County, Pennsylvania, and requested this Court

to declare their marriage valid, pursuant to 23 Pa. C.S.A. §33062. Melissa filed a Preliminary

Objection to Kimberly's Amended Complaint on January 3, 2018, again alleging lack of subject

matter jurisdiction. Specifically, Melissa argues that Kimberly's Amended Complaint should be

dismissed because no marriage license has been produced and because Pennsylvania did not

recognize same-sex marriage in any format, including in the context of common law marriage,

until 2014. Briefs were timely filed. Kimberly stated in her brief that she "may concede that

Maryland does not recognize common-law marriage", which would render her initial divorce

complaint moot. This Court held an evidentiary hearing on January 19, 2018.

                                        FACTUAL BACKGROUND

         Kimberly and Melissa greatly dispute the extent of their relationship and the events that

transpired during their time as a couple. They commenced a romantic dating relationship on or

about August 15, 2003. They lived together as same-sex domestic partners in Adams County

from sometime in late 2003/early 2004 until they separated in May of 2017. They did not obtain

a marriage license in any state after same-sex marriage became legally recognized. 3

         During the evidentiary hearing Kimberly testified that, on Christmas Day 2003 in

Maryland, she gave Melissa "a sapphire and diamond ring and asked her to be mine". The



1
  See Pa. R.C.P. No. 1033.
2
  § 3306. Proceedings to determine marital status. 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.A. §3306.
3
  The U.S. District Court's landmark decision in Whitewood v. Wolf effectively legalized same-sex marriage in
Pennsylvania in 2014. Id., 992 F.Supp.2d 410 (M.D. Pa. 2014).

                                                           2
parties were residing in separate residences in Maryland at that time. Kimberly testified that the

parties acquired real estate in Adams County in November of 2004, moved in together, and

decided to enter into a common law marriage on December 25, 2004 in their new home.

Kimberly's testimony is consistent with her amended complaint but contradicts her averment in

her original divorce complaint, wherein she verified under penalty of unswom falsification that

the parties established a common law marriage exactly one year prior to that in Maryland.

Kimberly attempted to reconcile her various versions of events by testifying that she and Melissa

were engaged to be married on Christmas Day 2003 and then "re-exchanged" rings on Christmas

Day 2004. Melissa agrees that Kimberly gave her the sapphire and diamond ring in December of

2003, but maintains that it was a Christmas gift, not part of a marriage proposal. There were no

other witnesses to verify the circumstances surrounding the gift of the ring on Christmas Day

2003 in Maryland.

        Kimberly testified that Melissa purchased wedding bands for them both in contemplation

of marriage, and on Christmas Day 2004, these bands were exchanged and vows were promised

between them. Kimberly wore a band style ring during the hearing, but acknowledged that it was

not the band that Melissa gave her in 2004. When asked to identify the specific verbiage of the

vows, Kimberly testified "just something about love and cherish and we pretty much just put the

rings on each other's finger." There were no witnesses to this alleged exchange, not even

Kimberly's daughter, T.C., who resided with the couple at the time. The event was not

memorialized by photographs or recordings. Kimberly testified, "Well, I have never been

married, but I felt like we lived as a married couple" after that occasion.

        In further support of her position, Kimberly presented testimony from a friend who met

the couple in 2008. She stated that Kimberly introduced Melissa to her as her wife and Melissa



                                                  3
did not object to that appellation. The witness and her husband socialized with the couple, who

wore what appeared to be wedding rings, and spoke of co-parenting Kimberly's daughter.

        Melissa's perspective is diametrically opposed to Kimberly's. She testified that there

was never an exchange of wedding bands or vows, and that Christmas Day 2004 was not a date

of significance to her. Having recently been through a difficult divorce from her husband, she

did not intend to be bound by the bonds of matrimony again. She testified that the parties bought

rings for themselves, but not in anticipation of entering into a marriage contract. A photograph

of the couple on a cruise in 2012 shows Melissa wearing rings on the ring finger of her left hand.

Kimberly's hands are obscured. Plaintiff's Exhibit 3. Kimberly's daughter, T.C., who lived with

the parties for the majority of their relationship, and viewed Melissa as her stepmother, testified

that her mother gave jewelry as a gift to Melissa every Christmas. T.C. corroborated Melissa's

testimony that that the parties celebrated their anniversary in August, which is the month they

began dating, not on the alleged wedding date in December. This is further corroborated by a

screenshot of Melissa's facebook page introduced into evidence by Kimberly. Plaintiff's Exhibit

I. Melissa's relationship status is designated as "in a domestic partnership with [Kimberly] since

August 15, 2003". The undated anniversary greeting cards introduced by Kimberly evidence a

loving and committed relationship between the two parties, but do not denote a specific

anniversary date to support Kimberly's position as to the date of marriage or that the parties

considered themselves married to one another. Kimberly also presented a copy of Melissa's

father's obituary, dated 2011, which acknowledges Kimberly by name as Melissa's "partner?'.

Plaintiff's Exhibit 16. Kimberly testified that she introduced Melissa to people "mostly as my


4
 As indicated in testimony, prior to the legalization of same-sex marriage, it was not uncommon for same-sex
couples in committed relationships to refer to one another as a "partner", "friend", "domestic partner", etc. The
use of these monikers, in and of itself, does not automatically discount the potential for the existence of a
common law marriage.

                                                        4
partner". In his durable health care power of attorney dated January 2, 2014, Kimberly's father

identified Melissa as his "daughter-in-law" and gave her decision making authority. Plaintiff's

Exhibit 15. Melissa presented testimony from her mother and her employee, who testified that

the women were not married and did not have a reputation in the local community as being

married.

       The parties also dispute when they began cohabitating and the nature of their living

arrangement as it existed throughout the course of their relationship, particularly surrounding the

December 25, 2004 alleged date of marriage. By deed dated November 29, 2004, Melissa took

title as a single woman to property located on Bullfrog Road in Adams County. Defendant's

Exhibit 2. The homeowner's insurance policy issued December 7, 2004 lists both parties as

policy holders on page 1, both with a Maryland mailing address, but Melissa is listed as the sole

policy holder on page 3. Plaintiff's Exhibit 11. Kimberly testified she and Melissa moved into

that residence together in November 2004, along with T.C. and Kimberly's father. Kimberly

produced a photograph from Melissa's scrapbook with a caption purportedly indicating that they

all moved in together as a single family unit. Plaintiff's Exhibit 2.

       In contrast, Melissa testified she intended to remain living in Thurmont for a time after

the purchase of the property. Melissa produced copies oflease agreements to demonstrate that

she purchased the Bullfrog Road property with the intention to rent it to Kimberly and her father,

to assist them as they were being imminently displaced from their previous home. Kimberly

testified that Melissa requested these leases be signed so that Melissa could gain financial

leverage to obtain additional real estate, which Melissa denies. The lease agreements, signed on

November 30, 2004, designate Melissa as landlord and Kimberly and her father as tenants.

Interestingly, the preambles of the 2004 lease agreements state that Melissa was "of Fairfield",



                                                  5
not Thurmont, in contradiction to Melissa's testimony. Furthermore, these leases were renewed

by the parties on November 30, 2005, after Melissa testified that she already begun residing at

that property. Defendant's Exhibit 18.

       Also corroborating Kimberly's testimony, the parties jointly made written application to

Adams Electric Cooperative for electrical service to the property, designating on the form that

the property is "one hundred percent personal residence use (YOUR PRIMARY RESIDENCE)",

instead of checking "rental property" in section 3 of the form. Melissa and Kimberly signed this

form on December 3, 2004. Melissa paid the requisite application fee. Plaintiff's Exhibit 13.

Examining all of the evidence related to cohabitation arrangement of the parties, however

conflicting, it appears that Melissa purchased the property with the intent to reside there with

Kimberly, while using the appearance of lease income to bolster her financial position.

       To further demonstrate the living arrangement and the nature of the parties' relationship,

Kimberly introduced an agreement dated March 22, 2005 in which Melissa gave Kimberly 50%

ownership interest in the equity of the Bullfrog Road home. Plaintiff's Exhibit 18. Kimberly

asserted that this agreement was not executed concurrently with the purchase of the home

because Kimberly's negative credit issues prevented her from being a mortgagor and having her

named placed on the deed. Notwithstanding that, she insisted that it was the implicit

understanding of the parties that Kimberly was an equal owner of the property at the time it was

purchased. To date, Kimberly's name has never been added to the deed. The existence of this

agreement shows an intent to commingle an asset and a certain level of commitment between the

parties, but is not conclusive proof that the parties were married.

       The parties had a joint bank account and some joint bills during the course of their

relationship. They jointly acquired a vehicle in April of 2005. Kimberly asserts that this conduct



                                                  6
is consistent with that of a married couple. Melissa avers that this is consistent with committed

partners residing together, but is not evidence of a marriage contract. To support her argument,

Melissa produced bills and accounts that list the parties' marital status as "single" after the

alleged date of marriage, including an auto insurance policy issued on September 24, 2007.

Defendant's Exhibit 4. Melissa produced her 2010 United States Census questionnaire, wherein

she referred to Kimberly as a household member and marked the "unwed partner" box instead of

the "husband or wife" box. She further designated Plaintiff's Father as a household member and

marked the "Other nonrelative" box instead of "Parent-in-law" box. Defendant's Exhibit 5.

Melissa introduced a 2010 article from the local community newspaper, drafted by her aunt,

which refers to Kimberly as a "friend" of Melissa. Defendant's Exhibit 6. Melissa is very close

with her aunt, thus her aunt would have known her marital status. This newspaper article is also

indicative of how the parties held themselves out to the local community. Melissa, a certified

public accountant, prepared both parties' tax returns throughout the course of their relationship.

She produced Kimberly's tax returns, including those filed in 2015 and 2016, which designate

Kimberly as "head of household" claiming her daughter and her father as dependents, but not

claiming a spouse. Defendant's Exhibits 9, 10. Melissa produced several more documents dated

in 2011, wherein she indicated she was single and that Kimberly was her "non-spouse" and

"friend", to further demonstrate that she represented herself as a single woman and that Kimberly

was merely a romantic partner and a friend.

                                       APPLICABLE LAW

        Two types of marriage exist in Pennsylvania, ceremonial and common law.

Staudenmayer v. Staudenmayer, 552 Pa. 253, 714 A.2d 1016 (1998). Ceremonial marriage is a

wedding or marriage performed by a religious or civil authority with the usual or customary



                                                   7
ceremony or formalities. Id., see also 23 Pa.CS.A.§ 1501 et seq. Common law marriages

entered into after January 1, 2005 have been declared invalid by statute, but this abolishment was

not made retroactive. 23 Pa. C.S.A. §1103.5 Thus, it remains possible for a valid common law

marriage to have been established on or before January 1, 2005. The case of In re Estate of

Carter extended the right to establish common law marriage to same-sex couples. In doing so,

our Superior Court explained, "because opposite-sex couples in Pennsylvania are permitted to

establish, through a declaratory judgment action, the existence of a common law marriage prior

to January 1, 2005, ... same-sex couples must have that same right." In re Estate of Carter, 159

A.3d 970, 977-78 (Pa. Super. 2017). To deprive one party the opportunity to establish rights as

the other party's common law spouse, simply because they are a same-sex couple, "would

violate both the Equal Protection and Due Process Clauses of the Fourteenth Amendment." Id.

        When the validity of a marriage is denied, a party to the alleged marriage "may bring an

action for 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

by decree of the court and ... the declaration shall be conclusive upon all persons concerned." 23

Pa. C.S.A. §3306. The burden to prove a common law marriage is on the party alleging the

marriage. PPL v. Workers' Compensation Appeal Bd., 5 A.3d 839 (Pa. Cmwlth. 2010).

        Typically, verba in praesenti (words in the present tense) spoken between putative

spouses are required for a valid common law marriage. It is the present intent of parties to the




5
  "The Act of November 24, 2004, P.L. 954 (Act 144), amended Section 1103 of the Marriage Law to provide as
follows: '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.' 23 Pa.C.S. § 1103. In light of the Legislature's action, this Court has determined that any common
law marriage contract entered into prior to January 1, 2005 remained valid .... " PPL v. Workers' Compensation
Appeals Bd., 5 A.3d 839, 843-44 (Pa. Cmwlth. 2010)(citations omitted)


                                                          8
marriage contract which is crucial and not form of words used. David v. Bellevue Locust

Garage, 12 Pa.Cmwlth. 602, 607, 317 A.2d 341, 343 (1974). In cases when one party is

unavailable to testify regarding the verba in praesenti, there is a rebuttable presumption in favor

of common law marriage when the burdened party proves constant cohabitation and a reputation

of marriage. PPL v. Workers' Compen. App. Bd., supra; see also, In re Estate of Carter, 159

A.3d 970, 979 (Pa. Super. 2017). However, the reliance on such a presumption based upon proof

of cohabitation and reputation is only proper where direct evidence of the alleged marriage

agreement is unavailable. Id. Where both putative spouses are available to testify, as in the

instant case, this presumption does not apply.

       "Common-law marriage claims are reviewed with great scrutiny." Elk Mountain Ski

Resort, Inc. v. Workers' Compensation Appeals Bd., 114 A.3d 27 (Pa. Cmwlth. 2015). The

exchange of verba in praesenti, spoken with the specific purpose of creating the legal

relationship of marriage "is a heavy burden and must be established by clear and convincing

evidence" of the exchange of words creating the marriage contract. Id. The clear and

convincing evidence standard is the highest standard of proof utilized in civil proceedings,

requiring "evidence that is so clear, direct, weighty, and convincing as to enable the [trier of fact]

to come to a clear conviction, without hesitancy, of the truth of the precise facts [in] issue." In re

Vencil, 638 Pa. 1, 152 A.3d 235, footnote 1 (Pa. 2017), citations omitted. "When faced with

contradictory testimony regarding verba in praesenti, the party claiming a common law marriage

may introduce evidence of constant cohabitation and reputation of marriage in support of his or

her claim." Studenmayer, 714 A.2d at 1021.

                                           DISCUSSION
        Melissa argues that it is impossible for a same-sex common law marriage to have been

formed between the parties because common-law marriage was abolished after January 1, 2005

                                                  9
and same-sex marriage was not legalized in Pennsylvania until 2014. As In Re Estate of Carter

recognizes the ability for same gender couples to establish a valid common law marriage on or

before January 1, 2005, this argument fails. This case actually turns upon whether or not

Kimberly has met her heavy burden through the presentation of clear and convincing evidence

that the couple exchanged verba in praesenti on December 25, 2004, thereby evidencing their

intent to form a marriage contract at that moment.

       Kimberly's testimony concerning verba in praesenti exchanged between the parties was

'just something about love and cherish and we pretty much just put the rings on each other's

finger". Tr. At 15. Melissa denies that this occurred at any time during the parties' relationship.

There are no witnesses, nor any documentation to corroborate Kimberly's version of events.

Melissa's testimony regarding the couple celebrating their anniversary in August, not December,

was corroborated by T.C. Further undermining Kimberly's credibility are her two divorce

complaints, both signed under penalty of unsworn falsification, wherein she cites two different

marriage dates in two different locations, compounded by her testimony that the 2003 alleged

wedding date was actually the day that she proposed marriage to Melissa, then stating that they

"re-exchanged rings" on the second alleged wedding date in 2004.

       In an effort to overcome the conflicting testimony regarding the existence of verba in

praesenti, Kimberly presented credible evidence of constant cohabitation by the parties from late

2003/early 2004 until 2017. See Staudenmayer, supra. However, "cohabitation between

unmarried people today does not carry with it the same social taboo as when the common law

marriage doctrine was developed", and is perhaps less indicative of parties to be married spouses

"than it was fifty or one hundred years ago." Id., 714 A.2d at 1023. "Since people live together




                                                 10
without intending to marry there must be proof of an agreement to enter into the relationship in

order to establish that the parties are married." Hertz v. Hertz, 23 Pa. D. & C.3d 55 (1981).

         The parties presented conflicting evidence regarding whether they had a reputation for

marriage that was broad and general. Some people thought they were married. Melissa's family

members believed they were not married. Melissa's father's obituary referred to Kimberly as

Melissa's "partner" and an article written by Melissa's aunt referred to Kimberly as Melissa's

"friend". In contrast, Kimberly's father referred to Melissa as his daughter-in-law.   Pertinent to

determination of whether a marriage exists is how the parties themselves view the relationship.

Id. Melissa provided a number of documents to demonstrate her intention to remain an

unmarried person throughout the course of the relationship.

         Kimberly's evidence falls short of meeting the heavy burden of being clear and

convincing. Melissa's testimony regarding lack of the exchange of verba in praesenti is more

credible than Kimberly's vague, uncorroborated assertion. The two accounts directly contradict

one another. T.C. 's testimony corroborates Melissa's version of the relationship, particularly

with respect to the date they celebrated their relationship. There is not clear and convincing

evidence that verba in praesenti were exchanged. The evidence regarding constant cohabitation

of the parties and their reputation in the community also falls short of substantiating Kimberly's

claim.

         It is clear that Kimberly and Melissa once loved and cared for one another. They forged

a loving, committed domestic partnership and close friendship for approximately 13 years. They

lived under the same roof, slept together, commingled assets and liabilities, and started a

landscaping business together. They exchanged gifts and greeting cards to recognize important

and romantic occasions. They socialized with other couples. They took care of each other.



                                                 11
While these behaviors are undertaken by married couples, they are also undertaken by many

unmarried couples. None of these circumstances, in whole or in part, demonstrate an intent by

the parties to enter into a marriage contract on December 25, 2004.

                                        CONCLUSION
       Kimberly has failed to establish, by clear and convincing evidence, that she and Melissa

entered into a common law marriage on December 25, 2004. Therefore, Melissa's Preliminary

Objections to the Complaint and Amended Complaint are sustained for the reasons stated herein.

A valid common law marriage has not been established. An Order and Decree shall be entered

accordingly.

                                     BY THE COURT,


Date: April 12, 2018
                                     Christina M. Simpson, Judge




                                                12
