J-A33038-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BOBBIE S. BROWN                                 IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

HARRY S. MAZER

                            Appellee                 No. 1430 EDA 2014


                  Appeal from the Order Entered April 29, 2014
                In the Court of Common Pleas of Chester County
                      Civil Division at No.: 2013-07667-Dl


BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                          FILED JANUARY 20, 2015

       Bobbie S. Brown appeals the trial court’s April 29, 2014 order that

granted Harry S. Mazer’s petition for declaratory judgment and dismissed

Brown’s divorce complaint. We affirm.

       The trial court summarized the procedural history of this case as

follows:

       On August 7, 2013, [Brown] filed a Divorce Complaint averring
       [that] the parties were married on May 30, 1983, by common
       law.1    [Brown] averred that the parties lived together as
       husband and wife until [Mazer] left in October 2009. On August
       23, 2013, [Mazer] filed a Petition for Declaratory Judgment to
       Determine Validity of Marriage challenging [Brown’s] averment
       that a common law marriage existed.
           1
              [Brown] stated at trial that she and [Mazer] declared
           their present intention to be married a second time on the
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
J-A33038-14


         following weekend, June 6th or 7th, 1983, at Cove Haven,
         Pennsylvania.

      A hearing on [Mazer’s] Petition was conducted on February 24,
      2014 and continued on February 28, 2014. On April 29, 2014,
      [the trial court] issued an Opinion and Order [that granted
      Mazer’s petition, found that there was no common law marriage,
      and dismissed Brown’s divorce complaint.      Brown] filed an
      appeal on May 2, 2014, and on May 7, 2014[, the trial court]
      issued a Rule 1925(b) Order. Thereafter, [Brown] properly filed
      a Concise Statement of Matters Complained of on Appeal
      [pursuant to Pa.R.A.P. 1925(b)].

Trial Court Opinion (“T.C.O.”), 7/2/2014, at 1-2 (citations to record and

some footnotes omitted).

      Brown presents one issue for our review:

      Whether conflicting testimony over words of present intent
      coupled with twenty-six years of cohabitation and substantial
      evidence of a general reputation of marriage together with
      significant documentary support admitting marriage is sufficient
      to establish that a common law marriage existed as of May 30,
      1983?

Brown’s Brief at 3.

      Our standard of review is as follows:

         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) (quoting Bianchi

v. Bianchi, 859 A.2d 511, 515 (Pa. Super. 2004)). Additionally, this Court:

         must accept findings of the trial court that are supported
         by competent evidence of record, as our role does not

                                     -2-
J-A33038-14


         include making independent factual determinations. In
         addition, with regard to issues of credibility and weight of
         the evidence, this Court must defer to the trial judge who
         presided over the proceedings and thus viewed the
         witnesses first hand.

      Hogrelius v. Martin, 950 A.2d 345, 348 (Pa. Super. 2008).
      When the trial court sits as fact finder, the weight to be assigned
      the testimony of the witnesses is within its exclusive province, as
      are credibility determinations, [and] the court is free to choose
      to believe all, part, or none of the evidence presented.

Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009) (some citations

and quotation marks omitted).

      We note that the General Assembly has abolished common law

marriage.

      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.A. § 1103.     Brown has alleged that the marriage predated the

abolition. Therefore, if proven, the common law marriage would be viable.

      Because common law marriage generally is disfavored, the burden to

prove its existence is high:

      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 such
      exchange. The burden to prove a common law marriage rests
      on the proponent of the marriage and such a claim must be
      reviewed with great scrutiny.

Bell v. Ferraro, 849 A.2d 1233, 1235 (Pa. Super. 2004).




                                     -3-
J-A33038-14



     Our Supreme Court has explained the presumptions and proof required

in cases of common law marriage as follows:

     Generally, words in the present tense are required to prove
     common law marriage. Because common law marriage cases
     arose most frequently because of claims for a putative surviving
     spouse’s share of an estate, however, we developed a rebuttable
     presumption in favor of a common law marriage where there is
     an absence of testimony regarding the exchange of verba in
     praesenti. When applicable, the party claiming a common law
     marriage who proves: (1) constant cohabitation; and, (2) a
     reputation of marriage which is not partial or divided but is broad
     and general, raises the rebuttable presumption of marriage.
     Constant cohabitation, however, even when conjoined with
     general reputation are not marriage, they are merely
     circumstances which give rise to a rebuttable presumption of
     marriage.

     Here, however, we are presented with the problem of whether
     this rebuttable presumption pertains when both parties are alive
     and able to testify regarding the formation of the marriage
     contract. We have stated that the rule which permits a finding
     of marriage duly entered into based upon reputation and
     cohabitation alone is one of necessity to be applied only in cases
     where other proof is not available. The “necessity” that would
     require the introduction of evidence concerning cohabitation and
     reputation of marriage is the inability to present direct testimony
     regarding the exchange of verba in praesenti. We held in In re
     Estate of Stauffer, 504 Pa. 626, 476 A.2d 354 (1984), that the
     Dead Man’s Act prohibited the purported wife’s testimony
     regarding the exchange of marital vows with her alleged
     common law husband. There, we noted that the inability of the
     putative widow to present any testimony regarding the exchange
     of vows did not prevent her from proving a common law
     marriage. “Where there is no such proof available,” we held,
     “the law permits a finding of marriage based upon reputation
     and cohabitation when established by satisfactory proof.” Id. at
     632, 476 A.2d at 357.

     We have not, however, dispensed with the rule that a common
     law marriage does not come into existence unless the parties
     uttered the verba in praesenti, the exchange of words in the
     present tense for the purpose of establishing the relationship of

                                    -4-
J-A33038-14


     husband and wife. We have allowed, as a remedial measure, a
     rebuttable presumption 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. However, where the
     parties are available to testify regarding verba in praesenti, the
     burden rests with the party claiming a common law marriage to
     produce clear and convincing evidence of the exchange of words
     in the present tense spoken with the purpose of establishing the
     relationship of husband and wife, in other words, the marriage
     contract. In those situations, the rebuttable presumption in
     favor of a common law marriage upon sufficient proof of
     constant cohabitation and reputation for marriage, does not
     arise.

     By requiring proof of verba in praesenti where both parties are
     able to testify, we do not discount the relevance of evidence of
     constant cohabitation and reputation of marriage. 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. We merely hold 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.

Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020-21 (Pa. 1998)

(some internal citations, quotation marks, and footnotes omitted).        Here,

because both parties are living and were able to testify, Brown must prove

that words in the present tense were exchanged, and she does not have the

benefit of a rebuttable presumption. However, evidence of cohabitation and

a reputation of marriage is permissible when, as here, there is a

disagreement about whether words were exchanged.




                                   -5-
J-A33038-14



      At the hearing, Brown testified that in May 1983, she and Mazer

exchanged words of present intent. Notes of Testimony (“N.T.”), 2/28/2014,

at 10.     Brown also said they exchanged words of present intent a second

time the following weekend. Id. at 37. Brown produced a document that

she wrote that read “Yeah were [sic] married” that was posted on a

corkboard in the parties’ apartment.     Id. at 10-11.   Brown testified that

Mazer represented himself as married to Brown on his social security

application, on medical forms, in newspaper articles and advertising for their

business, and to customers. Id. at 13, 19, 24, 25-27. Brown represented

herself as married to Mazer in her social security application. Id. at 14, 17.

Brown admitted that she filed her income tax forms as single, but claimed

that the accountant filled the forms out and she never reviewed them. Id.

at 51-52. Brown admitted that she went for a blood test in furtherance of

marrying another man, but she denied that she applied for the marriage

license.    Id. at 63-65, 67-76, 83.    Brown also presented witnesses who

testified that Brown and Mazer had a reputation of marriage.             N.T.,

2/24/2014, at 11, 15; N.T., 2/28/2014, at 86-87.

      Mazer testified that he did not exchange words of present intent with

Brown.     N.T., 2/24/2014, at 24.   He maintained that he never referred to

Brown as his wife. Id. at 73. Mazer testified that Brown periodically would

bring up the idea of getting married, but that he did not want to marry. Id.

at 105. When asked about the social security application, Mazer, upon the

advice of counsel, refused to testify and invoked his right to remain silent.

                                       -6-
J-A33038-14



Id. at 26-27, 131.    Mazer testified that certain documents that listed him

and Brown as married, such as hotel registrations, holiday cards, physician

information   and    emergency    contacts,   and     newspaper   articles    and

advertisements, were completed by Brown. Id. at 27-28, 33, 38-41, 43, 44,

46-47, 59-60, 65. Mazer also produced documents, such as a mortgage, tax

forms, and patient information forms, that he filled out indicating his marital

status as single. Id. at 105, 107-08, 109. Mazer stated that Brown drafted

his will with an attorney and he just signed it without reading it. Id. at 31-

33.

      Mazer presented a witness who testified that Brown had received a

blood test for a marriage license with another man. N.T., 2/24/2014, at 19.

The attorney who drafted the parties’ powers of attorney and medical

directives testified that Brown told him that the parties were not married and

that he would have drafted the documents differently had he believed that

the parties were married. Id. at 81-82. That same attorney testified that

Brown provided him with the language to include in Mazer’s will. Id. at 83.

When Mazer learned that the deed listed the parties as husband and wife,

Mazer directed his attorney to try to correct the deed.     Id. at 85.       Mazer

presented other witnesses who testified that the parties said they were not

married, and the witnesses did not believe that the parties were married.

Id. at 98-99, 141-44, 154-55, 161-63.

      Here, there were two contradictory stories of the parties’ relationship.

Therefore, credibility is the determinative factor.    The trial court as fact-

                                     -7-
J-A33038-14



finder makes that determination. See Mackay, supra. The trial court made

the following findings:

      Our credibility determination began with an examination of
      [Brown’s] credibility relating to the events of February and
      August 1986. It is [Brown’s] contention that at that time the
      parties had been married almost three years. Yet, by [Brown’s]
      own admission, in 1986 she presented herself to a doctor so that
      a sample of her blood could be drawn because [Brown] had the
      intention of marrying another man, Yehiel Zoor (“Mr. Zoor”) but
      she did not intend to file for divorce from [Mazer].

      Additionally, six months earlier, in February 1986, an application
      for a marriage license was filed in Philadelphia County. [Brown]
      testified that she never applied for a marriage license with Mr.
      Zoor. [Brown] believed the personal information provided for
      the application: (1) her date of birth; (2) her father’s full name;
      (3) her father being deceased; (4) her mother’s full maiden
      name; and (5) her mother’s address, was known to Mr. Zoor.
      [Brown] suggested that Mr. Zoor may have completed the
      application with a woman impersonating her. She volunteered
      that Mr. Zoor had hired a woman to make her jealous because
      [Brown] sought to end their relationship when [Mazer]
      discovered the affair.      [The trial court] found [Brown’s]
      explanation of how [the marriage license application] was filed
      without her knowledge to be implausible, especially taken
      together with her testimony that six months later she voluntarily
      submitted to a blood test in furtherance of obtaining a marriage
      license so that she and Mr. Zoor could marry.

      [The trial court] determined that [Brown], herself, did not act as
      if she believed she was married to [Mazer] when she took steps
      necessary to marry another man without seeking a divorce from
      [Mazer]. As a result, [the trial court] did not find her testimony
      that there was a common law marriage created in 1983 . . . to
      be credible.

T.C.O. at 6-7 (citations to record omitted).




                                     -8-
J-A33038-14



      Further, the trial court specifically found Mazer to be credible. While

acknowledging that both parties had not been consistent in representing

themselves as single or married, the court stated:

      Unlike [Brown’s] explanations for the inconsistencies in her
      history of events, [the trial court] found [Mazer’s] explanations
      for his inconsistencies more plausible and believable. [Mazer’s]
      most questionable actions were: (1) executing a Will without
      reading it; (2) swearing that [Brown] was his wife on a Deed
      that transferred property to the parties as married; and (3)
      declaring on a social security benefits application that [Brown]
      was his spouse. These actions may have consequences outside
      [the trial] court’s jurisdiction, but are not uncommon. Persons
      execute documents without reading them, even wills.
      Individuals misstate their marital status for short term gains; i.e.
      to obtain certain benefits or to lessen tax liabilities. There are a
      variety of motivations for misstating a marital status. In this
      case, [the trial court] found that [Mazer] acted to “keep the
      peace” between himself and [Brown].

T.C.O. at 9 (citations to record and footnotes omitted).

      Additionally, in its order and opinion, the trial court found as follows:

      [The trial court] found [Mazer] credible in his testimony that he
      executed [the will, the deed, and the social security application]
      because he was asked by [Brown] to sign them. He testified
      [Brown] filled in the information on the patient forms. He signed
      the blank forms. He testified it was [Brown] who had the Will
      drafted, and he did not read the Will before signing it. [The trial
      court] found [Mazer’s] reasons for acting as he did reasonable
      and credible.      As for the Deed and the Social Security
      Administration application, [Mazer’s] actions, in yielding to
      [Brown’s] demands, may have been unwise, but his explanation
      that he did so to “keep the peace” rings true to [the trial court].

      [The trial court found that Mazer’s] position [was] corroborated
      by evidence he presented. First, [Mazer] presented [Brown’s]
      tax returns asserting she was single for the years 2007 through
      2011. [Brown] explained that she signed but did not review the
      returns in any of those years. [The trial court] did not find this


                                      -9-
J-A33038-14


      testimony to be credible. Second, [Mazer] presented a marriage
      application filed in Philadelphia County on February 27, 1986 . . .
      and a blood test taken on August, 7, 1986 . . . . [Brown] denied
      filing for a marriage license. Again, [the trial court] did not find
      [Brown’s] explanation credible, especially in light of [Brown]
      admitting she went to have the blood test. Thus, [the trial court
      found that Brown] acted in a manner inconsistent with her
      present allegation that she was married in May 1983.

Trial Court Opinion and Order, 4/29/2014, at 8.

      Based upon our review of the record, the trial court did not abuse its

discretion in rendering its credibility determinations. It is clear that the trial

court considered all of the testimony in reaching those conclusions. Further,

the record supports the trial court’s conclusions that, based upon those

credibility determinations, the evidence did not suffice to meet the burden of

proof required to establish a common law marriage.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2015




                                     - 10 -
