J-A35018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHRISTINE LAYTON,                                  IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                          Appellant

                     v.

DWAYNE DREAKFORD,

                          Appellee                      No. 303 WDA 2014


               Appeal from the Order entered August 12, 2013,
               in the Court of Common Pleas of Butler County,
                 Civil Division, at No(s): F.C. No. 12-90349-D


BEFORE: BENDER, P.J.E., BOWES and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                           FILED DECEMBER 29, 2014

      Christine Layton (“Appellant”) appeals from the trial court’s order

dismissing    her   complaint    for   divorce     against   Dwayne   Dreakford

(“Dreakford”). We affirm.

      On May 23, 2012, Appellant filed a complaint in divorce, in which she

requested the trial court to determine that she and Dreakford had previously

entered into a common law marriage.              Appellant also filed a separate

complaint for support.    In response, on March 13, 2013, Dreakford filed a

petition for declaratory judgment, in which, among other things, he denied

that a common law marriage existed between the parties. On May 10, 2013,

the trial court held an evidentiary hearing at which the parties, as well as

Appellant’s father, testified.

      The trial court made the following findings of fact:
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          [The parties] met and began dating in 1991. [They]
       began living together in 1994. The idea of marriage first
       came up in June of 1997, according to Appellant, after she
       found out she was pregnant with the parties’ first child.
       She then testified that the parties began telling family
       members that they intended to be married. Appellant
       continued to testify that she and [Dreakford] did research
       on different options they had in order to be married—
       traditional church wedding, courthouse, or a common-law
       marriage.

           The parties have three children together: [ages fifteen
       to ten]. In August of 1997, while pregnant with their first
       child, the couple took a trip to Jamaica. The parties agree
       that the trip was taken, but differ on the purpose of the
       trip. Appellant testified that the couple considered the trip
       to Jamaica to be their honeymoon and that, prior to
       leaving the country, they exchanged vows whereupon she
       stated, “I agree to be your Wife now and forever,” and
       [Dreakford] reciprocated.       No witnesses were present
       during this exchange. [Dreakford], on the other hand,
       testified that there had never been an exchange of vows
       and that the trip was taken merely as an opportunity for
       the two to relax before the birth of their first child.
       Furthermore, [Dreakford] testified that the parties never
       discussed getting married and that he had never proposed
       to Appellant.

          Appellant further testified that she had consulted a
       family law attorney who gave her the requirements for a
       valid marriage, [but] she could not remember the
       attorney’s name. She could not recall details such as the
       weather in Pittsburgh or Jamaica on the day of her alleged
       wedding. Prior to their trip to Jamaica, Appellant had a
       small bridal shower with her co-workers. About a dozen of
       her co-workers took her out to a restaurant and gave her
       some small gifts, however, Appellant could not recall all of
       the names of the women who were present, nor could she
       recall the name of the restaurant. Similarly, Appellant
       could not remember the location of the jewelry store
       where she claimed the couple went to buy wedding rings,
       nor could she recall any of the locations where she and
       [Dreakford] allegedly celebrated their anniversaries. The
       Court finds that Appellant was not credible.


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          Appellant’s   father,   Mr.   Layton,    testified    that,
       subsequent to the trip to Jamaica, he found out about the
       parties’ marriage from Appellant.        He did not have
       knowledge as to where the parties exchanged their vows.
       It was Mr. Layton’s testimony that, after the parties’ trip to
       Jamaica, their family did not believe the parties were just
       boyfriend and girlfriend anymore.       Lastly, Mr. Layton
       testified that he holds himself out to be [Dreakford’s]
       father-in-law.

          By March or April of 1998, the parties moved to North
       Carolina. During [Dreakford’s] testimony, he stated that
       he believed that by law once he lived with Appellant for
       seven years, they were married. Therefore, they held
       themselves out to family members as being married, but
       they did not start doing that in 1997, as [] Appellant had
       testified. As to the wedding rings, [Dreakford] asserted
       that he purchased a ring for Appellant for Christmas of
       2000. Appellant picked out her own ring from White Hall
       Jewelers in St. Augustine, Florida. [Dreakford] testified
       that the rings were attributed to the fact that the parties
       had been telling co-workers and people that they were
       married.    Two rings were produced to the Court by
       Appellant—one square-cut diamond ring and one plain,
       thin gold band.

           The parties began filing taxes “married filing jointly” in
       1998 for the 1997 tax year, even though, at that point in
       time, [Dreakford] did not believe the parties to be married.
       Appellant [and Dreakford both] enrolled in a Jackson
       Hewitt tax preparation course to “ensure that the federal
       government would recognize a common law marriage.”
       [Appellant] did not attend any preparation courses until
       after the parties returned from Jamaica.          [Dreakford]
       testified that the purpose for enrolling in the course was to
       earn extra income by having the ability to prepare tax
       returns. He did not finish the course. He never spoke to a
       tax professional because he felt Appellant was a
       professional after she completed the tax preparation
       course. Appellant advised [Dreakford] that, if the parties
       filed their taxes jointly, they would be able to save money,
       and that is what they decided to do.

         Moreover, [Dreakford] testified that he avoided
       questions in regards [sic] to an anniversary date because

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          he did not know when their anniversary was, as they did
          not have a wedding date because they never had a
          wedding.

             The parties purchased their home together in North
          Carolina, whereby [Dreakford] listed Appellant as his wife.
          When the parties moved to Winston-Salem, North
          Carolina, [Dreakford] also added Appellant to his health
          insurance and benefits plan that he received from work.
          He testified that he felt this was appropriate since they
          were already filing their taxes jointly.            Likewise,
          [Dreakford] testified that the parties “almost certainly” had
          joint car insurance from 1998 forward.

Trial Court Opinion, 7/21/14, at 2-5 (footnotes omitted).

       At the conclusion of the hearing, the trial court issued an order

requiring the parties to submit legal briefs on the status of common law

marriage in Pennsylvania. By order entered August 12, 2013, the trial court

struck Appellant’s divorce action and dismissed her divorce complaint

against Dreakford with prejudice.1             The trial court further ordered the

separate support complaint filed against Dreakford dismissed with prejudice.

This appeal follows. Both Appellant and the trial court have complied with

Pa.R.A.P. 1925.

       Appellant raises the following issues:

          I. Did the trial court err and abuse its discretion in
          determining that no common law marriage existed despite
          the overwhelming evidence otherwise and both [parties’]
          testimony that they believed they were married.
____________________________________________


1
  The Butler County Prothonotary did not docket this order properly until
January 24, 2014. Thus, the instant appeal is timely.




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          II. Did the trial court err and abuse its discretion in not
          admitting certain marital documents that the [parties]
          drafted together, and was the error harmless.

          III. Did the trial court err in limiting the testimony on the
          discussion and steps the [parties] took when attempting to
          divide the assets they believed to be marital.

Appellant’s Brief at 5 (emphasis removed).2

       In Staudenmayer v. Staudenmayer, 714 A.2d 1016 (Pa. 1998), our

Supreme Court addressed the concept and continued viability of “common

law” marriage in Pennsylvania:

             Marriage in Pennsylvania is a civil contract by which a
          man and 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.

Staudenmayer, 714 A.2d at 1019-20 (citations omitted).



____________________________________________


2
  Appellant acknowledges her third issue was not preserved by raising a
timely objection, and therefore concedes this issue is waived.        See
Appellant’s Brief at 5. She provides no argument in support of this waived
claim.




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      In 2004, the Pennsylvania legislature amended the Domestic Relations

Code, effective January 24, 2005, with regard to “common law” marriages,

as follows:

         § 1103. 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.    Given its clear terms, the abolition of common law

marriage in Pennsylvania applied only prospectively. Thus, parties claiming

to have entered into a common law marriage prior to January 1, 2005,

would have to establish the existence of a valid marriage contract.       In

Staudenmayer, our Supreme Court clarified the burden of proving a

common law marriage as follows:

            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 are created by that.

                                    ***

            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 the marriage, and we have described this as a
         heavy burden where there is an allegation of common law
         marriage.    When an attempt is made to establish a
         common law marriage without the usual formalities, the
         claim must be viewed with great scrutiny.


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           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.

Staudenmayer, 714 A.2d at 1020-21 (citations and footnotes omitted).

     The high court further addressed whether the rebuttable presumption

arises in the factual circumstances “when both parties are alive and able to

testify regarding the formation of the marriage contract.” Staudenmayer,

714 A.2d at 1021. Our Supreme Court explained:

           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. . . . Where there is no such proof available,
        we held the law permits a finding of a marriage based
        upon reputation and cohabitation when established by
        satisfactory proof.

           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
        vows in the present tense for the purpose of establishing
        the relationship of husband and wife. We have allowed, as
        a remedial measure, a rebuttable presumption in favor of a

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J-A35018-14


         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 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, 714 A.2d at 1021 (citations and footnotes omitted).

      Here, both Appellant and Dreakford were available, and testified about

the existence of the marriage contract, i.e., verba in praesenti. In her first

issue, Appellant asserts that the trial court erred and/or abused its discretion

when concluding that no common law marriage existed, given the

“overwhelming evidence otherwise,” as well as “both parties’ testimony that




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they believed they were married.”         Appellant’s Brief at 5 (emphasis

removed).

     When making its factual findings, the trial court expressly stated:

“The Court found Appellant’s testimony regarding the exchange of verba de

[sic] praesenti not credible and [Dreakford’s] testimony credible.”     Trial

Court Opinion, 7/21/14, at 5. The trial court further explained:

            In the instant case, the testimony was contradictory as
        to whether an express agreement was made. To support
        her claim that a common law marriage existed, Appellant
        testified that the parties had a discussion about marriage
        shortly after she found out she was pregnant with their
        first child. She testified that the parties had told family
        members that they were going to be married.
        Furthermore, she testified that she researched common
        law marriage as well as reached out to a family law
        attorney. She, however, did not learn that the parties
        could declare their intentions before two witnesses, nor
        could she remember the name of the family law attorney
        with whom she consulted. Prior to the alleged wedding
        date, Appellant testified that some friends from work held
        a bridal shower for her, however, she could not remember
        the name or specific location of the restaurant in which the
        bridal shower was held nor the names of friends who
        attended. Appellant further recounted that, on August [1],
        1997, the parties were in their apartment, packing for their
        trip to Jamaica, when they exchanged vows. She could
        not testify as to what the weather was like in Pittsburgh on
        that day.

           [Dreakford], on the other hand, testified that, upon
        finding out Appellant was pregnant, he merely discussed
        the pregnancy with her. He stated he was concerned that
        she would not keep the baby as she had two previous
        abortions, one of which would have been his child. He
        further testified that, after the parties concluded that they
        would keep the baby, their trip to Jamaica was one last
        chance for the parties to relax as a couple before the birth
        of their first child.

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              To further support her claim of common law marriage,
          Appellant testified that [Dreakford] purchased two
          “wedding rings” for her after the Jamaica trip.       She
          produced to the Court two rings. It is undisputed that
          there was not an exchange of rings prior to or during the
          trip to Jamaica. [Appellant] could not recall the name of
          the store or any other details around the selection of the
          rings.

             [Dreakford] testified that he purchased rings for the two
          of them as a Christmas present in 2000 and that the rings
          were purchased at Whitehall Jewelers in St. Augustine,
          Florida. Appellant had chosen the ring with the square-cut
          diamond, which was presented to the Court. [Dreakford]
          could not testify to the plain, thin gold band produced to
          the Court by Appellant as he had never seen it before.

             The Court found [Dreakford’s] testimony that no
          express words were exchanged between the parties
          articulating a present intent to enter into the legal
          relationship of marriage to be credible. The Court found
          Appellant’s contradictory testimony not credible.

Trial Court Opinion, 7/21/14, at 7-8 (footnote omitted).

       Because the parties presented contradictory testimony regarding verba

in   praesenti,   the   trial   court   next   considered   evidence   of   constant

cohabitation and reputation for marriage as an aid to its credibility

determination. The trial court explained:

            The relevant testimony as to this issue was, for the
          most part, not disputed.

              There is no dispute that the parties constantly
          cohabitated from 1994 to 2011. At the suggestion of
          Appellant, the parties began filing their taxes as “Married
          Filing Jointly.”   [Dreakford] added Appellant to his
          employment benefits package and his automobile
          insurance. When the parties purchased a home in North
          Carolina, [Dreakford] added Appellant to the deed as “his
          wife.”


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J-A35018-14


       Mr. Layton, Appellant’s father, testified that Appellant
       informed him the parties got married in Jamaica. He was
       unable to testify as to whether or not the parties
       exchanged verba in praesenti with the intent to create a
       marriage. Mr. Layton further testified that [Dreakford]
       never told him the parties were married, however he has
       held himself out to be [Dreakford’s] father-in-law.

          Appellant’s testimony was in general verbose.     Her
       specific testimony asserting verba in praesenti was not
       credible.    The veracity of the testimony supporting
       reputation was not sufficient to overcome the credibility
       issue of verba in praesenti. So while there was evidence
       of constant cohabitation and reputation, there was not
       clear and convincing evidence of verba in praesenti,
       without which there can be no common law marriage.

          In her [Pa.R.A.P. 1925(b) statement], Appellant seems
       to assert that because both parties “believed they were
       married” there was sufficient evidence to support a
       common law marriage. Appellant testified that there was a
       specific date, time and place where the parties exchanged
       verba in praesenti and, if believed, this occurred in
       Pennsylvania sometime around August 1, 1997.           This
       would be her basis of “believing” the parties were married.
       [Dreakford] testified that he “believed” they were married
       as an operation of law after cohabitating for seven years.
       In 1998, less than a year after the trip to Jamaica, the
       parties resided in North Carolina which does not recognize
       common law marriage.         [Dreakford’s] “belief” was a
       mistaken understanding of the law.             A mistaken
       understanding for which he believed he had no remedy
       until he consulted with an attorney. There is no evidence
       on the record that [Dreakford] ever intended to enter into
       a marriage contract.

          The Court considered in its analysis that [Dreakford]
       “believed” he was married. The Court considered that he
       took certain actions, including, but not limited to,
       discussions of distribution of property between the parties.
       However, the Court found no authority to support the
       formation of a marital contract based upon the mistaken
       “belief” of a party as to the status of the law (not a
       mistake of fact). [Dreakford’s] testimony as to why he
       believed the parties were married was credible.

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            Appellant had a heavy burden of proving by clear and
         convincing evidence that the parties by their express
         agreement entered into a common law marriage. As in the
         Staudenmayer case, both parties were “available to
         testify,” and did testify, concerning the exchange of verba
         in praesenti. Appellant “simply did not do so convincingly,
         and therefore did not meet her burden.” [Staudenmayer,
         714 A.2d at 1022].

Trial Court Opinion, 7/21/14, at 8-10 (footnote omitted).

      Our review of the record supports the trial court’s conclusions.       As

recognized by the trial court, because both parties testified at the

evidentiary hearing, the rebuttal presumption discussed in Staudenmayer,

supra, does not arise.    Moreover, as our Supreme Court further noted in

Staudenmayer, the trial court “as factfinder, makes determinations

concerning the credibility of witnesses and its conclusions of law based on

those determinations will not be disturbed absent an abuse of discretion.”

Staudenmeyer, 714 A.2d at 1022. We discern no such abuse of discretion.

Thus, we agree with the trial court that, based on the trial court’s credibility

determinations, Appellant failed to meet her heavy burden of establishing a

common law marriage.

      In her remaining claim, Appellant asserts that the trial court erred

and/or abused its discretion in refusing to admit as exhibits “certain marital

documents that the [p]arties drafted together.”         Appellant’s Brief at 5

(emphasis removed).       Within her brief, Appellant asserts, “[i]n 2011,

Dreakford created and emailed [Appellant] a Separation Agreement and then

the parties created a QDRO together, both documents containing August 1,


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1997 as the agreed upon date of marriage.”           Appellant’s Brief at 18.

According to Appellant:

         The trial court excluded these documents as evidence
         despite argument that they were an opposing party’s
         admission. Pa.R.E. 803(25). It also appears that had they
         been admitted, they would have been considered a prior
         inconsistent statement of Dreakford once he testified. In
         the Opinion issued by the trial court, it appears that the
         trial court acknowledges that their exclusion was an error;
         however, claiming it was harmless.

Id. (citations omitted).

      Our review of the record refutes Appellant’s claim. Initially, we agree

with Dreakford’s assertion that Appellant’s argument regarding this issue is

not sufficiently developed.   See Dreakford’s Brief at 19.   As noted by the

trial court, in her Pa.R.A.P. 1925(b) statement, Appellant failed to

specifically identify the specific exhibits to which she refers.    Moreover,

Appellant’s appellate brief is devoid of case authority and any pertinent

discussion of the Pennsylvania Rules of Evidence. Thus, Appellant’s claim is

waived. See generally, Lawson v. Lawson, 940 A.2d 444, 448 n.5 (Pa.

Super. 2007).

      Even absent waiver, Appellant’s claim fails.       “[T]he admission of

evidence is within the sound discretion of the trial court and will be reversed

only upon a showing that the trial court clearly abused its discretion.”

Smith v. Morrison, 47 A.3d 131, 137 (Pa. Super. 2012). At the evidentiary

hearing, the trial court refused to admit the documents at issue because

Dreakford denied he had drafted certain parts of them. See N.T., 10/25/13,

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at 53-57. “The ultimate question is whether the authentication testimony is

sufficiently complete so as to persuade the [trial] court that it is improbable

that the original item has been exchanged with another or altered in any

material respect.” Webb v. Commission (PennDot), 934 A.2d 178, 185

(Pa.Cmwlth. 2007) (citation omitted). Moreover, “[t]estimony of a witness

with personal knowledge that a matter is what it is claimed to be may be

sufficient to authenticate the evidence.”     Id. (citing Pa.R.E. 901(b)(1))

(emphasis added).       Here, because there was argument that the email at

issue was “editable,” the trial court refused to admit it into evidence. N.T.,

10/25/13, at 53.     In other words, the trial court believed Appellant’s

testimony did not sufficiently authenticate it. As noted supra, the trial court

repeatedly stated that Appellant’s testimony was not credible.       Thus, as

stated by the trial court, even had the exhibits been admitted, they would

not alter the trial court’s conclusion that “the credible facts showed that no

vows were exchanged, and [Dreakford] never had an intent or purpose to

create a legal relationship of husband and wife[.]”      Trial Court Opinion,

7/21/14, at 11.

      In sum, because the record supports the trial court’s conclusion that

Appellant did not meet her burden of proving that a common law marriage

existed between the parties, we affirm the trial court’s order striking and

dismissing her divorce complaint with prejudice.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2014




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