J-S48029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF DENNIS SMITH,                        IN THE SUPERIOR COURT OF
DECEASED                                                    PENNSYLVANIA



                       v.

APPEAL OF: JEANETTE SHIRES

                                                           No. 280 MDA 2017


                Appeal from the Order Entered January 10, 2017
               In the Court of Common Pleas of Lycoming County
                       Orphans' Court at No: 41-16-0105


BEFORE: OTT, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                            FILED NOVEMBER 09, 2017

        Appellant, Jeanette Shires, appeals from the January 10, 2017

orphans’ court order denying her request for letters of administration of the

estate of Dennis Smith (“Decedent”). We affirm.

        Decedent died intestate on January 31, 2016.            The orphans’ court

appointed an administrator, subsequent to which Appellant, on March 23,

2016, filed a caveat in which she requested letters of administration as the

Decedent’s surviving spouse.          The orphans’ court conducted two days of

hearings, on July 15, 2016 and August 19, 2016. The orphans’ court denied

relief by order of January 10, 2017.           Appellant filed this timely appeal on

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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February 9, 2017.1        Appellant raises one issue:       “Whether the [orphans’]

court erred as a matter of law in failing to find [Appellant] to be the common

law wife of [Decedent], when evidence of verba in praesenti was presented

and not contested by the Estate?” Appellant’s Brief at 4.

       The   applicable     standard     of    review   requires   this   court   to   be

“deferential” to an orphans’ court’s findings. In re Fielder, 132 A.3d 1010,

1018 (Pa. Super. 2016), appeal denied, 145 A.3d 66 (Pa. 2016).

             [T]this Court must determine whether the record is free
       from legal error and the court’s factual findings are supported by
       the evidence. Because the [o]rphans’ [c]ourt sits as the fact-
       finder, it determines the credibility of the witnesses and, on
       review, we will not reverse its credibility determinations absent
       an abuse of that discretion.

Id. “The [o]rphans’ [c]ourt decision will not be reversed unless there has

been an abuse of discretion or a fundamental error in applying the correct

principles of law.” Id.

       Our Supreme Court addressed the doctrine of common law marriage in

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

____________________________________________


1  We exercise jurisdiction pursuant to Pa.R.A.P. 342(a)(5) (“An appeal may
be taken as of right from the following orders of the [o]rphans’ [c]ourt
Division: […] An order determining the status of fiduciaries, beneficiaries,
or creditors in an estate[.]”)

2 Six justices participated in Staudenmayer. Justice Newman authored the
majority opinion, joined by Chief Justice Flaherty and then-Justice Cappy.
Justice Nigro, joined by then-Justice Castille, authored a concurring opinion.
Justice Nigro wrote: “I concur in the Majority Opinion. However, I would go
one step further and advocate the abolition of common law marriage in this
(Footnote Continued Next Page)


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             Marriage in Pennsylvania is a civil contract by which a man
      and a woman take each other for husband and wife. There are
      two kinds of marriage: (1) ceremonial; and (2) common law. A
      ceremonial marriage is a wedding or marriage performed by a
      religious or civil authority with the usual or customary ceremony
      or formalities.

             Because claims for the existence of a marriage in the
      absence of a certified ceremonial marriage present a fruitful
      source of perjury and fraud, Pennsylvania courts have long
      viewed such claims with hostility. Common law marriages are
      tolerated, but not encouraged. While we do not today abolish
      common law marriages in Pennsylvania, we reaffirm that claims
      for this type of marriage are disfavored.

Id. at 1019–20 (internal citations and quotation marks omitted).

      Common law marriages must be created by verba in praesenti, that is,

“an exchange of words in the present tense, spoken with the specific

purpose that the legal relationship of husband and wife is created by that.”

Id. at 1020. No specific form of words is required. Id. Absent evidence of

verba in praesenti, the proponent of the common law marriage may enjoy a

rebuttable presumption upon proof of “(1) constant cohabitation; and, (2) a

reputation of marriage which is not partial or divided but is broad and

general.”     Id.    Proofs concerning the rebuttable presumption become

necessary where one party to the marriage is deceased. In that case, direct


(Footnote Continued) _______________________

Commonwealth[.]”      Staudenmayer, 714 A.2d at 1022 (Nigro, J.
concurring). Then-Justice Zappala concurred in the result only. Thus, it
appears that five Justices supported the rationale of Justice Newman’s
majority opinion. We observe that our General Assembly abolished common
law marriages contracted after January 1, 2005. 23 Pa.C.S.A. § 1103.




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testimony of verba in praesenti is unavailable because the Dead Man’s Act3

prohibits the surviving spouse from putting words in the mouth of the

deceased. Id. at 1021.

       Instantly, Appellant testified as to the verba in praesenti between she

and Decedent without objection from the Appellee Estate (the “Estate”). In

Appellant’s view, the Estate’s failure to object under the Dead Man’s Act

renders her testimony of verba in praesenti uncontested.         She therefore

argues that the orphans’ court erred in denying her request for letters of

administration as the surviving spouse. Appellant’s Brief at 11-12.

       The orphans’ court summarized Appellant’s testimony as follows:

              [Appellant] testified that Decedent was her husband. They
       began dating in 1974 and Decedent moved in with her in 1987
       (i.e. twenty-nine years ago).         She testified that shortly
       thereafter, he paid for a ring for her and she bought him a ring
       and when they exchanged rings, he said ‘forever.’ She also
       testified that Decedent told her that they were just as married as
       any other couple but did not have the paper that said it.

             [Appellant] went on to testify regarding Decedent’s
       involvement with her family life, including walking her niece
       down the aisle and dancing the father daughter dance with her
       niece at the wedding.       [Appellant] testified that she called
       Decedent ‘sweetie’ and ‘significant other.’ She testified that they
       did not spend time with his family, that in fact he had never
       introduced her to his family.

                                           […]

             [Appellant] was unable to testify to an exact date that the
       rings were exchanged, however, and she did not produce the
____________________________________________


3   See 42 Pa.C.S.A. § 5930.



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      ring or Decedent’s ring at either hearing. [Appellant] submitted
      only one exhibit, an invitation to a wedding in 2006 that was
      addressed to ‘Mr. and Mrs. Denny Smith’ [at the address of the
      couple’s alleged cohabitation]. Further, [Appellant] admitted
      that she and Decedent held no joint bank accounts.              She
      testified that Decedent gave her money ‘for the light bill, the fuel
      bill, and if I needed help on something else he would help me
      with that, too.’ Finally, she testified that they both had vehicles
      titled solely in their own names.

Orphans’ Court Opinion, 1/10/17, at 1-2, 11-12.

      The orphans’ court also noted that the Estate introduced emergency

clinic records on which the Decedent identified his younger sister as his next

of kin. Id. at 12. Decedent’s younger sister was listed as the beneficiary on

his life insurance policy. On other emergency clinic records, the Decedent

listed Appellant as his next of kin but described her as a friend, and he did

not list the address of their alleged cohabitation as his home address. Id.

Decedent’s tax returns identified him as single and did not list the address of

alleged cohabitation. Id. Appellant does not dispute these facts.

      The parties and the orphans’ court relied heavily on Staudenmayer,

and   we    agree    that   Staudenmayer     is   on   point    and    controlling.

Staudenmayer, like the instant matter, involved a claim of verba in

praesenti   rather    than    the   rebuttable    presumption     of    marriage.

Staudenmayer was an equitable distribution case in which the wife alleged

that the couple contracted a common law marriage in 1978 prior to their civil

ceremony in 1984. In dispute were assets that the husband acquired prior

to the civil marriage but subsequent to the alleged common law marriage.



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Staudenmayer, 714 A.2d at 1018. The wife testified that the couple had a

joint checking account in 1978, that they owned a home as tenants by the

entirety in 1978, and that they began filing joint tax returns in 1978. Id. In

prior child support paper work, however, the wife identified herself as not

married as of the birth of the couple’s daughter, and she specified that the

couple’s marriage occurred in December of 1985, one year after the civil

ceremony. Wife was unable to recall the exact moment when she and her

husband said to each other that they were husband and wife, and wife could

not explain why the civil ceremony in 1984 was necessary if the couple was

already married. Id. at 1022.

     The Supreme Court noted that the party alleging verba in praesenti

must establish by clear and convincing evidence that the couple exchanged

words “in the present tense with the purpose of establishing the relationship

of husband and wife, in other words, a marriage contract.”      Id. at 1021.

The Supreme Court also recognized the orphans’ court’s authority to

determine the credibility of witnesses. Id. at 1022. Given the contradiction

between the wife’s testimony and her representations in earlier paper work

that she and her husband were not married as of the birth of their daughter,

the Supreme Court concluded that the wife failed to produce clear and

convincing evidence to meet her heavy burden of establishing a common law

marriage. Id. at 1022.




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      The Supreme Court’s analysis in Staudenmayer illustrates the flaw in

Appellant’s argument.   The proponent of a common law marriage cannot

prevail simply by giving his or her own account of the alleged verba in

praesenti.   Rather, the proponent’s account must be clear and convincing,

and credible in the eyes of the orphans’ court.      The proponent failed in

Staudenmayer because her account of the couple’s marriage contract was

vague, and because other evidence did not support her testimony. Indeed,

her claim failed even though, as of the date of the alleged common law

marriage, the couple owned joint bank accounts, filed joint tax returns,

owned a home together, and shared a surname.

      Appellant’s case is considerably weaker. She alleged that the couple

exchanged rings and said “forever,” but she was unable to produce either

ring. She also could not identify the date of the alleged marriage, other than

to say it occurred in 1987. The Decedent filed single tax returns, and his tax

returns and medical records did not identify the address of alleged

cohabitation. The couple did not own a home or joint bank accounts, nor did

Appellant take the Decedent’s surname.        Various exhibits indicate that

Decedent consistently identified Appellant as a friend rather than a spouse or

significant other. Appellant admitted that Decedent never introduced her to

his family. All of the foregoing undermines Appellant’s claim of common law

marriage, regardless of the Estate’s failure to lodge an objection under the

Dead Man’s Act. We therefore conclude the orphans’ court acted within its


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permissible discretion in finding that Appellant did not produce clear and

convincing evidence in support of her account of verba in praesenti.

Because Appellant offered evidence of verba in praesenti, we do not consider

whether the presumption of marriage applies. Staudenmayer, 714 A.2d at

1021. Appellant was not entitled to letters of administration as Decedent’s

surviving spouse.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2017




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