                                                                                          10/04/2017
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                  August 10, 2017 Session

                      IN RE   THE ESTATE OF JIMMY L. SMITH

                    Appeal from the Probate Court for Monroe County
                       No. 2014-149       Dwaine Thomas, Judge
                        ___________________________________

                              No. E2016-02254-COA-R3-CV
                          ___________________________________


In this appeal, the trial court determined that the woman who claimed to be the
decedent’s common law wife had failed to establish her status as his wife and heir. The
alleged widow asserts that she presented satisfactory evidence to prove that she was the
common law spouse. As modified, we affirm the judgment of the trial court.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court
                      Affirmed as Modified; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR, and THOMAS R. FRIERSON, II, JJ., joined.

Debbie Burns, Madisonville, Tennessee, pro se.

Steven B. Ward and Doris Matthews, Madisonville, Tennessee, for the appellee, Cora
Davis, Personal Representative for the Estate of Jimmy L. Smith.


                                           OPINION

                                     I. BACKGROUND

        Jimmy L. Smith (“Decedent”) died a resident of Monroe County, Tennessee on
November 20, 2014. Decedent left no will. Debbie Burns, who claimed to be
Decedent’s common law wife, was appointed personal representative and opened an
estate for Decedent on January 8, 2015. One of Decedent’s sons, Jimmy L. Smith, Jr.,1
objected to the appointment of Ms. Burns and authorized Cora Davis, Decedent’s sister,

      1
          Decedent was survived by two sons, Jimmy L. Smith, Jr., and Richard L. Smith.
to appear on his behalf. Ms. Davis filed a motion to set aside the appointment of Ms.
Burns as personal representative on February 3, 2015, asserting “that, to the best of her
knowledge, the deceased and Debbie Burns were never married and that [Ms. Burns],
therefore would not have first priority to serve as administrator.” Decedent’s son, Jimmy
L. Smith, Jr., also submitted a response in which he stated that “[t]o the best of his
knowledge, his father . . . was never married to Debbie Burns . . . .”

       On September 14, 2015, almost ten full months after Decedent’s death and eight
months after her appointment as personal representative in Tennessee, Ms. Burns filed a
Petition for Declaratory Judgment of Common Law Marriage in Charleston County,
South Carolina, the former domicile of couple. Unlike Tennessee, South Carolina is a
jurisdiction that recognizes the validity of a marriage despite a couple’s noncompliance
with statutory ceremony and license requirements. The state of South Carolina allows
claimants the opportunity to convince the trier of fact that a common law marriage exists.
South Carolina has codified the common law marriage doctrine in section 20-1-360 of the
South Carolina Code, which states that the failure to obtain a marriage license would not
render a marriage illegal. S.C. Code Ann. § 20-1-360.

      In her Petition for Declaratory Judgment of Common Law Marriage before the
South Carolina Probate Court, Ms. Burns argued, inter alia, the following:

             (a) she and Decedent were aware of the common law
             marriage requirements in South Carolina; (b) she and
             Decedent entered into an implied contract to be married in
             1986, thus establishing their common law marriage by this
             implied contract, cohabitation as husband and wife, and
             holding themselves out as being married to their family,
             friends, and the community; (c) in 1988, she and Decedent
             applied for a South Carolina marriage license, but the
             marriage was not solemnized because a minister could not be
             found to marry them due to this being their second and third
             marriages, respectively; (d) she and Decedent received mail
             as husband and wife and paid utilities as husband and wife;
             (e) she and Decedent filed joint tax returns as husband and
             wife in 1987, and in subsequent years chose to file married
             filing separately; (f) she is recognized as Decedent’s spouse
             by the Social Security Administration and is receiving
             survivor benefits since Decedent’s death as of February 2015;
             (g) she and Decedent did live and cohabitate as man and wife,
             held themselves out to the world as man and wife, and
             acquired a reputation within the community in which they
             resided as husband and wife; (h) she and Decedent opened
             joint bank accounts as husband and wife in Charleston
                                            -2-
               County, South Carolina; (i) in 1993, Decedent was involved
               in a legal action in Monroe County and averred in the
               complaint “[t]hat [at] all times [material] hereto the Plaintiffs
               Jimmy Leon Smith and Debbie Faye Smith were and are
               husband and wife”; (j) In 1996, Decedent deeded a parcel of
               land to Ms. Burns as his wife, and in the case of State of
               Tennessee ex rel. Linda Smith, an action for child support, the
               trial court found that Decedent conveyed a parcel of land to
               “his current wife,” Debbie F. Smith in order to avoid
               attachment from child support; and (k) she demonstrated the
               devotion to the usual duties and responsibilities of a wife,
               buying groceries, driving Decedent to and from work,
               arranging their meals, caring for Decedent in sickness and in
               health, displaying photographs of themselves and family in
               their home, and entertaining others in their home.

       Ms. Burns requested a declaratory judgment “that the common law marriage of
Petitioner and Decedent was, and is, valid and existing, and that Petitioner and Decedent
were husband and wife.”

        After reviewing the evidence presented by Ms. Burns, the South Carolina Probate
Court held on February 2, 2016, that “Petitioner has shown that she and the Decedent
consistently held themselves out to the community as husband and wife and that they
intended to create a spousal relationship while they resided together in Charleston
County, South Carolina” from 1986 to 1991. (Emphasis added.). The court specifically
held that Ms. Burns “submitted sufficient evidence to support the arguments she made in
her Petition” and decreed that pursuant to South Carolina law, Ms. Burns “was the
common law spouse of the Decedent . . . and . . . entitled to all spousal rights as an heir .
. . .” (Emphasis added.). The South Carolina court noted that Decedent’s sons had failed
to appear at the hearing. Ms. Davis did not make an appearance and accused Ms. Burns
of “forum shopping.”

       Despite recognizing that South Carolina law must be applied to determine if Ms.
Burns was Decedent’s common law spouse, the Monroe County Probate Court did not
feel compelled to accept the ruling of the South Carolina court on the issue. Instead, in
an order entered October 25, 2016, the court made the following findings of fact and
law:2


       2
         The record reveals that the hearing in Monroe County occurred on January 11, 2016,
prior to the ruling by the South Carolina court, but the final order was not filed until the fall of
2016, eight months after the declaratory judgment was entered by the South Carolina Probate
Court.
                                               -3-
              Title 20 of the South Carolina Code requires four elements to
              be shown to prove common law marriage to have occurred:
              1. Legally free to marry under present law; 2. Co-habitation
              for a period of time; 3. Intent to be married; and 4.
              Reputation as a married couple. In this case no proof has
              been presented that would lead this Court to believe that the
              Parties were not free to marry. It is also undisputed that the
              parties did co-habitate for a number of years[;] however, at
              the time of Mr. Smith’s death, and for a number of years
              preceding his death, they were not co-habitating.

              The issue of intent to be married is somewhat more
              troubling. Petitioner Burns testified it was her intent to be
              married. Petitioner Davis argues that the “Dead Man[’s]
              Statute” would prohibit Ms. Burns from providing testimony
              about the expressed intentions of Mr. Smith to her. The Court
              finds that the “Dead Man[’s] Statute” does in fact prohibit the
              testimony of any expressed intentions of Mr. Smith to Ms.
              Burns as it would be testimony of a party opponent in regard
              to a transaction directly effecting the pecuniary interests of
              the testifying party opponent.3 See Pritchard on Wills and
              Administration of Estates, Seventh Edition § 728. No witness
              presented at trial other than Ms. Burns offered testimony of
              Mr. Smith’s intention to be married.

              Reputation as a married couple was the vast majority of the
              proof presented by Ms. Burns at trial as well as in her
              supplemental filings offered to the Court. Numerous exhibits
              attesting to the reputation as a married couple were presented
              by Ms. Burns and objected to by Ms. Davis. It does appear to
              the Court that Mr. Smith and Ms. Burns held themselves out
              to be a married couple to family and close friends[;] however,
              most of the proof presented dealt with periods of time in
              which the Decedent and Ms. Burns resided in Tennessee,
              and would have no bearing on the formation of a common
              law marriage in the State of South Carolina. Further, proof
              presented by Ms. Burns only shows a use of marriage when
              beneficial to her and not consistently at all times.

(Emphasis added.).

       3
       Ms. Burns claimed in the Tennessee action that “Decedent, during his life, understood
and was aware that he and [Ms. Burns] were engaged in a common law marriage.”
                                           -4-
      Because Ms. Burns did not file an action in South Carolina to recognize the
common law marriage prior to Decedent’s death and the filing of her Petition to Appoint
Administrator in Tennessee on December 19, 2014, the Monroe County Probate Court
viewed part (b)(4) of South Carolina Code section 62-2-802 as relevant:

             SECTION 62-2-802. Effect of divorce, annulment, decree of
             separate maintenance, or order terminating marital property
             rights.

             ...

             (b) For purposes of Parts 1, 2, 3, and 4 of Article 2 [Sections
             62-2-101 et seq., 62-2-201 et seq., 62-2-301 et seq., and 62-2-
             401 et seq.] and of Section 62-3-203, a surviving spouse does
             not include:

             ...

             (4) an individual claiming to be a common law spouse who
             has not been established to be a common law spouse by an
             adjudication commenced before the death of the decedent or
             within the later of eight months after the death of the decedent
             or six months after the initial appointment of a personal
             representative; if the action is commenced after the death of
             the decedent, proof must be by clear and convincing
             evidence.

             Thus pursuant to South Carolina [l]aw, there would be no
             presumption of validity of the marriage without finding by
             clear and convincing evidence of the validity of the marriage,
             and no finding or filing for declaratory judgment would
             have a binding effect on the outcome of this hearing absent
             a determination of clear and convincing evidence.

             It is the finding of this Court that . . . Ms. Debbie Burns has
             failed to carry the burden required of her in the application of
             South Carolina [l]aw, and as such no common law marriage
             existed to be recognized by the Monroe County Tennessee
             Probate Court. Further, Ms. Burns has failed to prove
             standing to contest distribution of property to the Heirs at
             Law.

                                          -5-
(Emphasis added.). Based upon the statute and the court’s review of the evidence, it did
not find clear and convincing evidence that Ms. Burns was Decedent’s common law
spouse. Clear and convincing evidence under South Carolina law is that “degree of proof
which will produce in the [fact-finder] a firm belief as to the allegations sought to be
established. Such measure of proof is intermediate, more than a mere preponderance but
less than is required for proof beyond a reasonable doubt; it does not mean clear and
unequivocal.” Satcher v. Satcher, 570 S.E.2d 535, 538 (S.C. Ct. App. 2002) (internal
citations and quotation marks omitted). S.C. Code § 62-2-802(b)(4). The court recalled
the previously ordered Letters of Administration issued to Ms. Burns and removed her as
personal representative of Decedent’s estate. Ms. Davis was appointed to serve as
administrator. Ms. Burns filed a timely appeal.

                                        II. ISSUE

      We restate the issue before us as follows:

             Did Ms. Burns establish sufficient evidence to support her
             claim of a common law marriage to Decedent in South
             Carolina to make her the surviving spouse for purposes of
             Decedent’s estate.

                            III. STANDARD OF REVIEW

       We review the trial court’s findings of facts de novo upon the record accompanied
by a presumption of correctness unless the preponderance of the evidence is otherwise.
Tenn. R. App. P. 13(d); In re Angela E., 303 S.W.3d 240, 246 (Tenn. 2010). Conclusions
of law are reviewed de novo with no presumption of correctness. Id. When the resolution
of issues in a case depends upon the truthfulness of witnesses, the trial court who has the
opportunity to observe the witnesses in their manner and demeanor while testifying is in a
far better position than this court to decide those issues. See McCaleb v. Saturn Corp.,
910 S.W.2d 412, 415 (Tenn. Workers Comp. Panel 1995). The weight to be given to any
witness’s testimony lies in the first instance with the trier of fact, and the credibility
accord will be given great weight by the appellate court. See Walton v. Young, 950
S.W.2d 956, 959 (Tenn. 1997).

                                   IV. DISCUSSION

       In Tennessee, the inception, duration, status, conditions, and termination of a
marriage are subject to state legislative power and control. Martin v. Coleman, 19
S.W.3d 757, 760 (Tenn. 2000). While common law marriage cannot be entered into in
this State, Tennessee courts will recognize a marriage contracted in a state that permits


                                           -6-
such marriages.4 Lightsey v. Lightsey, 407 S.W.2d 684, 690 (Tenn. Ct. App. 1966). The
law of the state alleged to have been the contracting state controls to determine whether a
marriage exists. Id.

       In this cause, Ms. Burns alleged that she and Decedent were married under the
laws of the State of South Carolina. Common law marriages are recognized as valid
marriages in South Carolina. The party seeking to establish the existence of a common
law marriage carries the burden of proof. Ex parte Blizzard, 193 S.E. 633, 634 (S.C.
1937).

       South Carolina courts have unanimously held that a common law marriage is
formed when the “two parties have a present intent to enter into a marriage contract.”
Tarnowski v. Lieberman, 560 S.E.2d 438, 440 (S.C. Ct. App. 2002) (citing Barker v.
Baker, 499 S.E.2d 503, 508 (S.C. Ct. App. 1998)). “It is essential to a common law
marriage that there shall be a mutual agreement between the parties to assume toward
each other the relation of husband and wife. Cohabitation without such an agreement
does not constitute marriage.” Johnson v. Johnson, 112 S.E.2d 647, 651 (S.C. 1960).
“The fact finder is to look for mutual assent: the intent of each party to be married to the
other and a mutual understanding of each party’s intent.” Callen v. Callen, 620 S.E.2d
59, 62 (S.C. 2005). Circumstantial evidence typically relied upon to establish common
law marriage includes evidence establishing that parties have lived together as husband
and wife for an extended period of time and have publicly held themselves out to the
community as a married couple. Barker, 499 S.E.2d at 508. South Carolina case law
does not require couples to hold themselves out as a married couple as a separate
requirement, but instead permits claimants to use community recognition and reputation
to show the intent to be married. If a party claiming a common law marriage “presents
proof of apparently matrimonial cohabitation and long-term social acceptance of the
couple as married, a presumption arises that the couple entered into a common law
marriage,” notwithstanding the absence of any proof of an express agreement to enter
into a common law marriage. Id. at 507. There is a strong presumption in favor of
marriage by cohabitation, apparently matrimonial, coupled with social acceptance over a
long period of time. Jeanes v. Jeanes, 177 S.E.2d 537, 539 (S.C. 1970). While the
presumption of marriage from cohabitation and reputation is a rebuttable presumption,
the degree of proof to overcome it is high and can only be dispelled by evidence which is

       4
         Tennessee has employed the equitable doctrine of estoppel to protect the expectation
interests of unmarried cohabitants and third parties when the cohabitants have held themselves
out as married. See Guzman v. Alvares, 205 S.W.3d 375, 380 (Tenn. 2006) (noting “the
marriage is presumed to be valid even though it is not technically lawful.”). Tennessee has
allowed this estoppel argument in claims of widows against an estate. See Smith v. N. Memphis
Sav. Bank, 89 S.W. 392, 397-08 (Tenn. 1905) (providing that since the decedent, “if alive, would
be estopped to deny the complainant was his wife in a proceeding to enforce a right growing out
of such relation, his personal representative is estopped to controvert the rights of the
complainant as a widow and distribute of the decedent.”).
                                             -7-
“clear, distinct and satisfactory.” Id.; Owens v. Owens, 466 S.E.2d 373, 375 (S.C. Ct.
App. 1996).

      In Kirby v. Kirby, 241 S.E.2d 415 (S.C. 1978), the South Carolina Supreme Court
observed:

             The difference between marriage and concubinage . . . rests in
             the intent of the cohabitating parties; the physical and
             temporal accompaniments of the cohabitation may be the
             same in both cases, but the intent in the two cases is widely
             apart always. The intent in marriage is usually evidenced by
             a public and unequivocal declaration of the parties, but that is
             not necessary; the intent may exist though never public and
             formally declared; nevertheless the intent must exist . . . . It is
             true that when the intent has not been formally and publicly
             declared, . . . it may yet rest in circumstances.

Id. at 416 (quoting Tedder v. Tedder, 94 S.E. 19, 20 (S.C. 1917)). In Callen, that court
noted that “[a] party need not understand every nuance of marriage or divorce law, but he
must at least know that his actions will render him married as that word is commonly
understood. If a party does not comprehend that his ‘intentions and actions’ will bind
him in a ‘legally binding relationship,’ then he lacks intent to be married. A lack of
intent to be married overrides the presumption of marriage that arises from cohabitation
and reputation.” Callen, 620 S.E.2d at 63.

        The Monroe County Probate Court determined that the evidence before it was
insufficient to establish that Ms. Burns and Decedent showed an intent to marry while in
South Carolina. According to the court, although she had the burden of proof to establish
the common law marriage, Ms. Burns presented no witnesses from South Carolina and
little evidence regarding the couple’s reputation in the community in South Carolina and
the existence of any marriage between Ms. Burns and Decedent. In view of the Monroe
County court’s ruling, we first must address the question of whether the South Carolina
declaratory judgment of record is entitled to full faith and credit in Tennessee.

       Our task in reviewing this case is made difficult due to the lack of a transcript or
statement of the evidence or proceedings. In the absence of such, a conclusive
presumption arises that there was sufficient evidence to support the trial court’s
judgment. Outdoor Management, LLC v. Thomas, 249 S.W.3d 368, 377-78 (Tenn. Ct.
App. 2007). When an issue of sufficiency of the evidence is raised on appeal, without an
accompanying transcript or statement of the evidence, the appellate court will presume
that the transcript or statement of the evidence, had it been included in the record, would
have supported the trial court’s factual conclusions. Fayne v. Vincent, 301 S.W.3d 162,
169-70 (Tenn. 2009).
                                            -8-
       In Blackwell v. Haslam, No. M2012-01991-COA-R3-CV, 2013 WL 3379364, at
*5-6 (Tenn. Ct. App. June 28, 2013), this court comprehensively addressed the relevant
clause now before us:

             The Full Faith and Credit Clause of the United States
             Constitution states: “Full Faith and credit shall be given in
             each state to the public acts, records, and judicial proceedings
             of every other state.” U.S. Const. art. IV, § 1. Expounding
             on the Full Faith and Credit Clause, Chief Justice John
             Marshall stated:

                    [T]he judgment of a state court should have the
                    same credit, validity, and effect in every other
                    court in the United States which it had in the
                    state where it was pronounced, and that
                    whatever pleas would be good to a suit thereon
                    in such state, and none others, could be pleaded
                    in any other court in the United States.

             Hampton v. M’Connel, 3 Wheat. 234, 16 U.S. 234, 46. Ed.
             378 (1818). In the wake of Hampton and its progeny, “it is
             now well established that the full faith and credit clause of the
             federal constitution requires that the judgment of a state court,
             which had jurisdiction of the parties and the subject matter in
             suit, be given the same credit, validity and effect in the courts
             of every other state and that such judgment be equally
             conclusive upon the merits in the courts of the enforcing
             states.” Mirage Casino Hotel v. J. Roger Pearsall, No.
             02A01-9608-CV-00198, 1997 WL 275589, at *3 (Tenn. Ct.
             App. May 27, 1997). . . . Notwithstanding the importance of
             the principle behind the constitutional provision, “the United
             States Supreme Court has recognized at least three exceptions
             to the full faith and credit clause.” Mirage Casino Hotel,
             1997 WL 275589, at *4. Specifically, a forum state may
             decline to accord full faith and credit to the judgment or
             public act of another state if it is (1) void due to a lack of
             personal or subject matter jurisdiction, (2) based upon fraud,
             or (3) “where enforcement of the judgment would violate the
             public policy of the forum state.” Id. (citations omitted).
             Tennessee courts have recognized and adopted all three of
             these exceptions. See Four Seasons Gardening &
             Landscaping, Inc. v. Crouch, 688 S.W.2d 439, 445 (Tenn.
                                            -9-
                Ct. App. 1984); In re Riggs, 612 S.W.2d 461, 465 (Tenn. Ct.
                App. 1980).

Id. at *5-6.5

      This court further noted in Coastcom, Inc. v. Cruzen, 981 S.W.2d 179 (Tenn. Ct.
App. 1998):

                Parties seeking to undermine the validity of a foreign
                judgment must meet a “stern and heavy” burden to
                demonstrate that the foreign judgment should not be enforced
                in Tennessee. Dement v. Kitts, 777 S.W.2d 33, 36 (Tenn. Ct.
                App. 1989). The factual issues underlying the foreign
                judgment may not be the basis of an inquiry to deny the
                foreign judgment full faith and credit. Benham v. Fisher,
                650 S.W.2d 759 (Tenn. Ct. App. 1983). . . . The full faith and
                credit clause requires that the common law doctrine of res
                judicata be applied in one state to a judgment rendered in
                another state to the same extent that it applied in the state of
                its rendition. Atchley v. Atchley, 585 S.W.2d 614, 616 (Tenn.
                Ct. App. 1978). Res judicata is an absolute bar to a
                subsequent suit between the same parties on the same cause
                of action, and it concludes such parties not only as to all
                matters that were actually put at issue and determined, but
                also all matters which might have been put at issue and
                determined. McKinney v. Widner, 746 S.W.2d 699, 705
                (Tenn. Ct. App. 1987).

Coastcom, Inc., 981 S.W.2d at 181.

       The declaratory judgment from South Carolina that Ms. Burns obtained held that
she was Decedent’s common law wife and surviving spouse. The declaratory judgment
had preclusive effect on the Monroe County litigation for the issue raised in South
Carolina--whether Ms. Burns was the common law wife of Decedent. Accordingly, we
find that the South Carolina declaratory judgment that Ms. Burns was Decedent’s wife
was entitled to full faith and credit. However, this judgment must be construed in light of

       5
        In Baker v. General Motors Corp., 522 U.S. 222 (1998), Justice Ginsburg, writing for
the Court created two novel exceptions to full faith and credit. First, a court outside the issuing
state may decline to enforce a judgment which purports “to accomplish an official act within the
exclusive province of that other state[.]” Id. at 235. Second, a state need not enforce a judgment
of another state when the judgment “interfere[s] with litigation over which the ordering state had
no authority.” Id.
                                              - 10 -
section 62-2-802 of the South Carolina Code. That statute provides in pertinent part as
follows:

             (b) . . . a surviving spouse does not include:

             ...

             (4) an individual claiming to be a common law spouse who
             has not been established to be a common law spouse by an
             adjudication commenced before the death of the decedent or
             within the later of eight months after the death of the
             decedent or six months after the initial appointment of a
             personal representative; if the action is commenced after the
             death of the decedent, proof must be by clear and convincing
             evidence.

(Emphasis added.). Ms. Burns clearly did not meet any of the time requirements of the
relevant statute. She did not file her Petition for Declaratory Judgment of Common Law
Marriage in South Carolina until almost ten months after Decedent’s death on November
20, 2014, and eight months after her appointment as personal representative on January 8,
2015. Accordingly, despite the declaratory judgment finding of the South Carolina court
that Ms. Burns was “entitled to all spousal rights as an heir” of Decedent, we must hold
that South Carolina law mandates a decision that Ms. Burns is not the surviving spouse of
Decedent.

                                  V. CONCLUSION

       The judgment of the trial court is affirmed as modified and the case is remanded
for such further proceedings as may be necessary. Costs of the appeal are assessed to the
appellant, Debbie Burns.



                                                   _________________________________
                                                   JOHN W. MCCLARTY, JUDGE




                                          - 11 -
