J-A15030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DIANE M. MILLER                                  IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

KEVIN J. BROWN


                                                      No. 1992 MDA 2016


               Appeal from the Order Entered November 8, 2016
             In the Court of Common Pleas of Susquehanna County
                      Civil Division at No(s): 2016-00275

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                        FILED NOVEMBER 07, 2017

        Appellant Diane M. Miller appeals from the order dismissing her

divorce action against Appellee Kevin J. Brown and declaring that no

common law marriage exists between the parties. We affirm.

        On March 21, 2016, Miller filed a complaint in divorce. The complaint

alleged that the parties were married at common law on August 28, 2002,1

and contained additional counts for alimony and equitable distribution of

marital property. Brown filed an answer which denied that the parties were

married and petitioned the court for a declaratory judgment that the parties

were not married.2

____________________________________________
1 Common law marriages entered after January 1, 2005 are not valid in
Pennsylvania, but the Commonwealth recognizes such marriages that were
entered prior to that date. 23 Pa.C.S. § 1103; Vignola v. Vignola, 39 A.3d
390, 392-93 (Pa. Super.), appeal denied, 50 A.3d 126 (Pa. 2012).
2   Brown filed the petition pursuant to 23 Pa.C.S. § 3306, which states:
(Footnote Continued Next Page)
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      The trial court held a hearing on October 25, 2016, at which both

parties testified and presented documentary evidence. The testimony

established that the parties became romantically involved in May 1994, and

began living together in August 1994. Shortly thereafter, Miller became

pregnant with the couple’s only biological child, Rebecca (born in June

1995). According to Miller, Brown was still legally married to another woman

at that time.3 The parties continued to live together and shared finances

until April 2016, with only two brief intervening periods of separation (one 3-

month separation and one 3-week separation). After a few years, the parties

began introducing each other as spouses, and family and friends treated the

parties as if they were a married couple.

      As discussed below, the controlling question that determines whether

a couple entered into a common law marriage is whether the parties

exchanged words expressing their mutual present intent to marry and

thereby formed an oral contract of marriage. See Staudenmayer v.

(Footnote Continued) _______________________
      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. § 3306.

3 The record contains no information about Brown’s other marriage or when
(or if) it terminated, except that in 2002 Brown signed a questionnaire
stating that he was legally divorced at that time.

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Staudenmayer, 714 A.2d 1016, 1020 (Pa. 1998).4 With respect to that

question, Miller testified:

        Q: At some point did you and Mr. Brown discuss marriage?

        A: We had discussed it, yes.

        Q: At what point did you begin discussing marriage?

        A: After I got pregnant with Rebecca we had discussed it.

              ...

        Q: When did Mr. Brown express to you his intent to be your . . .
        husband?

        A: When I was pregnant with Rebecca.

        Q: Did he not ask you [to] marry him and you refused?

        A: I never refused to marry Kevin.

        Q: Didn’t you tell him that it was just a piece of paper, that it
        wasn’t necessary?

        A: That’s not a refusal. I did say that it’s just a piece of paper. I
        never refused to marry Kevin.

              ...

        Q: . . . When did you utter the words to [Brown] that you
        intended to be his wife forever going forward?

        A: I never recited those exact words.

        Q: Did Mr. Brown ever tell you that he intended to be your
        husband —

        A: Yes, he did.

        Q: [G]oing forward?
____________________________________________
4   These words are often referred to as “verba in praesenti.”

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      A: Not in those exact words, no.

      Q: When?

      A: I don’t have an exact date. . . .

      When I had Rebecca we had discussed getting married. When
      . . . I was pregnant with Rebecca[,] Kevin was still legally
      married to another person.

N.T., 10/25/16, at 4-5, 30, 38-39.

      According to Brown, he never said to Miller that he “considered

[himself] married to her from that point forward” and the couple had never

“done the equivalent of exchanging words of present intent to go forward as

husband and wife.” N.T. at 48-49. Brown testified that he had asked Miller to

marry him several times, but that she “refused”; she did not “outright say

no,” but responded that “it’s just a piece of paper.” Id. at 48, 51. One of the

times he proposed was in 1995, after their daughter was born. Id. at 52.

Brown also stated that he gave Miller a two-piece diamond ring, “[l]ike an

engagement ring,” at some point before 2002. Id. at 71-72. Brown testified

that he would introduce Miller as his wife because “[i]t was quite

embarrassing I guess to meet someone and say yeah, she’s my girlfriend for

23 years, you know.” Id. at 50.

      Miller entered into evidence a document titled “Affidavit Attesting to

the Existence of Common Law Marriage,” which the parties executed on

August 28, 2002. The affidavit was required by Brown’s employer, the




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Pennsylvania Department of Transportation, in order to add Miller to Brown’s

health insurance policy. The affidavit contained the following language:

      We . . . do hereby affirm that we have expressly agreed to and
      entered into a common law marriage.

      Pursuant to this common law marriage, we established the
      relationship of husband and wife.

      We hold ourselves out to the community as husband and wife,
      and have cohabitated for 8½ years.

      We each sign this affidavit as evidence of our mutual agreement,
      and with the understanding that it may be used as evidence of
      our marriage contract. We agree to provide the Trustees of the
      Pennsylvania Employees Benefit Trust Fund with any additional
      information that may be required as proof of our marriage.

See Miller’s Ex. 6. Brown signed the document in the parties’ home in

Miller’s presence, and Miller thereafter took the document to a notary public

and signed the document in the presence of the notary.

      Miller testified that the parties signed the affidavit “so we could prove

that we were marri[ed] for the health insurance,” and because “it was proof

of our being married at that point.” N.T. at 20-21. Miller also stated “this

was the first opportunity we had to consider ourselves common law . . . on

paper.” Id. at 30; see also id. at 45. At the same time, Miller testified that

she considered Brown and herself to be husband and wife prior to signing

the affidavit. Id. at 31, 45.

      Brown testified that he signed the affidavit strictly to get health

insurance benefits for Miller and their daughter. N.T. at 47-48, 56-57. Brown

testified that because he had left it to Miller to sign the document before a

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notary, he joked with Miller that he had “missed the wedding. You know.

This was our wedding.” Id. at 56. Brown testified that he did not consider he

and Miller to be husband and wife upon signing the affidavit, id. at 48, but

that they “probably did consider each other husband and wife,” beginning

some time after they signed the affidavit. Id. at 55-56. When asked, “when

you signed [the affidavit] you knew that it would be used to prove you were

married, correct?,” Brown responded, “Correct.” Id. at 63.

      Other documents introduced into evidence showed that in 2014 and

2016, Brown withdrew a portion of his retirement funds. To do so, Brown

signed and notarized a form which states, “I am married or consider myself

married under common law,” and Miller signed and notarized a “consent of

spouse.”

      The couple filed federal tax returns separately as single persons (not

as married persons filing separately) through 2014; their 2015 federal tax

return was filed jointly as married. Miller testified that she had worked for an

accountant and knew that married couples could file separate returns, but

that the couple made the joint decision to file separately as single persons

for economic reasons until 2015. N.T. at 35-37, 41, 43-44.

      Each party lists the other person as the primary beneficiary on his or

her respective pension plan. The parties own a house together, which they

purchased in 2002; the ownership is as “Joint Tenants with the Right of

Survivorship, and not as Tenants in Common.” In 2008, the couple entered

into an oil and gas lease for their real property. A hand-written notation on
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the lease, not written by either party, states that the parties are “husband

and wife”; the parties’ testimony conflicted regarding whether that notation

existed before or after they signed the lease. N.T. at 15, 66.

      On November 8, 2016, the court issued an order declaring that no

common law marriage existed, and dismissing Miller’s complaint with

prejudice. The court explained:

      The parties admitted that they never recited or exchanged any
      exact words relative to their intent to effectuate a common law
      marriage. . . .

            In this case, there is no evidence – let alone clear and
      convincing evidence – that the parties ever exchanged verba in
      praesenti. Miller and Brown both testified that they treated each
      other as husband and wife, that they considered each other to
      be husband and wife, that the members of the community
      considered them to be husband and wife, but there was
      absolutely no evidence that they ever exchanged any present
      sense words to each other with the settled intent of establishing
      a marital contract. In this regard, the evidence regarding
      cohabitation and general community reputation is not even
      considered until such time as the parties testify to the exchange
      of verba in praesenti. In this case, both parties clearly testified
      that there was never a moment during their long relationship
      where they uttered the necessary and essential words in the
      present tense expressing their commitment and intent to enter
      into a common law marital union.

            Miller relies heavily upon the Pennsylvania Department of
      Transportation’s “Affidavit of Common Law Marriage” and utilizes
      the date of that document for purposes of establishing the date
      of the parties’ marriage. (Plf. Ex. 6.) While the parties testified
      that they discussed the “Affidavit of Common Law Marriage,”
      there was no testimony that any verba in praesenti were
      exchanged prior to execution of that document. Moreover, the
      testimony is equally clear that the parties did not even execute
      the document in each other’s presence; rather, it was executed
      by each party at separate times and separate locations. In the
      absence of verba in praesenti, the mere existence of the
      “Affidavit of Common Law Marriage” does not create a valid
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      common law marriage. See Bell [v. Ferraro], 849 A.2d [1233,]
      1235 [(Pa. Super. 2004)] (finding that execution of “Affidavit of
      Common Law Marriage” necessary to place “spouse” on health
      insurance was insufficient to demonstrate existence of common
      law marriage where there was not clear and convincing proof of
      verba in praesenti); see also Perrotti v. Meredith, 868 A.2d
      1240, 1245 (Pa. Super. [] 2005) (“Having failed to sustain the
      initial burden of proving the verba in praesenti requirement, we
      conclude that the purported wife’s other evidence did not
      []rehabilitate her failure to prove verba in praesenti, no matter
      how weighty or compelling that evidence may have been.”).

Trial Ct. Op., 11/8/16, at 4, 6-7 (footnotes and original brackets omitted).

      In a footnote, the court analogized the present case to Bell. In Bell,

the purported wife testified that the parties had exchanged words of present

intent at the time the couple executed an Affidavit of Common Law Marriage.

849 A.2d at 1234-35. The purported husband testified that the affidavit was

executed solely for obtaining health insurance benefits. Id. at 1235. The trial

court credited the purported husband’s testimony over that of the purported

wife. Id. On appeal, this Court found that the affidavit constituted rebuttable

evidence of a common law marriage, but that the facts stated within any

notarized document may be contradicted by other evidence. Id. Because the

trial court had credited the purported husband’s testimony, we affirmed the

trial court’s conclusion that the affidavit was not dispositive and that no

marriage existed. Id. Here, the trial court concluded —

      Like Bell, the record demonstrates that the parties executed the
      “Affidavit of Common Law Marriage” in order to add Miller to
      Brown’s health insurance policy. Unlike Bell, where there was at
      least one party contending that verba in praesenti were
      exchanged, no such testimony or evidence was adduced on the
      record in this case.

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Trial Ct. Op. at 7 n.5.

      Miller appealed on December 7, 2016, and raises the following issues:

      1. Did [Miller] present clear and convincing evidence that a
      common law marriage existed between the parties?

      2. Did the trial court commit an error of law by dismissing the
      divorce action filed by [Miller] and finding that a common law
      marriage did not exist between the parties?

      3. Did the trial court abuse its discretion by dismissing the
      divorce action filed by [Miller] and finding that a common law
      marriage did not exist between the parties?

Miller’s Brief at 3 (suggested answers omitted).

      When reviewing a declaratory judgment regarding the existence of a

common law marriage,

      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, 39 A.3d at 393 (citation omitted).

      Miller argues that the affidavit and other documents attesting to the

existence of a common law marriage are clear and convincing evidence that,

along with the evidence of continuous cohabitation and reputation of

marriage, should have been considered by the trial court as proof that the

parties were married, despite the lack of clear testimony that they

exchanged words of present intent. Miller’s Brief at 8-10. Miller claims that:

under Bell, the affidavit acts as prima facie evidence of the common law

marriage; the testimony of Miller proves that the affidavit was signed for the

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purpose of establishing a legal marriage contract between the parties; and

the testimony of Brown did not rebut this assertion because he admitted that

he signed the affidavit. Id. at 11-12. Miller points out that, although Brown

testified that he signed the affidavit only for insurance purposes, he also

testified that he had joked with Miller that signing the affidavit had been

their “wedding.” Miller argues that, “[i]f [Brown] considered the signing of

an affidavit the same as a wedding, that is the same as expressing his intent

to be married at common law.” Id. at 13. At the same time, Miller states

that, “[s]ince they had no marriage license, the parties needed a tangible

written document to confirm the existence of their common law marriage,

which they had already entered into some years prior.” Id. at 11-12. Though

she acknowledges that she did not sign the affidavit in the presence of

Brown, Miller contends that “[t]here is no legal requirement that the parties

acknowledge their intent to be husband and wife in the presence of each

other when their expression of intent is in writing.” Id. at 13.

      Our Supreme Court has most recently addressed proof of 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 is created by that
      [exchange]. Regarding this requirement for an exchange of
      words in the present tense, this Court has noted:

         [I]t is too often forgotten that a common law marriage is a
         marriage by the express agreement of the parties without
         ceremony, and almost invariably without a witness, by
         words — not in futuro or in postea, but — in praesenti,

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          uttered with a view and for the purpose of establishing the
          relationship of husband and wife.

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

              ...

       . . . Where there is no [proof of verba in praesenti] available,[5]
       we [have] held, the law permits a finding of 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 words in the
       present tense for the purpose of establishing the relationship of
       husband and wife. . . . [W]here 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. . . .

       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
____________________________________________
5 This situation would typically occur after one spouse is deceased, and the
other is prevented from testifying by the Dead Man’s Act’s prohibition of
testimony by a surviving adverse party that is contrary to the decedent’s
interest. See Staudenmayer, 714 A.2d at 1020 n.7; see generally
Schroeder v. Jaquiss, 861 A.2d 885, 889 (Pa. 2004) (discussing Dead
Man’s Act).

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       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 [] 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 1020–21 (internal quotation marks, citations,

and footnote omitted).

       In this case, Miller had the burden to prove by clear and convincing

evidence that words stating a present intent to marry were exchanged

between the parties. Staudenmayer, 714 A.2d at 1021. The trial court

found that Miller failed to sustain this burden, and the record supports that

conclusion. Miller herself testified that no such exchange of words occurred.

See N.T. at 38-39.6 Brown also testified that the necessary exchange never

took place. Id. at 48-49. Had the parties presented contradictory testimony

regarding the verba in praesenti, then the court would have been permitted

to examine supplementary evidence of constant cohabitation and reputation

of marriage; but here, no clear evidence of the necessary exchange of words

was presented by either party. The court therefore was correct not to

consider co-habitation or reputation evidence and to conclude that there was
____________________________________________
6 According to Miller’s testimony, the closest the couple came to having such
an exchange took place while Brown was still married to his previous wife.
See N.T. at 39. Because Brown was already married to someone else at that
time, those statements could not give rise to a common law marriage
between him and Miller. See Cann v. Cann, 632 A.2d 322, 324-25 & 324
n.1 (Pa. Super. 1993).


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insufficient evidence of the marriage. See Perrotti, 868 A.2d at 1245

(holding that when both parties testified, but neither testified that verba in

praesenti had been exchanged, supplementary evidence provided by wife,

including documents signed by the parties which referenced them as

husband and wife, could not rehabilitate wife’s claim of common law

marriage).

       Miller is correct that the Transportation Department affidavit could

serve as evidence of the existence of a marriage. See Bell, 849 A.2d at

1234-35. However, it is not dispositive proof. Id. It does not overcome

Miller’s own lack of testimony establishing an exchange of words showing

entry into a marriage. Moreover, Brown testified that no verba in praesenti

were exchanged surrounding the signing of the affidavit, and that he signed

the document solely for insurance purposes. The trial court credited this

testimony. Brown’s joke that the signing of the affidavit “was [their]

wedding,” does not show that a verbal promise between the parties ever

took place. No contract to enter into common law marriage holds weight in

Pennsylvania where that contract is not supported by verba in praesenti.7

       Because the trial court did not abuse its discretion or err as a matter of

law, we affirm the order below.

____________________________________________
7 To the extent that Miller argues that the affidavit embodies the necessary
exchange of words, we disagree. Even if such a document could suffice to
satisfy the verba in praesenti requirement, it would have to include an
exchange of words in the present tense. Perrotti, 868 A.2d at 1243. The
language of the affidavit is in the past tense.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2017




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