J-A18036-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SHERRILYN D. WASHINGTON                       IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                     v.

HARRY HAMILTON

                          Appellant               No. 857 MDA 2013


                    Appeal from the Order April 9, 2013
              In the Court of Common Pleas of Centre County
                     Civil Division at No(s): 2004-2534

                                      *****

SHERRILYN D. WASHINGTON                       IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                     v.

HARRY HAMILTON

                          Appellant              No. 1582 MDA 2013


                    Appeal from the Order July 11, 2013
              In the Court of Common Pleas of Centre County
                     Civil Division at No(s): 2004-2534


BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                     FILED JANUARY 26, 2015

     Harry Hamilton appeals from an order of the Court of Common Pleas of

Centre County divorcing him from Sherrilyn D. Washington.     After careful

review, we affirm.
J-A18036-14



      This case began on June 8, 2004, when Washington filed a complaint

in divorce, alleging that the parties were married in the Bahamas on June 1,

1996. In her complaint, Washington also sought, inter alia, custody of the

parties’ son, who was born on August 5, 2001.

      Since its inception, “this case has had a protracted procedural history

including several previous appeals to this Court and the Pennsylvania

Supreme Court.” Hamilton v. Hamilton, No. 992 MDA 2011, unpublished

memorandum at 1 (Pa. Super. filed February 22, 2012).

      On January 17, 2013, Washington filed a petition for bifurcation, a

section 3301(d) affidavit and a notice to Hamilton that if he failed to file a

counter affidavit, the statements in the petition would be admitted. On the

same date she filed an affidavit of service indicating she served the petition

and affidavit by U.S. mail. On February 1, 2013, Washington filed a second

affidavit of service indicating that the petition and affidavit were also hand

delivered to Hamilton. On March 13, 2013, Washington filed a praecipe to

transmit the record to the court for entry of a divorce decree, a notice of

intention to request entry of divorce decree, a form counter affidavit for

Hamilton, and an affidavit of service for these documents indicating that she

served them by U.S. mail.

      The court issued a rule to show cause on March 15, 2013, scheduling a

hearing on the bifurcation petition for April 9, 2013.    A copy of the rule

returnable was mailed to both parties.        Washington appeared for the

hearing, but Hamilton did not. Accordingly, on that date the court issued an

                                    -2-
J-A18036-14



order granting bifurcation, and entered a divorce decree erroneously

referencing mutual consent pursuant to 23 Pa.C.S. § 3301(c).

       On May 9, 2013, Hamilton filed a timely notice of appeal, and on July

11, 2013, the trial court issued an order vacating the divorce decree.

However, the same day the trial court issued a new divorce decree on the

grounds of irretrievable breakdown (parties having lived separate and apart

for at least two years) pursuant to 23 Pa.C.S. § 3301(d).      On August 10,

2013, Hamilton filed a notice of appeal from the July 11, 2013 divorce

decree.   By order filed September 25, 2013, this Court consolidated the

appeals from the April 9, 2013 and July 11, 2013 orders.

     On appeal, Hamilton raises the following issues for our review:

     1. Whether the court improperly exercises jurisdiction, errs as a
        matter of law, abuses its discretion, or demonstrates bias
        when failing to make any record essentially upholding a
        challenged finding of marriage from a separate support action
        in the absence of verba in praesenti expressed for the specific
        purpose of creating a marriage and failing to follow rules
        respecting joinder of interested parties, request for jury trial,
        and the absence of a validly executed affidavit of consent?

     2. Does the court err as a matter of law when entering a decree
        of divorce rather than annulment based on 23 Pa.C.S. §
        3304(a)(1) and the record shows no constant cohabitation
        after affidavits were executed on different dates and in
        different locations?

     3. Does a trial court err as a matter of law when vacating a
        decree and entering another decree sua sponte or upon an
        unnoticed motion by one party while the initial decree is
        pending appeal?

     4. If the trial court does not retain jurisdiction of matters of
        custody and declares all claims determined, may the parties
        appeal the actions in custody and the trial court’s failure for

                                    -3-
J-A18036-14


         three years to conduct a hearing or make any of the
         consideration under Title 23 Chapter 51 of the Pennsylvania
         Statutes (particularly section 5328(a)(1) and (6-12) and
         5331?

      5. Does a trial court abuse its discretion and err as a matter of
         law when exercising contempt powers after an appeal and
         requiring a party to purge the contempt by providing
         discovery on matters sought prior to the appeal?

Appellant’s Brief, at 6.

      Hamilton first asserts that the trial court erred by entering a divorce

decree because the parties were never married.     In his Pa.R.A.P. 1925(a)

opinion, the Honorable Bradley P. Lunsford relied on an opinion in a related

support matter in which the Honorable David E. Grine held that a valid

common     law   marriage   existed   between   Washington   and   Hamilton.

Washington-Hamilton v. Hamilton, Centre County CCP No. 2004-339-S,

Trial Court Opinion, 4/27/05.

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

Supreme Court noted that when both parties are available to testify, the

party alleging common law marriage bears the burden of proving the

exchange of words in the present tense (verba in praesenti). Here, the court

held that although Washington testified that the captain of a cruise ship

performed a wedding ceremony for the parties in 1996, she failed to provide

any documentation in support of this claim. However, the Court noted:

      Subsequent to the 1996 cruise, the parties resided together,
      filed joint income tax returns, and held themselves out as
      husband and wife to their families and the community at large.
      Coupled to this growing reputation of marriage, in 2000 the
      parties each executed an affidavit affirming their marriage.
      Paragraph 2 of [Hamilton’s] affidavit states:

                                      -4-
J-A18036-14


        That I have been and currently desire to be the lawful
        husband of Sherrilyn       Washington.        We made the
        commitment and contract to marry on 1 June 1996 and
        continue in our relationship of man and wife. We have
        renewed our commitment to one the other several times
        since then and do so again by this affidavit.

     Likewise, Paragraph 2 of [Washington’s] affidavit states:

        That I have been and currently desire to be the lawful wife
        of Harry Hamilton.       We made the commitment and
        contract to marry on 1 June 1996. We have renewed our
        commitment to one the other several times since then and
        do so again by this affidavit.

     These affidavits were duly signed and notarized on November 7,
     2000, and November 3, 2000, respectively. Likewise, shortly
     after these affidavits were signed, [Hamilton] applied for and
     received benefits for [Washington] as his dependent.       The
     application made to the U.S. Army, which [Washington] signed,
     acknowledged [Washington] as his wife.

                                      ***

     The affidavits executed by both parties in 2000 alone are
     sufficient enough for this court to conclude that [Washington]
     carried her burden of establishing by clear and convincing
     evidence that verba in praesenti were exchanged and that a
     valid common law marriage existed between [Washington] and
     [Hamilton] as of November 7, 2000.

Washington-Hamilton v. Hamilton, supra, at 7-8.

     In light of the evidence before the trial court, we find no abuse of

discretion in its determination that the parties formed a common law

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

specific purpose that the legal relationship of husband and wife [was]

created.”   Staudenmayer, supra at 1020 (citing Commonwealth v.




                                   -5-
J-A18036-14



Gorby, 588 A.2d 902, 907 (Pa. 1991)).1 Accordingly, the trial court did not

err in holding that the parties had a valid common law marriage.

       Hamilton’s next argument is that the trial court erred by granting a

decree of divorce instead of an annulment. However, the section of his brief

dedicated to this issue does not discuss annulment or 23 Pa.C.S. § 3304

(grounds for annulment of void marriages). Because Hamilton has failed to

develop this issue in his brief, it is waived. See Umbelina v. Adams, 34

A.3d 151 (Pa. Super. 2011) (issues waived for lack of development where

appellant offers no citation to authority or further analysis other than

statement of argument).

       Within the same section of his brief, Hamilton raises the unrelated

issue of the parties’ cohabitation. His argument is limited to the following

statements: “Hamilton could not have been co-habitating with Washington

on a constant basis and Washington testified as to sporadic co-habitation.

The Court in 04-339 also referenced the absence of constant co-habitation

noting it was sporadic.” Appellant’s Brief, at 21. Again, we find the issue

waived. See Umbelina, supra. However, we note that the “the ‘necessity’

that would require the introduction of evidence concerning cohabitation and


____________________________________________


1
  23 Pa.C.S. § 1103, which became effective in 2005, provides: “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.



                                           -6-
J-A18036-14



reputation of marriage is the inability to present direct testimony regarding

the exchange of verba in praesenti.”        Staudenmayer, supra at 1021.

Here, the trial court concluded that the exchange of verba in praesenti was

established   by   clear   and   convincing    evidence,   and    therefore   no

determination with respect to cohabitation was required.

      Hamilton further argues that the trial court erred by vacating the July

9, 2013 decree and entering a new decree on July 11, 2013, while the July 9

2013 decree was on appeal.       With respect to this issue, we rely on the

analysis of Judge Lunsford, in which he explains:

      The court took these actions pursuant to its inherent authority to
      correct mistakes in its orders. Even after an appeal has been
      filed, a trial court may correct patent and obvious mistakes or
      supply omissions in the record. See e.g. Manack v. Sandlin,
      812 A.2d 676, 681 (Pa. Super. 2002) (“We find that it was within
      the inherent power of the trial court to enter a corrective order.
      The fact that the correction was made more than thirty days
      after entry of the original order and after the filing of a notice of
      appeal is inapposite.”); see also In re K.R.B., 851 A.2d 914,
      918 (Pa. Super. 2004). The error in citing § 3301(c) was a
      patent and obvious defect.        The affidavit clearly was filed
      pursuant to § 3301(d) on the ground of irretrievable breakdown
      of the marriage, not mutual consent. It is clear from hundreds
      of filings over nearly a decade that [Hamilton] has denied even
      the existence of a valid marriage. The court was not rendering a
      new judgment about the grounds for the divorce but was merely
      correcting the decree to accurately reflect the record.

Trial Court Opinion, 9/27/13, at 3-4.

      Accordingly, the trial court did not err by issuing a new decree

reflecting that the grounds for divorce was irretrievable breakdown.




                                      -7-
J-A18036-14



      Hamilton further asserts a variety of claims related to custody

determinations made by the trial court with respect to the parties’ son.

However, Hamilton has not filed an appeal from a custody order. Rather, he

has filed an appeal from a final decree of divorce. It is well settled that “an

appellate court does not sit to review questions that were neither raised,

tried, nor considered in the trial court.”        Commonwealth, Dep’t of

Transp., Bureau of Driver Licensing v. Boros, 620 A.2d 1139, 1143 (Pa.

1993). Because the order appealed from is limited to the issue of divorce,

we may not review issues related to custody,

      Hamilton’s final issue is that the trial court erred by holding him in

contempt of a discovery order.     However, it is apparent that the order on

appeal has nothing to do with discovery matters.            Rather, Hamilton’s

dissatisfaction with the trial court’s handling of discovery is the subject of an

appeal docketed at 1765 MDA 2015, which is the subject of a separate

memorandum.

      For the foregoing reasons, we affirm the order of the Court of Common

Pleas of Centre County.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/26/2015


                                      -8-
