J-A24012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ESTATE OF WILLIAM H.                       IN THE SUPERIOR COURT
 CROPPER, DECEASED                                           OF
                                                        PENNSYLVANIA




 APPEAL OF MARGARET SLABY

                                                      No. 1240 WDA 2016


                  Appeal from the Order Entered July 20, 2016
               In the Court of Common Pleas of Allegheny County
                     Orphans’ Court at No(s): 02-15-00392


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

MEMORANDUM BY MOULTON, J.:                        FILED DECEMBER 27, 2017

       Margaret Slaby appeals from the July 20, 2016 order of the Allegheny

County Court of Common Pleas denying her petition for a declaration that she

was the common law wife of the late William H. Cropper (“Decedent”). We

affirm.

       Slaby was previously married to Kenneth Slaby; they divorced on

January 15, 1986. Decedent was initially married to Margaret Cropper; they

divorced on June 25, 1957. Decedent later married Shirley Cropper, who died

on April 20, 1999.       Decedent died intestate on November 1, 2014 and is

survived by six children:        Cynthia LaGuardia, Kelly Cropper Hall, Sandra

DeFrancesco, Diane Hatfield, Wayne Cropper, and Wesley Cropper.1
____________________________________________


      The only appellees who filed a brief in this matter are LaGuardia, Hall,
       1

and DeFrancesco. At the May 2, 2016 hearing, the parties presented evidence
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       On November 23, 2015, Slaby petitioned the trial court for a declaration

that at the time of Decedent’s death, Slaby was his common law wife.2 Slaby

claimed that on December 25, 2000, she and Decedent exchanged vows and

held themselves out as a married couple for the remainder of Decedent’s life.

       The trial court held an evidentiary hearing on May 2, 2016, at which 14

witnesses testified. On July 20, 2016, the trial court denied Slaby’s petition,

concluding that she had failed to establish the existence of a common law

marriage by clear and convincing evidence.       Slaby timely appealed to this

Court.

       On appeal, Slaby presents one issue for our review:      “Under all the

circumstances of this case, did Margaret Slaby establish that she was the

common law surviving spouse of [Decedent]?” Slaby’s Br. at 2.

       This Court recently set forth the applicable standard of review as

follows:
               Our standard of review in a declaratory judgment action
           is “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
____________________________________________


that Decedent may have fathered another child, the late Linda Bateman, who
is survived by three children: Adam Bateman, Mark Bateman, and Daniel
Bateman. The Batemans are participants in the appeal but did not file a brief.
Hatfield is not a participant in this appeal.

       “[T]he Pennsylvania legislature abolished the doctrine of common law
       2

marriage effective January 1, 2005. See 23 Pa.C.S. § 1103. However, section
1103 of the Marriage Law permits the legal recognition of common law
marriages contracted before January 1, 2005.” In re Estate of Carter, 159
A.3d 970, 974 (Pa.Super. 2017). Thus, Slaby must demonstrate that she and
Decedent entered into a common law marriage before January 1, 2005.
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         court. The application of the law, however, is always subject
         to our review.”

In re Estate of Carter, 159 A.3d 970, 974 (Pa.Super. 2017) (quoting

Vignola v. Vignola, 39 A.3d 390, 393 (Pa.Super. 2012)).

      Slaby contends that “she entered into a common law marriage with the

[D]ecedent no later than December 25, 2000.” Slaby’s Br. at 6. She claims

that on that date, and in the presence of her sister, she and Decedent

exchanged vows with the intent to create a marriage contract. We disagree

with Slaby’s assertion that the evidence presented compels the conclusion she

seeks.

      “[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, uttered with a view and

for the purpose of establishing the relationship of husband and wife.” Carter,

159 A.3d at 974 (quoting In re Estate of Manfredi, 159 A.2d 697, 700 (Pa.

1960)) (italics in original).   The party seeking to establish a common law

marriage bears the burden of proving the exchange of verba in praesenti by

clear and convincing evidence. Id. In Carter, we explained:
             The requirement of “words in the present tense” is
         designed to ensure the existence of a present intent to
         marry, like the present intent established in a formal
         wedding ceremony, rather than a plan to marry in the future
         or a claim to have wed in the past. With regard to this
         requirement, the Supreme Court explained that a “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.” [Staudenmayer v. Staudenmayer, 714
         A.2d 1016, 1020 (Pa. 1998)] (emphasis added). Stated
         differently, “common law marriage will still be recognized
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         without use of verba de praesenti, where the intention of
         the parties[,] as expressed by their words, is that they were
         married.” Cann v. Cann, 429 Pa.Super. 234, 632 A.2d 322,
         325 (1993).

Id. at 979.   Our Supreme Court has described the petitioner’s burden of

proving a common law marriage as “heavy.” Staudenmayer, 714 A.2d at

1021; see id. at 1020 (“When an attempt is made to establish a marriage

without the usual formalities, the claim must be reviewed with ‘great

scrutiny.’”) (quoting Estate of Gavula, 417 A.2d 168, 171 (Pa. 1980)).

      At the hearing, Slaby testified that she and Decedent met through a

mutual friend and began dating in 1988. N.T., 5/2/16, at 91. Slaby testified

that Decedent moved into her residence in 1989, while he was still married to

Shirley Cropper; Shirley died ten years later. Id. at 88, 93.

      Slaby testified that on December 25, 2000, she and Decedent

exchanged vows in the presence of her sister, Christine Morena.          Slaby

described the event as follows:
            We were sitting down at the kitchen table after
         everybody left.    We were talking about New Year’s
         resolutions. My sister said she was going to quit smoking
         which I had been on her about that constantly. [Decedent]
         said ours was to get married. [Morena] said why don’t you
         just do it now. So we did.

                                     ...

            We exchanged vows. [Decedent] said I take you as my
         wife. I said I take you as my husband.

Id. at 100-01. Decedent and Slaby did not exchange rings on that date, nor

did they consider December 25, 2000 to be their anniversary. Id. at 151.




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Slaby testified that she and Decedent did not tell anyone that they were

married, including their own children. Id. at 152, 165.

       Slaby further testified that after the December 25, 2000 exchange of

vows, she and Decedent “kept [their] own separate identities” and that she

and Decedent represented that they were single “[i]n everything that [they]

did.” Id. at 139. Slaby admitted that she could not find any greeting cards

indicating that she was Decedent’s wife after searching for 63 hours. Id. at

153-54. Although they had cohabitated since 1989, she and Decedent owned

separate residences and listed themselves on their respective deeds as

“unmarried.” Id. at 162-63, 203-05.3 Slaby and Decedent also filed separate

tax returns and never held any joint assets.      Id. at 142-43. According to

Slaby, she and Decedent “continued [life] as it had been” after the exchange

of vows. Id. at 101.

       Morena, Slaby’s sister, testified regarding the December 25, 2000

incident as follows:
                After everything was winding down, we were sitting there
           as usual in the kitchen talking, myself, [Slaby], [Decedent],
           and we were talking about New Year’s resolutions. I said,
           well mine is to quit smoking which I still haven’t done that.
           [Decedent] said, well, mine is to get your sister to marry
           me. I said, well, why don’t you just do it, do it now, and he
           said, [Slaby], I take you as my wife. She kind of chuckled
           little bit and said, [Decedent], I take you as my husband.




____________________________________________


       Slaby and Decedent also purchased two properties together for which
       3

they held title as joint tenants with right of survivorship. Slaby and Decedent
were each identified as “single” on both deeds. N.T., 5/2/16, at 133-36.
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Id. at 79. Morena testified that she attributed no significance to Slaby’s and

Decedent’s exchange of words at that time. Id. at 86.

       Wayne Cropper, Decedent’s son, testified that he had a very close

relationship with his father and that Decedent never told him of an exchange

of vows on December 25, 2000 or that he and Slaby were married.            Id. at

207.   Cropper also testified that in 2002 or 2003, he and his father had

discussed common law marriage. Cropper summarized the conversation as

follows:
           [I said to my father,] [i]f you ever broke up [with Slaby],
           would you be afraid of her filing for common law? He said
           no. This is the reason he gave me . . . he said I maintain
           my residence. I never changed where I voted. All my
           paperwork and everything comes to my residence. And he
           was pretty adamant that . . . because he did that . . . there
           was no case for common law [marriage].

Id. at 197-98.

       Even accepting as true the uncontradicted testimony that on December

25, 2000, Decedent said to Slaby, “I take you as my wife,” and Slaby said, “I

take you as my husband,” such evidence was insufficient to prove that Slaby

and Decedent stated those words with the specific intent to create a marriage

contract. See Carter, 159 A.3d at 974. Indeed, other evidence presented at

the hearing supported the conclusion that Slaby and Decedent did not so

intend. Slaby testified that she did not know when she first believed she was

Decedent’s common law spouse. N.T., 5/2/16, at 131-32. After the exchange

of vows, neither Slaby nor Decedent told any of their children that they were

married, and the couple “continued [life] as it had been.” N.T., 5/2/16, at


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101. Moreover, Wayne Cropper testified that, a few years after the exchange

of vows, his father told him that he did not believe he was Slaby’s common

law spouse. Based on the evidence presented at the hearing, which the trial

court credited, we conclude that Slaby failed to meet her “heavy” burden of

proving that she and Decedent intended the December 25, 2000 exchange of

vows to create the legal relationship of husband and wife.

        Next, Slaby asserts that “[w]hile neither cohabitation nor holding out

[as a married couple] creates a common law marriage, both of those factors

are evidence tending to show a marriage.” Slaby’s Br. at 21. As our Court

has recognized, however, “courts may rely on the presumption [of marriage

based on cohabitation and reputation] only in the absence of direct testimony

regarding the exchange of verba in praesenti.” Carter, 159 A.3d at 980 n.9

(quoting Staudenmayer, 714 A.2d at 1021); see also PNC Bank Corp. v.

Workers’ Comp. Appeal Bd. (Stamos), 831 A.2d 1269, 1284-85

(Pa.Cmwlth. 2003) (en banc) (noting that “evidence of cohabitation and

reputation was irrelevant” to determining whether petitioner met his burden

of proving common law marriage by exchange of verba in praesenti). Because

Slaby presented direct testimony regarding the exchange of verba in

praesenti, we need not consider evidence of subsequent cohabitation and

reputation to determine whether Slaby met her burden of proving that she

and Decedent exchanged words of present intent to marry on December 25,

2000.




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      Even if we were to consider the evidence of Slaby’s and Decedent’s

subsequent cohabitation and reputation, we would still conclude that Slaby

failed to satisfy her burden of proof. As the trial court cogently explained:
             The record demonstrates that some of the witnesses
         (including a daughter of the Decedent) were persuaded that
         the relationship was that of husband and wife. But the
         record also reflects contrary testimony from witnesses,
         including other children of the Decedent’s.               The
         documentary evidence admitted in this case also does not
         demonstrate one clear path, given the differences on car
         titles, deeds to properties[,] and the like. Because most, if
         not all, of the testimony and documentary evidence
         displayed credible traits, the Court, being constrained by the
         clear and convincing evidence standard, determined that
         [Slaby] was unable to sustain this burden.

Trial Ct. Op., 3/13/17, at 2-3 (unpaginated); see In Interest of J.M., 166

A.3d 408, 427 (Pa.Super. 2017) (“Clear and convincing evidence requires that

a finding be based on testimony by credible witnesses who clearly relate facts

that are ‘so clear, direct, weighty, and convincing as to enable the trier of fact

to come to a clear conviction, without hesitancy, of the truth of the precise

facts in issue.’”) (quoting In re Novosielski, 992 A.2d 89, 107 (Pa. 2010)).

      Based on our review of the record, we conclude that the trial court did

not abuse its discretion in determining that Slaby failed to establish, by clear

and convincing evidence, that she and Decedent entered into a common law

marriage on December 25, 2000.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/2017




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