J-A04040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SANDRA RUTKOWSKI,                             IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

CHARLES W. STENGER,

                        Appellee                   No. 506 WDA 2015


                   Appeal from the Order March 4, 2015
            In the Court of Common Pleas of Allegheny County
                 Family Court at No(s): FD09-001894-017


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 3, 2016

     Appellant, Sandra Rutkowski, appeals from the order entered on March

4, 2015, in the Allegheny County Court of Common Pleas declaring that no

common law marriage existed between Appellant and Appellee, Charles W.

Stenger. We affirm.

     Appellant and Appellee met in 1987, and the parties lived together

from 1987 to 2009. When the parties’ relationship ended, Appellant filed a

complaint in equity and breach of contract seeking a division of shared

assets. Complaint, 4/9/10, at 4-10. The parties filed numerous pleadings

over the next three years. On January 28, 2014, Appellee filed a motion to

transfer this matter to the Family Division of the Allegheny County Court of

Common Pleas, and Appellee’s motion was granted in an order filed that

same day.     In August 2014, Appellee filed a petition for declaratory
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judgment pursuant to 23 Pa.C.S. § 3306, requesting that the trial court find

no common law marriage existed. At a hearing held on February 24, 2015,

the parties offered conflicting testimony regarding the existence of a

common law marriage.         Following the hearing, the trial court found

Appellee’s testimony to be credible and Appellant’s testimony to be

incredible.   On March 4, 2015, the trial court filed an order in which it

concluded that “no common law marriage ever existed between the parties.”

Order, 3/4/15. This timely appeal followed.

      On appeal, Appellant presents the following issue for this Court’s

consideration:

      Whether the trial court erred and abused its discretion in its
      determination that no common law marriage existed between
      the parties when clear and convincing evidence was presented
      that both parties had capacity and gave present intent to marry
      in 1987 as well as supporting evidence of decades of continuous
      cohabitation and general reputation as a married couple?

Appellant’s Brief at 5.    Our standard of review in such matters is well

settled:

      In reviewing a declaratory judgment action, 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 v. Vignola, 39 A.3d 390, 393 (Pa. Super. 2012) (citation omitted).

      The trial court addressed common law marriage principles and

Appellant’s claim of error as follows:


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           In Pennsylvania, marriage is a civil contract that can be
     formed either by ceremony or common law. Staudenmayer v.
     Staudenmayer, 714 A.2d 1016, 1019 (Pa. 1998).1 It has long
     been established that 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.” Id. at 1020. The Pennsylvania
     Supreme Court has stated that common law marriages should be
     viewed with “hostility” and are “tolerated, but not encouraged.”
     Id. at 1019. The Supreme Court has explained that courts
     should treat common law marriages as hostile “because claims
     for the existence of a marriage in the absence of a certified
     ceremonial marriage present a fruitful source of perjury and
     fraud.” Id.
          1
              The Pa. Act 2004-144 abolished common law
          marriages contracted after January 1, 2005.
          [Appellant] asserted that the common law marriage
          was formed in November 1987. Thus, the issue was
          ripe for adjudication.

           Regarding what constitutes a sufficient exchange of words
     to form a common law marriage, the Pa Supreme Court has
     explained:

          It 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 future or in
          postea, but - in praesenti, 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.




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           When an attempt is made to establish a marriage
           without the usual formalities, the claim must be
           reviewed with great scrutiny.

     [Staudenmayer, 714 A.2d] at 1020-22.

            In other words, a common law marriage does not come
     into existence unless the parties uttered the verba in praesenti,
     meaning the exchange of words in the present tense for the
     purpose of establishing the relationship of husband and wife.
     [Staudenmayer, 714 A.2d] at 1021. A rebuttable presumption
     may be entered in favor of a common law marriage based on
     sufficient proof of cohabitation and reputation of marriage where
     the parties are otherwise disabled from testifying regarding
     verba in praesenti. Id. Where the parties are available to
     testify, however, the party claiming a common law marriage
     bears the burden of producing clear and convincing evidence of
     the words exchanged. Id.

            The credibility of the witnesses in this particular case holds
     great significance as so much of the testimony presented was
     contradictory. It is within the sole province of the trial court to
     assess the credibility of witnesses. McKolanis v. McKolanic, 644
     A.2d 1256, 1257 (Pa. Super. Ct. 1994). This means that “the
     trial court, as the finder of fact, is the sole determiner of the
     credibility of witnesses and all conflicts in testimony are to be
     resolved by the finder of fact.” In re B.C., 36 A.[3]d 601, 605
     (Pa. Super. Ct. 2012).

           Both parties were available to testify in this case.
     [Appellant] testified that she first met [Appellee] in August 1987.
     Then in November 1987, [Appellant] stated that she and
     [Appellee] discussed their future together. [Appellant] testified
     that the parties agreed to be married while [Appellee] attempted
     to get an annulment from his previous marriage. [Appellant]
     stated that they celebrated this discussion by sharing a bottle of
     wine.

           On the contrary, [Appellee] testified that there was never
     a discussion about pledging themselves to each other.
     [Appellee] acknowledged that he loved [Appellant], but they
     never discussed marriage.         The Court finds [Appellee’s]
     testimony on this issue to be credible.


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            The parties did live together. During that time, the parties
     shared in entertaining and attended events together.
     [Appellant] testified that she told her Mother, sisters, and friends
     about vows that the parties exchanged.            This Court finds
     [Appellant’s] testimony on this matter not credible. [Appellant’s]
     own family members testified that [Appellant] and [Appellee]
     were not husband and wife.            [Appellant’s] brother, Gary
     Rutkowski, testified that there was never a ceremony between
     the parties. He stated that [Appellant] and [Appellee] never
     appeared to be married. Rather, their relationship was more for
     convenience rather than commitment.              Cheryl Rutkowski
     testified that neither party wanted to be married to the other.
     [Appellant’s] sister, Elizabeth Griffin, stated that the parties
     acted like a married couple, but the [Appellant] did not tell her
     that they pledged themselves to be husband and wife until years
     later.

           [Appellant] testified that in September 1988, the parties
     bought wedding bands in the Caribbean. On cross-examination,
     however, [Appellant] admitted that the wedding band receipt
     lists [Appellant’s] sister’s name.      [Appellant] stated that
     [Appellee] later bought [Appellant] a diamond ring, but she sold
     it because she needed money.

            [Appellant] was listed as [Appellee’s] common law spouse
     on [Appellee’s] insurance. [Appellee] testified that [Appellant]
     was put on his insurance and other documents so that she could
     build up her credit. There was conflicting testimony as to
     whether the parties also accrued a vehicle jointly. Eventually,
     the parties ventured into real estate in order to make money as
     landlords. When the properties were purchased, however, they
     were only in [Appellee’s] name. In fact, all six of the properties
     that were discussed by [Appellant] were titled solely in
     [Appellee’s] name. [Appellant] acknowledged that [Appellee] is
     listed as “unmarried” on all of the deeds. Additionally, a deed
     transferred between the parties reflects that a transfer tax was
     paid. [Appellant] testified that she did not know that married
     couples were not required to pay transfer tax when they moved
     property between each other despite the fact that [Appellant]
     herself is a real estate agent. Of further significance is the fact
     that all of [Appellee’s] tax returns for the period in question list
     [Appellee] as single, unmarried.2




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            2
              From 1994 through 2010, [Appellee] filed his taxes
            as single, unmarried. Then from 2011 through 2014,
            [Appellee] filed as “married” as he had married
            Shirley Stenger in October 2011.

             [Appellant] stated that the parties presented themselves
      as husband and wife. [Appellee] stated, however, that he never
      introduced [Appellant] as his wife. The Court finds [Appellee’s]
      testimony on this issue to be credible. It is supported by the
      fact that the plethora of cards and love letters exchanged by the
      parties never referenced each other as husband or wife. Some
      of the letters were short insignificant exchanges while some
      were cards for Valentine’s Day. Regardless of the occasion or
      content in the card or letter, “Husband” or “Wife” was never
      referenced by either party.

           Further, despite [Appellant’s] assertions that the parties
      were “married,” she never changed her name to Stenger. Nor
      did the [Appellant] change her license or other important
      documents to reflect [Appellee’s] name.

            For the aforementioned reasons, this Court finds
      [Appellee’s] testimony to be more credible overall than
      [Appellant’s]. This Court holds that there was no verba in
      praesenti; the parties never exchanged words in the present
      tense for the purpose of establishing the relationship of husband
      and wife. Further the evidence submitted to the Court supports
      [Appellee’s] testimony that the parties did not enter a common
      law marriage. [Appellant] had a heavy burden to overcome and
      she failed to do so through the testimony and evidence
      presented.

Trial Court Opinion, 5/6/15, at 2-6 (emphasis in original).

      After careful review, we discern no error.    Both parties were able to

testify, and Appellant was required to prove that words in the present tense

establishing the intention to be husband and wife were exchanged. In her

brief on appeal, Appellant focuses on the trial court’s explanation regarding

tax returns, real estate holdings, and the fact that Appellant did not take


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Appellee’s last name.1           We conclude that the trial court thoroughly

addressed the arguments made by Appellant, and we agree that Appellant’s

claims of error entitle her to no relief.

       However, one aspect of Appellant’s argument the trial court did not

address in detail was a letter Appellee wrote to Appellant during their

relationship.    Appellant argues that the letter reveals the existence of the

parties’ common law marriage. We disagree.

       During the February 24, 2015 hearing, Appellant read the letter into

the record, and the letter was admitted into evidence without objection.

N.T., 2/24/15, at 70-71; Exhibit CC.             The language of that letter is as

follows:

       Hi [Appellant]. By now I should be in Canada, and you can be
       sure that I miss you. But if I would have taken you, the guys
       might find out that I am a wus buck or even a wimp. Just so
       you don’t think so. Well, you know what they say, something or
       other makes the heart grow fonder. Ha-ha. That’s supposed to
       be funny. Or should I have said ho-ho-ho? Well, anyway,
       another reason I am writing this note is if anything happens
       to me, I am saying that this should hold up in any court of
       law, that I want all of my possessions, everything that I
       own, all of my money, property and coins to go to
       [Appellant]. And if this letter isn’t worth anything, how
       about common law in the state?             Well, I don’t think
       anything will happen. I miss you and I love you with all my
       heart. I will be back soon so you can sing your song again,
       you’re a pain in my balls. Love for ever and ever, [Appellee].
____________________________________________


1
  While the trial court does mention that Appellant did not change her name
to Stenger, Trial Court Opinion, 5/6/15, at 6, this appears in one sentence
only. We conclude that this factor is but one consideration, and ultimately,
we concede it is of little significance in this Court’s analysis.



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N.T., Hearing, 2/24/15, at 70-71 (emphasis added).

      We conclude that the letter may have been an attempt to draft a

holographic will or perhaps a rhetorical question regarding common law

marriage; however, it cannot be construed as verba in praesenti such that it

establishes a marriage at common law.         Indeed, the only mention of

“common law” is phrased as a question—it is not a statement of fact or

demonstration of the parties’ then-existing circumstances.      After reviewing

the letter, we do not discern any abuse of discretion or error of law in the

trial court’s conclusion.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm the March 4, 2015 order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




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