J.A22038/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


YVETTE ANDREA ROTUNDO,                      :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellant         :
                                            :
                    v.                      :
                                            :
                                            :
PATRICK BRADLEY JONES,                      :
                                            :
                                            :     No. 2213 MDA 2013


               Appeal from the Order Entered November 13, 2013
                 In the Court of Common Pleas of Berks County
                       Civil Division No(s).: 12-19816 #1

BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 08, 2014

        Appellant, Yvette Andrea Rotundo, appeals from the order entered in

the Berks County Court of Common Pleas dismissing her complaint in

divorce.     Appellant challenges the court’s finding that a common law

marriage did not exist between her and Appellee, Patrick Bradley Jones. We

affirm.

        The parties began co-habitating “in 1991, right before” their older

daughter, who was twenty-three years old at the time of the hearing, was

born. N.T., 11/1/13, at 9. On August 24, 2012, Appellant filed a complaint

in divorce seeking alimony, equitable distribution of marital property,

*
    Former Justice specially assigned to the Superior Court.
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alimony pendente lite, spousal support, counsel fees, costs and expenses,

and child custody.      She claimed she and Appellee entered into a common

law marriage on May 12, 1996.          On September 11, 2012, pursuant to 23

Pa.C.S. § 3306,1 Appellee filed an answer and counterclaim for declaratory

judgment that there was no marriage. A hearing was held on November 1,

2013.

        Appellant testified, inter alia, as follows:

           [Counsel for Appellant]: Do you believe that you are
           married?

           A: Yes.


1
    Section 3306 provides:

           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. The trial court opined:

              As the existence of a valid marriage is a fundamental
           requirement to processing an action in divorce, the issue
           raised is one of subject matter jurisdiction. The issue of
           subject matter jurisdiction can be raised by either party or
           the Court at any time. Bernhard v. Bernhard, 668 A.2d
           546, 548 [Pa. Super. 1995]. Accordingly, the fact that the
           issue was raised through a counterclaim rather than
           through a preliminary objection is not fatal.

Trial Ct. Op., 1/28/14, at 1 n.1.



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       Q: Do you believe that the words of present intent were
       spoken to you?

       A: Yes.

       Q: And that you also responded?

       A: Yes.

       Q: . . . [W]hat was the date on which you say that the
       words of present intent were spoken to you?

       A: It was Mother’s Day, May 12, 1996.

       Q: And why are you so sure that it was that date?

       A: Because the events that led up to it, and something
       that was given to me at the end of the day. It just all
       came back in a very distinct memory, and was also a big
       turning point in our relationship.

       Q: . . . The words of present intent.     Where were you
       when they were spoken?

       A: They were spoken─we had bought─were in the plans
       [sic] of buying a house, and the house that I am currently
       living in.

       Q: Who is we?

       A: Me and [Appellee] were buying a house together.

                               *    *    *

       Q: At that point, you had two children?

       A: Correct.

       Q: Were the children with you at that─when the time of
       the words of present intent were spoken?

       A: Yes, they were.

       Q: How old were they?


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       A: [S.] would have been 5, and [H.] was just like 7 months
       old.

                               *     *    *

       Q: . . . And you were looking to buy a house?

       A: We had already been accepted. Our offer was accepted
       and we went to the property that afternoon to just take
       another look around. . . .

                               *     *    *

       Q: . . . [W]here exactly were the words spoken on the
       property?

       A: [T]his is a farmhouse, . . . and [Appellee] and I were
       standing on the bridge[.]

          And I said to [Appellee], you know, now that we are
       buying this house do you think that we should go forward
       and have a more formal ceremony as far as the marriage?
       And he turned and he looked at me and grabbed me
       around my waist, and he looked at me . . . and he said
       buying this house is a very big commitment for me. And
       he said, I am not taking this lightly. He said as far as I am
       concerned, you and I are married, and I am your husband,
       and you are my wife, and I am committed to nobody else
       but you.

          And I looked at him, and I kind of got cute about it
       because that was the first time that I heard him call
       me─refer to me as his wife, at least to my face. He had
       been introducing me as his wife prior to that. But I looked
       at him, and I said I am committed to you, and I am your
       wife, and, yes, you are my husband.

         And we just proceeded to talk more about the property.
       But that was the first time the words were spoken in that
       way.

                           *    *    *



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         Q: I show you what has been marked as Exhibit No. 1.
         What is that?

         A: It is a Mother’s Day card given to me later that day.

         Q: All right.

         A: By [Appellee].

         Q: Is this signed?

         A: Yes, it is.

         Q: Is it dated?

         A: Yes, it is.

         Q: What is the date?

         A: May 12, 1996.

         Q: Would you please read the front of the card?

         A: I love you my wife, on Mother’s Day and always. I love
         you my wife. . . .

N.T., 11/1/13, 8-10, 12-14. Appellee testified that he never told Appellant

he was her husband and she was his wife. Id. at 38.

      On November 13, 2013, the trial court entered an order dismissing the

complaint in divorce.      This timely appeal followed.      Appellant was not

ordered to filed a Pa.R.A.P. 1925(b) statement of errors complained of on

appeal. The trial court filed a Pa.R.A.P. 1925(a) opinion.

      Appellant raises the following issue for our review: “Did the trial court

commit an abuse of discretion and/or commit an error of law in finding that

a common law marriage did not exist between the parties?”           Appellant’s



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Brief at 5.    Appellant argues “that the parties exchanged words in the

present tense for the purpose of establishing a marital contract.” Id. at 9.

In support, Appellant cites her testimony at the hearing. Id. at 9-12, 20-21,

23-24. Appellant avers “[i]t is clear from [her] testimony that the words of

present intent were spoken and that [Appellee] then followed and reinforced

those words with a card addressed to ‘My Wife.’”       Id. at 12.   Appellant

contends that on March 19, 2003, Appellee presented her with a ring in front

of their children and he stated that it represented their marriage. Id. at 20-

21. She claims she met her burden of proof that the parties entered into a

common law marriage.2 Id. at 25. We disagree.

     We first note the relevant standard of review where the court finds

that there is no common law marriage: “That finding, if supported by

competent evidence, is entitled to the same weight as the verdict of a jury.

A decree based thereon will not be reversed in the absence of an abuse of

discretion or an error of law.” In re Estate of Kovalchick, 498 A.2d 374,

376 (Pa. Super. 1985).

     This Court has stated:

2
  In 2005, the legislature abolished common law marriage in Pennsylvania:
“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.” 23 Pa.C.S. § 1103. This amendment does not impact the case at
bar, as Appellant claims “the parties entered into a common law marriage
when the exchange of words were spoken [in 1996] and these words were
then spoken again some years later in front of the parties’ children with the
presentation of a ring [in 2003.]” See Appellant’s Brief at 25.



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           Marriage in Pennsylvania is a civil contract by which a
        man and a woman take each other for husband and wife.
        There are two kinds of marriage: (1) ceremonial; and (2)
        common law. A ceremonial marriage is a wedding or
        marriage performed by a religious or civil authority with
        the usual or customary ceremony or formalities.

           Because claims for the existence of a marriage in the
        absence of a certified ceremonial marriage present a
        “fruitful source of perjury and fraud,” Pennsylvania courts
        have long viewed such claims with hostility. Common law
        marriages are tolerated, but not encouraged. . . .

           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. 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, 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.”

Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1019-20 (Pa. 1998)

(emphasis added, footnotes and citations omitted).



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      Instantly, after careful review of the record, including the notes of

testimony of the November 1, 2013 hearing, the parties’ briefs, and the

well-reasoned decision of the Honorable Scott E. Lash, we affirm on the

basis of the trial court’s decision, finding that the evidence did not establish

a common law marriage. See Trial Ct. Op. at 1-11 (finding, inter alia: (1)

testimony of both parties was self-serving and of questionable credibility;

(2) complaint in divorce contradicted Appellant’s testimony that parties were

married on May 12, 1996, setting forth the date of the marriage as March

19, 2003; (3) Appellant failed to state date of marriage on her child support

complaint; (4) deed for property purchased in 1996 “set forth that the

parties are owners ‘as joint tenants with right of survivorship and not as

tenants in common;” (5) parties refinanced property in 2010 and Appellant

stated marital status was “single;” (6) parties’ federal tax returns were filed

as “head of household” or as “single”). We discern no abuse of discretion by

the trial court. See Estate of Kovalchick, 498 A.2d at 376. Accordingly,

we affirm the trial court’s order dismissing the complaint in divorce.

      Order affirmed.

 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/8/2014




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