Valentine, K. v. Wetzel, M.

J-S79039-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KIMBERLY L. VALENTINE, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MELISSA M. WETZEL : No. 790 MDA 2018
Appeal from the Order Entered April 12, 2018
in the Court of Common Pleas of Adams County
Civil Division at No(s): 2017-SU-0001093
BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 12, 2019
Kimberly L. Valentine (“Valentine”) appeals from the Order declaring
that the common law marriage, which she alleged to have taken place with
Melissa M. Wetzel (“Wetzel”), is invalid.1 We affirm.
In its Opinion, the trial court set forth the relevant factual history and
evidence underlying the instant appeal, which we adopt as though fully
restated herein. See Trial Court Opinion, 4/12/18, at 2-7.
On October 4, 2017, Valentine filed a Complaint pursuant to sections
3301(c) and (d) of the Divorce Code, as well as economic claims. Specifically,
Valentine claimed that the parties had entered into a common law marriage
____________________________________________
1 Rule 341 provides that an appeal may be taken as of right from any final
order of a lower court. Pa.R.A.P. 341(a). In relevant part, a final order is any
order that disposes of all claims of all parties. Pa.R.A.P. 341(a)(1). The trial
court’s Order disposed of all claims of all parties, and accordingly, is final and
appealable.
J-S79039-18
on December 25, 2003, in Frederick County, Maryland. Wetzel filed
Preliminary Objections to the Complaint, claiming that in 2003, Maryland had
not yet recognized same-sex marriage. On December 4, 2017, Valentine filed
an Amended Complaint, which additionally averred that the parties had
entered into a common law marriage in Adams County, Pennsylvania, on
December 25, 2004. Valentine asked that the trial court declare their
marriage valid.2 Wetzel filed Preliminary Objections to the Amended
Complaint. After an evidentiary hearing, the trial court entered its April 12,
2018 Order declaring that Valentine had failed to establish, by clear and
convincing evidence, a valid common law marriage. See Trial Court Order,
4/12/18. Thereafter, Valentine filed the instant timely appeal, followed by a
court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of
on appeal.
Valentine presents the following claims for our review:
1. Whether the [t]rial [c]ourt abused its discretion and/or made
an error of law when it concluded, against the weight of the
evidence, that no common law marriage existed[?]
2. Whether the [t]rial [c]ourt abused its discretion and/or made
an error of law when it concluded, against the weight of the
evidence, that the evidence did not establish that the parties
intended to enter into a marriage contract[?]
Brief for Appellant at 4.
____________________________________________
2 See 23 Pa.C.S.A. § 3306 (allowing a party or parties to the marriage to file
a declaratory judgment action seeking a declaration that the marriage is valid
or invalid).
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J-S79039-18
Valentine first claims that the clear and convincing evidence established
that she and Wetzel had entered into a common law marriage contract, “and
that they intended to, and indeed did, live as a married couple for
approximately 13 years.” Id. at 12. Valentine acknowledges that the trial
court “point[ed] to contradictory accounts of the parties’ witnesses in holding
that the parties had failed to “utter present tense words sufficient to establish
a marital contract.” Id. Valentine argues, however, that this is not fatal to
her claim of a common law marriage. Id. According to Valentine, she put
forth evidence that she had presented Wetzel with a ring and had asked Wetzel
to “be mine”; the parties purchased a home and moved to Adams County; the
home was to be for their blended family; they purchased rings in 2004; and
on December 25, 2004, they exchanged the rings and reaffirmed their
intention to live as a married couple. Id. at 13-14.
Valentine further argues that it was unreasonable for the trial court not
to consider corroborating evidence of their common law marriage. Id. at 15.
Valentine directs our attention to evidence that she and Wetzel cohabitated
continuously from November 2004 until May 2017; they had a joint insurance
policy for the home; they comingled their money and had joint bank accounts;
they started a business together; they celebrated their anniversary every year
and exchanged anniversary cards; they were jointly named on bills; Wetzel
named Valentine a beneficiary on her accounts; and each had executed a will
designating the other as beneficiary and power-of-attorney. Id. at 15-16. In
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J-S79039-18
addition, Valentine claims that she publicly introduced Wetzel as her “wife,”
and the two attended social events as a married couple. Id. at 17. Finally,
Valentine directs our attention to evidence that her daughter considered
Wetzel to be a step-parent; Wetzel was listed on the school emergency contact
card; and Wetzel attended school functions as a parent. Id.
As this Court has explained,
[w]hen reviewing the decision of the trial court in a
declaratory judgment action, our scope of review is narrow.
O’Brien v. Nationwide Mutual Insurance Co., 455 Pa.
Super. 568, 689 A.2d 254, 257 (1997). Consequently, we
are limited to determining whether the trial court’s findings
are supported by substantial evidence, whether an error of
law was committed or whether the trial court abused its
discretion, Walker v. Ehlinger, 544 Pa. 298, 300 n.[]2, 676
A.2d 213, 214 n.[]2 (1996).
The test is not whether we would have reached the same
result on the evidence presented, but whether the trial court’s
conclusion can reasonably be drawn from the evidence.
Where the trial court’s factual determinations are adequately
supported by the evidence we may not substitute our
judgment for that of the trial court. Clearfield Volunteer
Fire Department v. BP Oil, 412 Pa. Super. 29, 602 A.2d
877, 879 (1992), appeal denied, 531 Pa. 650, 613 A.2d 556
(1992) (citations omitted).
PARC Holdings, Inc. v. Killian, 785 A.2d 106, 110 (Pa. Super. 2001)
(quoting Fred E. Young, Inc. v. Brush Mt. Sportsmen’s Ass’n, 697 A.2d
984, 987 (Pa. Super. 1997). Moreover, the
findings of the trial judge in a non-jury case must be given
the same weight and effect on appeal as a verdict of a jury
and will not be disturbed on appeal absent error of law or
abuse of discretion. When this [C]ourt reviews the findings of
the trial judge, the evidence is viewed in the light most
favorable to the victorious party below and all evidence and
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J-S79039-18
proper inferences favorable to that party must be taken as
true and all unfavorable inferences rejected.
PARC Holdings, Inc., 785 A.2d at 110 (citation omitted).
In its Opinion, the trial court set forth the applicable law, addressed
Valentine’s claim, and concluded that it lacks merit. See Trial Court Opinion,
4/12/18, at 7-12. We agree with and adopt the sound reasoning of the trial
court, and affirm on this basis with regard to Valentine’s claim. See id.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/12/2019
-5-
Circulated 02/14/2019 04:24 PM
IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
CIVIL
K.L.V., 2017-5-1093
Plaintiff
v.
M.M.W.,
Defendants
OPINION
K.L.V. (hereinafter "Kimberly") seeks a declaratory judgment from this Court to
establish that she and M.M.W (hereinafter "Melissa") established a valid common law marriage
on December 25, 2004, which will then allow Kimberly to proceed with her Amended Complaint
in Divorce. For the reasons stated below, Kimberly has failed to establish, by clear and
convincing evidence, that the parties entered into a common law marriage on December 25,
2004.
PROCEDURAL HISTORY
Kimberly filed a Complaint under Sections 3301(c) and (d) of the Pennsylvania Divorce
Code on October 4, 2017, along with related economic claims. The parties are the same gender.
In her Complaint, Kimberly verified under penalty of unswom falsification that the parties
entered into a common law marriage on December 25, 2003 in Frederick County, Maryland.
Melissa filed a timely Preliminary Objection to Kimberly's Complaint, alleging a lack of subject
matter jurisdiction, because Maryland did not recognize same-sex marriage in 2003. No Answer
was filed. Without leave of Court, Kimberly subsequently filed an "Amended Complaint In
1
Divorce Seeking Declaratory Judgment of Common Law Marriage" on December 4, 20171• In
her Amended Complaint, Kimberly averred alternatively that the parties entered into a common
law marriage on December 25, 2004 in Adams County, Pennsylvania, and requested this Court
to declare their marriage valid, pursuant to 23 Pa. C.S.A. §33062. Melissa filed a Preliminary
Objection to Kimberly's Amended Complaint on January 3, 2018, again alleging lack of subject
matter jurisdiction. Specifically, Melissa argues that Kimberly's Amended Complaint should be
dismissed because no marriage license has been produced and because Pennsylvania did not
recognize same-sex marriage in any format, including in the context of common law marriage,
until 2014. Briefs were timely filed. Kimberly stated in her brief that she "may concede that
Maryland does not recognize common-law marriage", which would render her initial divorce
complaint moot. This Court held an evidentiary hearing on January 19, 2018.
FACTUAL BACKGROUND
Kimberly and Melissa greatly dispute the extent of their relationship and the events that
transpired during their time as a couple. They commenced a romantic dating relationship on or
about August 15, 2003. They lived together as same-sex domestic partners in Adams County
from sometime in late 2003/early 2004 until they separated in May of 2017. They did not obtain
a marriage license in any state after same-sex marriage became legally recognized. 3
During the evidentiary hearing Kimberly testified that, on Christmas Day 2003 in
Maryland, she gave Melissa "a sapphire and diamond ring and asked her to be mine". The
1
See Pa. R.C.P. No. 1033.
2
§ 3306. Proceedings to determine marital status. 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.A. §3306.
3
The U.S. District Court's landmark decision in Whitewood v. Wolf effectively legalized same-sex marriage in
Pennsylvania in 2014. Id., 992 F.Supp.2d 410 (M.D. Pa. 2014).
2
parties were residing in separate residences in Maryland at that time. Kimberly testified that the
parties acquired real estate in Adams County in November of 2004, moved in together, and
decided to enter into a common law marriage on December 25, 2004 in their new home.
Kimberly's testimony is consistent with her amended complaint but contradicts her averment in
her original divorce complaint, wherein she verified under penalty of unswom falsification that
the parties established a common law marriage exactly one year prior to that in Maryland.
Kimberly attempted to reconcile her various versions of events by testifying that she and Melissa
were engaged to be married on Christmas Day 2003 and then "re-exchanged" rings on Christmas
Day 2004. Melissa agrees that Kimberly gave her the sapphire and diamond ring in December of
2003, but maintains that it was a Christmas gift, not part of a marriage proposal. There were no
other witnesses to verify the circumstances surrounding the gift of the ring on Christmas Day
2003 in Maryland.
Kimberly testified that Melissa purchased wedding bands for them both in contemplation
of marriage, and on Christmas Day 2004, these bands were exchanged and vows were promised
between them. Kimberly wore a band style ring during the hearing, but acknowledged that it was
not the band that Melissa gave her in 2004. When asked to identify the specific verbiage of the
vows, Kimberly testified "just something about love and cherish and we pretty much just put the
rings on each other's finger." There were no witnesses to this alleged exchange, not even
Kimberly's daughter, T.C., who resided with the couple at the time. The event was not
memorialized by photographs or recordings. Kimberly testified, "Well, I have never been
married, but I felt like we lived as a married couple" after that occasion.
In further support of her position, Kimberly presented testimony from a friend who met
the couple in 2008. She stated that Kimberly introduced Melissa to her as her wife and Melissa
3
did not object to that appellation. The witness and her husband socialized with the couple, who
wore what appeared to be wedding rings, and spoke of co-parenting Kimberly's daughter.
Melissa's perspective is diametrically opposed to Kimberly's. She testified that there
was never an exchange of wedding bands or vows, and that Christmas Day 2004 was not a date
of significance to her. Having recently been through a difficult divorce from her husband, she
did not intend to be bound by the bonds of matrimony again. She testified that the parties bought
rings for themselves, but not in anticipation of entering into a marriage contract. A photograph
of the couple on a cruise in 2012 shows Melissa wearing rings on the ring finger of her left hand.
Kimberly's hands are obscured. Plaintiff's Exhibit 3. Kimberly's daughter, T.C., who lived with
the parties for the majority of their relationship, and viewed Melissa as her stepmother, testified
that her mother gave jewelry as a gift to Melissa every Christmas. T.C. corroborated Melissa's
testimony that that the parties celebrated their anniversary in August, which is the month they
began dating, not on the alleged wedding date in December. This is further corroborated by a
screenshot of Melissa's facebook page introduced into evidence by Kimberly. Plaintiff's Exhibit
I. Melissa's relationship status is designated as "in a domestic partnership with [Kimberly] since
August 15, 2003". The undated anniversary greeting cards introduced by Kimberly evidence a
loving and committed relationship between the two parties, but do not denote a specific
anniversary date to support Kimberly's position as to the date of marriage or that the parties
considered themselves married to one another. Kimberly also presented a copy of Melissa's
father's obituary, dated 2011, which acknowledges Kimberly by name as Melissa's "partner?'.
Plaintiff's Exhibit 16. Kimberly testified that she introduced Melissa to people "mostly as my
4
As indicated in testimony, prior to the legalization of same-sex marriage, it was not uncommon for same-sex
couples in committed relationships to refer to one another as a "partner", "friend", "domestic partner", etc. The
use of these monikers, in and of itself, does not automatically discount the potential for the existence of a
common law marriage.
4
partner". In his durable health care power of attorney dated January 2, 2014, Kimberly's father
identified Melissa as his "daughter-in-law" and gave her decision making authority. Plaintiff's
Exhibit 15. Melissa presented testimony from her mother and her employee, who testified that
the women were not married and did not have a reputation in the local community as being
married.
The parties also dispute when they began cohabitating and the nature of their living
arrangement as it existed throughout the course of their relationship, particularly surrounding the
December 25, 2004 alleged date of marriage. By deed dated November 29, 2004, Melissa took
title as a single woman to property located on Bullfrog Road in Adams County. Defendant's
Exhibit 2. The homeowner's insurance policy issued December 7, 2004 lists both parties as
policy holders on page 1, both with a Maryland mailing address, but Melissa is listed as the sole
policy holder on page 3. Plaintiff's Exhibit 11. Kimberly testified she and Melissa moved into
that residence together in November 2004, along with T.C. and Kimberly's father. Kimberly
produced a photograph from Melissa's scrapbook with a caption purportedly indicating that they
all moved in together as a single family unit. Plaintiff's Exhibit 2.
In contrast, Melissa testified she intended to remain living in Thurmont for a time after
the purchase of the property. Melissa produced copies oflease agreements to demonstrate that
she purchased the Bullfrog Road property with the intention to rent it to Kimberly and her father,
to assist them as they were being imminently displaced from their previous home. Kimberly
testified that Melissa requested these leases be signed so that Melissa could gain financial
leverage to obtain additional real estate, which Melissa denies. The lease agreements, signed on
November 30, 2004, designate Melissa as landlord and Kimberly and her father as tenants.
Interestingly, the preambles of the 2004 lease agreements state that Melissa was "of Fairfield",
5
not Thurmont, in contradiction to Melissa's testimony. Furthermore, these leases were renewed
by the parties on November 30, 2005, after Melissa testified that she already begun residing at
that property. Defendant's Exhibit 18.
Also corroborating Kimberly's testimony, the parties jointly made written application to
Adams Electric Cooperative for electrical service to the property, designating on the form that
the property is "one hundred percent personal residence use (YOUR PRIMARY RESIDENCE)",
instead of checking "rental property" in section 3 of the form. Melissa and Kimberly signed this
form on December 3, 2004. Melissa paid the requisite application fee. Plaintiff's Exhibit 13.
Examining all of the evidence related to cohabitation arrangement of the parties, however
conflicting, it appears that Melissa purchased the property with the intent to reside there with
Kimberly, while using the appearance of lease income to bolster her financial position.
To further demonstrate the living arrangement and the nature of the parties' relationship,
Kimberly introduced an agreement dated March 22, 2005 in which Melissa gave Kimberly 50%
ownership interest in the equity of the Bullfrog Road home. Plaintiff's Exhibit 18. Kimberly
asserted that this agreement was not executed concurrently with the purchase of the home
because Kimberly's negative credit issues prevented her from being a mortgagor and having her
named placed on the deed. Notwithstanding that, she insisted that it was the implicit
understanding of the parties that Kimberly was an equal owner of the property at the time it was
purchased. To date, Kimberly's name has never been added to the deed. The existence of this
agreement shows an intent to commingle an asset and a certain level of commitment between the
parties, but is not conclusive proof that the parties were married.
The parties had a joint bank account and some joint bills during the course of their
relationship. They jointly acquired a vehicle in April of 2005. Kimberly asserts that this conduct
6
is consistent with that of a married couple. Melissa avers that this is consistent with committed
partners residing together, but is not evidence of a marriage contract. To support her argument,
Melissa produced bills and accounts that list the parties' marital status as "single" after the
alleged date of marriage, including an auto insurance policy issued on September 24, 2007.
Defendant's Exhibit 4. Melissa produced her 2010 United States Census questionnaire, wherein
she referred to Kimberly as a household member and marked the "unwed partner" box instead of
the "husband or wife" box. She further designated Plaintiff's Father as a household member and
marked the "Other nonrelative" box instead of "Parent-in-law" box. Defendant's Exhibit 5.
Melissa introduced a 2010 article from the local community newspaper, drafted by her aunt,
which refers to Kimberly as a "friend" of Melissa. Defendant's Exhibit 6. Melissa is very close
with her aunt, thus her aunt would have known her marital status. This newspaper article is also
indicative of how the parties held themselves out to the local community. Melissa, a certified
public accountant, prepared both parties' tax returns throughout the course of their relationship.
She produced Kimberly's tax returns, including those filed in 2015 and 2016, which designate
Kimberly as "head of household" claiming her daughter and her father as dependents, but not
claiming a spouse. Defendant's Exhibits 9, 10. Melissa produced several more documents dated
in 2011, wherein she indicated she was single and that Kimberly was her "non-spouse" and
"friend", to further demonstrate that she represented herself as a single woman and that Kimberly
was merely a romantic partner and a friend.
APPLICABLE LAW
Two types of marriage exist in Pennsylvania, ceremonial and common law.
Staudenmayer v. Staudenmayer, 552 Pa. 253, 714 A.2d 1016 (1998). Ceremonial marriage is a
wedding or marriage performed by a religious or civil authority with the usual or customary
7
ceremony or formalities. Id., see also 23 Pa.CS.A.§ 1501 et seq. Common law marriages
entered into after January 1, 2005 have been declared invalid by statute, but this abolishment was
not made retroactive. 23 Pa. C.S.A. §1103.5 Thus, it remains possible for a valid common law
marriage to have been established on or before January 1, 2005. The case of In re Estate of
Carter extended the right to establish common law marriage to same-sex couples. In doing so,
our Superior Court explained, "because opposite-sex couples in Pennsylvania are permitted to
establish, through a declaratory judgment action, the existence of a common law marriage prior
to January 1, 2005, ... same-sex couples must have that same right." In re Estate of Carter, 159
A.3d 970, 977-78 (Pa. Super. 2017). To deprive one party the opportunity to establish rights as
the other party's common law spouse, simply because they are a same-sex couple, "would
violate both the Equal Protection and Due Process Clauses of the Fourteenth Amendment." Id.
When the validity of a marriage is denied, a party to the alleged marriage "may bring an
action for 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
by decree of the court and ... the declaration shall be conclusive upon all persons concerned." 23
Pa. C.S.A. §3306. The burden to prove a common law marriage is on the party alleging the
marriage. PPL v. Workers' Compensation Appeal Bd., 5 A.3d 839 (Pa. Cmwlth. 2010).
Typically, verba in praesenti (words in the present tense) spoken between putative
spouses are required for a valid common law marriage. It is the present intent of parties to the
5
"The Act of November 24, 2004, P.L. 954 (Act 144), amended Section 1103 of the Marriage Law to provide as
follows: '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. In light of the Legislature's action, this Court has determined that any common
law marriage contract entered into prior to January 1, 2005 remained valid .... " PPL v. Workers' Compensation
Appeals Bd., 5 A.3d 839, 843-44 (Pa. Cmwlth. 2010)(citations omitted)
8
marriage contract which is crucial and not form of words used. David v. Bellevue Locust
Garage, 12 Pa.Cmwlth. 602, 607, 317 A.2d 341, 343 (1974). In cases when one party is
unavailable to testify regarding the verba in praesenti, there is a rebuttable presumption in favor
of common law marriage when the burdened party proves constant cohabitation and a reputation
of marriage. PPL v. Workers' Compen. App. Bd., supra; see also, In re Estate of Carter, 159
A.3d 970, 979 (Pa. Super. 2017). However, the reliance on such a presumption based upon proof
of cohabitation and reputation is only proper where direct evidence of the alleged marriage
agreement is unavailable. Id. Where both putative spouses are available to testify, as in the
instant case, this presumption does not apply.
"Common-law marriage claims are reviewed with great scrutiny." Elk Mountain Ski
Resort, Inc. v. Workers' Compensation Appeals Bd., 114 A.3d 27 (Pa. Cmwlth. 2015). The
exchange of verba in praesenti, spoken with the specific purpose of creating the legal
relationship of marriage "is a heavy burden and must be established by clear and convincing
evidence" of the exchange of words creating the marriage contract. Id. The clear and
convincing evidence standard is the highest standard of proof utilized in civil proceedings,
requiring "evidence that is 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." In re
Vencil, 638 Pa. 1, 152 A.3d 235, footnote 1 (Pa. 2017), citations omitted. "When faced with
contradictory testimony regarding verba in praesenti, the party claiming a common law marriage
may introduce evidence of constant cohabitation and reputation of marriage in support of his or
her claim." Studenmayer, 714 A.2d at 1021.
DISCUSSION
Melissa argues that it is impossible for a same-sex common law marriage to have been
formed between the parties because common-law marriage was abolished after January 1, 2005
9
and same-sex marriage was not legalized in Pennsylvania until 2014. As In Re Estate of Carter
recognizes the ability for same gender couples to establish a valid common law marriage on or
before January 1, 2005, this argument fails. This case actually turns upon whether or not
Kimberly has met her heavy burden through the presentation of clear and convincing evidence
that the couple exchanged verba in praesenti on December 25, 2004, thereby evidencing their
intent to form a marriage contract at that moment.
Kimberly's testimony concerning verba in praesenti exchanged between the parties was
'just something about love and cherish and we pretty much just put the rings on each other's
finger". Tr. At 15. Melissa denies that this occurred at any time during the parties' relationship.
There are no witnesses, nor any documentation to corroborate Kimberly's version of events.
Melissa's testimony regarding the couple celebrating their anniversary in August, not December,
was corroborated by T.C. Further undermining Kimberly's credibility are her two divorce
complaints, both signed under penalty of unsworn falsification, wherein she cites two different
marriage dates in two different locations, compounded by her testimony that the 2003 alleged
wedding date was actually the day that she proposed marriage to Melissa, then stating that they
"re-exchanged rings" on the second alleged wedding date in 2004.
In an effort to overcome the conflicting testimony regarding the existence of verba in
praesenti, Kimberly presented credible evidence of constant cohabitation by the parties from late
2003/early 2004 until 2017. See Staudenmayer, supra. However, "cohabitation between
unmarried people today does not carry with it the same social taboo as when the common law
marriage doctrine was developed", and is perhaps less indicative of parties to be married spouses
"than it was fifty or one hundred years ago." Id., 714 A.2d at 1023. "Since people live together
10
without intending to marry there must be proof of an agreement to enter into the relationship in
order to establish that the parties are married." Hertz v. Hertz, 23 Pa. D. & C.3d 55 (1981).
The parties presented conflicting evidence regarding whether they had a reputation for
marriage that was broad and general. Some people thought they were married. Melissa's family
members believed they were not married. Melissa's father's obituary referred to Kimberly as
Melissa's "partner" and an article written by Melissa's aunt referred to Kimberly as Melissa's
"friend". In contrast, Kimberly's father referred to Melissa as his daughter-in-law. Pertinent to
determination of whether a marriage exists is how the parties themselves view the relationship.
Id. Melissa provided a number of documents to demonstrate her intention to remain an
unmarried person throughout the course of the relationship.
Kimberly's evidence falls short of meeting the heavy burden of being clear and
convincing. Melissa's testimony regarding lack of the exchange of verba in praesenti is more
credible than Kimberly's vague, uncorroborated assertion. The two accounts directly contradict
one another. T.C. 's testimony corroborates Melissa's version of the relationship, particularly
with respect to the date they celebrated their relationship. There is not clear and convincing
evidence that verba in praesenti were exchanged. The evidence regarding constant cohabitation
of the parties and their reputation in the community also falls short of substantiating Kimberly's
claim.
It is clear that Kimberly and Melissa once loved and cared for one another. They forged
a loving, committed domestic partnership and close friendship for approximately 13 years. They
lived under the same roof, slept together, commingled assets and liabilities, and started a
landscaping business together. They exchanged gifts and greeting cards to recognize important
and romantic occasions. They socialized with other couples. They took care of each other.
11
While these behaviors are undertaken by married couples, they are also undertaken by many
unmarried couples. None of these circumstances, in whole or in part, demonstrate an intent by
the parties to enter into a marriage contract on December 25, 2004.
CONCLUSION
Kimberly has failed to establish, by clear and convincing evidence, that she and Melissa
entered into a common law marriage on December 25, 2004. Therefore, Melissa's Preliminary
Objections to the Complaint and Amended Complaint are sustained for the reasons stated herein.
A valid common law marriage has not been established. An Order and Decree shall be entered
accordingly.
BY THE COURT,
Date: April 12, 2018
Christina M. Simpson, Judge
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