Brown, B. v. Mazer, H.

J-A33038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BOBBIE S. BROWN IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
HARRY S. MAZER
Appellee No. 1430 EDA 2014
Appeal from the Order Entered April 29, 2014
In the Court of Common Pleas of Chester County
Civil Division at No.: 2013-07667-Dl
BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED JANUARY 20, 2015
Bobbie S. Brown appeals the trial court’s April 29, 2014 order that
granted Harry S. Mazer’s petition for declaratory judgment and dismissed
Brown’s divorce complaint. We affirm.
The trial court summarized the procedural history of this case as
follows:
On August 7, 2013, [Brown] filed a Divorce Complaint averring
[that] the parties were married on May 30, 1983, by common
law.1 [Brown] averred that the parties lived together as
husband and wife until [Mazer] left in October 2009. On August
23, 2013, [Mazer] filed a Petition for Declaratory Judgment to
Determine Validity of Marriage challenging [Brown’s] averment
that a common law marriage existed.
1
[Brown] stated at trial that she and [Mazer] declared
their present intention to be married a second time on the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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following weekend, June 6th or 7th, 1983, at Cove Haven,
Pennsylvania.
A hearing on [Mazer’s] Petition was conducted on February 24,
2014 and continued on February 28, 2014. On April 29, 2014,
[the trial court] issued an Opinion and Order [that granted
Mazer’s petition, found that there was no common law marriage,
and dismissed Brown’s divorce complaint. Brown] filed an
appeal on May 2, 2014, and on May 7, 2014[, the trial court]
issued a Rule 1925(b) Order. Thereafter, [Brown] properly filed
a Concise Statement of Matters Complained of on Appeal
[pursuant to Pa.R.A.P. 1925(b)].
Trial Court Opinion (“T.C.O.”), 7/2/2014, at 1-2 (citations to record and
some footnotes omitted).
Brown presents one issue for our review:
Whether conflicting testimony over words of present intent
coupled with twenty-six years of cohabitation and substantial
evidence of a general reputation of marriage together with
significant documentary support admitting marriage is sufficient
to establish that a common law marriage existed as of May 30,
1983?
Brown’s Brief at 3.
Our standard of review is as follows:
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) (quoting Bianchi
v. Bianchi, 859 A.2d 511, 515 (Pa. Super. 2004)). Additionally, this Court:
must accept findings of the trial court that are supported
by competent evidence of record, as our role does not
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include making independent factual determinations. In
addition, with regard to issues of credibility and weight of
the evidence, this Court must defer to the trial judge who
presided over the proceedings and thus viewed the
witnesses first hand.
Hogrelius v. Martin, 950 A.2d 345, 348 (Pa. Super. 2008).
When the trial court sits as fact finder, the weight to be assigned
the testimony of the witnesses is within its exclusive province, as
are credibility determinations, [and] the court is free to choose
to believe all, part, or none of the evidence presented.
Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009) (some citations
and quotation marks omitted).
We note that the General Assembly has abolished common law
marriage.
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.A. § 1103. Brown has alleged that the marriage predated the
abolition. Therefore, if proven, the common law marriage would be viable.
Because common law marriage generally is disfavored, the burden to
prove its existence is high:
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 such
exchange. The burden to prove a common law marriage rests
on the proponent of the marriage and such a claim must be
reviewed with great scrutiny.
Bell v. Ferraro, 849 A.2d 1233, 1235 (Pa. Super. 2004).
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Our Supreme Court has explained the presumptions and proof required
in cases of common law marriage as follows:
Generally, words in the present tense are required to prove
common law marriage. Because common law marriage cases
arose most frequently because of claims for a putative surviving
spouse’s share of an estate, however, we developed a rebuttable
presumption in favor of a common law marriage where there is
an absence of testimony regarding the exchange of verba in
praesenti. When applicable, the party claiming a common law
marriage who proves: (1) constant cohabitation; and, (2) a
reputation of marriage which is not partial or divided but is broad
and general, raises the rebuttable presumption of marriage.
Constant cohabitation, however, even when conjoined with
general reputation are not marriage, they are merely
circumstances which give rise to a rebuttable presumption of
marriage.
Here, however, we are presented with the problem of whether
this rebuttable presumption pertains when both parties are alive
and able to testify regarding the formation of the marriage
contract. We have stated that the rule which permits a finding
of marriage duly entered into based upon reputation and
cohabitation alone is one of necessity to be applied only in cases
where other proof is not available. The “necessity” that would
require the introduction of evidence concerning cohabitation and
reputation of marriage is the inability to present direct testimony
regarding the exchange of verba in praesenti. We held in In re
Estate of Stauffer, 504 Pa. 626, 476 A.2d 354 (1984), that the
Dead Man’s Act prohibited the purported wife’s testimony
regarding the exchange of marital vows with her alleged
common law husband. There, we noted that the inability of the
putative widow to present any testimony regarding the exchange
of vows did not prevent her from proving a common law
marriage. “Where there is no such proof available,” we held,
“the law permits a finding of marriage based upon reputation
and cohabitation when established by satisfactory proof.” Id. at
632, 476 A.2d at 357.
We have not, however, dispensed with the rule that a common
law marriage does not come into existence unless the parties
uttered the verba in praesenti, the exchange of words in the
present tense for the purpose of establishing the relationship of
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husband and wife. We have allowed, as a remedial measure, a
rebuttable presumption 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. However, where the
parties are available to testify regarding verba in praesenti, the
burden rests with the party claiming a common law marriage to
produce clear and convincing evidence of the exchange of words
in the present tense spoken with the purpose of establishing the
relationship of husband and wife, in other words, the marriage
contract. In those situations, the rebuttable presumption in
favor of a common law marriage upon sufficient proof of
constant cohabitation and reputation for marriage, does not
arise.
By requiring proof of verba in praesenti where both parties are
able to testify, we do not discount the relevance of evidence of
constant cohabitation and reputation of marriage. 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. We merely hold that if a putative spouse who is
able to testify and fails to prove, by clear and convincing
evidence, the establishment of the marriage contract through
the exchange of verba in praesenti, then that party has not met
its “heavy” burden to prove a common law marriage, since he or
she does not enjoy any presumption based on evidence of
constant cohabitation and reputation of marriage.
Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020-21 (Pa. 1998)
(some internal citations, quotation marks, and footnotes omitted). Here,
because both parties are living and were able to testify, Brown must prove
that words in the present tense were exchanged, and she does not have the
benefit of a rebuttable presumption. However, evidence of cohabitation and
a reputation of marriage is permissible when, as here, there is a
disagreement about whether words were exchanged.
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At the hearing, Brown testified that in May 1983, she and Mazer
exchanged words of present intent. Notes of Testimony (“N.T.”), 2/28/2014,
at 10. Brown also said they exchanged words of present intent a second
time the following weekend. Id. at 37. Brown produced a document that
she wrote that read “Yeah were [sic] married” that was posted on a
corkboard in the parties’ apartment. Id. at 10-11. Brown testified that
Mazer represented himself as married to Brown on his social security
application, on medical forms, in newspaper articles and advertising for their
business, and to customers. Id. at 13, 19, 24, 25-27. Brown represented
herself as married to Mazer in her social security application. Id. at 14, 17.
Brown admitted that she filed her income tax forms as single, but claimed
that the accountant filled the forms out and she never reviewed them. Id.
at 51-52. Brown admitted that she went for a blood test in furtherance of
marrying another man, but she denied that she applied for the marriage
license. Id. at 63-65, 67-76, 83. Brown also presented witnesses who
testified that Brown and Mazer had a reputation of marriage. N.T.,
2/24/2014, at 11, 15; N.T., 2/28/2014, at 86-87.
Mazer testified that he did not exchange words of present intent with
Brown. N.T., 2/24/2014, at 24. He maintained that he never referred to
Brown as his wife. Id. at 73. Mazer testified that Brown periodically would
bring up the idea of getting married, but that he did not want to marry. Id.
at 105. When asked about the social security application, Mazer, upon the
advice of counsel, refused to testify and invoked his right to remain silent.
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Id. at 26-27, 131. Mazer testified that certain documents that listed him
and Brown as married, such as hotel registrations, holiday cards, physician
information and emergency contacts, and newspaper articles and
advertisements, were completed by Brown. Id. at 27-28, 33, 38-41, 43, 44,
46-47, 59-60, 65. Mazer also produced documents, such as a mortgage, tax
forms, and patient information forms, that he filled out indicating his marital
status as single. Id. at 105, 107-08, 109. Mazer stated that Brown drafted
his will with an attorney and he just signed it without reading it. Id. at 31-
33.
Mazer presented a witness who testified that Brown had received a
blood test for a marriage license with another man. N.T., 2/24/2014, at 19.
The attorney who drafted the parties’ powers of attorney and medical
directives testified that Brown told him that the parties were not married and
that he would have drafted the documents differently had he believed that
the parties were married. Id. at 81-82. That same attorney testified that
Brown provided him with the language to include in Mazer’s will. Id. at 83.
When Mazer learned that the deed listed the parties as husband and wife,
Mazer directed his attorney to try to correct the deed. Id. at 85. Mazer
presented other witnesses who testified that the parties said they were not
married, and the witnesses did not believe that the parties were married.
Id. at 98-99, 141-44, 154-55, 161-63.
Here, there were two contradictory stories of the parties’ relationship.
Therefore, credibility is the determinative factor. The trial court as fact-
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finder makes that determination. See Mackay, supra. The trial court made
the following findings:
Our credibility determination began with an examination of
[Brown’s] credibility relating to the events of February and
August 1986. It is [Brown’s] contention that at that time the
parties had been married almost three years. Yet, by [Brown’s]
own admission, in 1986 she presented herself to a doctor so that
a sample of her blood could be drawn because [Brown] had the
intention of marrying another man, Yehiel Zoor (“Mr. Zoor”) but
she did not intend to file for divorce from [Mazer].
Additionally, six months earlier, in February 1986, an application
for a marriage license was filed in Philadelphia County. [Brown]
testified that she never applied for a marriage license with Mr.
Zoor. [Brown] believed the personal information provided for
the application: (1) her date of birth; (2) her father’s full name;
(3) her father being deceased; (4) her mother’s full maiden
name; and (5) her mother’s address, was known to Mr. Zoor.
[Brown] suggested that Mr. Zoor may have completed the
application with a woman impersonating her. She volunteered
that Mr. Zoor had hired a woman to make her jealous because
[Brown] sought to end their relationship when [Mazer]
discovered the affair. [The trial court] found [Brown’s]
explanation of how [the marriage license application] was filed
without her knowledge to be implausible, especially taken
together with her testimony that six months later she voluntarily
submitted to a blood test in furtherance of obtaining a marriage
license so that she and Mr. Zoor could marry.
[The trial court] determined that [Brown], herself, did not act as
if she believed she was married to [Mazer] when she took steps
necessary to marry another man without seeking a divorce from
[Mazer]. As a result, [the trial court] did not find her testimony
that there was a common law marriage created in 1983 . . . to
be credible.
T.C.O. at 6-7 (citations to record omitted).
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Further, the trial court specifically found Mazer to be credible. While
acknowledging that both parties had not been consistent in representing
themselves as single or married, the court stated:
Unlike [Brown’s] explanations for the inconsistencies in her
history of events, [the trial court] found [Mazer’s] explanations
for his inconsistencies more plausible and believable. [Mazer’s]
most questionable actions were: (1) executing a Will without
reading it; (2) swearing that [Brown] was his wife on a Deed
that transferred property to the parties as married; and (3)
declaring on a social security benefits application that [Brown]
was his spouse. These actions may have consequences outside
[the trial] court’s jurisdiction, but are not uncommon. Persons
execute documents without reading them, even wills.
Individuals misstate their marital status for short term gains; i.e.
to obtain certain benefits or to lessen tax liabilities. There are a
variety of motivations for misstating a marital status. In this
case, [the trial court] found that [Mazer] acted to “keep the
peace” between himself and [Brown].
T.C.O. at 9 (citations to record and footnotes omitted).
Additionally, in its order and opinion, the trial court found as follows:
[The trial court] found [Mazer] credible in his testimony that he
executed [the will, the deed, and the social security application]
because he was asked by [Brown] to sign them. He testified
[Brown] filled in the information on the patient forms. He signed
the blank forms. He testified it was [Brown] who had the Will
drafted, and he did not read the Will before signing it. [The trial
court] found [Mazer’s] reasons for acting as he did reasonable
and credible. As for the Deed and the Social Security
Administration application, [Mazer’s] actions, in yielding to
[Brown’s] demands, may have been unwise, but his explanation
that he did so to “keep the peace” rings true to [the trial court].
[The trial court found that Mazer’s] position [was] corroborated
by evidence he presented. First, [Mazer] presented [Brown’s]
tax returns asserting she was single for the years 2007 through
2011. [Brown] explained that she signed but did not review the
returns in any of those years. [The trial court] did not find this
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testimony to be credible. Second, [Mazer] presented a marriage
application filed in Philadelphia County on February 27, 1986 . . .
and a blood test taken on August, 7, 1986 . . . . [Brown] denied
filing for a marriage license. Again, [the trial court] did not find
[Brown’s] explanation credible, especially in light of [Brown]
admitting she went to have the blood test. Thus, [the trial court
found that Brown] acted in a manner inconsistent with her
present allegation that she was married in May 1983.
Trial Court Opinion and Order, 4/29/2014, at 8.
Based upon our review of the record, the trial court did not abuse its
discretion in rendering its credibility determinations. It is clear that the trial
court considered all of the testimony in reaching those conclusions. Further,
the record supports the trial court’s conclusions that, based upon those
credibility determinations, the evidence did not suffice to meet the burden of
proof required to establish a common law marriage.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2015
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