In Interest of Miller , 301 Pa. Super. 511 ( 1982 )

SPAETH, Judge:

This is an appeal from an order declaring appellant’s common law marriage invalid and adjudging her a dependent child. We reverse.

At the time the events in question occurred, appellant was fourteen years old and a student in the eighth-grade. She lived with her mother in Erie. Her English teacher was one Edward Christoph, who was thirty-six years old. Early in the fall of 1980, appellant and Mr. Christoph became romantically involved. Sometime in October of 1980, appellant’s mother found two letters from Mr. Christoph to appellant; they were affectionate in nature, saying “I love you” and “[tjhings of that nature.” N.T. 8/4/81, 48. Appellant’s mother confronted appellant with the letters and forbade her to see Mr. Christoph. She also discussed the matter with the school authorities, and appellant was later transferred from Mr. Christoph’s English class. However, appellant continued to see Mr. Christoph, by sneaking out of the house from time to time.

During this time, appellant’s relationship with her mother became turbulent,¹ and on April 10,1981, appellant ran away and was placed by Children’s Services of Erie County at the home of her aunt and uncle. In July, appellant ran away from their home and was later found at Mr. Christoph’s home. On July 17, after a brief stay in a foster home, appellant returned to her mother’s home to live. On July 21, 1981, at about 3:00 a. m., appellant met Mr. Christoph and entered into a common law marriage with him at the home of his sister and brother-in-law, who served as witnesses to the marriage.

Appellant’s mother is opposed to the marriage. On July 22, 1981, she filed a petition alleging that appellant was a dependent child. The lower court ordered appellant detained at a foster home, and on August 4, after an adjudication hearing, adjudged her dependent and ordered that she “not have contact in any manner” with Mr. Christoph. This appeal is from that order.

During the adjudication hearing the lower court correctly stated that

[i]f in fact there is a marriage [of appellant and Mr. Christoph], then she [appellant] would no longer be under the responsibility and care of the mother. Therefore, the basis for the [dependency] petition would fail.

N.T. 60.

In its opinion, filed in response to this appeal; the lower court did not question the testimony that appellant and Mr. Christoph had by words in the present tense expressed their intent to marry one another, as required if parties are to enter into a common law marriage.² Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978 (1979); Stauffer Estate, 372 Pa. 537, 94 A.2d 726 (1953). The court held, however, that appellant’s marriage to Mr. Christoph was invalid because “one of Mr. Christoph’s express motives in marrying Melissa Miller [appellant] was to avoid criminal prosecution.” Slip op. at 3-4. Said the court:

Mr. Christoph testified that at the time the alleged marriage occurred, he was aware that the District Attorney’s Office was contemplating filing criminal charges against him based on his sexual involvement with the minor, Melissa. (Tr. 65). Upon learning that he was the subject of a criminal investigation, Mr. Christoph consulted an attorney who advised him of the requisites for a common law marriage (Tr. 73-74).

Virginia Byers, Mr. Christoph’s sister and a witness to the alleged marriage ceremony, testified that one of Mr. Christoph’s express motives in marrying Melissa Miller was to avoid criminal prosecution (Tr. 84r-86).

The Court finds it abundantly clear that Mr. Christoph’s purpose in uttering the words “I will marry you” was to prevent Melissa from appearing as a witness against him in a criminal proceeding. And, this Court will no more condone fraudulent behavior of this sort in a common law marriage than it would in any other marriage.

Slip op. at 3-4.

The court also said that Mr. Christoph’s “sole purpose [in getting married] was to perpetrate a fraud upon this Court and Melissa Miller.” Slip op. at 4.

When we review a decision by a lower court, we must accept findings of fact supported by the evidence, for the lower court is in a much better position than we are to resolve conflicts in the evidence and issues of credibility. However, we are not bound to accept findings not supported by the evidence; nor are we bound to accept the lower court’s inferences from the evidence, or its conclusions of law. Frowen v. Blank, 493 Pa. 137, 425 A.2d 412 (1981); Hankin v. Hankin, 279 Pa. Superior Ct. 179, 420 A.2d 1090 (1980).

Here, we have encountered some difficulty in accepting the lower court’s statement of Mr. Christoph’s motive in entering into the marriage. Although the court stated that it found it “abundantly clear” that Mr. Christoph’s motive was “to prevent [appellant] from appearing as a witness against him in a criminal proceeding,” slip op. at 4, the evidence is, at the least, equivocal.

Mr. Christoph testified that his motive was that appellant should “be my wife” and that his understanding, when he told her this, was that no criminal charges were going to be brought against him:

Q. What did you say to Melissa before the persons present at the Byers’ home on that occasion?

A. I said, “I marry you, Melissa.”

Q. You say, I marry her?

A. Yes.

Q. And what did you intend when you said you married her?

A. I intended that she be my wife.

Q. And as your wife what was your intention towards her?

A. To take her home to live with me as my wife.

Q. Did you recognize any responsibility when you said those words?

A. Yes.

Q. What were the responsibilities that you recognized?

A. To take her, provide a home and all the necessities that you would normally provide for your wife.

Q. Mr. Christoph, at the time this alleged marriage is to have taken place between you and Missy, do you know—were you aware of the fact that the police were investigating you?

A. I had talked to the police at the time, yes.

Q. Were you afraid that charges would be filed against you by the police as a result of your involvement with Missy?

A. No.

Q. You were not afraid of that?

A. No.

Q. The crime, corrupting the moral[s] of minors, have you ever heard of that at the time you got married to Missy?

A. Yes, I did.

Q. Did you have any concerns at the time this alleged marriage is to have taken place with you being charged by the police?

A. No.

Q. Why not?

A. Because when I talked to Detective Slupski he said no charges would be brought.

Q. Isn’t it a fact you got married to Missy to prevent her from testifying against you and as a result you wouldn’t have to face criminal charges?

A. No.

Q. Isn’t that a fact?

A. No, it is not.

* * * * * *

THE COURT: As far as the police investigation, you were aware of that because you talked to a police officer?

THE WITNESS: Yes, I did.

THE COURT: And you spoke to him about the charge of corrupting the morals of a minor?

THE WITNESS: Yes, I did.

THE COURT: And how did that come about?

THE WITNESS: I don’t understand the question. THE COURT: How did you speak to him? Did you go down to speak to him?

THE WITNESS: He said he wanted to talk to me at a certain time.

THE COURT: What happened?

THE WITNESS: We discussed the charges and he asked me questions about what had happened and at the end of the conversation he said he was going to recommend to the D.A. that no charges be brought.

THE COURT: When did this occur?

THE WITNESS: I really don’t know the day. It was a week maybe a week and a half before we got married.

N.T. 63-64, 65-66, 72-73.

It is true, as the lower court states in its opinion, that Mr. Christoph’s sister, Virginia Byers, who was a witness to the marriage ceremony, testified that “one of Mr. Christoph’s express motives in marrying Melissa Miller was to avoid criminal prosecution.” Slip op. at 3-4. However, the sister also testified that another of Mr. Christoph’s motives was that he loved appellant:

Q. [on cross-examination by counsel for appellant’s mother]: Did that strike you as strange that he [Mr. Christoph] wanted to marry such a young girl that use[d] to be a student of his?

A. A little bit, but he said he loved her, so—

Q. Was there any more of a discussion than that, other than the fact that he loved her and wanted to take her as his wife?

A. What do you mean, sir?

Q. Was there any discussion as to any other reasons or any other motives as to why he wanted to marry her, other than love?

A. Well, I think there were some legal problems.

Q. What legal problems?

A. Her—Melissa’s mother didn’t approve of the situation.

Q. What other legal problems?

A. I don’t know. Possibly that—I guess, maybe, he would go to jail.

Q. Go to jail for what?

A. Let me think of what the term is.

Q. Corrupting the morals of minors?

A. Yeah, that’s what I’m trying to think of—say.

Q. Is that what you are talking about?

A. That crossed his mind.

Q. Did he think Melissa—

A. A little bit.

Q. How?

A. I guess if they were married, you know—

Q. Did he express that in words?

A. That he thought they would do that?

Q. Yes. Did he express that by marrying Missy, he would avoid criminal prosecution?

A. Yes.

Q. When was this discussed with your brother?

A. About the criminal charges? That would—

Q. Yes.

A. —that would have been Saturday morning.

Q. That would have been two or three days prior to the marriage?

A. That is correct.

Q. And in discussing these things with him, what was first mentioned as for his reasons for wanting to get married?

A. His first reasons—uh—

Q. Did he give a priority?

A. No, not really.

REDIRECT EXAMINATION

BY MR. KOWNACKI:

Q. This was a general discussion with you?

A. Right.

Q. Did he appear sincere in his stated reasons for love?

A. Yeah. I was surprised, but yeah, he was serious.

Q. You have known your brother for how long?

A. Twenty-five and a half years.

Q. You had a relation—good close relationship with him?

A. Yes.

Q. You feel you know your brother well?

A. Very well.

Q. Therefore, you know him when he is sincere and insincere?

A. Yeah.

Q. He indicated he loved Melissa and wanted to marry her, you felt he was sincere?

A. Yes, I did.

N.T. 84-87.

The lower court does not mention this portion of the sister’s testimony. It seems to us that the fairest inference to be drawn from the evidence is that Mr. Christoph may have had at least two motives for marrying appellant—his love for her, and his desire to avoid criminal prosecution for his relationship with her. We find no support in the record for the lower court’s assignment of priority to the second of these motives.³

We may, however, put aside any difficulty with the inferences drawn by the lower court. Accepting the lower court’s finding that Mr. Christoph married appellant to avoid criminal prosecution, still, we are unable to uphold its order. For contrary to the court’s opinion, such a motive does not invalidate a common law marriage.

The controlling decision is Estate of Gower, 445 Pa. 554, 284 A.2d 742 (1971). In Gower, as here, the parties had by words in the present tense expressed their intent to marry one another. The lower court nevertheless held the marriage invalid because the appellant’s motive in entering into the marriage was to avoid conscription for military service. Reversing, the Supreme Court held that “[t]he reason or motive underlying a decision to marry is not relevant to a finding of the intention to marry.” Id., 445 Pa. at 557, 284 A.2d at 744. (emphasis in original). Therefore, the appellant’s motive to avoid conscription could not “render[ ] invalid his otherwise valid common law marriage.” Id.

The record here establishes—and the lower court did not question—appellant’s and Mr. Christoph’s intention to marry.⁴ The fact-—as the lower court found it to be—that Mr. Christoph’s motive was to avoid prosecution could not render invalid their otherwise valid common law marriage.

There is one further aspect of the lower court’s decision that requires consideration. Having held—erroneously, as we have just discussed—that Mr. Christoph’s motive invalidated the marriage, the court went on to say:

Which brings us to the next issue—whether the validity of this marriage can only be challenged by one of the parties in an action for divorce in annullment.

Invalid marriages are of two types: void and voidable. A void marriage is subject to collateral attack and its validity may be challenged in any legal proceeding wherein it is pertinent. Faivre v. Faivre, 182 Pa.Super. 365, 128 A.2d 139 (1957). See, also, 23 P.S. Section 204(b).

Under the new Divorce Code, 23 P.S. Section 204(a)(3) where one party to the marriage lacks the requisite assent the marriage is void. We find that Mr. Christoph lacked the requisite intent to assent to a valid marriage and that his sole purpose was to practice a fraud upon this Court and upon Melissa Miller. Thus, this Court holds that it had the power to adjudicate the validity of Melissa Miller’s common law marriage in the course of adjudicating her status as a juvenile.

Slip op. at 4.

We cannot agree with this reasoning.

It is true that there is a distinction, in both the common law⁵ and the Pennsylvania Divorce Code, Act of April 2, 1980, P.L. 63, Act No. 26, 23 P.S. § 101 et seq., between a void marriage and a voidable marriage. The Code provides the following grounds for annulment or invalidity of void marriages, in Section 204:

(a) Where there has been no confirmation by cohabitation following the removal of an impediment, the supposed or alleged marriage of any person shall be deemed void in the following cases:

(1) Where either party at the time of such marriage had an existing spouse and the former marriage had not been annulled nor had there been a divorce, except where such pérson had obtained a decree of presumed death of the former spouse.

(2) Where the parties to such marriage are related within the prohibited degrees of consanguinity, which degrees are as follows:

A man may not marry his mother.

A man may not marry his father’s sister.

A man may not marry his mother’s sister.

A man may not marry his sister.

A man may not marry his daughter.

A man may not marry the daughter of his son or daughter.

A woman may not marry her father.

A woman may not marry her father’s brother.

A woman may not marry her mother’s brother.

A woman may not marry her brother.

A woman may not marry her son.

A woman may not marry the son of her son or daughter.

(3) Where either party to such marriage was incapable of consenting by reason of insanity or serious mental disorder, or otherwise lacked capacity to consent or did not intend to assent to such marriage,

(b) In all such cases of marriages which are void, the marriage may be annulled as set forth in section 203, or its invalidity may be declared in any collateral proceeding.

The Code provides the following grounds for annulment of voidable marriages, in Section 205:

§ 205. Grounds for Annulment of Voidable Marriages

(a) The marriage of any person shall be deemed voidable and subject to annulment in the following cases:

(1) Where either party to such marriage was under 16 years of age, unless such marriage was expressly authorized by a judge of the court.

(2) Where either party was 16 or 17 years of age and lacked the consent of parent or guardian or express authorization of the court and has not subsequently ratified such marriage upon reaching the age of 18 and such proceeding for annulment is commenced within 60 days after the marriage ceremony.

(3) Where either party to such marriage was under the influence of intoxicating liquor or drugs and a proceeding for annulment has been filed within 60 days after the marriage ceremony.

(4) Where either party to such marriage still is and was naturally and incurably impotent at the time of such marriage, unless the condition was known to the other party prior to the marriage.

(5) Where one party was induced to enter into such marriage due to the fraud, duress, coercion, or force attributable to the other party, and there has been no subsequent voluntary cohabitation after knowledge of such fraud or release from the effects of fraud, duress, coercion, or forces.

(b) In all such cases of marriages which are voidable, either party thereto may seek and obtain an annulment of such marriage, but unless and until such decree is obtained from a court of competent jurisdiction, such marriage shall be valid and subsisting. The validity of such a voidable marriage shall not be subject to attack or question by any person if it is subsequently confirmed by the parties thereto or if either party has died.

Section 203 of the Code authorizes a proceeding for the annulment of both void and voidable marriages:

In all cases where a supposed or alleged marriage shall have been contracted which is void or voidable under this act or under applicable law, either party to such supposed or alleged marriage may bring an action in annulment to have it declared null and void in accordance with the procedures provided for under this act and the Rules of Civil Procedure.

By its citation of Section 204(a)(3) of the Code the lower court blurred the statutory distinction between void and voidable marriages. That section makes a marriage void only where one of the parties “lacked capacity to consent or did not intend to assent” to the marriage. Since here neither party lacked capacity and both intended to assent, the section is inapplicable. The lower court’s finding that “[Mr. Christoph’s] sole purpose was to practice a fraud upon this Court and upon [appellant]” does not bring the marriage within Section 204(a)(3). For marriages induced by fraud are dealt with explicitly in Section 205(a)(5), which concerns voidable marriages.⁶

The distinction between a void marriage and a voidable marriage is not merely a matter of semantics. The Divorce Code, like the common law,⁷ provides that a voidable marriage may be annuled only by “either party thereto” and is “valid and subsisting” “unless and until” challenged by one of them. Section 205(b); Perlberger, Pennsylvania Divorce Code § 3.2.3. (1980) (“the legislature has expressly declared this crucial distinction between void and voidable marriages by enactment of section 205(b)”). If indeed appellant was induced to enter into marriage by Mr. Christoph’s fraud, their marriage is not, as the lower court held, void, but voidable. In that event, appellant may seek to have it annuled. Not only, however, does she not make such a request; she has appealed to this court asking that her marriage be upheld.

We have not overlooked the arguments of counsel for appellant’s mother, urging that we re-examine the doctrine of common law marriage, and either abolish it or align the age of consent to that required for statutory marriage. However, we have declined previous opportunities to abolish or modify the doctrine of common law marriage. See e.g., Buradus v. General Cement Products Co., supra note 4. Past efforts in the Legislature to abolish common law marriage have failed. Freedman, 1 Law of Marriage and Divorce in Pennsylvania, § 50a (2d ed. 1957). The Marriage Law, Act of August 22, 1953, P.L. 1344, 48 P.S. § 1-23, explicitly preserves the right to contract a common law marriage, providing that “[njothing herein shall be construed to change the existing law with regard to common law marriage.” This remains the legislative intent, as may be seen from the fact that the Divorce Code of 1980 did not repeal this provision of The Marriage Law, although it did expressly repeal another provision.⁸ See Perlberger, Pennsylvania Divorce Code § 2.5 (1980). For us to ignore so clear an expression of legislative intent would be an abuse of judicial power. If common law marriage is to be abolished, or the requirements for entering into it changed, it must be done by the Legislature, not the courts.

In conclusion, we wish to note that neither have we overlooked the anguish that this marriage has caused appellant’s mother. We may hope that her fears are unfounded, as they may be, for the most devoted mother is sometimes mistaken about what is good for her child. But if we knew that the marriage would prove unhappy and short, that would not deflect us from our decision. Our responsibility is to interpret and apply the law. If a marriage is lawful, that is the end of our inquiry. For as judges, we are agents of the State, and whether a lawful marriage is happy or unhappy is none of the State’s affair.

Reversed.

JOHNSON, J., files a dissenting opinion.

1 . As the dissent points out, appellant is not directly challenging the lower court’s findings as to her incorrigibility and we, therefore, do not decide this issue. However, we are unable to agree with the dissent that appellant is “otherwise incorrigible,” Dissenting Opinion at 36, and that she committed acts of “habitual disobedience,” id 38. On the contrary, the record demonstrates that appellant’s behavior related entirely to her desire to see Mr. Christoph, and that all of the rules she disobeyed concerned him. Appellant’s mother testified:

THE COURT: Is it your contention that all the problems you have had with Melissa have incurred [sic] because she has been involved with Mr. Christoph, is that correct?

THE WITNESS: Yes.

N.T. 23.

Her mother also testified that an example of one of the rules appellant broke was “not to meet him.” Id. 21-22. Appellant’s frequent disappearances from her home and her aunt’s home also were due to her meetings with Mr. Christoph, as was the lying associated with these meetings. Id. 12-16. Thus, the record does not support the dissent’s view that appellant was “otherwise incorrigible” or “habitually]” disobedient.

2 . Appellant was above the age of consent to common law marriage, which is seven. Jewett v. Jewett, 196 Pa.Superior Ct. 305, 175 A.2d 141 (1951).

3 . The inquiry here is similar to that which occurs frequently in the area of labor law, where it is important to determine an employer’s “actual motivation” in firing an employee. It is unlawful to fire an employee in retaliation for his union activities, but lawful to fire him for “good cause.” The courts have struggled with this inquiry in so-called “mixed motive” cases. See Herman Brothers, Inc. v. National Labor Relations Board, 658 F.2d 201 (3rd Cir. 1981).

4 . The dissent is concerned that we have focused on Mr. Christoph’s intent in entering into the marriage with appellant to the exclusion of considering appellant’s intent. Dissenting Opinion at 35. Partly for this reason, the dissent finds no express agreement between the parties to marry, and states that “the record is devoid of any testimony concerning meaningful discussions between the parties regarding the marriage prior to the ceremony itself.” Id.

We have focused on Mr. Christoph’s intent in response to the lower court’s opinion, which questioned only Mr. Christoph’s intent to marry, and also, in response to counsel’s arguments. The lower court accepted as fact that appellant intended to marry Mr. Christoph, and until the dissent, the genuineness of her intent has not been doubted. This is not surprising, for there is more than ample proof in the record that appellant intended to marry Mr. Christoph, and that the two had discussed marriage before the ceremony. Appellant testified that she and Mr. Christoph discussed marriage from as early as December 1980, about seven months before the ceremony. N.T. 97. She also testified that marriage was “both” her idea and Mr. Christoph’s, id., and that she intended to become his wife at the ceremony, and still wished to be married to him, id. 96. Her testimony was corroborated by Mr. Christoph, who testified that “we had talked about getting married for several months.” N.T. 68. Mr. Christoph also testified that he discussed in advance his intention to marry appellant with her mother, who said “that was impossible,” N.T. 73, and that it was after this discussion that he “talked to my attorney and was advised of the laws of the state of common law marriage.” Id. 73-74.

5 . The distinction between a void marriage and a voidable marriage derives from the English ecclesiastical courts. A void marriage included unions so abhorrent as to be against public policy from their inception. Into this class belonged bigamous marriages and those in which one party was insane. Void marriages could be dissolved over the objection of the parties by interested persons. In contrast, voidable marriages contained some defect that could be removed by ratification, and were dissolvable only by the injured spouse. Perlberger, Pennsylvania Divorce Code § 3.2 (1980).

6 . We note that counsel for appellant’s mother urges an entirely different reason for the application of section 204(a)(3), arguing that appellant lacked the capacity to consent to the marriage because she was under sixteen, as required by The Marriage Law, Act of Aug. 22, 1953, P.L. 1344, 48 P.S. § 1-1 et seq. However, the statutory age requirement is not applicable to common law marriages. Buradus v. General Cement Products Co., 356 Pa. 349, 52 A.2d 205 (1949) (affirming on basis of Superior Court opinion at 159 Pa. Superior Ct. 501, 48 A.2d 883 (1946)). Appellant did not lack capacity to consent to a common law marriage. See footnote 1, supra.

7 . See footnote 5, supra.

8 . Clause (h) of Section 5 of The Marriage Law was repealed. This clause provided that no license to marry should be issued “to a person divorced by his or her former spouse on the grounds of adultery, for the marriage of such person to the person with whom the crime of adultery was committed, during the lifetime of the former husband or wife.”