Dugan, J. v. Greco, J. ( 2020 )

J-A04041-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN DUGAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOSEPH A. GRECO : No. 1924 EDA 2019
Appeal from the Order Entered June 6, 2019
In the Court of Common Pleas of Chester County Civil Division at No(s):
2019-00302-DI
BEFORE: PANELLA, P.J., STRASSBURGER, J.*, and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED MARCH 09, 2020
John Dugan appeals from the order (i) granting Joseph A. Greco’s
petition for declaratory relief that Greco and Dugan had not entered into a
common law marriage prior to its abolition by the Pennsylvania legislature in
20051 and (ii) dismissing Dugan’s complaint seeking a divorce from Greco.
We affirm.
We adopt the trial court’s accurate description of the factual background
of this case:
[Dugan] and [Greco] testified that they met online and had their
first date May 16, 1998. They lived together from November 1998
to March 2018. The relationship ended in June 2018. [Dugan] is
currently a manager of a retail store. He previously worked at a
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* Retired Senior Judge assigned to the Superior Court.
1See 23 Pa.C.S. § 1103, as amended by Act of Nov. 23, 2004, P.L. 954, No.
144.
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medical research facility. [Greco] is a medical doctor affiliated
with a local hospital and medical system.
In August 1998, [Dugan] and [Greco] vacationed together in
Cancun, Mexico. While shopping at a flea market, [Dugan]
purchased a silver ring for himself. [Greco] admired it and then
bought himself a similar one the same day. Both rings have a
braided design, but they are not identical. The parties wore the
rings on their respective right hands. The evening after
purchasing the rings, they had dinner and returned to their hotel
room. Their respective recollections as to events that evening
differ slightly, but they did not exchange rings nor discuss
marriage. In fact, neither has any recollection of what they may
have discussed. During that trip to Mexico they did not have a
marriage or commitment ceremony, nor did they at any later time.
[Greco] testified the rings purchased in Mexico were not a symbol
of a marriage. When he looked at his ring it was to remind him of
[Dugan], not that they were married[.] (N.T.[,] 4/1/19, at 42).
[Dugan] testified that his ring was a symbol of togetherness. “It
was braided so we were intertwined.” ([Id.] at 71). He put the
ring on his right hand. “I remember saying we’ll put them on our
right hand because we are not – we’re different, we are not
recognized by this, you know, by the state or by law as, you know,
same sex couples at that point. And, yes, we were not married,
but we were different, and I said we’ll put it on that hand because
we are different and that lets everybody know we are different.”
([Id.]).
In November of 1998, [Dugan] moved to [Greco’s] house in King
of Prussia, Pennsylvania. Each year they celebrated their
anniversary on May 16 – the date of their first meeting. [Dugan]
stated that the parties always celebrated the day they met, May
16 “[b]ecause we weren’t married legally. I mean, I always felt
like we were a couple, we were together, we were a partnership.
Marriage is a certificate.” ([Id.] at 75). “Because we were not
recognized and we were different. You know, we had a
partnership. We had a commitment to each other. And we
weren’t like a quote, unquote, heterosexual couple.” ([Id.] at
76).
In 1999, they purchased property in Phoenixville, Pennsylvania.
They hired an architect and built a house on the property (“2 Fox
Run”), and moved in around 2000-2001[.] ([Id.] at 50). [Dugan]
testified that [Greco] paid for the house although he did contribute
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to the cost with money from his 401k[.] ([Id.] at 85). [Dugan]
was not a co-borrower on the mortgage because he had bad
credit.
[Greco] purchased vehicles for the couple. Both of their names
are on the title for a Ford F-150. They also owned a Chevy. ([Id.]
at 108-110, Exhibits P-15, P-16). Both are listed on each other’s
car insurance. [Greco] testified: “I’ve helped [Dugan] purchase
a vehicle and my name had to be on it because he couldn’t afford
it on his own. . . I continued to repeatedly help [Dugan] out
financially because he needed help and I paid for the insurance.”
([Id.] at 46).
When the parties were together 15 years (2013), [Greco]
purchased rings for both of them from Tiffany & Company. The
rings are inscribed with their initials and the date that they met
(5/16) with the symbol for “infinity” engraved after the date. They
wore the rings on their respective right hands.
In 2014, the parties purchased property for [Greco’s] parents
located at 122 Potters Pond Drive, Phoenixville. On the deed,
[Dugan] and [Greco], as grantees, took title in “tenancy with the
right of survivorship[.]” ([Exhibit] D-1 ). [Greco] testified that
“we combined the incomes.” ([Id.] at 20). Around this time,
[Greco] acquired the house next to 2 Fox Run (“1 Fox Run”). The
house had been owned by an elderly couple whom [Greco] (a
physician) treated at their house until their deaths. ([Id.] at 123).
[Greco] is the sole titled owner of 2 Fox Run and 1 Fox Run.
In 2015, [Dugan] experienced significant work-related stress. In
addition he lost several of family members, most notably, his
mother. After his mother’s death, [Dugan] helped to draft her
obituary. In it, each of his sisters-in-law were identified as “wife
of” the brother to whom she was married. [Greco] was named
after [Dugan], but no relationship was identified. (N.T., at 116).
[Greco] encouraged [Dugan] to quit his job at the research
facility, which he did. When [Dugan] did not obtain COBRA health
insurance, [Greco] designated [Dugan] as his domestic partner
for health insurance with [Greco’s] employer. [Greco] testified
that if the parties were married [which had become legal by that
date], he would have produced a marriage certificate to designate
[Dugan] as his spouse to receive the insurance benefits. Since
they weren’t married, [Greco] had to show that they lived
together and were domestic partners. As part of the
documentation needed to show their domestic partnership,
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[Greco] added [Dugan’s] name to a savings account[.] ([Id.] at
50, 111-112[; Exhibit] P-17). [Dugan] was on [Greco’s] health
insurance from January 2016 to January 2019[.] ([Id.] at 114).
The parties did not participate in a commitment or marriage
ceremony, either before or after the legalization of same-sex
unions [in Pennsylvania]. [Greco] testified that he wanted to get
married. He had several discussions with [Dugan] about getting
married (before and after [legalization]), but [Dugan] did not want
to be married[.] ([Id.] at 28-29). [Dugan] stated: “I didn’t feel
that we needed a certificate because we had been married – we
had been living together as a married couple. We had been – you
know, it was a partnership. We were committed. We were
definitely on a rocky road, but I didn’t think that a certificate was
going to help us in any way. . . So having a certificate of marriage,
I didn’t see how it was going to fix it. Yes, it would have given us
more rights under the law, but how was that going to fix it?”
([Id.] at 120-121). When asked if [Greco] had ever said to him
that they didn’t need to get married because they already were,
[Greco] testified that [Dugan] never expressed such sentiments
to him. “Man, if he had said that I would have had a whole
different conversation and I would have been a – I mean – no he
didn’t. . . .That seemed to be a logical thing you would say if you
thought you didn’t need to be married because you were married,
you’d say it at that time[.”] ([Id.] at 29).
The parties separated in June 2018[.]
Trial Court Opinion at 1-5 (footnote omitted)
Dugan filed the divorce complaint on January 9, 2019. On January 29,
2019, Greco filed the petition for declaratory judgment. Hearings were
conducted by the trial court on April 1 and 11, 2019. On June 6, 2019, the
trial court filed an order granting Greco’s petition for declaratory relief and
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dismissing Dugan’s divorce complaint along with a supporting opinion. Dugan
filed a timely notice of appeal of the trial court’s order.2
Dugan presents the following issues for our review:
1. Whether the trial court committed an error of law by applying
a rigid application of the law and by failing to examine all evidence
under the retrospective lens of the unconstitutional and hostile
laws in effect at the time of Mr. Dugan and Dr. Greco’s marriage?
2. Whether the trial court committed an error of law by failing to
find that John Dugan met the requirements for establishing a
common law marriage prior to 2005 in Cancun, Mexico in August
1998?
3. Whether the trial court erred by requiring direct testimony as
to the precise words of the marriage contract, contrary to legal
precedent and without giving proper weight to overwhelming
evidence consistent with the honorable intentions of the parties?
a. Whether the Trial Court Erred by Applying an Arbitrary
Standard and Requiring the Use of Words Such as “Spouse”
and “Husband” in Order to Establish “Reputation of
Marriage” in 1998 When Marriage was Illegal for Same-Sex
Couples?
b. Whether the trial court erred in failing to consider the
circumstances of the unconstitutional laws existing at the
time of the creation of Mr. Dugan and Dr. Greco’s marriage
(1998) when examining and weighing the evidence of
cohabitation and reputation of marriage?
4. Whether the trial court committed an error of law by opining
that Mr. Dugan and Dr. Greco’s identification as “domestic
partners” on a policy of insurance precluded their meeting the
legal requirements of establishing a common law marriage?
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2 Dugan filed his statements of errors complained of on appeal on July 30,
2019. On August 26, 2019, the trial court entered a statement in lieu of
opinion, in which it indicated that it was relying on the reasons stated in its
June 6, 2019 opinion.
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5. Whether the trial court committed an error of law by allowing
testimony, over objection, of the parties failing to obtain a
marriage certificate or engage in a marriage ceremony following
the legalization of same sex marriage when the same standard
would be inapplicable to heterosexual couples whom always had
the opportunity to obtain a marriage certificate and/or participate
in a marriage ceremony?
Dugan’s Brief at 4-8 (trial court answers and suggested answers omitted).
“The proper procedure for obtaining legal recognition of a common law
marriage is the filing of a declaratory judgment action.” In re Estate of
Carter, 159 A.3d 970, 974 (Pa. Super. 2017); see also 23 Pa.C.S. § 3306.3
Our standard of review in a declaratory judgment action is
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.
Estate of Carter, 159 A.3d at 974 (citation omitted).
Dugan first argues that the trial court erred by applying the law in
Pennsylvania relating to common law marriage to Dugan and Greco without
taking into account that same-sex marriage was illegal for the large majority
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3 Section 3306 of the Divorce Code provides that:
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.
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of their relationship. Dugan states that he “is not asking for the law to apply
differently to him,” but rather that the trial court should have, but failed to,
“account for the inherent differences between heterosexual couples and same-
sex couples and acknowledge the legal hostility same-sex couples faced” prior
to the legalization of same-sex marriage. Dugan’s Brief at 33. Thus, Dugan
asserts that the trial court erred by requiring proof that the couple used terms
like “husband,” “spouse,” and “marriage” when referring to their union or
partnership, rather than the term they did employ, “forever partners.” Id. at
32-33.
Pennsylvania has historically recognized two types of marriage,
ceremonial and common law. Staudenmayer v. Staudenmayer, 714 A.2d
1016, 1019 (Pa. 1998); Estate of Carter, 159 A.3d at 974. “A ceremonial
marriage is a wedding or marriage performed by a religious or civil authority
with the usual or customary ceremony or formalities.” Staudenmayer, 714
A.2d at 1019. A common law marriage, by contrast, “can only be created by
an exchange of words in the present tense, spoken with the specific purpose”
of establishing a marital relationship. Id. at 1020; see also In re Estate of
Tito, 150 A.3d 464, 468 (Pa. Super. 2016). In 2004, the General Assembly
amended the Domestic Relations Code abolishing common law marriage, but
the legislature provided that common law marriages lawfully entered into on
or before January 1, 2005 would continue to be recognized. See 23 Pa.C.S.
§ 1103; Estate of Carter, 159 A.3d at 974 & n.1.
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“Even before it was abolished in 2005, common law marriage was
generally disfavored in Pennsylvania,” and a party alleging the existence of a
common law marriage bears a “heavy” burden. Staudenmayer, 714 A.2d at
1020 (citation omitted); Estate of Carter, 159 A.3d at 978. There are two
ways in which a party can prove the existence of a common law marriage.
Generally, the party alleging the common law marriage must show by clear
and convincing evidence that the couple came to an “express agreement” –
or verba in praesenti – “uttered with a view and for the purpose of
establishing” the marital relationship. Staudenmayer, 714 A.2d at 1020-21
(citation omitted). Pennsylvania law also provides for a rebuttable
presumption of a common law marriage that may be raised where the
proponent of the marriage demonstrates (i) constant cohabitation by the
parties and (ii) a reputation of marriage “which is not partial or divided but is
broad and general.” Staudenmayer, 714 A.2d at 1020-21 (citation omitted);
see also Estate of Carter, 159 A.3d at 979. However, this rebuttable
presumption is “is one of necessity to be applied only in cases . . . [where
there is an] inability to present direct testimony regarding the exchange of
verba in praesenti.” Staudenmayer, 714 A.2d at 1021 (citation omitted).
When Dugan and Greco began dating in 1998, Pennsylvania law did not
recognize same-sex marriages. See generally Estate of Carter, 159 A.3d
at 975-77 (describing history of Pennsylvania marriage laws as it pertains to
same-sex couples). In fact, following the enactment of the federal Defense of
Marriage Act in 1996, the General Assembly amended the Marriage Law that
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same year to define marriage as a “civil contract by which one man and one
woman take each other for husband and wife” and providing that “[a]
marriage between persons of the same sex which was entered into in another
state or foreign jurisdiction, even if valid where entered into, shall be void in”
Pennsylvania. 23 Pa.C.S. §§ 1102, 1704; see also Estate of Carter, 159
A.3d at 975. In 2013, however, the United States Supreme Court’s decision
in United States v. Windsor, 570 U.S. 744 (2013), set off a “tectonic shift
in the law regarding same-sex marriage.” Estate of Carter, 159 A.3d at 975
(citation omitted). In Windsor, the High Court struck down the Defense of
Marriage Act as violating “basic due process and equal protection principles
applicable to the Federal Government” through the Fifth Amendment of the
United States Constitution. 570 U.S. at 769. The following year, in
Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014), the United States
District Court for the Middle District of Pennsylvania ruled that Pennsylvania’s
restriction on marriage to opposite-sex partners was unconstitutional under
the due process and equal protection clauses of the Fourteenth Amendment.
Id. at 421-31. The District Court held that “same-sex couples who seek to
marry in Pennsylvania may do so, and already married same-sex couples will
be recognized as such in the Commonwealth.” Id. at 431. Finally, in 2015,
the U.S. Supreme Court issued Obergefell v. Hodges, 135 S. Ct. 2584
(2015), which struck down all state laws restricting marriage to opposite-sex
partners as violative of the “fundament right to marry” embodied in the
Fourteenth Amendment. Id. at 2604-05.
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In Estate of Carter, this Court addressed for the first time after
Obergefell the right of same-sex couple to form a common law marriage. In
that case, two men, Michael Hunter and Stephen Carter, met in February 1996
and ten months later, Hunter asked Carter to marry him and gave him a ring.
159 A.3d at 972. Carter agreed, and two months later, Carter gave Hunter a
ring. Id. The couple celebrated the date of the second ring exchange for the
next 16 years until Carter’s sudden death in 2013. Id. at 972-73. Hunter
filed an unopposed petition seeking a declaration of a common law marriage,
which the trial court denied, reasoning that it was legally impossible for same-
sex couples to enter into a common law marriage before common law
marriage was abolished by the legislature in 2005. Id. at 973. On appeal to
this Court, we reversed. We observed that “Windsor, Whitewood, and
Obergefell teach that same-sex couples have precisely the same capacity to
enter marriage contracts as do opposite-sex couples, and a court today may
not rely on the now-invalidated provisions of the Marriage Law to deny that
constitutional reality.” Id. at 977. Thus, we held that “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.” Id. at 977-78 (internal
citation omitted).
We explained in Estate of Carter that the long-standing precedent
establishes that a “common law marriage contract does not require any
specific form of words” and that there is no requirement that there be direct
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testimony of the “precise words of the marriage contract.” Id. at 979
(citations omitted); see also Staudenmayer, 714 A.2d at 1020.
Furthermore, we noted that “context matters” in addressing the evidence that
is required to prove that a common law marriage was formed. Estate of
Carter, 159 A.3d at 980. However, while we noted the lack of formality in the
creation of a common law marriages, we did not hold in Estate of Carter that
a different standard or burden of proof applies to same-sex couples but
instead that same-sex couples can enjoy the right to marry “on the same
terms and conditions as opposite-sex couples.” Id. at 977 (quoting
Obergefell, 135 S. Ct. at 2605). Rather, we explicitly rejected the argument
“that same-sex couples should have a lesser burden in proving common law
marriage than do opposite-sex couples.” Id. at 980 n.10 (emphasis in
original). As we explained, “[t]he lesson of Windsor, Whitewood, and
Obergefell, as applied in this context, is that same-sex couples not only have
the same right to prove a common law marriage as do opposite-sex couples,
but also the same burden of proof.” Id.
Thus, same-sex couples have “precisely the same capacity” in
Pennsylvania to enter into a common law marriage as opposite-sex couples.
Id. at 977. In other words, they must prove that they formed a common law
marriage on or before January 1, 2005, the date that the legislature abolished
common law marriage for all Pennsylvanians, regardless of their sexual
orientation. 23 Pa.C.S. § 1103; Estate of Carter, 159 A.3d at 974-75.
Testimony is not required as to the precise words used, nor is there a
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requirement that the putative married couple uttered specific words, such as
“husband” or “spouse,” or a formal declaration of marriage. Staudenmayer,
714 A.2d at 1020; Estate of Carter, 159 A.3d at 979. Moreover, “context
matters” in common law marriage cases, and therefore a court may not
discount that a party alleging that a same-sex common law marriage was
formed on or before January 1, 2005 would not have had that right to have
that union recognized as legal at that time. Estate of Carter, 159 A.3d at
980. Nevertheless, we reject any insinuation that the recognition of the equal
right among same-sex couples to marry as recognized in Windsor and
Obergefell and extended by Estate of Carter to common law marriage in
this state afforded any favored status under the law to same-sex partners
asserting a common law marriage compared to their opposite-sex peers.
Indeed, to afford same-sex couples with a preferred status with respect to
common law marriages would enact the same equal protection violation that
Windsor and Obergefell sought to address.
With this recitation of the legal landscape in mind, we turn to Dugan’s
challenge to the merits of the trial court’s decision. Dugan first argues that
the trial court erred by not finding that a common law marriage was
established in August 1998 when Dugan and Greco each purchased braided
silver rings for themselves and each subsequently wore their rings on their
right hands. Dugan argues that the purchase of these rings established their
present intent to form a union as a “forever partnership,” which continued
over the next 20 years. Dugan’s Brief at 25.
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In its opinion, the trial court found that there was no evidence of an
exchange of words between Dugan and Greco expressing a present intent to
form a common law marriage during their Cancun trip in August 1998 or at
any other point prior to the abolition of common law marriage on January 1,
2005. Trial Court Opinion at 7, 9-10, 13-14. As the trial court explained,
neither Dugan nor Greco offered testimony that, after they purchased the
rings, they had any discussion regarding a present intent to marry or the
meaning of each wearing the rings. Id. at 7 (“[Dugan’s and Greco’s]
testimony as to words of present intent was not contradictory; it was
consistent in that it was non-existent.”). In the absence of evidence of a
present intent to form a common law marriage prior to 2005, the trial court
concluded that Dugan had not met the “heavy” burden of showing the
existence of a common law marriage by clear and convincing evidence. Id.
at 9-10, 13-14 (citing Staudenmayer, 714 A.2d at 1020-21).
Upon review, we conclude that there was substantial evidence to
support the trial court’s conclusion that no words were exchanged regarding
a present intent to marry, and, as such, there was no mutual consent to form
such a union. Both Dugan and Greco testified as to their respective purchase
of silver rings during their August 1998 vacation in Mexico and wearing those
rings on their right hands as a symbol of their relationship. N.T., 4/1/19, at
27-28, 42, 44, 65, 78. However, neither Dugan nor Greco testified regarding
any conversation that occurred at the time regarding an intent to marry.
Dugan testified that they each purchased their own rings, took a photograph
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of their hands with the rings on, and listened to music at their hotel room that
night, but he stated on several occasions that he did not recall discussing with
Greco the meaning of the purchase of the rings. Id. at 64-71, 125, 129.
Dugan testified that he told Greco that they would wear their rings on their
right hands because they were “different” and it would symbolize that they
could not legally form a union at that time, but he did not testify whether
Greco responded in any way to these statements. Id. at 71. Greco testified
that the pair did not put the rings on the other’s finger and they did not
celebrate the purchase of the rings as a symbol of their marriage. Id. at 40-
42.
Dugan further argues that the trial court erred by requiring testimony
of specific words exchanged during their August 1998 vacation when their
purchase of rings very clearly provides evidence of their formation of a marital
relationship. As evidence that the couple formed a common law marriage
during their August 1998 vacation by buying similar rings, Dugan cites to the
testimony of a coworker and friend of Greco that after he returned from the
Mexico trip she saw a ring on his hand and Greco told her “[w]e did it” and
that they had “exchanged rings.” Id. at 135. The friend explained that she
“figured” that Greco’s comment meant that “they had gotten married.” Id. at
136. Dugan also notes his testimony regarding a conversation with Greco’s
mother at Thanksgiving dinner in 1998 where she saw the couple’s rings,
asked “does this mean what I think it does?,” and Greco responded “yes.” Id.
at 78, 80.
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While it is true that no formal set of words must be exchanged between
common law spouses and “the exchange of rings is [seen by courts as]
particularly strong evidence of” the intent to marry, see Estate of Carter,
159 A.3d at 979, 981, our Supreme Court has unambiguously held that a
common law marriage “can only be created by an exchange of words in the
present tense” expressing the intent to marry. Staudenmayer, 714 A.2d at
1020. Estate of Carter did not alter this requirement. Rather, as we
explained in that case, “[t]he requirement of ‘words in the present tense’ is
designed to ensure the existence of a present intent to marry, like the present
intent established in a formal wedding ceremony, rather than a plan to marry
in the future or a claim to have wed in the past.” Estate of Carter, 159 A.3d
at 979. What is essential is “proof of an agreement to enter into the legal
relationship of marriage at the present time” so long as each party to the
marriage contract “so understood the relation into which they were about to
enter, and their words, fairly interpreted, show that they then and there
mutually consented to it.” Id. at 979-80 (citations and emphasis omitted);
see also Estate of Tito, 150 A.3d at 469.
As the trial court recognized, the record in this case is devoid of evidence
regarding a conversation prior to January 1, 2005 where the parties
exchanged words indicating a present intent to marry. Furthermore, while it
is clear that Dugan and Greco attached significance to the wearing of their
rings, this evidence falls short of showing that they had a present intent to
marry in August 1998 and is equally consistent with a decision by Dugan and
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Greco to be in an exclusive relationship or to be engaged to be married at
some point in the future. Unlike in Estate of Carter, the couple did not
“exchange” rings but rather each bought their own similar, but not identical,
ring. Moreover, Dugan and Greco celebrated May 16th, their first date, as
their anniversary in the following years, rather than the date of the purchase
of the rings during their Mexico vacation. Compare Estate of Carter, 159
A.3d at 972-73, 981 (holding that Carter’s proposal with a ring, Hunter’s
completion of the ring exchange two months later, and the parties’ celebration
of the date of the presentation of the second ring as their anniversary
corroborated the testimony of an exchange of words showing a present intent
to marry). Accordingly, the trial court properly ruled that Dugan did not meet
his “heavy” burden of establishing an exchange of words establishing a
present intent to marry on or before January 1, 2005. Staudenmayer, 714
A.2d at 1020.
Dugan presents several additional arguments in this appeal related to
the couple’s reputation for marriage and cohabitation. First, he argues that,
because both parties to the putative marriage provided contradictory
testimony, the court should have found that a common law marriage existed
based upon their reputation for marriage and constant cohabitation during
their 20-year relationship. Dugan also contends that, when the trial court
addressed his argument that he and Greco had a reputation as a married
couple, the court improperly cited to the facts that the couple did not use the
terms “husband” and “spouse” to refer to each other and that Greco named
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Dugan as his “domestic partner” rather than his “spouse” on a health
insurance form in 2015. See Trial Court Opinion at 8, 10. Finally, Dugan
contends that the trial court erred by allowing testimony at the hearing
regarding whether Dugan and Greco considered entering into a ceremonial
marriage after the legalization of same-sex marriage.
These arguments misapprehend the legal standard for establishing a
common law marriage. As stated above, Pennsylvania law allows for a
rebuttable presumption in favor of a common law marriage in cases where
there is constant cohabitation by the parties and a reputation for marriage.
Staudenmayer, 714 A.2d at 1020-21 (citation omitted); see also Carter,
159 A.3d at 979. However, that rebuttable presumption is only applicable
where the parties to the putative marriage are unavailable to testify regarding
the exchange of words expressing their present intent to marry.4
Staudenmayer, 714 A.2d at 1021; Estate of Carter, 159 A.3d at 980 n.9;
Perrotti v. Meredith, 868 A.2d 1240, 1244-45 (Pa. Super. 2005). Thus, our
Supreme Court has explained 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
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4 The rebuttable presumption most often applies in cases where one of the
parties to the putative marriage is deceased and the other party seeks the
surviving spouse’s share of the deceased’s estate, but the Dead Man’s Act, 42
Pa.C.S. § 5930, prohibits the surviving party from testifying regarding the
agreement to marry. Staudenmayer, 714 A.2d at 1021.
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marriage, since he or she does not enjoy any presumption based
on evidence of constant cohabitation and reputation of marriage.
Staudenmayer, 714 A.2d at 1021.
In the present case, both Dugan and Greco are living and each offered
testimony on the issue of whether they exchanged words in the present tense
expressing an intent to marry prior to January 1, 2005. Therefore, the
evidence Dugan offered to show that the couple cohabitated and had a
reputation of marriage throughout their 20-year relationship cannot satisfy his
burden of proof to establish a common law marriage. Staudenmayer, 714
A.2d at 1021; Estate of Carter, 159 A.3d at 980 n.9 (where surviving spouse
testifies regarding the exchange of words, the rebuttable presumption is
inapplicable); Perrotti, 868 A.2d at 1244 (where both parties to putative
common law marriage testify yet neither party asserts that an exchange of
words occurred, the proponent of the marriage could not “rehabilitate her
failure to prove verba in praesenti, no matter how weighty or compelling that
evidence” may have been (citation omitted)).
Accordingly, the trial court did not abuse its discretion or commit an
error of law in determining that Dugan and Greco did not form a common law
marriage on or before January 1, 2005. As such, Dugan is entitled to no relief
on appeal.
Order affirmed.
Judge Strassburger files a concurring memorandum.
Judge Colins joins the concurring memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2020
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