J-A35018-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 CHRISTINE LAYTON, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v. DWAYNE DREAKFORD, Appellee No. 303 WDA 2014

Appeal from the Order entered August 12, 2013, in the Court of Common Pleas of Butler County, Civil Division, at No(s): F.C. No. 12-90349-D

BEFORE: BENDER, P.J.E., BOWES and ALLEN, JJ. MEMORANDUM BY ALLEN, J.: FILED DECEMBER 29, 2014 Christine Layton (“Appellant”) appeals from the tr ial court’s order dismissing her complaint for divorce against Dwayne Dreakford (“Dreakford”). We affirm. On May 23, 2012, Appellant filed a complaint in di vorce, in which she requested the trial court to determine that she and Dreakford had previously entered into a common law marriage. Appellant also filed a separate complaint for support. In response, on March 13, 2 013, Dreakford filed a petition for declaratory judgment, in which, among other things, he denied that a common law marriage existed between the part ies. On May 10, 2013, the trial court held an evidentiary hearing at whic h the parties, as well as Appellant’s father, testified. The trial court made the following findings of fac t:J-A35018-14

- 2 - [The parties] met and began dating in 1991. [They ] began living together in 1994. The idea of marriag e first came up in June of 1997, according to Appellant, af ter she found out she was pregnant with the parties’ first child. She then testified that the parties began telling f amily members that they intended to be married. Appellan t continued to testify that she and [Dreakford] did r esearch on different options they had in order to be marrie d— traditional church wedding, courthouse, or a common -law marriage. The parties have three children together: [ages fi fteen to ten]. In August of 1997, while pregnant with th eir first child, the couple took a trip to Jamaica. The part ies agree that the trip was taken, but differ on the purpose of the trip. Appellant testified that the couple consider ed the trip to Jamaica to be their honeymoon and that, prior to leaving the country, they exchanged vows whereupon she stated, “I agree to be your Wife now and forever,” and [Dreakford] reciprocated. No witnesses were presen t during this exchange. [Dreakford], on the other ha nd, testified that there had never been an exchange of vows and that the trip was taken merely as an opportunit y for the two to relax before the birth of their first ch ild. Furthermore, [Dreakford] testified that the parties never discussed getting married and that he had never pro posed to Appellant. Appellant further testified that she had consulted a family law attorney who gave her the requirements f or a valid marriage, [but] she could not remember the attorney’s name. She could not recall details such as the weather in Pittsburgh or Jamaica on the day of her alleged wedding. Prior to their trip to Jamaica, Appellant had a small bridal shower with her co-workers. About a d ozen of her co-workers took her out to a restaurant and gav e her some small gifts, however, Appellant could not reca ll all of the names of the women who were present, nor could she recall the name of the restaurant. Similarly, Appe llant could not remember the location of the jewelry stor e where she claimed the couple went to buy wedding ri ngs, nor could she recall any of the locations where she and [Dreakford] allegedly celebrated their anniversarie s. The Court finds that Appellant was not credible.J-A35018-14

- 3 - Appellant’s father, Mr. Layton, testified that, subsequent to the trip to Jamaica, he found out abo ut the parties’ marriage from Appellant. He did not have knowledge as to where the parties exchanged their v ows. It was Mr. Layton’s testimony that, after the parti es’ trip to Jamaica, their family did not believe the parties w ere just boyfriend and girlfriend anymore. Lastly, Mr. Layt on testified that he holds himself out to be [Dreakfor d’s] father-in-law. By March or April of 1998, the parties moved to No rth Carolina. During [Dreakford’s] testimony, he state d that he believed that by law once he lived with Appellan t for seven years, they were married. Therefore, they he ld themselves out to family members as being married, but they did not start doing that in 1997, as [] Appell ant had testified. As to the wedding rings, [Dreakford] as serted that he purchased a ring for Appellant for Christma s of 2000. Appellant picked out her own ring from White Hall Jewelers in St. Augustine, Florida. [Dreakford] te stified that the rings were attributed to the fact that the parties had been telling co-workers and people that they we re married. Two rings were produced to the Court by Appellant—one square-cut diamond ring and one plain, thin gold band. The parties began filing taxes “married filing joi ntly” in 1998 for the 1997 tax year, even though, at that po int in time, [Dreakford] did not believe the parties to be married. Appellant [and Dreakford both] enrolled in a Jackso n Hewitt tax preparation course to “ensure that the f ederal government would recognize a common law marriage.” [Appellant] did not attend any preparation courses until after the parties returned from Jamaica. [Dreakfor d] testified that the purpose for enrolling in the cou rse was to earn extra income by having the ability to prepare tax returns. He did not finish the course. He never s poke to a tax professional because he felt Appellant was a professional after she completed the tax preparatio n course. Appellant advised [Dreakford] that, if the parties filed their taxes jointly, they would be able to sa ve money, and that is what they decided to do. Moreover, [Dreakford] testified that he avoided questions in regards [sic] to an anniversary date b ecauseJ-A35018-14

- 4 - he did not know when their anniversary was, as they did not have a wedding date because they never had a wedding. The parties purchased their home together in North Carolina, whereby [Dreakford] listed Appellant as h is wife. When the parties moved to Winston-Salem, North Carolina, [Dreakford] also added Appellant to his h ealth insurance and benefits plan that he received from w ork. He testified that he felt this was appropriate sinc e they were already filing their taxes jointly. Likewise, [Dreakford] testified that the parties “almost cert ainly” had joint car insurance from 1998 forward.

Trial Court Opinion, 7/21/14, at 2-5 (footnotes omi tted). At the conclusion of the hearing, the trial court issued an order requiring the parties to submit legal briefs on the status of common law marriage in Pennsylvania. By order entered August 12, 2013, the trial court struck Appellant’s divorce action and dismissed her divorce complaint against Dreakford with prejudice. 1 The trial court further ordered the separate support complaint filed against Dreakford dismissed with prejudice. This appeal follows. Both Appellant and the trial court have complied with

Pa.R.A.P. 1925. Appellant raises the following issues:

I. Did the trial court err and abuse its discretion in determining that no common law marriage existed des pite the overwhelming evidence otherwise and both [parti es’] testimony that they believed they were married.

____________________________________________

1 The Butler County Prothonotary did not docket this order properly until January 24, 2014. Thus, the instant appeal is time ly.J-A35018-14

- 5 - II. Did the trial court err and abuse its discretio n in not admitting certain marital documents that the [parti es] drafted together, and was the error harmless. III. Did the trial court err in limiting the testim ony on the discussion and steps the [parties] took when attemp ting to divide the assets they believed to be marital.

Appellant’s Brief at 5 (emphasis removed). 2

In Staudenmayer v. Staudenmayer , 714 A.2d 1016 (Pa. 1998), our Supreme Court addressed the concept and continued v iability of “common law” marriage in Pennsylvania:

Marriage in Pennsylvania is a civil contract by wh ich a man and woman take each other for husband and wife. There are two kinds of marriage: (1) ceremonial; a nd (2) common law. A ceremonial marriage is a wedding or marriage performed by a religious or civil authorit y with the usual or customary ceremony or formalities. Because claims for the existence of a marriage in the absence of a certified ceremonial marriage present a fruitful source of perjury and fraud, Pennsylvania courts have long viewed such claims with hostility. Commo n law marriages are tolerated, but not encouraged. While we do not today abolish common law marriages in Pennsylva nia we reaffirm that claims for this type of marriage a re disfavored.

Staudenmayer , 714 A.2d at 1019-20 (citations omitted).

____________________________________________

2 Appellant acknowledges her third issue was not pre served by raising a timely objection, and therefore concedes this issue is waived. See Appellant’s Brief at 5. She provides no argument i n support of this waived claim.J-A35018-14

- 6 -

In 2004, the Pennsylvania legislature amended the Domestic Relations Code, effective January 24, 2005, with regard to “c ommon law” marriages,

as follows:

§ 1103. Common-law marriage No common-law marriage contracted after January 1, 2005, shall be valid. Nothing in this part shall b e deemed or taken to render any common-law marriage otherwis e lawful and contracted on or before January 1, 2005, invalid.

23 Pa.C.S.A. § 1103. Given its clear terms, the ab olition of common law marriage in Pennsylvania applied only prospectively . Thus, parties claiming to have entered into a common law marriage prior to January 1, 2005,

would have to establish the existence of a valid ma rriage contract. In Staudenmayer , our Supreme Court clarified the burden of proving a common law marriage as follows:

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 hus band and wife are created by that. *** The common law marriage contract does not require any specific form of words, and all that is essenti al is proof of an agreement to enter into the legal relationshi p of marriage at the present time. The burden to prove the marriage is on the party alleging the marriage, and we have described this a s a heavy burden where there is an allegation of common law marriage. When an attempt is made to establish a common law marriage without the usual formalities, the claim must be viewed with great scrutiny.J-A35018-14

- 7 - Generally, words in the present tense are required to prove common law marriage. Because common law marriage cases arose most frequently because of cla ims for a putative surviving spouse’s share of an estat e, however, we developed a rebuttable presumption in f avor 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; an d (2) a reputation of marriage which is not partial or di vided but is broad and general, raises the rebuttable presump tion of marriage. Constant cohabitation, however, even whe n conjoined with general reputation are not marriage, they are merely circumstances which give rise to a rebut table presumption of marriage.

Staudenmayer , 714 A.2d at 1020-21 (citations and footnotes omit ted). The high court further addressed whether the rebut table presumption arises in the factual circumstances “when both part ies are alive and able to testify regarding the formation of the marriage con tract.” Staudenmayer , 714 A.2d at 1021. Our Supreme Court explained:

We have stated that the rule which permits a findi ng of marriage duly entered into based upon reputation an d cohabitation alone is one of necessity to be applie d only in cases where other proof is not available. The nece ssity that would require the introduction of evidence con cerning cohabitation and reputation of marriage is the inab ility to present direct testimony regarding the exchange of verba in praesenti . . . . Where there is no such proof available, we held the law permits a finding of a marriage bas ed upon reputation and cohabitation when established b y satisfactory proof. We have not, however, dispensed with the rule that a common law marriage does not come into existence un less the parties uttered the verba in praesenti , the exchange of vows in the present tense for the purpose of establ ishing the relationship of husband and wife. We have allo wed, as a remedial measure, a rebuttable presumption in fav or of aJ-A35018-14

- 8 - common law marriage based on sufficient proof of cohabitation and reputation of marriage where the p arties 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 wo rds in the present tense spoken with the purpose of establ ishing the relationship of husband and wife, in other word s, the marriage contract. In those situations, the rebutt able presumption in favor of common law marriage upon sufficient proof of constant cohabitation and reput ation 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 contradict ory 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 i f 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 n ot enjoy any presumption based on evidence of constant cohabitation and reputation of marriage.

Staudenmayer , 714 A.2d at 1021 (citations and footnotes omitted ). Here, both Appellant and Dreakford were available, and testified about the existence of the marriage contract, i.e. , verba in praesenti . In her first issue, Appellant asserts that the trial court erred and/or abused its discretion when concluding that no common law marriage existed , given the “overwhelming evidence otherwise,” as well as “both parties’ testimony thatJ-A35018-14

- 9 -

they believed they were married.” Appellant’s Brie f at 5 (emphasis removed). When making its factual findings, the trial court expressly stated: “The Court found Appellant’s testimony regarding th e exchange of verba de [sic] praesenti

not credible and [Dreakford’s] testimony credible. ” Trial Court Opinion, 7/21/14, at 5. The trial court furt her explained:

In the instant case, the testimony was contradicto ry as to whether an express agreement was made. To suppo rt her claim that a common law marriage existed, Appel lant testified that the parties had a discussion about m arriage shortly after she found out she was pregnant with t heir first child. She testified that the parties had to ld family members that they were going to be married. Furthermore, she testified that she researched comm on law marriage as well as reached out to a family law attorney. She, however, did not learn that the par ties could declare their intentions before two witnesses , nor could she remember the name of the family law attor ney with whom she consulted. Prior to the alleged wedd ing date, Appellant testified that some friends from wo rk held a bridal shower for her, however, she could not rem ember the name or specific location of the restaurant in which the bridal shower was held nor the names of friends who attended. Appellant further recounted that, on Aug ust [1], 1997, the parties were in their apartment, packing for their trip to Jamaica, when they exchanged vows. She cou ld not testify as to what the weather was like in Pitt sburgh on that day. [Dreakford], on the other hand, testified that, up on finding out Appellant was pregnant, he merely discu ssed the pregnancy with her. He stated he was concerned that she would not keep the baby as she had two previous abortions, one of which would have been his child. He further testified that, after the parties concluded that they would keep the baby, their trip to Jamaica was one last chance for the parties to relax as a couple before the birth of their first child.J-A35018-14

- 10 - To further support her claim of common law marriag e, Appellant testified that [Dreakford] purchased two “wedding rings” for her after the Jamaica trip. Sh e produced to the Court two rings. It is undisputed that there was not an exchange of rings prior to or duri ng the trip to Jamaica. [Appellant] could not recall the name of the store or any other details around the selection of the rings. [Dreakford] testified that he purchased rings for the two of them as a Christmas present in 2000 and that the rings were purchased at Whitehall Jewelers in St. Augusti ne, Florida. Appellant had chosen the ring with the sq uare-cut diamond, which was presented to the Court. [Dreakf ord] could not testify to the plain, thin gold band prod uced to the Court by Appellant as he had never seen it befo re. The Court found [Dreakford’s] testimony that no express words were exchanged between the parties articulating a present intent to enter into the leg al relationship of marriage to be credible. The Court found Appellant’s contradictory testimony not credible.

Trial Court Opinion, 7/21/14, at 7-8 (footnote omit ted). Because the parties presented contradictory testim ony regarding verba in praesenti , the trial court next considered evidence of const ant cohabitation and reputation for marriage as an aid to its credibility determination. The trial court explained:

The relevant testimony as to this issue was, for t he most part, not disputed. There is no dispute that the parties constantly cohabitated from 1994 to 2011. At the suggestion o f Appellant, the parties began filing their taxes as “Married Filing Jointly.” [Dreakford] added Appellant to hi s employment benefits package and his automobile insurance. When the parties purchased a home in No rth Carolina, [Dreakford] added Appellant to the deed a s “his wife.”J-A35018-14

- 11 - Mr. Layton, Appellant’s father, testified that Appe llant informed him the parties got married in Jamaica. H e was unable to testify as to whether or not the parties exchanged verba in praesenti with the intent to create a marriage. Mr. Layton further testified that [Dreak ford] never told him the parties were married, however he has held himself out to be [Dreakford’s] father-in-law. Appellant’s testimony was in general verbose. Her specific testimony asserting verba in praesenti was not credible. The veracity of the testimony supporting reputation was not sufficient to overcome the credi bility issue of verba in praesenti . So while there was evidence of constant cohabitation and reputation, there was not clear and convincing evidence of verba in praesenti , without which there can be no common law marriage. In her [Pa.R.A.P. 1925(b) statement], Appellant se ems to assert that because both parties “believed they were married” there was sufficient evidence to support a common law marriage. Appellant testified that ther e was a specific date, time and place where the parties exc hanged verba in praesenti and, if believed, this occurred in Pennsylvania sometime around August 1, 1997. This would be her basis of “believing” the parties were married. [Dreakford] testified that he “believed” they were married as an operation of law after cohabitating for seven years. In 1998, less than a year after the trip to Jamaica , the parties resided in North Carolina which does not re cognize common law marriage. [Dreakford’s] “belief” was a mistaken understanding of the law. A mistaken understanding for which he believed he had no remed y until he consulted with an attorney. There is no e vidence on the record that [Dreakford] ever intended to ent er into a marriage contract. The Court considered in its analysis that [Dreakfo rd] “believed” he was married. The Court considered th at he took certain actions, including, but not limited to , discussions of distribution of property between the parties. However, the Court found no authority to support th e formation of a marital contract based upon the mist aken “belief” of a party as to the status of the law (no t a mistake of fact). [Dreakford’s] testimony as to wh y he believed the parties were married was credible.J-A35018-14

- 12 - Appellant had a heavy burden of proving by clear a nd convincing evidence that the parties by their expre ss agreement entered into a common law marriage. As i n the Staudenmayer

case, both parties were “available to testify,” and did testify, concerning the exchange of verba in praesenti . Appellant “simply did not do so convincingly, and therefore did not meet her burden.” [ Staudenmayer , 714 A.2d at 1022].

Trial Court Opinion, 7/21/14, at 8-10 (footnote omi tted). Our review of the record supports the trial court ’s conclusions. As recognized by the trial court, because both parties testified at the evidentiary hearing, the rebuttal presumption discu ssed in Staudenmayer , supra , does not arise. Moreover, as our Supreme Court f urther noted in Staudenmayer , the trial court “as factfinder, makes determinati ons concerning the credibility of witnesses and its con clusions of law based on

those determinations will not be disturbed absent a n abuse of discretion.” Staudenmeyer , 714 A.2d at 1022. We discern no such abuse of di scretion. Thus, we agree with the trial court that, based on the trial court’s credibility determinations, Appellant failed to meet her heavy burden of establishing a common law marriage. In her remaining claim, Appellant asserts that the trial court erred and/or abused its discretion in refusing to admit a s exhibits “certain marital documents that the [p]arties drafted together.” Ap pellant’s Brief at 5 (emphasis removed). Within her brief, Appellant as serts, “[i]n 2011, Dreakford created and emailed [Appellant] a Separat ion Agreement and then the parties created a QDRO together, both documents containing August 1,J-A35018-14

- 13 -

1997 as the agreed upon date of marriage.” Appella nt’s Brief at 18. According to Appellant:

The trial court excluded these documents as evidenc e despite argument that they were an opposing party’s admission. Pa.R.E. 803(25). It also appears that had they been admitted, they would have been considered a pr ior inconsistent statement of Dreakford once he testifi ed. In the Opinion issued by the trial court, it appears t hat the trial court acknowledges that their exclusion was a n error; however, claiming it was harmless.

Id. (citations omitted). Our review of the record refutes Appellant’s claim . Initially, we agree with Dreakford’s assertion that Appellant’s argumen t regarding this issue is not sufficiently developed. See Dreakford’s Brief at 19. As noted by the trial court, in her Pa.R.A.P. 1925(b) statement, Ap pellant failed to specifically identify the specific exhibits to whic h she refers. Moreover, Appellant’s appellate brief is devoid of case autho rity and any pertinent discussion of the Pennsylvania Rules of Evidence. Thus, Appellant’s claim is

waived. See generally , Lawson v. Lawson , 940 A.2d 444, 448 n.5 (Pa. Super. 2007). Even absent waiver, Appellant’s claim fails. “[T] he admission of

evidence is within the sound discretion of the tria l court and will be reversed only upon a showing that the trial court clearly ab used its discretion.”

Smith v. Morrison , 47 A.3d 131, 137 (Pa. Super. 2012). At the evide ntiary hearing, the trial court refused to admit the docum ents at issue because Dreakford denied he had drafted certain parts of th em. See N.T., 10/25/13,J-A35018-14

- 14 -

at 53-57. “The ultimate question is whether the au thentication testimony is sufficiently complete so as to persuade the [trial] court that it is improbable that the original item has been exchanged with anot her or altered in any material respect.” Webb v. Commission (PennDot) , 934 A.2d 178, 185 (Pa.Cmwlth. 2007) (citation omitted). Moreover, “[ t]estimony of a witness with personal knowledge that a matter is what it is claimed to be may be

sufficient to authenticate the evidence.” Id. (citing Pa.R.E. 901(b)(1)) (emphasis added). Here, because there was argument that the email at issue was “editable,” the trial court refused to ad mit it into evidence. N.T., 10/25/13, at 53. In other words, the trial court b elieved Appellant’s testimony did not sufficiently authenticate it. As noted supra , the trial court repeatedly stated that Appellant’s testimony was no t credible. Thus, as stated by the trial court, even had the exhibits be en admitted, they would

not alter the trial court’s conclusion that “the cr edible facts showed that no vows were exchanged, and [Dreakford] never had an i ntent or purpose to create a legal relationship of husband and wife[.]” Trial Court Opinion, 7/21/14, at 11. In sum, because the record supports the trial cour t’s conclusion that Appellant did not meet her burden of proving that a common law marriage existed between the parties, we affirm the trial co urt’s order striking and dismissing her divorce complaint with prejudice.

Order affirmed.J-A35018-14

- 15 -

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/29/2014