Cann v. Cann

• Decision Date: 28 October 1993
• Citation: 632 A.2d 322,429 Pa.Super. 234
• Parties: Grace P. Brown CANN, v. Charles CANN, II, Appellant.
• Court: Pennsylvania Superior Court

Page 322

632 A.2d 322

429 Pa.Super. 234

Grace P. Brown CANN, v. Charles CANN, II, Appellant.

Superior Court of Pennsylvania.

Argued May 12, 1993.

Filed Oct. 28, 1993.

Sherry A. Schwalbach, Hazletown, for appellant.

Before POPOVICH, HOFFMAN and HESTER, JJ.

HOFFMAN, Judge:

This appeal is from a December 3, 1993 decree granting a divorce to Grace P. Brown Cann and Charles Cann, II. Appellant, Charles Cann, II, presents the following issues for our review: First, appellant argues that the trial court erred in dismissing his petition for summary judgment on the issue of whether there was a common law marriage, as appellant's first wife was not declared to be presumed dead by the court. Second, appellant argues that the trial court erred in finding that a valid common law marriage existed between the parties. See Appellant's Brief at 2. For the reasons that follow, we affirm.

The relevant facts are as follows. In 1968, appellant married Ilonka Cann. The couple had one child. In 1970, Ilonka disappeared and has not been heard from since. In 1971, appellant began a relationship with appellee, who was fully aware of appellant's marriage and his wife's disappearance. In late 1971, appellee moved into appellant's home where she lived until 1987.

On April 30, 1987, appellee commenced an action in which she sought a divorce, alimony, alimony pendente lite, equitable distribution, and counsel fees and costs. In appellee's complaint she alleged that the parties were married on June 9, 1972. Appellant, however, denied that he was ever married to appellee. On October 10, 1989, a motion for summary judgment was filed by appellant, which was granted on February 7, 1990. Subsequently the order of February 7, 1990 was vacated, to give the parties an opportunity to take additional depositions on the issue of common law marriage.

On August 1, 1990, the trial court found that the parties had entered into a common law marriage on June 19, 1982 and ordered that the parties proceed with the divorce action. On December 3, 1992, the trial court entered a decree of divorce. This timely appeal followed.

Appellant first argues that the trial court erred in dismissing his petition for summary judgment and finding that a common law marriage existed when appellant's preexisting wife was not declared to have been presumed dead by the court. We disagree.

The Rule governing motions for summary judgment provides in pertinent part that:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Pa.R.C.P. 1035. Thus, summary judgment will only be granted in the clearest of cases. Kotwansinski v. Rasner, 436 Pa. 32, 37, 258 A.2d 865, 867 (1969). The moving party has the burden of proving the nonexistence of any material fact. Kent v. Miller, 222 Pa.Super. 390, 393, 294 A.2d 821, 823 (1972). Furthermore, all doubts as to the existence of a genuine issue of a material fact must be resolved in favor of the nonmoving party. Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198, 203, 280 A.2d 570, 573 (1971).

Appellant contends that because of the existing impediment of a prior marriage the relationship between himself and appellee was meretricious. ¹ This argument is without merit. We agree that a valid prior marriage will invalidate any subsequent marriage. Madison v. Lewis, 151 Pa.Super. 138, 145, 30 A.2d 357, 360 (1943). However, a valid marriage continues only until death of one of the parties (actual or presumptive) or a divorce. In re Watt's Estate, 409 Pa. 44, 53, 185 A.2d 781, 785 (1962).

This court has long held that where a spouse from a prior marriage has been missing for a period of seven years, she is presumed dead for the purposes of the validity of a prior marriage. Appellant argues that since an interested party never petitioned the court to declare Ilonka Cann dead, the presumption is not applicable. ² However, in these instances the court has upheld this presumption, regardless of whether the court acted upon a petition. See, e.g., Schaefer v. Schaefer, 189 Pa.Super. 120, 149 A.2d 578 (1959) (court recognized the validity of second marriage where appellant's husband had been missing for ten years); In re Estate of D'ippolito, 420 Pa 541, 218 A.2d 224 (1966) (court recognized the validity of second marriage where 24 year period elapsed between the time decedent was deserted by her first husband and the second marriage); Madison, 151 Pa.Super. at 138, 30 A.2d at 357 (court refused to recognize the validity of a second marriage where there was no divorce and first wife was still alive). See also 1 A. FREEDMAN & M. FREEDMAN, LAW OF MARRIAGE AND DIVORCE IN PENNSYLVANIA § 85 (1957) (where second marriage takes place seven years after first spouse was last heard of, presumption of death arises and second marriage is valid).

In the present case, appellant's wife disappeared in 1970 and has not been seen nor heard from since. In 1971, appellant entered into a meretricious relationship with appellee. As appellant's wife had been missing for a period exceeding seven years, the trial court held that appellant's wife was presumed dead as of 1977. To overcome the presumption, the burden is on appellant to prove that his first spouse was alive at the time of the second marriage. Schaefer, 189 Pa.Super. at 120, 149 A.2d at 578. As appellant offered no evidence to the contrary, the impediment to marriage was removed in 1977. Accordingly, we find appellant's first argument to be without merit.

Appellant next argues that the evidence did not support the trial court's findings that there was a valid common law marriage between the parties. In Pennsylvania, a common law marriage is a marriage by express agreement of the parties without ceremony, and usually without a witness, and verba de praesenti, uttered with the purpose of establishing a relation of husband and wife. In re Manfredi's Estate, 399 Pa. 285, 291, 159 A.2d 697, 700 (1960). However, common law marriage will still be recognized...