Com. ex rel. McDermott v. McDermott

• Decision Date: 09 October 1975
• Citation: 236 Pa.Super. 541,345 A.2d 914
• Parties: COMMONWEALTH of Pennsylvania ex rel. Maria J. McDERMOTT, Appellant, v. John R. McDERMOTT.
• Court: Pennsylvania Superior Court

Page 914

345 A.2d 914

236 Pa.Super. 541

COMMONWEALTH of Pennsylvania ex rel. Maria J. McDERMOTT, Appellant, v. John R. McDERMOTT.

Superior Court of Pennsylvania.

Oct. 9, 1975.

William T. Smith, Harrisburg, for appellant.

John F. Pyfer, Jr., Lancaster, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

HOFFMAN, Judge:

Appellant contends that the court below erred in sustaining a demurrer to the evidence of the existence of a common law marriage, which would entitle her to support.

Maria J. McDermott, appellant, and John R. McDermott, appellee, were married in Mgladbach, Germany, on October 26, 1948. Two sons were born of the marriage before the parties were divorced in Germany on October 11, 1966. Appellant and her two sons moved to Harrisburg shortly after the divorce. She and her husband continued to correspond. She testified that her husband had written: 'he don't care if people know we're divorced or not divorced; he's still my husband, and you are still my wife.' In June of 1967, Mr. McDermott arrived at appellant's residence and announced his arrival with the words: 'Here I am. You want to be my wife again?' Appellant responded, 'Yes.' ¹ They cohabited for nearly five years before separating again. During that time, each introduced the other to friends and neighbors on several specified occasions as 'my wife' or 'my husband'. They enjoyed a reputation in the community as husband and wife which was corroborated by her 23 year-old son and by her neighbor. They filed joint tax returns with the customary sworn statements as to the truth of the contents of the return.

Additionally, appellant testified that she was named as beneficiary on an army insurance policy and on a pension plan with Mr. McDermott's employer. After the parties separated in September, 1972, Mr. McDermott continued to pay support under an informal support agreement, which was discontinued two years later when Mr. McDermott was fired from his job.

On May 10, 1974, this action was commenced for support. After appellant had presented her evidence of a common law marriage, the court sustained a demurrer to the evidence and testimony was confined to Mr. McDermott's liability for support of his minor child. The court ordered him to pay $50.00 per week in support for the child but allowed nothing for appellant. This appeal followed.

It is settled that marriage is a civil contract, and does not require any particular form of solemnization before an officer of a church or of the state. Bisbing's Estate, 266 Pa. 529, 109 A. 670 (1920); Murdock's Estate, 92 Pa.Super. 275 (1927). The 'black letter' rule is often stated that a nonceremonial marriage comes into existence by words in the present tense, uttered with a view and for the purpose of establishing the relation of husband and wife. McGrath's Estate, 319 Pa. 309, 179 A. 599 (1935). Cohabitation and reputation are not a marriage; they are but circumstances from which a marriage may be presumed, and such presumption may always be rebutted and will wholly disappear in the face of proof that no marriage has occurred. Murdock'sEstate, supra; Craig's Estate, 273 Pa. 530, 117 A. 221 (1922); Balanti v. Stineman Coal & Coke Co., 131 Pa.Super. 344, 200 A. 236 (1938). In the instant case, the lower court believes that the substantial evidence of reputation and cohabitation should be disregarded because the words spoken by the appellant's husband were not in the present tense, and hence rebutted the presumption of a marriage. We cannot agree with such overly technical adherence to a 'black letter' rule.

The tenuous distinction Verba de praesenti and Verba de futuro has long been the subject of criticism. ² The decisions seeking to distinguish Verba de futuro from Verba de praesenti 'compel(s) the belief that the distinction is theoretical and utterly unrealistic. If the distinction is to be preserved, there should be borne in mind the obvious truth that although words are the means of expressing the intention of the parties, nevertheless they are not the exclusive means by which intention may be conveyed . . .. The setting in which the words are uttered, more strongly than any delicate shading in grammar, reveals the intention of the parties. On this principle rather than by a pedantic examination of the meaning of the words of a lay witness, the decision in Murdock's Estate ³ is justified . . ..' Freedman, supra, § 53 at 120--21. It is unquestioned that our courts will give effect to the intention of the parties and find a valid marriage where no direct testimony is offered as to the precise words of the marriage contract. Chambers v. Dickson, 2 Serg. & R. 475 (1816). In Commonwealth v. Haylow, 17 Pa.Super. 541, 547--48 (1901), the Court said: 'It is true that the parties did not use the formal words of the marriage ceremony, nor was it necessary that they should do so, if each 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. With us marriage is a civil contract, which may 'be completed by any words in the present time without regard to form' (Hantz v. Sealy, 6 Bin. 405), the essential to its validity being the consent of parties able to contract: Richard v. Brehm, 73 Pa. 140, and cases there cited. See also Comly's Est., 185 Pa. 208, (39 A. 890), and Drinkhouse's Est., supra (151 Pa. 294, 24 A. 1083). 'Society rests upon marriage, the law favors it,' and in a country where it is often unattended by ceremony, or even officiating witnesses, it is not the duty of the courts to seek for an interpretation of the words used by the parties which would be inconsistent with an honorable intention as well as with their subsequent conduct and declarations, when an interpretation consistent with the formation of an honorable relation is possible, and in the light of all the circumstances, more probably expresses their intention.' The mandate to search for the intent of the parties is just as true in cases in which testimony is given as to the words used by the parties as when such testimony is absent.

In Comly's Estate, 185 Pa. 208, 39 A. 890 (1898), the following exchange occurred: 'Would you be willing to marry me in this way, that you and I are to live together until death separate us; I take you to be my wife, and you take me to be your husband?' She replied: 'Yes, sir; unless death separate us.' Then the decedent asked: 'Are you willing for that?' The claimant answered: 'I guess I would be; but don't you think we had better be married by a minister?' The decedent replied: 'It is just as lawful in this state as if we were married by a minister; do what is right; but if we live together and do what is right, we are just as lawfully married as if a dozen ministers married us.' Despite the fact that these words might have been construed as a proposal of marriage rather than words expressing a present intent to be married, the Court held that under the circumstances the parties evidenced a present intent to enter into a marriage.

In Neafie's Estate, 12 Pa.Dist. 749 (1903), cited with approval in Wagner Estate, 398 Pa. 531, 537--8, 159 A.2d 495 (1960), the parties were married by a magistrate and lived together for about two years. They were then divorced and lived separately for a year. At the request of the husband, the parties met in Camden, New Jersey, where he said: 'I am willing to take you back as my wife if you are willing to take me back as your husband.' She said: 'Yes.' They then lived together at her house until his death. These words taken together with their action and the evidence of cohabitation and reputation were sufficient to establish the marriage.

The Court in Ward's Estate, 296 Pa. 20, 145 A. 676 (1929), reasoned that although the words used were clearly in the future tense, it would be absurd to disregard the manifest intent of the parties under the circumstances and as evidenced by their conduct. Jack Ward had proposed marriage to Helen several times and she had refused. In the presence of witnesses the following exchange occurred: 'Helen, when are we going to get married so we can take this trip? Helen, will you be my wife?' Helen replied: 'Yes, Jack, I will.' He then said: 'All right, from this time on consider yourself my wife.' They then started living together without more. The marriage was held valid.

The Court in Brown v. Nolen, 298 Pa. 384, 387, 148 A. 498, 499 (1930), recognized that the words testified to by the witnesses were not strictly speaking in the present tense, but sustained appellant's contention of the existence of a valid marriage saying: 'The intention of the parties may not be disregarded. The words used to formulate the marriage contract express a present intent to create an immediate relation of husband and wife.'

Flora C. Seifert testified that her marriage to William H. Seifert was based on an alleged conversation between William, his mother and herself. William supposedly said: 'Flora and me are going to (be) married.' Then taking Flora's hand, he continued, 'Now, Flora, I am going to take you for my lawful wife forever, as long as the both of us live.' And she replied, 'Well, now, William, I am going to marry you and take you for my lawful husband as long as we both live.' This testimony, taken with the evidence of immediate cohabitation and of reputation were held sufficient to establish a valid marriage. Seifert's Estate, 302 Pa. 447, 153 A. 722 (1931).

The Court in Caddy v. Johnstown Firemen's Relief Association, 129 Pa.Super. 493, 499--500, 196 A. 590 (1938), found the words, 'We can live together as common law people.' sufficient to establish a valid marriage, saying: 'Unlettered persons frequently become confused in the use of tenses, and it is difficult to get them to testify to the exact language used in a conversation, in words of the first and second...