Cross v. Cross

• Decision Date: 25 April 1989
• Citation: 146 A.D.2d 302,541 N.Y.S.2d 202
• Parties: Regina CROSS, Plaintiff-Respondent-Appellant, v. Christopher CROSS, Defendant-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 202

541 N.Y.S.2d 202

146 A.D.2d 302

Regina CROSS, Plaintiff-Respondent-Appellant, v. Christopher CROSS, Defendant-Appellant-Respondent.

Supreme Court, Appellate Division First Department.

April 25, 1989.

Philip A. Greenberg, of counsel (Segal & Greenberg, attorneys), New York City, for defendant-appellant-respondent.

Stuart A. Jackson, New York City, of counsel (Enid W. Langbert with him on the brief; Blodnick, Pomeranz, Reiss, Schultz & Abramowitz, P.C., attorneys), Lake Success, for plaintiff-respondent-appellant.

Before MURPHY, P.J., and SULLIVAN, ROSS, KASSAL and ELLERIN, JJ.

SULLIVAN, Justice.

This appeal, the fourth in this matter, is from an order, after trial, declaring that the parties had, as claimed by plaintiff, entered into a common law marriage. Such marriages were abolished in New York in 1933. (L.1933, ch. 606.) On an earlier appeal (102 A.D.2d 638, 476 N.Y.S.2d 876), this court, in reversing a grant of summary judgment in favor of defendant, held that the issue for trial would be whether the parties had contracted a common law marriage during two 1982 trips, one to Pennsylvania and the other to Washington, D.C. On our review of the record, we are unable to find a factual basis for the trial court's determination and, accordingly, reverse.

The parties' relationship commenced in 1964, when each of them was married to someone else. They began to cohabit in 1965. Plaintiff divorced her then husband one year later. Defendant obtained a divorce from his former wife in 1979. The parties lived together in New York from 1965 until the early part of 1983, when they separated. Although they travelled from time to time to other jurisdictions, they never resided in any other state and, in any event, their trips could not have had any impact on their relationship, at least not until 1979, when defendant was divorced from his second wife.

Plaintiff's witnesses generally testified about events which occurred before defendant's 1979 divorce and which took place in New York, where plaintiff was known as Regina Cross, or Mrs. Cross or as defendant Christopher Cross's wife. One non-party witness, plaintiff's cousin, Craig Wine, testified about a weekend which the parties spent in Washington, D.C. in 1982. He was on a reception line at a pre-wedding dinner when he "turned around and [defendant] introduced himself, and he said, 'you know my wife, Regina Cross'."

Among the trips about which plaintiff testified were those to Colorado, Pennsylvania and Rhode Island, all of which occurred before defendant's 1979 divorce. Moreover, the trips were of short duration, and involved minimal contact with others. Plaintiff testified extensively about a 1982 weekend trip to Pennsylvania to the home of Maya Brooks, where the parties shared the master bedroom. The activities included an evening at a restaurant, at which defendant, in the presence of the others, ordered dinner for his "wife". Also, in referring to a past event between them, he described it as having occurred at a time before they were married. Defendant denied making such statements.

Plaintiff also testified about the 1982 trip to Washington, D.C. She and defendant stayed two nights at a Holiday Inn, at which they registered as Mr. and Mrs. Christopher Cross. Plaintiff characterized defendant's introduction of her--"Well, I suppose you know my wife Regina"--to her own family as "kidding." Over objection, plaintiff was allowed to answer "yes" in response to the question, "at any time during your 18-year relationship with Mr. Cross, yes or no, did you consider yourself married to him?".

In addition to his own testimony, essentially denying the existence of a common law marriage, defendant presented two non-party witnesses, whose testimony was significant. Dr. Joseph Eron, a child psychologist, testified that when he met with the parties in late 1982 he found a problem because of, as he put it, plaintiff's "concern that they had never, in fact, been married". Loris Blake, the parties' housekeeper during the years that they lived together, testified that they argued constantly about plaintiff's desire to be married. Specifically, Ms. Blake gave the following testimony:

Well, Regina would say, "if you don't marry me, I'm going to take my child and leave and then you'll never see me again." And then Mr. Cross would say, "Well you can go wherever you want to, because I didn't tell you to come here. You're the one that moved in here. So wherever you want to go, you can go"

As Ms. Blake explained, in the arguments over his refusal to marry plaintiff defendant would always explain that he was married and had two children, "and even if I am divorced, I would never marry you". After the 1979 divorce, he would say, "I am not going to marry you, and I'm not going to marry anyone else. So wherever you want to go, you can go". Ms. Blake testified that she never heard either of the parties introduce the other as husband or wife.

Consistent with plaintiff's testimony, defendant testified that the only state in which he ever lived with plaintiff was New York. With respect to the 1982 trip to Pennsylvania, he testified that they stayed only one night, while plaintiff testified that they had stayed two nights. References to each other during that weekend were as "Chris" and "Regina" and no one, including the parties, referred to them as each other's husband or wife. Defendant vehemently denied any references during the stay to a time before or after the parties' marriage, "Absolutely not, because I had no marriage".

With respect to the trip to Washington, D.C., defendant testified, consistent with plaintiff's testimony, that the parties had stayed for two nights. Defendant testified that at the pre-wedding dinner neither party introduced the other as his or her husband or wife. In fact, since the dinner guests were all members of plaintiff's family, defendant did not have to introduce her at all. The only reference to the parties' marital status occurred when one of plaintiff's relatives jokingly asked defendant when he would be getting married, to which he responded "no, thank you very much". Defendant also testified that when the parties visited plaintiff's parents, they did not use the same bedroom, since they were not married and plaintiff's mother was "old-fashioned." Defendant stated, not inconsistently with plaintiff's testimony, that he divorced his former wife in 1979 as a tax-saving device, so that he could deduct the alimony payments. In deposition testimony received in evidence, Gila Ramras-Rauch, a friend of plaintiff, described a conversation with plaintiff in or about 1980, in which plaintiff complained that defendant did not want to marry her, and that she was "very desolate about it". William C. Moss, an attorney and friend of the parties, testified about a telephone conversation he had with plaintiff:

Regina told me, after the usual pleasantries, how distressed she was because Christopher refused to marry her. She asked me to tell Christopher when he arrived at my home for a visit that unless he married her, she was prepared to take their son to Israel and that she would not return.

Moss' testimony ended with the following question and answer:

Q. From 1979 to the present, did Christopher Cross and plaintiff hold themselves out to be husband and wife to you or anyone else you know?

A. No.

In declaring that a common law marriage existed between plaintiff and defendant, the trial court apparently credited all of plaintiff's evidence while totally rejecting defendant's, except where the testimony was consistent. While considerable deference should be paid to a trial court's assessment of credibility (Matter of Liccione v. John H., 65 N.Y.2d 826, 827, 493 N.Y.S.2d 121, 482 N.E.2d 917), we have great difficulty in accepting plaintiff's account of the weekend in Washington, D.C. For example, the court found that defendant introduced plaintiff to the members of her own family as, "my wife Regina," despite the implausibility that he would have to introduce her to her own family. Similarly, with respect to the lunch they attended, the court found, "Again, defendant ordered food for the parties and told the waiter 'my wife would like * * * '." Not even plaintiff had testified that defendant had ordered for her on that occasion; nor did plaintiff testify that defendant referred to her as his wife. In any event, even if every single factual issue is resolved in plaintiff's favor, defendant is still entitled to judgment as a matter of law.

With respect to the controlling legal principles, the court relied on the law of Pennsylvania, which, seemingly, lent more support to the finding of a common law marriage. The decisions cited by the court, however, involved cases where the parties clearly entered into an agreement in Pennsylvania to be married, and had been residents or at least had cohabited for a significant period of time in that state and were known in the community as husband and wife.

Acknowledging that Washington, D.C. "follows a somewhat more rigid approach than Pennsylvania", but without finding that the criteria for a common law marriage in Washington D.C. had been met, the court concluded that "[t]he confluence of the Pennsylvania trip, the Washington D.C. trip and the acts of the parties with respect to the Bar Mitzvah of their son which took place at about the same time, lead to the inexorable conclusion that the parties were married in Pennsylvania and Washington D.C. * * * ".

In In re Estate of Kovalchick, 345 Pa.Super. 229, 498 A.2d 374, the court stated: "Because the courts have regarded common law marriage as a fruitful source of fraud and perjury, common law marriages are to be tolerated but not encouraged. [citations omitted.] Therefore, 'the law imposes a heavy burden on one who grounds his or her claim on an allegation of common law marriage'." (Id. at 232, 498 A.2d 376, quoting Estate of Gavula, 490 Pa. 535, 540-541,...