Goldin v. Goldin

• Decision Date: 05 March 1981
• Docket Number: No. 879,879
• Citation: 426 A.2d 410,48 Md.App. 154
• Parties: Dorothy M. GOLDIN v. Milton GOLDIN.
• Court: Court of Special Appeals of Maryland

Page 154

48 Md.App. 154

426 A.2d 410

Dorothy M. GOLDIN v. Milton GOLDIN.

No. 879.

Court of Special Appeals of Maryland.

March 5, 1981.

Bryan Renehan, Rockville, with whom were Brodsky, Greenblatt & Renehan, Rockville, on the brief, for appellant.

William Bogen, Silver Spring, with whom were Bogen, Yavener & Berman, Silver Spring, on the brief, for appellee.

Argued before GILBERT, C. J., and THOMPSON and WEANT, JJ.

GILBERT, Chief Judge.

"Marriages," John Lyly ¹ penned, "are made in Heaven and consummated on earth." ² No problem exists in the matter before us as to the consummation of the "marriage." What we are concerned with is whether Pennsylvania is part of Heaven.

The Circuit Court for Montgomery County (Shearin, J.) found that no marriage existed between Dorothy M. Goldin, appellant, and Milton Goldin, appellee. Accordingly, Judge Shearin dismissed Mrs. Goldin's bill of complaint for a divorce a mensa et thoro. Understandably perturbed by the ruling of the chancellor, Mrs. Goldin has carried her cause to this Court. Here, she asserts the circuit court erred in holding that she had "not proven a common-law marriage" to the appellee.

-THE FACTS-

This domestic drama began in Buffalo, New York, in 1954 or 1955 when the parties met at "some of the bowling functions." Each of the two litigants was married at the time, but not to each other. They "entered into a relationship."

In 1956 Mrs. Goldin obtained an annulment of her marriage to Mr. Williams. Legally, she was free to remarry, but satisfying legal niceties did not solve the religious problems confronting her. Mr. Goldin obtained a divorce from his former spouse. At that time he had converted his faith from Judaism to Catholicism. He testified that inasmuch as he had entered into a marital status with his former wife prior to his conversion, the divorce from her left him "free to marry in the Catholic theology."

The Goldins moved to Falls Church, Virginia, in 1958. They were advised that Mrs. Goldin "was not free to be married" in the eyes of the Catholic Church. Mrs. Goldin told Judge Shearin that a priest "suggested that if we were going to live in the same house, we would have the choice of two options: ((1)) we could either enter (into) a civil marriage leave the Catholic faith, and hope and pray that we could conditions would change and we could re-enter the faith or ((2)) we could attempt to live as brother and sister, which meant living in the same house avoiding the appearance of scandal, which meant assuming the Mr. and Mrs. name, ³ but having no intimate relationship."

The parties opted for the latter choice. Apparently, they were unsuccessful in their attempt because two children were born to them.

Mr. Goldin related that when their son was born, a discussion was had over "whether or not we should leave the church, enter into a marriage condition, and at that time Dorothy (Mrs. Goldin) was not willing to do that."

Mrs. Goldin testified that while she considered herself "married" to Mr. Goldin, she did not enter into a civil marriage ceremony with him because of her religious beliefs. Moreover, whenever Mr. Goldin proposed marriage she would respond that they "were married."

The parties lived together in Virginia ⁴ for seven years and then moved to Maryland where they have resided for approximately fifteen years. At all times Mrs. Goldin continued to use that name. The parties bought a house as tenants by the entireties, ⁵ executed a mortgage, seemingly as husband and wife, filed joint tax returns, both federal and State, in the same capacity, maintained joint bank accounts, and, inferentially, conducted themselves as husband and wife.

During the period 1964 through 1969, the parties were "into skiing." They, accompanied by the two children, who were very young, journeyed "almost every weekend," and some holidays, to Seven Springs, Pennsylvania. They usually stayed at a motel where they registered as Mr. & Mrs. Goldin. All four slept in the same room. The exact sleeping arrangements were disputed. Whether Mr. & Mrs. Goldin shared the same bed is purely a matter for the fact-finder to resolve. Mrs. Goldin testified that she and Mr. Goldin engaged in sexual relations after the children had gone to sleep. Mr. Goldin flatly denies any sexual contact because the children were in the same room.

It is clear that Judge Shearin, while finding the testimony from both sides to be credible, manifestly attached more weight to that of Mr. Goldin. In any event the judge felt that Mrs. Goldin had not met the burden of proof.

-THE LAW-

Maryland has continuously held that a common-law marriage, valid where contracted, is recognized in this State. ⁶ Absent a showing that the "marriage" was valid where performed, no amount of holding out as husband and wife, reputation as being husband and wife, number of children, or any other factor will transpose the living together of a man and woman into a legal marriage in this State. Marriage does not take place simply because a man and woman cohabit for a protracted period of time. ⁷ We do not recognize "marriage by estoppel."

Whenever a party asserts that he or she and another were united in marriage by common law in a jurisdiction that sanctions such marriages, the burden of proof is upon the party asserting the common-law marriage. ⁸

Marriages in Maryland are controlled and regulated by Md.Ann.Code art. 62. Prior to Laws 1963, ch. 406, no valid marriage could be performed in this State without some sort of religious ceremony. Denison v. Denison, 35 Md. 361 (1872). By the 1963 act, clerks or deputy clerks, designated by the resident circuit court judges were permitted to perform marriages.

Since neither Virginia nor Maryland allows the contracting of a common-law marriage within their respective geographical confines, the marriage between the parties, if there is one, must have occurred in Pennsylvania.

Pennsylvania authorizes the contracting of common-law marriages. See, e. g., Sullivan v. American Bridge Co., 115 Pa.Super. 536, 176 A. 24 (1935); Brown v. Nolen & Sons, 298 Pa. 384, 148 A. 498 (1930); Estate of Nelson Stine, 98 Pa.Super. 7 (1930); In re Ward's Estate, 296 Pa. 20, 145 A. 676 (1929); Richard v. Brehm, 73 Pa. 140, 13 Am.Rep. 733 (1873); Guardians of the Poor v. Nathans, 2 Brewster (Pa.) 149 (1845).

What we need to decide is what are the necessary elements of such a marital undertaking. Does the fact that a man and woman, free to marry, register in a hotel, motel or other temporary shelter, ipso facto make them husband and wife under the law of Pennsylvania, or is something more required? Suppose, as in the case now before us, the couple spent a number of winter weekends in Pennsylvania where they registered as husband and wife, does that fact convert them into a married couple? Given the background of the instant case where the couple lived together for a prolonged time in States that do not permit the contracting of common-law marriages, and adding to those facts the weekends in Pennsylvania, is the relationship changed by judicial chemistry into a valid common-law marriage?

All the above questions have the same answer, and this is, maybe, it all depends upon the facts of each particular case.

In Sullivan v. American Bridge Co., supra, a couple attempted to get married in New Jersey, but did not because they were unwilling to wait the necessary time between licensing and marriage. They traveled to Maryland in an effort to be married but were again frustrated because of a lack of a witness. Notwithstanding that, they exchanged vows without the benefit of clergy. Obviously, the exchange of promises in Maryland had no legal effect. Denison v. Denison, 35 Md. at 380. "To constitute lawful marriage here there must be superadded to the civil contract some religious ceremony." Id.

The parties then cohabited in New Jersey and Pennsylvania. The court apparently applied Pennsylvania law to effectuate the exchange of vows in Maryland, stating that the fact that a marriage cannot be contracted because of legal or religious impediments does not mean citizens shall not be married abroad. The court held that the exchange of vows in Maryland considered with the residency in New Jersey and Pennsylvania established the common-law marriage. See also Travers v. Reinhardt, supra.

A New York court, in McCullon v. McCullon, 96 Misc.2d 962, 410 N.Y.S.2d 226 (1978), held that a visitations to the Pennsylvania home of the alleged husband's parents for a two to four week period each year, together with the New York cohabitation and reputation, was sufficient to establish a common-law marriage under Pennsylvania law.

A number of other jurisdictions have arrived at a different conclusion. In State ex rel Smith v. Superior Court for King County, 23 Wash.2d 357, 161 P.2d 188 (1945), the facts were that a couple, in the fall of 1937, went to San Francisco where "they lived together as man and wife. They returned to Oregon and resided in ... (a) house ... near La Grande." The woman represented to her family that she and Judd Smith were married in Crescent City, California. Two children were born to the couple. In 1944 the woman died as a result of injuries sustained in an automobile accident. While she was "in the hospital she dictated to her sister a statement which she subsequently read and signed...." That statement was witnessed by four persons. The content of the statement was that she and Smith were not married. A custody fight ensued between Smith and the aunt of the deceased mother of the two children.

At trial Smith testified that for the purpose of intermarrying the couple drove to Idaho, a common-law marriage State, in 1938. They "registered at an auto camp as Judd Smith and wife and on each of two succeeding nights they registered as husband and wife."

The court quoted from 2 Schouler, Marriage, Divorce, Separation (6th ed.) p. 1438 § 1181:

"A union once originating between man and...