McCullon v. McCullon

• Decision Date: 31 October 1978
• Citation: 410 N.Y.S.2d 226,96 Misc.2d 962
• Court: New York Supreme Court
• Parties: Susan McCULLON, Plaintiff, v. Leonard McCULLON, Defendant.

Page 226

410 N.Y.S.2d 226

96 Misc.2d 962

Susan McCULLON, Plaintiff, v. Leonard McCULLON, Defendant.

Supreme Court, Erie County.

Oct. 31, 1978.

Siegel, McGee, Kelleher, Hirschorn & Munley, Buffalo (Herbert M. Siegel and William F. Lisnerski, Buffalo, of counsel), for plaintiff.

Frank Abbate, Buffalo (Charles C. Rooney, Buffalo, of counsel), for defendant.

MEMORANDUM

JOSEPH S. MATTINA, Justice.

A motion has been brought before this Court for temporary alimony, support and counsel fees.

This case raises two issues:

1. Did a common law marriage exist between the parties in Pennsylvania.

2. Was the defendant unjustly enriched based on an implied contract and/or constructive trust entered into between the parties in New York State.

The facts in this case indicate that the plaintiff and defendant began living together in a rented apartment on Crescent Avenue in the City of Buffalo, New York, in February of 1948, later purchased a home at 4537 Dorchester Blvd., Blasdell, New York, in 1954 and have continued to live together since that time for a period of approximately twenty eight (28) years until April of 1977.

Although the parties were never married in New York State, the plaintiff used the name Susan McCullon from the inception of their relationship with the full knowledge and approval of the defendant. The plaintiff was introduced to their friends and relatives as his wife. They owned joint accounts with her name appearing on said accounts as Susan McCullon. They filed Federal and New York State Income Tax Returns listing Susan McCullon as his wife, and they purchased their home at 4537 Dorchester Blvd., Blasdell, New York and took title jointly as Leonard and Susan McCullon, his wife. The plaintiff always wore a wedding ring during the period they lived together.

Prior to February, 1948, she worked as a nurse's aide, but during the 28 odd years they lived together she did not seek outside employment. She described herself as a housewife, her responsibilities consisting of housework, preparing the meals, doing the laundry and caring for the defendant and three children born of the union, Chris McCullon born in 1949, Laura McCullon born in 1955, and Marylou McCullon, born in 1960. In return the defendant supported the plaintiff and their children, paying all the necessary family bills including food, utilities, clothing and taxes on their house.

According to Susan McCullon, on page 8 of the proceeding held before this Court on March 9, 1978, referring to Leonard McCullon, "Well, he told me that we should stick together and work at it and make a home for us and our children."

In 1953, Susan McCullon was divorced from her previous husband, and even though defendant was aware of said divorce he continued to live with plaintiff.

It should be noted that every year during this period from 1948-1977, the parties would visit his parents, his father and step-mother, in Cresco, Pennsylvania, for two to four weeks, where she was introduced as Mrs. McCullon to both his relatives and friends. Further the parties slept in one bedroom in the beginning and later when the children were born one child slept in a cot in the same room. The one child who testified, Laura McCullon, indicated that she never knew that her parents weren't married until April of 1977 when the separation took place.

In a similar case Skinner v. Skinner, 4 Misc.2d 1013, 150 N.Y.S.2d 739, the New York court held that a Common Law Marriage was established where defendant's only contact with the state of Pennsylvania was for 3 weeks in August of 1953. The Court noted in that case that;

"During all of these times and up to the separation between them in 1954, the evidence establishes that plaintiff and defendant Skinner held themselves out and conducted themselves as husband and wife in New York, Pennsylvania and the District of Columbia. They owned cars and acquired a home and furnishings in this state, title to the real estate being taken in the name of defendant Skinner and plaintiff, his wife."

The court went on to say that;

"While in the State of Pennsylvania there is a presumption of continuance as to a relation illicit in its inception, nevertheless, it does not apply to cases where in good faith the parties continued to live together as husband and wife after the complete removal of the obstacle in the way of a valid marriage; and marriage may be established by long continued co-habitation and reputation."

See, In re Estate of Haskel, 31 Misc.2d 680, 221 N.Y.S.2d 2.

Likewise in this case the evidence establishes that the plaintiff and defendant Leonard McCullon held themselves out and conducted themselves as husband and wife in New York and Pennsylvania after the impediment of her previous marriage was removed in 1953. In this case the visits to Pennsylvania were over a prolonged period of years; for two to four weeks at a time, as contrasted to the one contact in 1953 in Skinner.

The plaintiff and defendant had bank accounts in both names, title to the real estate was taken in the name of defendant Leonard McCullon and plaintiff his wife. Their income tax returns were filed as husband and wife. He worked to support the plaintiff and their family of three children. She labored in the home and cared for the three children.

Although Common Law Marriages are not valid in the State of New York; nevertheless, if entered into in the State of Pennsylvania where such marriages are considered valid, such marriages are deemed valid in New York. Shea v. Shea, 294 N.Y. 909, 63 N.E.2d 113.

Accordingly this Court finds that plaintiff and defendant entered into a valid common law marriage resulting from their holding out each other as husband and wife in Pennsylvania after her divorce in 1953.

As to the second issue, assuming arguendo that a common law marriage was not established, was unjust enrichment based on implied contract and/or constructive trust proven in New York State?

Clearly there has been a rapid shift in the role of women in patriarchal societies within the last two decades from a position of subordination to a position of equality. As such husbands and wives in many cases adjusted to a contemporary image of the family as a partnership of equals with regard to the reasonable expectations of the modern family.

Beyond the formalities of the ceremonial marriage and as part of the development of the family, unstructured domestic unions have become wide spread.

A recent Readers Digest Article (June 1978) entitled, "A second look at the Sexual Revolution," which was condensed from Time Magazine, indicated that more than 1.5 million Americans have taken to living together, up more than 100% Since 1970, who "are inclined to talk about their loyalty, to each other in much the same tones that newlyweds once used." Further, Time commissioned the firm of Yankelovich, Skiller and White, to conduct a national survey, one of the questions being; Is it morally wrong for a couple who are not married to live together?, the results, "No, said 52%." This was the only category of liberated sexual behavior included in the poll that was accepted by the majority. Further census statistics indicate between 1960 and 1970, the number of unmarried couples living together has increased eight fold.

These changing social mores in our society have given rise to inequities and hardship which arise with the dissolution of non-marital relationships.

Many law review articles have made suggestions in an effort to deal with this social need. One such article is entitled "Property Rights of Defacto Spouses: Including thoughts on the Value of Homemaker's Services," in which the author Carol S. Bruch indicates that the use of labels such as "Meretricious" and "Illicit" do not deter large numbers of people from entering non-marital unions in place of marriage.

"As a result the law can no longer plausibly ignore these relationships and the harm they may cause to one partner. Rather sound policy requires that these family forms be acknowledged to the extent necessary to prevent hardship and injustice."

She then proceeds by offering a judicial settlement of the problem quoting Professor Brigette Bodenheimer on page 136.

"1. If an unmarried couple enters an express contract to share property or make payments in return for property or service contributions, the agreement should be enforced according to its terms regardless of their non-marital cohabitation.

2. If the unmarried couple agree that their relationship should entail no property or monetary consequences, again the agreement should govern.

3. If it can be gathered from the facts and circumstances that the unmarried parties have engaged in an implied partnership or joint enterprise, or there is an implied-in-fact contract or trust, recovery should be allowed in accordance with their implied expectations.

4. But when there is no agreement one way or the other, the law should relieve inequity and hardship to one of them and prevent unjust enrichment of the other."

Professor Walter O. Weyrauch in his article "Informal and Formal marriages : An appraisal of trends in family organization" 28 U.Chi.Law Rev. 88, after noting that; 1. mere cohabitation of a man and woman contravenes our conventional morality, 2. cohabitation in this relationship results in illegitimate children, 3. unrecorded common law marriages result in possible clouding of titles to land, suggests that these arguments should be balanced against the harsh effect which results when parties are denied any remedy because their union has not been conventionally solemnized.

Stephen C. Waterbury, in a Law Review Article entitled "Property Rights Upon Termination of Unmarried Cohabitation " 90 Harvard Law Review 1708 (June 1977), would approach this problem by means of Statutory Amendment to be entitled "Termination of Unmarried Cohabitation Act." As part of this Act, Section 4, a presumption is created that "unmarried couples who cohabit for a...