Stone v. Thompson

• Decision Date: 24 July 2019
• Docket Number: Appellate Case No. 2017-000227,Opinion No. 27908
• Court: South Carolina Supreme Court
• Parties: A. Marion STONE, III, Respondent, v. Susan B. THOMPSON, Petitioner.

428 S.C. 79

833 S.E.2d 266

A. Marion STONE, III, Respondent,

v.Susan B. THOMPSON, Petitioner.

Appellate Case No. 2017-000227

Opinion No. 27908

Supreme Court of South Carolina.

Heard June 13, 2019

Filed July 24, 2019

Rehearing Denied October 16, 2019

Donald Bruce Clark, of Donald B. Clark, LLC, of Charleston, for Petitioner.

Alexander Blair Cash and Daniel Francis Blanchard, III, both of Rosen Rosen & Hagood, LLC, of Charleston, for Respondent.

JUSTICE HEARN :

This case initially came to the Court to consider whether an order from a bifurcated hearing determining the existence of a common-law marriage was immediately appealable. In Stone v. Thompson , 426 S.C. 291, 826 S.E.2d 868 (2019), we held it was and retained jurisdiction to consider the merits. We must now determine whether the family court was correct in finding Susan Thompson and Marion Stone were common-law married in 1989, as well as whether Stone was entitled to an award of attorney's fees.

Our review in this case has prompted us to take stock of common-law marriage as a whole in South Carolina. We have concluded the institution's foundations have eroded with the passage of time, and the outcomes it produces are unpredictable and often convoluted. Accordingly, we believe the time has come to join the overwhelming national trend and abolish it. Therefore, from this date forward—that is, purely prospectively—parties may no longer enter into a valid marriage in South Carolina without a license. Consistent with our findings regarding the modern applicability of common-law marriage rationales, we also take this opportunity to refine the test courts are to employ henceforth.

Nevertheless, the case before us remains. We do not believe Stone demonstrated the mutual assent required to prove a common-law marriage, and as a result, we hold the parties were not married and reverse the family court on the merits and as to the issue of attorney's fees.¹

I .

a. Historical Common-law Marriage

The institution of common-law marriage traces its roots to informal marriage in Europe prior to the Reformation. Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage , 75 OR. L. REV. 709, 718 (1996) ; see also Ashley Hedgecock, Comment, Untying The Knot: The Propriety of South Carolina's Recognition of Common Law Marriage , 58 S.C. L. REV. 555, 559-62 (2007). England recognized such unions during colonization, and as a result, common-law marriage migrated to the New World. Bowman, supra , at 719. Some states proceeded to adopt the doctrine, while others did not. Id . at 719-22. A primary reason for those that did was logistical—frontier America was sparsely populated and difficult to travel, making access to officials or ministers impractical for many. Id . at 722-24. States also sought to legitimize "subversive" relationships and the children thereof, as well as to direct women to the family for financial support instead of the public fisc. Hedgecock, supra , at 560 ; see also Ariela R. Dubler, Wifely Behavior: A Legal History of Acting Married , 100 COLUM. L. REV . 957, 968-69 (2000).

South Carolina followed New York's approach in adopting common-law marriage, holding it was a matter of civil contract that did not require ceremony; rather, two people were married when they agreed and intended to be. Fryer v. Fryer , 9 S.C. Eq. 85, 92 (1832) ; Fenton v. Reed , 4 Johns. 52 (N.Y. Sup. Ct. 1809). As Justice Littlejohn explained in 1970, the institution sought to "legitimatize innocent children and adjust property rights between the parties who treated each other the same as husband and wife." Jeanes v. Jeanes , 255 S.C. 161, 168-69, 177 S.E.2d 537, 540-41 (1970) (Littlejohn, J. concurring). Common-law marriage in South Carolina rests upon moral paternalism, as our courts have long recognized. Id . at 166-67, 177 S.E.2d at 539 ("The law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy." (quotation omitted)). While our legislature has not expressly codified common-law marriage, it has recognized the institution by exception to the general requirement to obtain a marriage license. S.C. Code Ann. § 20-1-360 (2014).

b. The Modern Trend

The prevailing trend, however, has been repudiation of the doctrine. The reasons have been myriad—from economic to social—including some more nefarious than others. Bowman, supra , at 731-49. Alabama became the most recent state to do so, enacting Ala. Code 1975 § 30-1-20 in 2016. See Blalock v. Sutphin , 275 So. 3d 519, 526–27, 2018 WL 5306884 at *5 (Ala. 2018). By our count, this leaves fewer than ten jurisdictions that currently recognize the institution.²

In 2003, the Pennsylvania Commonwealth Court set forth a thorough explanation for its conclusion that common-law marriage should no longer be recognized in PNC Bank Corp. v. W.C.A.B. (Stamos) , 831 A.2d 1269 (Pa. Commw. Ct. 2003).³ Notably, the court determined:

The circumstances creating a need for the doctrine are not present in today's society. A woman without dependent children is no longer thought to pose a danger of burdening the state with her support and maintenance simply because she is single, and the right of a single parent to obtain child support is no longer dependent upon his or her marital status. Similarly, the marital status of parents no longer determines the inheritance rights of their children. Access to both civil and religious authorities for a ceremonial marriage is readily available in even the most rural areas of the Commonwealth. The cost is minimal, and the process simple and relatively expedient.

831 A.2d at 1279 (internal citations omitted). The court also pointed to benefits of standardized formal marriage requirements such as predictability, judicial economy, and upholding the statutes' "salutary" purposes. Id . at 1279-81.

c. Modern South Carolina

The common law changes when necessary to serve the needs of the people. Russo v. Sutton , 310 S.C. 200, 204, 422 S.E.2d 750, 753 (1992). We will act when it has become apparent that the public policy of the State is offended by outdated rules of law. Id . (abolishing the "heart balm" tort of alienation of affections); see also Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991) (abolishing contributory negligence); McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985) (abolishing sovereign immunity). As discussed—and perhaps intuitively—common-law marriage's origins lie in the common law, and consequently, it may be removed by common-law mandate, regardless of tacit recognition by our legislature. Russo , 310 S.C. at 204, 422 S.E.2d at 753.

We find the Pennsylvania court's reasoning and other considerations sufficiently persuasive to adopt a bright-line rule requiring those who wish to be married in South Carolina to obtain a lawful license. Our law contains similar provisions regarding child support, inheritance, and the ceremonial marriage process. See S.C. Code Ann. §§ 20-1-210 to -240 (1976); §§ 62-2-101 to -109 (1976 & Supp. 2018); § 63-5-20 (1976 & Supp. 2018). The paternalistic motivations underlying common-law marriage no longer outweigh the offenses to public policy the doctrine engenders. By and large, society no longer conditions acceptance upon marital status or legitimacy of children. The current case is emblematic of this shift, as the parties' community of friends was wholly unconcerned with their marital status, and indeed several of their witnesses were in similar relationships. Meanwhile, courts struggle mightily to determine if and when parties expressed the requisite intent to be married, which is entirely understandable given its subjective and circumstantial nature. The solemn institution of marriage is thereby reduced to a guessing game with significant ramifications for the individuals involved, as well as any third party dealing with them.

Critically, non-marital cohabitation is exceedingly common and continues to increase among Americans of all age groups.⁴ The right to marry is a fundamental constitutional right, Obergefell v. Hodges , ––– U.S. ––––, 135 S. Ct. 2584, 2604-05, 192 L.Ed.2d 609 (2015), which leads us to believe the right to remain unmarried is equally weighty, particularly when combined with our admonitions that a person cannot enter into such a union accidentally or unwittingly, Callen v. Callen , 365 S.C. 618, 626, 620 S.E.2d 59, 63 (2005). Further, we must agree with the many observers who have noted that common-law marriage requirements are a mystery to most.⁵ The present case is again illustrative. None of the multiple witnesses who were asked understood what was required to constitute a common-law marriage, despite the fact that, as mentioned, several were involved in lengthy cohabitating relationships themselves. Moreover, two of such partners testified in complete opposition to one another, with one reporting they were common-law married, and the other stating emphatically they were not. This further persuades us to reject a mechanism which imposes marital bonds upon an ever-growing number of people who do not even understand its triggers.

Our public policy is to promote predictable, just outcomes for all parties involved in these disputes, as well as to emphasize the sanctity of marital union. We can discern no more efficacious way to fulfill these interests than to require those who wish to be married in our State to comply with our statutory requirements. Our quest to see inside the minds of litigants asserting different motivations and levels of knowledge at varying times must yield to the most reliable measurement of marital intent: a valid marriage certificate.

d. Prospective Application

The states that have abolished common-law marriage have consistently done so prospectively. However, many have utilized the legislative avenue, and as this Court pointed out in Russo , "the legislature cannot create a statute which applies retroactively to divest vested rights." 310 S.C. at 205 n.5, 422...