Swicegood v. Thompson

• Decision Date: 01 July 2020
• Docket Number: Opinion No. 5735,Appellate Case No. 2018-000008
• Parties: Cathy J. SWICEGOOD, Appellant, v. Polly A. THOMPSON, Respondent. State ex rel. Alan Wilson, Attorney General, Intervenor.
• Court: South Carolina Court of Appeals

431 S.C. 130

847 S.E.2d 104

Cathy J. SWICEGOOD, Appellant,

v.Polly A. THOMPSON, Respondent.

State ex rel. Alan Wilson, Attorney General, Intervenor.

Appellate Case No. 2018-000008

Opinion No. 5735

Court of Appeals of South Carolina.

Heard September 18, 2019

Filed July 1, 2020

Rehearing Denied September 14, 2020

John G. Reckenbeil, of Law Office of John G. Reckenbeil, L.L.C., of Mauldin, and J. Falkner Wilkes, of Greenville, for Appellant.

Margaret A. Chamberlain, of Chamberlain Law Firm, LLC, of Greenville, and Melissa Hope Moore, of Law Office of Melissa H. Moore, LLC, of Fountain Inn, for Respondent.

Attorney General Alan McCrory Wilson, Solicitor General Robert D. Cook, Deputy Solicitor General J. Emory Smith, Jr., and Assistant Attorney General Ian Parks Weschler, all of Columbia, for Intervenor.

LOCKEMY, C.J.:

In this appeal from the family court's dismissal of Cathy Swicegood's complaint alleging the existence of a common-law marriage with her same-sex partner, Polly Thompson, Swicegood argues the family court erred by dismissing the case for lack of subject matter jurisdiction. We affirm.

FACTS

In March 2014, Swicegood filed an action in family court seeking an order recognizing the existence of a common-law marriage, a decree of separate support and maintenance, alimony, equitable division of marital property, and related relief. Swicegood alleged she and Thompson cohabited as sole domestic partners for over thirteen years until December 10, 2013, agreed to be married, and held themselves out publicly as a married couple. She alleged the couple exchanged and wore wedding rings, co-owned property as joint tenants with the right of survivorship, included each other as devisees in their respective wills, and shared a joint bank account. Swicegood further alleged Thompson listed her as a "domestic partner/qualified beneficiary" on Thompson's health insurance and as a beneficiary on her retirement account.

Thompson moved under Rule 12(b)(1) of the South Carolina Rules of Civil Procedure to dismiss the action, alleging the family court lacked subject matter jurisdiction over Swicegood's complaint because the parties were not married and lacked the capacity to marry. In response, Swicegood filed a memorandum and several affidavits. In her own affidavit, she attested Thompson proposed marriage to her on September 16, 2008, and the parties were declared married approximately two and a half years later during a ceremony in Las Vegas, Nevada on February 12, 2011.¹ In addition, Swicegood submitted the affidavits of two individuals who each attested they witnessed a wedding ceremony between Swicegood and Thompson in Las Vegas on February 12, 2011. Finally, Swicegood included the affidavit of a person who stated she spoke to Thompson a few weeks after the couple separated and Thompson said, "If our marriage was legal in South Carolina, I would be in a world of s--t."

Thompson likewise submitted a memorandum and several exhibits in support of her motion to dismiss. She argued that in August 2012 and September 2013, she and Swicegood signed affidavits of domestic partnership in which they acknowledged they had "a close personal relationship in lieu of a lawful marriage," were "unmarried" and "not married to anyone." Thompson contended these documents indicated the parties did not hold themselves out as a married couple. In her affidavit, Thompson attested Swicegood knew they were not married. She stated she and Swicegood participated in a "commitment ceremony" in Las Vegas "on a lark," but they knew it was not a wedding and that they could not legally marry in Nevada. Thompson attested she gave Swicegood several rings during their relationship, but she intended none of these to signify they were married. She stated she was not and never had been married to Swicegood: "We both knew that if we wanted to get married, we could go to a state that allowed same-sex marriage. It was not our intent to enter into marriage, and we did not." Thompson also stated she witnessed Swicegood marry another woman in a ceremony in 1995.

Thompson submitted the affidavits of several individuals. One affiant stated she was present at the ceremony in Las Vegas but characterized it as a commitment ceremony, not a wedding, and stated she never heard Thompson refer to Swicegood as her spouse. Two other affiants also attested Thompson never referred to Swicegood as her spouse or described their relationship as a marriage. Finally, a reverend attested he performed a "holy union" between Swicegood and another woman in 1995.

The family court dismissed Swicegood's complaint on May 7, 2014, concluding it lacked subject matter jurisdiction to adjudicate the issues because a common-law marriage was not legally possible pursuant to section 20-1-15 of the South Carolina Code (2014),² which was still in force at the time. Swicegood appealed. While Swicegood's appeal was pending, the Supreme Court of the United States decided Obergefell v. Hodges , in which it held "same-sex couples may exercise the fundamental right to marry," and the state laws challenged in that case were "invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples."³ 576 U.S. 644, 135 S. Ct. 2584, 2604-05, 192 L.Ed.2d 609 (2015). Consequently, this court issued an unpublished opinion remanding the case to the family court with instructions to "consider the implications of Obergefell on its subject matter jurisdiction." See Swicegood v. Thompson , 2016-UP-013 (S.C. Ct. App. filed Jan. 13, 2016).

Upon remand, the family court directed the parties to brief the following questions: (1) whether Obergefell applied to common-law marriages and (2) whether Obergefell applied retroactively.⁴ After hearing argument on these questions, the family court again concluded it lacked subject matter jurisdiction over the matters raised in Swicegood's complaint, finding that although Obergefell applied to common-law marriages, it could not retroactively create a common-law marriage between Swicegood and Thompson. The court concluded Obergefell could not "logically be read to exclude common-law marriages," and so long as South Carolina continued to recognize the validity of common-law marriages for opposite-sex couples, it had "a constitutionally mandated duty to recognize the validity of common-law marriages for same-sex couples." The court did not expressly resolve the question of whether Obergefell applied retroactively, but it concluded the couple could not have formed a common-law marriage because section 20-1-15 was in place throughout the couple's thirteen-year period of cohabitation, and they believed they lacked the legal right to be a married couple during that time. The court, therefore, concluded the couple could not have formed the requisite intention and mutual agreement to be married. Additionally, the family court concluded that even assuming Swicegood and Thompson cohabited with an actual intent and mutual agreement to be married, section 20-1-15 acted as a legal impediment to the creation of a common-law marriage between them. The court therefore concluded the couple could not have formed such marriage unless they renewed their intention and agreement to be married after the Obergefell decision triggered the removal of the impediment. Accordingly, the family court reaffirmed its dismissal based on lack of subject matter jurisdiction pursuant to Rule 12(b)(1), SCRCP. This appeal followed.

STANDARD OF REVIEW

"The question of subject matter jurisdiction is a question of law." Porter v. Labor Depot , 372 S.C. 560, 567, 643 S.E.2d 96, 100 (Ct. App. 2007). Likewise, "[w]hether a common-law marriage exists is a question of law." Callen v. Callen , 365 S.C. 618, 623, 620 S.E.2d 59, 62 (2005). "This Court reviews all questions of law de novo." Fesmire v. Digh , 385 S.C. 296, 302, 683 S.E.2d 803, 807 (Ct. App. 2009) ; see also Harrell v. Pineland Plantation, Ltd. , 337 S.C. 313, 320, 523 S.E.2d 766, 769 (1999) ("[T]his Court has the power and duty to review the entire record and decide the jurisdictional facts in accord with the preponderance of the evidence."). "[A]ffidavits and other evidence outside the pleadings may, in certain circumstances, be considered in support of a motion to dismiss based on lack of jurisdiction." Baird v. Charleston County , 333 S.C. 519, 529, 511 S.E.2d 69, 74 (1999).

LAW/ANALYSIS

I. Impediment

Swicegood acknowledges that when she and Thompson formed an intent and mutual agreement to treat each other as spouses, section 20-1-15 was considered to present an impediment to marriage and this "perceived impediment" continued to exist throughout the relationship until they separated. She contends, however, section 20-1-15 could not have functioned as an impediment because Obergefell removed the impediment as a matter of constitutional law and the removal of the impediment acted retroactively. Swicegood asserts the prohibition of same-sex marriage could not have precluded the parties from forming a common-law marriage as a matter of law because unconstitutional laws are void ab initio, which requires our courts to treat such laws as if they never existed. She argues that if the parties formed intent and mutual agreement to treat each other as spouses under the common law, their marriage would be valid notwithstanding it occurred prior to Obergefell and in light of Obergefell , the existence of a valid common-law marriage would not be precluded as a matter of law. We disagree.

"Subject-matter jurisdiction is the ‘power to hear and determine cases of the general class to which the proceedings in question belong.’ " Coon v. Coon , 364 S.C. 563, 566, 614 S.E.2d 616, 617 (2005) (quoting Dove v. Gold Kist , 314 S.C. 235, 237-38, 442 S.E.2d 598, 600 (1994) ). The family court has jurisdiction to hear and determine matters relating to common-law marriage. See S.C. Code Ann. § 63-3-530(B) (2010) (stating "the family court and the...