A. Marion Stone, III, Respondent, v. Susan B. Thompson, Petitioner.
Appellate Case No. 2017-000227
THE STATE OF SOUTH CAROLINA In The Supreme Court
July 24, 2019
Opinion No. 27908
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS; Appeal from Charleston County; Jocelyn B. Cate, Family Court Judge; Heard June 13, 2019
REVERSED
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.
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
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. (Rich. Cas.) 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.
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
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
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, 135 S. Ct. 2584, 2604-05 (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.
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 S.E.2d at 753. This Court can choose to retroactively apply a judicial change to the common law, although we did not in Russo. Id.
The Pennsylvania Commonwealth Court in Stamos also elected to apply its decision purely prospectively. 831 A.2d at 1282-83. The court weighed the purpose of its new rule, the level of reliance on the old rule, and the impact on judicial function by retroactive application. Id. at 1283. The Pennsylvania court noted the benefits of the new rule should not undermine relationships which were validly entered into at the time, and upending formerly-correct decisions of law served the interests of no one. The court also concluded the old rule had been in effect for such a length of time that citizens undoubtedly relied upon it, including the parties before the court. Id.
We likewise decline to exercise our prerogative to apply our ruling today retroactively. We see no benefit to undoing numerous marriages which heretofore were considered valid in our State, and we will not foreclose relief to individuals who relied on the doctrine. Accordingly, our ruling today is to be applied purely prospectively; no individual may enter into a common-law marriage in South Carolina after the date of this opinion.
e. Refining the Test
Consistent with our observations regarding the institution‘s validity in modern times, we believe we must update the standards courts are to apply in future common-law marriage litigation. A common-law marriage is formed when the parties contract to be married, either expressly or impliedly by circumstance. Callen, 365 S.C. at 624, 620 S.E.2d at 62. The key element in discerning whether parties are common-law married is mutual assent: each party must intend to be married to the other and understand the other‘s intent. Id.
Appellate courts have previously recognized two lines of cases regarding common-law marriage. See Tarnowski v. Lieberman, 348 S.C. 616, 620, 560 S.E.2d 438, 440 (Ct. App. 2002); Barker, 330 S.C. at 366-67, 499 S.E.2d at 506-07. The first holds that a party proves a common-law marriage by a preponderance of the evidence.7 Tarnowski, 348 S.C. at 620, 560 S.E.2d at 440. The second relies on “a strong presumption in favor of marriage by cohabitation, apparently matrimonial, coupled with social acceptance over a long period of time.” Barker, 330 S.C. at 367, 499 S.E.2d at 506. This presumption—like common-law marriage itself—is based on a conception of morality and favors marriage over concubinage and legitimacy over bastardy. Jeanes, 255 S.C. at 166-67, 177 S.E.2d at 539-40. It can only be overcome by “strong, cogent, satisfactory or conclusive evidence” showing the parties are not married. Id. at 167, 177 S.E.2d at 540. This Court has held that once a common-law marriage becomes complete, “no act or disavowal” can invalidate it. Campbell v. Christian, 235 S.C. 102, 109, 110 S.E.2d 1, 5 (1959).8
Thompson argues the rebuttable presumption of common-law marriage is based on outdated assumptions about cohabitation. Given our foregoing assessment of common-law marriage, it will come as no surprise that we agree. The concerns regarding immorality, illegitimacy, and bastardy are no longer stigmatized by society, and as a result, they can no longer serve as the basis for assuming individuals are married.
Finally, to the extent necessary, we clarify a section of this Court‘s opinion in Callen. 365 S.C. at 626, 620 S.E.2d at 63. A party is not required to show his opponent had legal knowledge of common-law marriage; ignorance of the law remains no excuse. He must demonstrate that both he and his partner mutually intended to be married to one another, regardless of whether they knew their resident state recognized common-law marriage or what was required to constitute one.
To sum up, in the cases litigated hereafter, a party asserting a common-law marriage is required to demonstrate mutual assent to be married by clear and convincing evidence. Courts may continue to weigh the same circumstantial factors traditionally considered, but they may not indulge in presumptions based on cohabitation, no matter how apparently matrimonial. While we have set forth the law to be applied in future litigation, we apply the principles in effect at the time this action was filed to the case at hand.
II.
a. Factual and Procedural Background
Stone and Thompson met in the early 1980‘s and began a romantic relationship shortly thereafter. Thompson was married to another man at the time and obtained a divorce from him in 1987. Later that year, Stone and Thompson had their
In 2012, Stone filed an amended complaint in family court seeking a declaratory judgment that the parties were common-law married, a divorce, and an equitable distribution of alleged marital property. Thompson answered, asserting the parties were never common-law married and seeking dismissal. She also asked the court to bifurcate the issues to first determine if a common-law marriage existed if it would not dismiss the case. After a hearing, the family court denied Thompson‘s motion to dismiss but granted her motion to bifurcate, ordering a trial on the sole issue of whether the parties were married at common law.
The trial involved more than a week of proceedings, testimony from over 40 witnesses, and nearly 200 exhibits. Stone‘s testimony focused on the parties’ cohabitation for approximately twenty years, the fact that they raised their two children together during this time, and their partnership in acquiring, renovating, and renting multiple properties in the Charleston area. He submitted evidence that the parties were jointly titled on real estate, boats, bank accounts, and credit cards, as well as that Thompson had listed herself as married to him on several documents from 2005-2008, including some prescribing criminal penalties for false statements. Stone‘s witnesses generally testified that the parties were assumed to be married in the community and were introduced as husband and wife by themselves and others on multiple occasions without correction.
Conversely, Thompson testified she never intended to marry Stone and went to great lengths to preserve her unmarried status. She pointed to numerous documents listing both her and Stone as single during the relevant time period, including all of their tax returns, his documents related to a Costa Rican
The family court concluded the parties were common-law married beginning in 1989 when they began to live together full-time and Thompson introduced Stone as her husband during an art opening. The court found Stone‘s testimony credible while rejecting Thompson‘s versions of events on credibility grounds, as it determined Stone‘s witnesses were longtime friends of both parties and were distressed at having to testify, while many of Thompson‘s witnesses did not become close to her until after the affair. The family court concluded that Stone presented sufficient evidence of the parties’ apparently-matrimonial cohabitation to trigger a presumption of marriage that could only be refuted by strong, cogent evidence they never agreed to marry. The court found Thompson failed to submit such evidence, as once she expressed the intention to be married in December 1989, no subsequent act could change it, as there is no common-law divorce. The family court awarded $125,620.32 in attorney‘s fees and costs to Stone, reasoning that Thompson‘s actions and denial of a common-law marriage were “flatly contradicted time and again . . . .”
Thompson appealed to the court of appeals, which determined the family court‘s order was not final and appealable because it did not end the case. Stone v. Thompson, 418 S.C. 599, 795 S.E.2d 49 (Ct. App. 2016). Thompson petitioned for a writ of certiorari, which this Court granted. We issued an opinion on April 3, 2019, finding the order was appealable. Stone, 426 S.C. 291, 826 S.E.2d 868.
b. Standard of Review
Appellate courts review family court matters de novo, with the exceptions of evidentiary and procedural rulings. Stoney v. Stoney, 422 S.C. 593, 813 S.E.2d 486 (2018) (citing Lewis v. Lewis, 392 S.C. 381, 709 S.E.2d 650 (2011)). Even under de novo review, the longstanding principles that trial judges are in superior positions to assess witness credibility and that appellants must show the trial judge erred by
c. Analysis
Thompson asserts the record reflects she never intended to be married to Stone. Stone contends the family court correctly found the parties were common-law married in 1989 because the record demonstrates the parties held themselves out and signed multiple documents under threat of criminal penalties as such during the course of their relationship.
The family court found the parties were married in 1989 after they moved in together, had their second child, and held themselves out as a married couple, as this established the requisite meeting of the minds. We disagree. Stone testified Thompson introduced him as her husband to a third party at an art opening around Christmas 1989, but Thompson stated this did not occur. Stone did not produce the third party to confirm that it did, and even respecting the court‘s credibility finding, we do not believe this rises to a preponderance of the evidence that, at that time, the two intended to be married and knew the other did as well.
Further, no evidence from the subsequent decade and a half demonstrated mutual intent to be married. Even assuming Stone intended to be married to Thompson throughout this time—which the evidence presented does not fully support—the critical inquiry is whether Thompson ever did. The parties continued to live and raise children together—consistent with their agreement to participate in a committed relationship—as well as run their business partnership of purchasing, flipping, and/or managing properties. Although some witnesses testified the two introduced each other as husband and wife, others testified they never heard them do so, and still others testified they knew not to because Thompson had told them they were not married. While acknowledging the family court‘s credibility determination, we nonetheless disagree with the court‘s view of the evidence. The court‘s finding that Thompson‘s witnesses largely became close to her after the affair is
Even if a rebuttable presumption the parties were married arose, Thompson refuted it by strong, cogent evidence.
The evidence presented as to the factors appellate courts consider in determining intent was decidedly mixed. For example, Thompson insisted on filing her taxes as “single head of household” during the entirety of her relationship with Stone. Kirby, 270 S.C. at 142, 241 S.E.2d at 417; Cathcart, 307 S.C. 322, 414 S.E.2d 811. On the other hand, both she and Stone filed other documents under penalty of perjury claiming they were married. Barker, 330 S.C. at 366, 499 S.E.2d at 506. Both sides presented evidence that the parties did/did not introduce themselves to others as married over the years. Id. at 364, 499 S.E.2d at 505. The parties signed some contracts jointly, but many more were only in one‘s name or the other‘s. Owens, 320 S.C. at 546, 466 S.E.2d at 375. Finally, the parties shared at least one checking account, but Thompson disputed Stone‘s assertion that they shared several. Id.
The closest the parties came to the requisite meeting of the minds, in our opinion, was from 2005-2008, when Thompson indicated she was married to Stone, at least for certain purposes. It began with a medical intake form dated May 31, 2005, which only she signed, but continued that year with several documents both parties signed. These included a mortgage loan application stating they were married followed by mortgage documents listing the parties as husband and wife. Mortgage documents from December 2006 and January 2007 likewise listed the parties as married. Thompson signed a transfer of insurance from Stone to herself that indicated she was his wife as of October 2008. She finally listed herself as married on another medical intake form with a different doctor in December 2008, which she sought to change to “single” two weeks after this case was filed.
benefit, we do not believe these documents evidence the necessary intent to prove the parties were common-law married.
It is clear the parties intended to be in a committed relationship and business partnership together, but their conduct in living together, raising children, and running the business does not demonstrate they each intended to be married and knew the other intended the same. Furthermore, because our decision constitutes a reversal on the merits, we likewise reverse the family court‘s award of attorney‘s fees. Chisholm, 396 S.C. at 510-11, 722 S.E.2d at 224.
CONCLUSION
Based on the foregoing, we REVERSE the family court‘s decision.
BEATTY, C.J., KITTREDGE, FEW and JAMES, JJ., concur.
[C]ouples may swear in applying for benefits that they are man and wife, but file tax returns averring under penalty of perjury that they are single. One attorney in oral argument, when asked how he could explain affidavits to the IRS inconsistent with the testimony of his client in the litigation then before the court, replied matter-of-factly that he assumed it lowered their tax liability. What is truly astonishing is not that parties take inconsistent positions to gain advantage, but that they seem to see nothing particularly inappropriate in their chameleon-like behavior. We must conclude that this court can no longer place its imprimatur on a rule which seems to be a breeding ground for such conduct and its attendant disrespect for the law itself.