South Carolina Lawyers Weekly
It appears that plaintiff called himself married when it was convenient and financially beneficial for him but considered himself single when marriage was inconvenient or financially detrimental. Moreover, the evidence shows defendant did not consider herself married to plaintiff. The parties’ conduct does not demonstrate they each intended to be married or knew the other intended the same.
We reverse the family court’s finding of a common law marriage, its division of purportedly marital property, and its determinations of the amounts of awards for child support and attorney’s fees.
Common Law Marriage
After defendant sold her Charleston duplex at a profit, plaintiff sought to prove the parties had a common law marriage. He testified about their lengthy periods of cohabitation; raising their two children together; their alleged partnership in acquiring, renovating and renting the duplex; and their partnership in owning and operating a restaurant. However, plaintiff did not submit any evidence that the parties were jointly titled on the duplex, mortgages or bank accounts or that they ever filed joint tax returns.
Plaintiff’s documentary evidence of a common law marriage consisted of (1) defendant’s stepfather’s obituary – which defendant said she did not write – listing defendant as plaintiff’s husband, (2) an administrative law court order referring to plaintiff as defendant’s husband in its findings of fact regarding a beer and wine permit for their restaurant, and (3) a mechanic’s lien referring to plaintiff as defendant’s husband and stating that defendant owns the Charleston duplex. Plaintiff also presented witnesses who gave equivocal testimony regarding the parties’ marital status. Plaintiff himself testified that he did not know when the parties became husband and wife.
Defendant testified that she never intended to marry plaintiff. She presented several documents indicating her single status, and she noted that the couple’s children received Medicaid because she was a single mother.
The parties’ conduct does not demonstrate they each intended to be married or knew the other intended the same. We note that, in 2011, plaintiff filed a verified complaint and sworn affidavit saying the parties were not married. Moreover, plaintiff babysat the children while defendant went out on dates with other men. The family court erred in finding a common law marriage existed.
Other Issues
Since no marriage existed between the parties, the family court lacked jurisdiction to equitably apportion defendant’s nonmarital property.
Even though the parties’ temporary consent order required documentation of the parties’ respective income, the family court accepted plaintiff’s claims about his income with no supporting documentation. On remand, the parties must submit documentation of their respective incomes, which the family court should consider in determining child support.
Income documentation should also be considered when the family court makes its award of attorney’s fees.
Reversed and remanded.
Powell v. Dolin (Lawyers Weekly No. 011-058-22, 13 pp.) (Stephanie McDonald, J.) Appealed from Charleston County Family Court (Michael Holt, J.) Anthony O’Neill and Elonda Fair O’Neill for appellant; Roger Scott Dixon for respondent. S.C. App.
