Domestic Relations – Common Law Marriage – Appeals – Interlocutory Order

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Although plaintiff was entitled to immediately appeal an intermediate order finding a common-law marriage between the parties pursuant to S.C. Code Ann. § 14-3-330(1), she was not required to immediately appeal the order or to specifically list the order in her notice of appeal.

We reverse the family court order finding a common-law marriage. We vacate the family court’s equitable distribution order. We reverse the family court’s order awarding defendant attorney’s fees.

The order finding a common-law marriage was filed several months before our Supreme Court prospectively abolished common-law marriage in Stone v. Thompson, 428 S.C. 79, 833 S.E.2d 266 (2019).

Believing defendant to have been twice divorced, the parties married in 1994. They later discovered that defendant’s first marriage had not been dissolved. The parties continued to cohabit but did not remarry after defendant obtained a divorce.

The family court relied on Campbell v. Christian, 235 S.C. 102, 110 S.E.2d 1 (1959), in finding the existence of a common-law marriage. The common-law wife in Campbell, Beulah was described as “illiterate, uneducated, and of childlike simplicity.”

Here, although defendant claimed to be somewhat illiterate, there is evidence he was educated through the eighth grade, he was financially independent as a carpenter/handy man, and he recognized documents handed to him to identify in court. We find the family court erred in relying solely on Campbell. Under our de novo review, we find defendant failed to prove a common-law marriage.

When “there is an impediment to marriage, such as one party’s existing marriage to a third person, no common-law marriage may be formed, regardless whether mutual assent is present. Further, after the impediment is removed, the relationship is not automatically transformed into a common-law marriage. Instead, it is presumed that relationship remains nonmarital. For the relationship to become marital, ‘there must be a new mutual agreement either by way of civil ceremony or by way of recognition of the illicit relation and a new agreement to enter into a common[-]law marriage.’” Callen v. Callen, 365 S.C. 618, 620 S.E.2d 59 (2005).

In this case, we do not find evidence of a new, mutual agreement by the parties after defendant’s 1995 divorce. To the contrary, plaintiff requested a new ceremony, and defendant’s response was inconsistent at best when he alternately told plaintiff he did not want to get married again because they were already married, but other times told her “to consider herself divorced.” Defendant’s possible misunderstanding of the parties’ status does not equate to a mutual agreement.

We also find the reliance by the family court on plaintiff’s tax filings as supporting a common-law marriage due to her filing as Head of Household with either one or two dependent children was error. Tax filing as Head of Household indicates an unmarried status.

Although defendant presented some testimony that the parties held themselves out to a neighbor and plaintiff’s son-in-law as married, the documentary evidence showed a contrary intent by plaintiff. She kept a separate bank account, filed taxes as Head of Household, was the sole owner of the alleged “marital” residence, was the only party listed on its mortgage, filed bankruptcy as an individual, and owned other properties exclusively in her name. We find defendant’s documentary evidence, which included a receipt for a curio cabinet and the seller’s letters to the parties regarding certain properties, failed to overcome the presumption that the relationship remained non-marital after the impediment was removed.

Because no common-law marriage existed between the parties, the family court lacked jurisdiction to equitably apportion plaintiff’s non-marital property. And because we reverse the finding of a common-law marriage, we likewise reverse the award of attorney’s fees to defendant.

Reversed in part; vacated in part.

Sullivan-Carter v. Carter (Lawyers Weekly No. 011-025-23, 10 pp.) (Paula Thomas, J.) Appealed from Kershaw County Family Court (Rosalyn Frierson-Smith & Gwendlyne Jones, JJ.) Miles Edward Coleman and Jacob Daniel Taylor for appellant; Ryan Lane for respondent. South Carolina Court of Appeals