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COMMONWEALTH EX REL. MCDERMOTT v. MCDERMOTT (10/09/75)

decided: October 9, 1975.

COMMONWEALTH EX REL. MCDERMOTT, APPELLANT,
v.
MCDERMOTT



Appeal from order of Court of Common Pleas of Lancaster County, Sept. T., 1974, No. 706, in case of Commonwealth of Pennsylvania ex rel. Maria J. McDermott v. John R. McDermott.

COUNSEL

William T. Smith, for appellant.

John F. Pyfer, Jr., William W. Boyd, and Xakellis, Perezous & Mongiovi, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Jacobs, J. Van der Voort, J., joins in this dissenting opinion.

Author: Hoffman

[ 236 Pa. Super. Page 543]

Appellant contends that the court below erred in sustaining a demurrer to the evidence of the existence of a common law marriage, which would entitle her to support.

Maria J. McDermott, appellant, and John R. McDermott, appellee, were married in Mgladbach, Germany, on October 26, 1948. Two sons were born of the marriage before the parties were divorced in Germany on October 11, 1966. Appellant and her two sons moved to Harrisburg shortly after the divorce. She and her husband continued to correspond. She testified that her husband had written: "he don't care if people know we're divorced or not divorced; he's still my husband, and you are still my wife." In June of 1967, Mr. McDermott arrived at appellant's residence and announced his arrival with the words: "Here I am. You want to be my wife again?" Appellant responded, "Yes."*fn1 They cohabited for nearly

[ 236 Pa. Super. Page 544]

    five years before separating again. During that time, each introduced the other to friends and neighbors on several specified occasions as "my wife" or "my husband." They enjoyed a reputation in the community as husband and wife which was corroborated by her 23-year-old son and by her neighbor. They filed joint tax returns with the customary sworn statements as to the truth of the contents of the return.

Additionally, appellant testified that she was named as beneficiary on an army insurance policy and on a pension plan with Mr. McDermott's employer. After the parties separated in September, 1972, Mr. McDermott continued to pay support under an informal support agreement, which was discontinued two years later when Mr. McDermott was fired from his job.

On May 10, 1974, this action was commenced for support. After appellant had presented her evidence of a common law marriage, the court sustained a demurrer to the evidence and testimony was confined to Mr. McDermott's liability for support of his minor child. The court ordered him to pay $50.00 per week in support for the child but allowed nothing for appellant. This appeal followed.

It is settled that marriage is a civil contract, and does not require any particular form of solemnization before an officer of a church or of the state. Bisbing's Estate, 266 Pa. 529, 109 A. 670 (1920); Murdock's Estate, 92 Pa. Superior Ct. 275 (1928). The "black letter" rule is often stated that a nonceremonial marriage comes into existence by words in the present tense, uttered with a view and for the purpose of establishing the relation of husband and wife. McGrath's Estate, 319 Pa. 309, 179 A. 599 (1935). Cohabitation and reputation are not a marriage; they are but circumstances from which a marriage may be presumed, and such presumption may always be rebutted and will wholly disappear in the face of proof that no marriage has occurred. Murdock's Estate,

[ 236 Pa. Super. Page 545]

    supra; Craig's Estate, 273 Pa. 530, 117 A. 221 (1922); Balanti v. Stineman Coal & Coke Co., 131 Pa. Superior Ct. 344, 200 A. 236 (1938). In the instant case, the lower court believes that the substantial evidence of reputation and cohabitation should be disregarded because the words spoken by the appellant's husband were not in the present tense, and hence rebutted the presumption of a marriage. We cannot agree with such overly technical adherence to a "black letter" rule.

The tenuous distinction verba de praesenti and verba de futuro has long been the subject of criticism.*fn2 The decisions seeking to distinguish verba de futuro from verba de praesenti "compel the belief that the distinction is theoretical and utterly unrealistic. If the distinction is to be preserved, there should be borne in mind the obvious truth that although words are the means of expressing ...


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