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ELBA TORRES v. COMMONWEALTH PENNSYLVANIA (11/14/78)

decided: November 14, 1978.

ELBA TORRES, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in case of Appeal of: Elba Torres, dated April 22, 1977.

COUNSEL

Susan Wood, with her Gregory Paulson, for petitioner.

Linda M. Gunn, Assistant Attorney General, for respondent.

Judges Crumlish, Jr., Wilkinson, Jr. and Craig, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 38 Pa. Commw. Page 462]

Elba Torres (Claimant) appeals from a decision of the Department of Public Welfare (Department) finding that she is the common-law spouse of Herman (a/k/a German) Santana (Santana) and instructing the County Board of Assistance to determine the amount of income available to her from Santana so that her welfare benefits could be either adjusted or terminated.

Claimant argues that she and Santana are not common-law spouses and that the Department's finding is erroneous because there is neither proof nor findings of cohabitation and reputation or an agreement of marriage.

The Department found that Claimant and Santana lived together with their two minor children; that neither Santana nor the two children received public assistance; that Santana supports the two children; and that Claimant represented herself as Santana's wife in order to obtain medical insurance under his name, to secure a bank loan, to purchase furniture, and to borrow textbooks.

[ 38 Pa. Commw. Page 463]

At the referee's hearing, the County Board of Assistance adduced evidence that Santana's prior marriage to another woman had been terminated by divorce on May 10, 1974, and that Santana was the father of two of Claimant's children: Margaret, born October 14, 1971, and Mervin, born October 21, 1974.

Claimant introduced written statements executed by Santana and by herself denying that they had ever intended to be husband and wife. Claimant testified that the only reason Santana and she lived together was to assist her in raising their children and that her occasional use of Santana's name was solely for pragmatic reasons.

Marriage is a civil contract that must be proved by an agreement per verba de presenti, viz., one uttered with an intent to establish the relation of husband and wife. See Rager v. Johnstown Traction Co., 184 Pa. Superior Ct. 474, 134 A.2d 918 (1957). Although cohabitation of the parties and the reputation that they are married do not, in themselves, constitute a marriage, they constitute evidence from which a marriage may be found. McGrath's Estate, 319 Pa. 309, 179 A. 599 (1935).

In Earley v. Department of Public Welfare, 13 Pa. Commonwealth Ct. 17, 317 A.2d 677 (1974), we held that when both parties to a reputed marriage deny its existence, the Department bears the burden of proving a marriage. We further said that the Department must meet a heavier burden when the present relationship between the purported spouses began meretriciously. There, the Department must overcome the presumption that relationships that are meretricious at the outset remain meretricious. Evidence of continuing cohabitation and reputation is insufficient ...


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