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ALMA E. DOWD v. JOHN R. DOWD (03/21/80)

filed: March 21, 1980.

ALMA E. DOWD, APPELLANT,
v.
JOHN R. DOWD



No. 461 October Term, 1979, Appeal from the Order entered January 30, 1979, by the Court of Common Pleas of Bucks County at No. 1629-Misc.-1978.

COUNSEL

Martha A. Morris, Langhorne, for appellant.

Robert Burke, Bristol, submitted a brief on behalf of John R. Dowd, appellee.

Price, Van der Voort and Wieand,*fn* JJ.

Author: Wieand

[ 275 Pa. Super. Page 473]

The trial court found that Alma E. Dowd was not lawfully married to John R. Dowd and dismissed her petition for support. She appealed. We reverse and remand.

[ 275 Pa. Super. Page 474]

Appellant had previously been married to Richard Boyer, who served in the United States Navy during World War II. In 1943, Boyer's mother "passed the word" that Boyer was dead. In 1960, John R. Dowd asked appellant to live with him as his wife, and the two began cohabitation. In that same year, appellee took appellant's prior marriage certificate and caused the name of John R. Dowd to be inserted in place of Boyer's. Thereafter, appellant and appellee lived together as husband and wife until May 27, 1978, when appellant left for good cause. At all times prior to the filing of appellant's petition for support, they continuously held themselves out as husband and wife. They filed seventeen joint income tax returns on which appellant was identified as appellee's wife and continuously maintained a joint checking account as husband and wife.

In 1963, appellant learned that her first husband was alive when she was served with a complaint in divorce issued from the Superior Court of the State of California for the County of Santa Clara. A final decree in divorce was entered on January 18, 1965. Appellant and appellee continued to live together as husband and wife without interruption.

In 1965, they took title to real estate in the City of Philadelphia as tenants by the entireties, and in 1972, they purchased real estate in Bucks County as husband and wife. The Bucks County property was sold in October, 1978, and the grantors were identified as John R. Dowd and Alma E. Dowd, his wife. In connection with that transaction, they executed a grantor's affidavit that they were husband and wife and had not been divorced since the acquisition of title.

The trial court concluded that the impediment of appellant's prior marriage precluded a valid contract of marriage. After removal of the impediment, the court held, the relationship between the parties could be converted into a valid marriage only by the consent and active agreement of both parties, which had to be established by clear and convincing evidence. A new agreement, after removal of the impediment, was not shown by the evidence in this case.

[ 275 Pa. Super. Page 475]

Where both parties, at the commencement of their relationship, know of an impediment which renders one of them incapable of contracting a valid marriage, the relationship is meretricious. A meretricious relationship once established is presumed to continue. It can be converted into a valid marriage, after the impediment has been removed, only by the consent of both parties, established by clear and convincing evidence. Continued cohabitation following removal of the impediment will not alone render the relationship valid. In re Estate of Garges, ...


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