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2009-UP-105 - Stiggers-Smith v. Smith

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Wilma Brea Stiggers-Smith, Respondent,

v.

Arthur L. Smith, Appellant.


Appeal From Anderson County
 Billy A. Tunstall, Jr., Family Court Judge


Unpublished Opinion No. 2009-UP-105
Heard January 6, 2009 – Filed March 2, 2009   


AFFIRMED


David Alan Wilson and Thomas T. Hodges, both of Greenville, for Appellant.

Andrew G. Goodson, of Fountain Inn, Linda C. Hayes, of Greenville, for Respondent.

PER CURIAM:  Dr. Arthur Smith (Dr. Smith) appeals the family court's finding that he and Wilma Brea Stiggers-Smith (Mrs. Stiggers-Smith) entered into a common-law marriage.  Dr. Smith also appeals the admission of an affidavit into evidence and the family court's failure to address his request for reimbursement of fees paid to Mrs. Stiggers-Smith and for attorney fees.  We affirm. 

FACTS/PROCEDURAL HISTORY

Mrs. Stiggers-Smith and Dr. Smith indicated they began a romantic relationship sometime around 1989 in Texas.  The couple moved to approximately three other states together before eventually moving to South Carolina in February 1999.  The couple never participated in a civil marriage ceremony.  In 2006, the couple separated.   

After moving to South Carolina, Dr. Smith and Mrs. Stiggers-Smith purchased a home together.  In this home, the couple shared a bedroom and a traditional marital relationship.  The couple also purchased a vehicle together in South Carolina.  

During their relationship in South Carolina, Mrs. Stiggers-Smith began using Dr. Smith's last name as her own.  Mrs. Stiggers-Smith signed contracts for the purchase of their home and their vehicle with the last name of Smith.  Mrs. Stiggers-Smith also received substantial amounts of mail at the couple's house addressed to either "Brea Stiggers-Smith" or "Brea Smith."  Additionally, Mrs. Stiggers-Smith's business cards read "Brea Stiggers-Smith," and she used the name "Brea Smith" on school projects.  Further, when Dr. Smith's sister passed away in 2006, Mrs. Stiggers-Smith was listed in the program as a sister-in-law. 

Mrs. Stiggers-Smith, however, stated on her South Carolina income tax returns that she was single, as did Dr. Smith.  She also stated she was single when filling out a W-4 form for her employer.  Moreover, Mrs. Stiggers-Smith also used the name "Wilma Stiggers" on her South Carolina voter registration card.[1]   

Following the couple's separation, Mrs. Stiggers-Smith filed a complaint requesting the determination of a common-law marriage, alimony, division of assets and debts, attorney fees, and other related relief.  A temporary hearing was held, which resulted in the family court ordering Dr. Smith to continue paying Mrs. Stiggers-Smith's rent and car payment.  Dr. Smith was also ordered to pay Mrs. Stiggers-Smith's attorney $1,500.  The temporary order, however, allowed for Dr. Smith to seek reimbursement if a common-law marriage was not found to exist. 

After a final hearing, the family court found Mrs. Stiggers-Smith and Dr. Smith entered into a common-law marriage in South Carolina.  Mrs. Stiggers-Smith was, therefore, allowed to proceed with her divorce action.  Dr. Smith was ordered to pay Mrs. Stiggers-Smith's attorney fees and costs.  Dr. Smith filed a motion to reconsider, which the family court denied.  This appeal followed. 

STANDARD OF REVIEW

"Whether a common-law marriage exists is a question of law."  Callen v. Callen, 365 S.C. 618, 623, 620 S.E.2d 59, 62 (2005).  The party alleging the existence of the marriage carries the burden of proving the elements by a preponderance of the evidence.  Id.  This Court's review is limited to determining whether or not there is any evidence to support the findings of the family court.  Tarnowski v. Lieberman, 348 S.C. 616, 619, 560 S.E.2d 438, 440 (Ct. App. 2002).  "Because this action sounds in law, and the existence of a common[-]law marriage is a question of fact, this [C]ourt is bound by the [family] court's factual findings, and its credibility determinations."  Id.  This Court may not act as the fact-finder but must instead affirm the family court's findings if there is any evidence in the record to support those findings.[2]  Id.   

LAW/ANALYSIS

Dr. Smith argues the family court erred in finding he and Mrs. Stiggers-Smith entered into a common-law marriage.  We disagree.

In South Carolina, a valid common-law marriage requires "a mutual agreement between the parties to assume toward each other the relation of husband and wife."  Johnson v. Johnson, 235 S.C. 542, 550, 112 S.E.2d 647, 651 (1960).  As with any marriage, a contract to be married must be entered between the husband and wife, but with a common-law marriage, no express contract is required.  Callen, 365 S.C. at 624, 620 S.E.2d at 62.  Instead, "the agreement may be inferred from the circumstances."  Id. 

Due to the lack of direct evidence demonstrating the requisite intent of the parties to be married, circumstantial evidence is often used to prove the existence of a common-law marriage.  Barker v. Baker, 330 S.C. 361, 367-68, 499 S.E.2d 503, 507 (Ct. App. 1998).  "The circumstantial evidence typically relied upon to establish a common-law marriage includes evidence establishing that the parties have lived together for an extended period of time and have publicly held themselves out as husband and wife."  Id. at 368, 499 S.E.2d at 507; see Owens v. Owens, 320 S.C. 543, 545-46, 466 S.E.2d 373, 374-75 (Ct. App. 1996) (finding the evidence demonstrated the existence of a common-law marriage when (1) the parties lived together, (2) the wife began using the husband's last name as her own, (3) the parties formed numerous contracts as husband and wife, and (4) the wife made numerous purchases of products and services using the husband's last name).      

When a party presents evidence of "'apparently matrimonial' cohabitation" and a reputation in the community as being a married couple, a rebuttable presumption arises that the parties entered into a common-law marriage.  Callen, 365 S.C. at 624, 620 S.E.2d at 62.  "Strong, cogent" evidence that the parties never agreed to marry is needed to overcome this presumption.  Id.  Additionally, "[a] party need not understand every nuance of marriage or divorce law, but he [or she] must at least know that his [or her] actions will render him [or her] married as that word is commonly understood."  Id. at 626, 620 S.E.2d at 63.     

If there is an impediment to marriage, no common-law marriage may be formed.  Id. at 62, 620 S.E.2d at 624.  "A relationship illicit at its inception does not ripen into a common[-]law marriage once the impediment to marriage is removed[,]" but instead the law presumes the relationship retains its illicit character.  Yarbrough v. Yarbrough, 280 S.C. 546, 551, 314 S.E.2d 16, 19 (Ct. App. 1984).  Evidence of an agreement to enter into a common-law marriage after the removal of the impediment is required to demonstrate a common-law marriage arose, but the agreement may be revealed by the conduct of the parties.  Id.  This agreement must, however, be proven by a preponderance of the evidence.  Kirby v. Kirby, 270 S.C. 137, 141, 241 S.E.2d 415, 416 (1978).        

In the present case, Dr. Smith and Mrs. Stiggers-Smith began their relationship in Texas around 1989 and thereafter moved through approximately three states[3] together before settling in South Carolina in February 1999.  At trial, the parties stipulated no common-law marriage existed before their move to South Carolina.  Therefore, for a common-law marriage to exist, Dr. Smith and Mrs. Stiggers-Smith must have had a mutual agreement to assume the relationship of husband and wife while living in South Carolina.  See Callen, 365 S.C. at 625, 620 S.E.2d at 63 (stating the proponent of the alleged marriage has the burden of proving the parties entered into a marital agreement after moving from states that do not recognize common-law marriages to South Carolina).  The family court found Mrs. Stiggers-Smith carried her burden of demonstrating the couple entered such an agreement while living in South Carolina. 

The family court's order stated "the [common-law] marriage came into existence when [Dr. Smith and Mrs. Stiggers-Smith] moved into South Carolina in February of 1999."  The order then proceeded with a thorough analysis of the couple's behavior once living in South Carolina, and from this behavior the family court determined both parties intended to be married and held themselves out to the community as a married couple.  When reading the order as a whole, it is clear the family court did not find the couple's relationship converted into a common-law marriage when they moved to South Carolina; rather, the family court found Dr. Smith's and Mrs. Stiggers-Smith's actions after their move to South Carolina demonstrated their intent to enter into a common-law marriage while living in South Carolina.  Pursuant to our standard of review, this Court must only determine whether any evidence supports the family court's finding, and we find there is evidence in the record to support this finding.  See id. at 629, 620 S.E.2d at 64-65 (Toal, C.J., dissenting) (stating the issue of whether a couple is common-law married is a question of law, and therefore, the appellate courts only determine whether the evidence supports the facts found by the family court).    

While living in South Carolina, Dr. Smith and Mrs. Stiggers-Smith lived together in what appeared to be a matrimonial manner.  The couple shared a bedroom and everything else that a married couple shares in a marital relationship.  This cohabitation continued until 2006 when Dr. Smith asked Mrs. Stiggers-Smith to move out of their home. 

Upon moving to South Carolina, Dr. Smith and Mrs. Stiggers-Smith also appeared to hold themselves out to the community as a married couple.  Mrs. Stiggers-Smith testified she began using Dr. Smith's last name once they moved to South Carolina.  Mrs. Stiggers-Smith used this last name on contracts, school materials, and business cards.  She also received substantial amounts of mail at the couple's home, including letters, bills, magazines, and catalogs, addressed to either "Brea Stiggers-Smith" or "Brea Smith."  Dr. Smith and Mrs. Stiggers-Smith also received mail at their home as a couple, including Christmas cards in 2002 from one of Dr. Smith's office employees and one of his business associates.  These cards were addressed to "Mr. and Mrs. Arthur Smith" and "Arthur and Brea Smith," respectively.  There was no testimony presented indicating Dr. Smith ever objected to Mrs. Stiggers-Smith's use of his last name.   

Shortly after their move to South Carolina, Mrs. Stiggers-Smith assumed the task of finding a house for the couple.  After finding one, Dr. Smith and Mrs. Stiggers-Smith met with a realtor to sign a purchase agreement.  The parties were each listed under "Purchaser" and signed their names as "Arthur L. Smith, M.D." and "W. Brea Smith."  The parties additionally signed multiple addendums to the purchase agreement and again used the names "Arthur L. Smith, M.D." and "W. Brea Smith."   

Additionally, Dr. Smith and Mrs. Stiggers-Smith purchased a vehicle together in South Carolina.  Again, each party was listed as a purchaser of the vehicle, and they signed their names as "Arthur L. Smith, M.D." and "Wilma B. Stiggers Smith."  The car salesman from this purchase testified the couple held themselves out to him as being married and stated Dr. Smith never objected to the paperwork listing Mrs. Stiggers-Smith as "Wilma S. Smith."    

Mrs. Stiggers-Smith's close friend, Marilyn Davis (Davis), also testified she was under the impression Dr. Smith and Mrs. Stiggers-Smith were husband and wife.  Davis testified she often called the couple's home and when speaking to Dr. Smith she would ask if she could "speak to [his] lovely or beautiful wife."  Davis stated Dr. Smith "never once disputed that [Mrs. Stiggers-Smith] wasn't his wife or [she] never would have addressed [Mrs. Stiggers-Smith] in such a way."  Davis, who was also a patient of Dr. Smith, additionally recalled that during appointments with Dr. Smith she would make conversation by "ask[ing] him how his wife was doing."  Davis again acknowledged Dr. Smith never once corrected her by explaining he and Mrs. Stiggers-Smith were not married.      

Furthermore, Mrs. Stiggers-Smith testified that even though she felt like she and Dr. Smith had been married since their relationship began in Texas, she understood her actions of using Dr. Smith's last name and signing various deeds and contracts with Dr. Smith would render her married once living in South Carolina.  To the contrary, Dr. Smith testified he was not aware Mrs. Stiggers-Smith used his last name until he received a copy of the complaint and therefore had no opportunity to object to her use of his last name.  Dr. Smith stated he failed to notice Mrs. Stiggers-Smith's signature on the agreement to purchase the car, an insurance agreement, the retail installment contract, or the real estate contract and its addendums.  He also testified he never noticed the name "Smith" appearing on letters, bills, magazines, and catalogs Mrs. Stiggers-Smith received at the couple's home.  

The family court found the exhibits and witnesses presented by Mrs. Stiggers-Smith overwhelmingly supported a finding that the parties entered into a common-law marriage.  The family court additionally found Dr. Smith's testimony unconvincing, and as the appellate court, we are bound by this credibility determination.  See Tarnowski, 348 S.C. at 619, 560 S.E.2d at 440 ("Because [the issue of common-law marriage] sounds in law, and the existence of a common[-]law marriage is a question of fact, this [C]ourt is bound by the [family] court's factual findings, and its credibility determinations.").  

Based on the foregoing, we find there is evidence to support the family court's finding of a common-law marriage between Dr. Smith and Mrs. Stiggers-Smith.  While we acknowledge the existence of conflicting evidence regarding the couple's marital status, we are bound by our standard of review and, therefore, affirm the family court's determination.  

Dr. Smith next argues the family court committed reversible error by admitting an affidavit from an unknown, non-testifying person into evidence.  We disagree.     

In July 2002, Mrs. Stiggers-Smith transferred her interest in the couple's house to Dr. Smith.  Attached to this deed was an affidavit prepared by an unknown individual who did not testify at trial.  This affidavit stated no consideration was needed in the deed transfer between "Brea Smith a/k/a Wilma Brea Stiggers" and "Arthur L. Smith" because it was a transfer "between husband and wife."  Mrs. Stiggers-Smith introduced this affidavit at trial to show the public's perception of Mrs. Stiggers-Smith and Dr. Smith as a married couple.  Dr. Smith objected arguing hearsay, but the family court overruled the objection.   

Whether or not this evidence was hearsay, "the improper admission of hearsay is reversible error only when the admission causes prejudice."  Small v. Pioneer Machinery, Inc., 329 S.C. 448, 470, 494 S.E.2d 835, 846 (Ct. App. 1997).  "Where the hearsay is merely cumulative to other evidence, its admission is harmless."  Id. 

The record contains evidence other than the affidavit which demonstrated Dr. Smith and Mrs. Stiggers-Smith held themselves out to the community as a married couple.  The affidavit was merely cumulative to that evidence.  Thus, if an error occurred in its admission, the error was not prejudicial, and the family court did not commit reversible error by admitting the affidavit into evidence.  See id. (finding no prejudice when a statement that was possibly hearsay was admitted into evidence because the statement was cumulative to other evidence in the record).   

Finally, Dr. Smith argues the family court erred in failing to address his counterclaims for reimbursements, attorney fees, and costs.  We find this argument abandoned on appeal.   

 An issue is deemed abandoned and will not be considered on appeal if the argument is raised in a brief but not supported by authority. Mulherin-Howell v. Cobb, 362 S.C. 588, 600, 608 S.E.2d 587, 593-94 (Ct. App. 2005).  Dr. Smith failed to cite any authority in support of his position, and therefore, we will not address the argument. 

CONCLUSION

Based on the foregoing, the family court's order is

AFFIRMED.

WILLIAMS, PIEPER, and GEATHERS, JJ., concur.    


[1] Mrs. Stiggers-Smith stated the reason she put "single" on these documents was due to her belief she needed an actual marriage license or piece of paper stating she was married in order to avoid problems. 

[2] During oral argument, both parties asserted this Court had the authority to find facts in accordance with its own view of the preponderance of the evidence; however, we find the standard of review stated in Callen, 365 S.C. at 623, 620 S.E.2d at 62, and its preceding authority to be controlling precedent upon this Court.     

[3] Dr. Smith and Mrs. Stiggers-Smith moved from Texas to Missouri to Louisiana and then to Ohio before settling in South Carolina.  Apart from Texas, none of the states the couple resided in prior to South Carolina recognize common-law marriages.