The recent Pennsylvania Superior Court case of Moser v. Renninger , 2012 Pa. Super. 59, 1037 MDA 2011 (March 6, 2012), provides a reminder to family law practitioners that a declaratory judgment that does not end litigation is interlocutory and unappealable. The Moser case also provides a refresher regarding common law marriage.
According to the opinion, the following, in part, are the relevant facts in the Moser case: Betty A. Moser filed a divorce complaint against Ronald Renninger Sr. on Nov. 19, 2010, and alleged that she and Renninger were married on Aug. 27, 1982. Thereafter, on March 3, 2011, Moser filed a motion to amend her divorce complaint "indicating, inter alia, that the parties entered into a valid common law marriage." Moser indicated that "although the parties began cohabitating on August of 1982, their common law marriage commenced on June 8, 1985, when the parties exchanged verba in praesenti."
When Act 144 of 2004 was codified under 23 Pa.C.S.A. §1103, Pennsylvania abolished common law marriage. However, the Pennsylvania law abolishing common law marriage is prospective and applies only to common law marriages entered into after Jan. 1, 2005, as Section 1103 provides: "No common law marriage contracted after Jan. 1, 2005, shall be valid. Nothing in this part shall be deemed or taken to render any common law marriage otherwise lawful and contracted on or before Jan. 1, 2005, invalid."
In order to create a valid common law marriage in Pennsylvania prior to Jan. 1, 2005, the intent to marry and the capacity of the parties to marry both must be established. The requirements for capacity are that the parties had to be unmarried, of the opposite sex and of the required minimum age. The intent to marry is established by the exchange of words in the present tense with the purpose of establishing a relationship of husband and wife. It has been held that the actions of the parties could infer the requirement of the words of present tense. The words of present tense are known as "verba in praesenti." As reflected in the Moser opinion, Moser claimed that the parties exchanged verba in praesenti on June 8, 1985.
After Moser filed her motion to amend the divorce complaint, Renninger filed a petition for declaratory relief "seeking, inter alia, a declaration that no common law marriage existed between the parties." After Moser filed an answer to Renninger's petition, an evidentiary hearing was held by the trial court on May 12, 2011. The next day, the trial court filed an order and ruled that "after hearing held on [the husband's] action for declaratory relief, the court finds the parties entered into a common law marriage on June 8, 1985. The parties are declared to be lawful husband and wife under Pennsylvania common law. It is further ordered that [the wife's] motion to amend divorce complaint is granted."
Moser then filed her amended complaint claiming that the marriage was irretrievably broken and that the parties entered into a valid common law marriage on June 8, 1985. She also sought equitable distribution, alimony and alimony pendente lite. Renninger filed a notice of appeal from the trial court's order granting Moser's motion to amend the divorce complaint. Moser, in response, filed a motion to quash Renninger's appeal as interlocutory. According to the opinion, Renninger filed an answer "indicating, in relevant part, that 'pursuant to the Declaratory Judgments Act 42 Pa.C.S.A. §§7531-7541, the common pleas court's order … has the force and effect of a final judgment or decree.'"
In the Superior Court's opinion, citing the case of Radakovich v. Radakovich , the Superior Court stated, "Where a decree in divorce has not been entered and ancillary claims remain unresolved, issues such as those seeking special relief, are interlocutory and unappealable." The Superior Court further quoted the Declaratory Judgments Act in its opinion, which states, in part, "The declaration may be either affirmative or negative in form or effect, and such declarations shall have the force and effect of a final judgment or decree."
According to the opinion, Renninger "suggests the trial court's May 13, 2011, order is a final order since it declared the existence of a common law marriage between the parties." The Superior Court, in quoting one of its earlier cases decided in 2005, Kensey v. Kensey , reiterated in its opinion that the Declaratory Judgments Act is limited in divorce cases and provides no relief "with respect to any '[a]ction wherein a divorce or annulment of marriage is sought except as provided by 23 Pa.C.S.A. §3306.'" Section 3306 pertains to when the validity of a marriage is denied or doubted.
The Superior Court also cited the Pennsylvania Supreme Court case of Wall v. Wall , where the Supreme Court held that the determination of a valid marriage is not a final and appealable order. The Superior Court in its opinion also highlighted its prior case of Caplan v. Caplan, where it held "an order entered during an action in divorce pursuant to a petition for declaratory relief under 23 Pa.CS §3306 is interlocutory and unappealable unless the order ends the litigation." If the court were to find that a common law marriage did not exist, the litigation would end. Under such a scenario, an appeal would be permitted.
However, in Moser , that was not the case. Because the trial court's decision in finding the existence of a common law marriage did not end the litigation in Moser , the Superior Court found that Renninger's appeal was premature. Therefore, the Superior Court granted Moser's motion to quash Renninger's appeal. At the conclusion of all matters in the divorce action between Moser and Renninger and after the issuance of a decree in divorce, an appeal by Renninger would no longer be premature. Interestingly, in a footnote in the Superior Court's opinion, it highlights that Renninger "developed no argument that the appeal in the case … is from an interlocutory order as of right (Pa.R.A.P. 311), a collateral order (Pa.R.A.P. 313), or an interlocutory order by permission (Pa.R.A.P. 312, 42 Pa.C.S.A. §702(b))."
The Moser case is important because it reminds family law practitioners that interlocutory orders in divorce actions are generally not appealable until the entry of a divorce decree or the interlocutory order terminates the litigation prior to the entry of the divorce decree. This can be frustrating for litigants and attorneys because the final disposition of a divorce action can take a very long time. This case is also important because it reminds family law practitioners that common law marriage was abolished effective Jan. 1, 2005, prospectively but not retroactively.
Michael E. Bertin is a partner at the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-author of the book Pennsylvania Child Custody Law, Practice and Procedure. Bertin is chair-elect of the family law section of the Philadelphia Bar Association, co-chairman of its custody committee and a past member of council and the executive committee of the family law section of the Pennsylvania Bar Association.
This article is reprinted with permission from the April 10, 2012, issue of The Legal Intelligencer. © 2012 ALM Media LLC. Further duplication without permission is prohibited. All rights reserved.
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