THE STATE OF
In The Supreme Court
Page D. Callen, Respondent,
Sean R. Callen, Appellant.
Frances P. Segars-Andrews, Family Court Judge
Opinion No. 26041
Heard June 1, 2005 - Filed September 19, 2005
REVERSED AND REMANDED
Emma I. Bryson, John O. McDougall, and Peter G. Currence, all of McDougall & Self, of
Columbia, for Appellant.
Lori Dandridge Stoney and Paul E. Tinkler, both of
Charleston, for Respondent.
Jon A. Mersereau, of
Charleston, for Guardian Ad Litem.
JUSTICE PLEICONES: At issue in this case is whether Appellant Sean Callen (Sean) and Respondent Page Durkee Callen (Page) entered into a common-law marriage. Page filed an action for divorce, and Sean answered that the parties were never married. The family court bifurcated the case and held a hearing to determine whether a common-law marriage existed. The court ruled that there was a marriage and, further, that Page was entitled to attorney fees. Sean appealed, and we certified the case pursuant to Rule 204(b), SCACR. We reverse the family court�s decision and remand the case for a new hearing.
Sean and Page�s relationship began
According to Page, the parties considered themselves married almost from the beginning. Sean denies that they ever did. According to Sean, the relationship was purely sexual until they conceived their first child. He says that thereafter, sharing children was the only reason that the parties maintained any relationship.
Throughout the course of the
relationship, Sean lived in various jurisdictions, including
Eventually, Sean purchased a
In August 2000, Page and the
children moved from
The family court ruled that Sean and Page had a common-law marriage, meaning that Page could proceed with the divorce action. The family court also ordered Sean to pay Page $113,405.98 as attorney fees.
Whether the family court erred in finding that Sean and Page entered into a common-law marriage.
Whether the family court erred in admitting the testimony of witnesses whose names were not disclosed in answers to interrogatories.
Whether the family court erred in awarding attorney fees to Page.
Whether a common-law marriage exists
is a question of law.
I. Common-Law Marriage
The family court failed to apply the proper standard for determining whether Sean and Page entered into a common-law marriage.
A common-law marriage is formed when
two parties contract to be married. Johnson v. Johnson, 235 S.C.
542, 550, 112 S.E.2d 647, 651 (1960). No express contract is necessary;
the agreement may be inferred from the circumstances.
Further, when the proponent proves that the parties participated in �apparently matrimonial� cohabitation, and that while cohabiting the parties had a reputation in the community as being married, a rebuttable presumption arises that a common-law marriage was created. Jeanes v. Jeanes, 255 S.C. 161, 166-67, 177 S.E.2d 537, 539-40 (1970). This presumption may be overcome by �strong, cogent� evidence that the parties in fact never agreed to marry. Jeanes, 255 S.C. at 167, 177 S.E.2d at 540.
When, however, there is an impediment to marriage, such as one party�s existing marriage to a third person, no common-law marriage may be formed, regardless whether mutual assent is present. Further, after the impediment is removed, the relationship is not automatically transformed into a common-law marriage. Instead, it is presumed that relationship remains non-marital. For the relationship to become marital, �there must be a new mutual agreement either by way of civil ceremony or by way of recognition of the illicit relation and a new agreement to enter into a common law marriage.� Kirby, 270 S.C. at 141, 241 S.E.2d at 416 (citing Byers v. Mount Vernon Mills, Inc., 268 S.C. 68, 231 S.E.2d 699 (1977)); see also Johns v. Johns, 309 S.C. 199, 201-03, 420 S.E.2d 856, 858-59 (Ct. App. 1992) (involving the impediment of one party�s marriage to a third person); Bochette v. Bochette, 300 S.C. 109, 111-12, 386 S.E.2d 475, 476-77 (Ct. App. 1989) (same); Prevatte v. Prevatte, 297 S.C. 345, 348-49, 377 S.E.2d 114, 116-17 (Ct. App. 1989) (same); Yarbrough v. Yarbrough, 280 S.C. 546, 551-52, 314 S.E.2d 16, 18-19 (Ct. App. 1984) (same).
Even assuming, as Page urges, that
the parties lived together in Florida, New York, Massachusetts, and Ireland, and
further assuming that they moved together from Florida to South Carolina in
August 2000, no common-law
marriage could have been formed, if at all, until after the move. Since
none of those other jurisdictions sanctions common-law marriages, there was an
impediment to marriage until the parties took residency here. It must be
presumed that Sean and Page�s relationship remained non-marital after the
move, after the impediment disappeared. See Kirby, 270 S.C.
at 141, 241 S.E.2d at 416. Consequently, Page has the burden of proving
that the parties entered into a marital agreement after moving to
The family court did not place this
burden on Page, however, because the court failed to recognize the impediment to
marriage. Instead, the family court considered Page and Sean�s
relationship in its entirety, relying heavily on the parties� conduct prior to
In addition, the family court misapprehended the meaning of intent to marry. The family court�s order includes the following passage:
Analysis of the intent to be married is a separate consideration from the actual understanding from the parties regarding a legally binding marital relationship. Otherwise, we would not have the rich history of
law. I find the Callens� intent to be as a married couple clear, even though they may not have understood the equences of their intentions and actions. South Carolina common law marriage
The family court cited no authority for this proposition, and the proposition is irreconcilable with precedent.
A party need not understand every
nuance of marriage or divorce law, but he must at least know that his actions
will render him married as that word is commonly understood. If a party
does not comprehend that his �intentions and actions� will bind him in a �legally
binding marital relationship,� then he lacks intent to be married. A
lack of intent to be married overrides the presumption of marriage that arises
from cohabitation and reputation.
II. Admission of Testimony
The family court also committed reversible error in admitting the testimony of three witnesses. At the hearing, Sean objected to the admission of the testimony of these witnesses on the ground that each came as a surprise. Sean argued that none of the witnesses� names had been timely disclosed in answers to interrogatories and that he therefore had insufficient time to depose any of them. Page had no explanation for the failure to reveal these witnesses sooner. Nevertheless, the family court overruled Sean�s objection. The court ruled that because there existed no pre-trial order which provided a specific date by which the parties had to disclose witnesses, the court had no discretion and had to admit the testimony. This was error.
A �trial court is under a duty,
when the situation arises, to delay the trial for the purpose of ascertaining
the type of witness involved and the content of his evidence, the nature of the
failure or neglect or refusal to furnish the witness� name, and the degree of
surprise to the other party, including prior knowledge of the name by said
party.� Laney v. Hefley, 262 S.C. 54, 59-60, 202 S.E.2d 12, 14
(1974) (quoting with approval Wright v. Royse, 43
Here, there was no pre-trial order, but Page allegedly violated Rules 26(e) and 33(b) of the South Carolina Rules of Civil Procedure by failing to supplement her answers to interrogatories in a timely fashion. After Sean objected to the admission of the testimonies at issue, the family court�s duty to inquire arose. The family court failed to make the inquiry required under Laney and Jumper and therefore failed to exercise its discretion. �When the trial judge is vested with discretion, but his ruling reveals no discretion was, in fact, exercised, an error of law has occurred.� Fontaine v. Peitz, 291 S.C. 536, 538, 354 S.E.2d 565, 566 (1987); see also In re Robert M., 294 S.C. 69, 70-71, 362 S.E.2d 639, 640-41 (1987); State v. Smith, 276 S.C. 494, 498, 280 S.E.2d 200, 202 (1981). Sean was prejudiced by the family court�s ruling, requiring reversal and a new hearing. We do not mean to imply that the family court is precluded from admitting the same testimony at the new hearing. We hold only that the court�s failure to exercise discretion below requires the new hearing.
III. Attorney Fees
As stated above, the family court ordered Sean to pay Page�s attorney fees, $113,405.98. One basis for the award was the beneficial result achieved by Page�s attorneys. Because we reverse the finding of a common-law marriage, we also reverse the award of attorney fees.
The family court failed to apply the proper standard for determining whether Sean and Page entered into a common-law marriage. The court also committed reversible error in admitting the testimonies of allegedly surprise witnesses without first making the required inquiry and exercising discretion. Consequently, the family court�s finding a common-law marriage and awarding attorney fees to Page are reversed and the case is remanded for a new hearing.
REVERSED AND REMANDED.
MOORE, WALLER and BURNETT, JJ., concur. TOAL, C.J., dissenting in a separate opinion.
Chief Justice Toal: I respectfully dissent. In my view, Sean and Page entered into a common-law marriage. Therefore, I would affirm the family court�s decision.
In my view, the majority
misconstrues the law to the extent that the majority views the fact that the
couple lived outside of
Further, the majority ignores the
proper standard of review in this case. The issue whether a couple is
common-law married is a question of law. Tarnowski v. Lieberman, 348 S.C.
616, 619, 560 S.E.2d 438, 440 (Ct. App. 2002). Therefore, our review in
this case is limited to a determination of whether there is any evidence to
support the trial judge�s findings.
In the present case, the family
court found that a common-law marriage existed. The family court relied on
evidence that the couple had cohabited for several years over the course of the
relationship, most recently in
Therefore in my opinion, there is evidence in the record supporting the family court�s findings. Accordingly, I would uphold the family court�s ruling finding that a common-law marriage existed.
 In Prevatte, the Court of Appeals raised the split of
authority �as to whether the parties must have knowledge that the impediment
has been removed.� 297 S.C. at 349, 377 S.E.2d at 117 (citations
omitted). The court decided that it need not resolve the issue because the
parties there were aware of the impediment and its removal.
 As explained above, we do not comment on the sufficiency of the evidence to support the family court�s findings of fact.
 Rules 26(e) and 33(b), SCRCP.