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

Mary Seabrook,        Respondent,

v.

Guy Simmons,        Appellant.

Appeal From Charleston County
Frances  P. Segars-Andrews, Family Court Judge

Unpublished Opinion No. 2005-UP-459
Submitted May 1, 2005 � Filed July 19, 2005

AFFIRMED

Kevin R. Eberle, Melissa F. Brown, of Charleston, for Appellant.

Robert Papa, of Charleston, and Stephen Paul Bucher, of North Charleston, for Respondent.

PER CURIAM:  In this domestic action, Guy Simmons appeals the family court�s determination that he and Mary Seabrook were married at common law.  Simmons argues the family court erred in: (1) finding the parties were married at common law; and (2) failing to find judicial estoppel precludes Seabrook from claiming the parties were married at common law.  We affirm.[1]   

FACTS

Guy Simmons and Mary Seabrook had an on-and-off relationship beginning in 1966 in the Charleston, South Carolina area.  After an initial break-up with Simmons, Seabrook married Harold Seabrook.  In 1969, Seabrook left Harold, and she and her three children from prior relationships moved in with her cousin.  Seabrook and Simmons rekindled their relationship and began residing together that same year.  The parties moved to an apartment on Norman Street.  Shortly thereafter, the parties had an argument and Simmons left the apartment for a brief period; however, he returned to the Norman Street apartment in 1971, the same year that Seabrook�s divorce from Harold was finalized.  Although the Norman Street apartment was crowded, as Seabrook had relatives staying there, Simmons and Seabrook shared a bedroom. 

In 1972, while the couple resided at the Norman Street apartment, the couple�s first child, Guydetra, was born.  Around that time, Simmons purchased a home at 26 Addlestone to which he moved his mother and siblings.  Simmons received mail at the Addlestone address but remained living with Seabrook in the Norman Street apartment.  In January 1974, the couple�s second child, Mark, was born. 

Simmons and Seabrook, along with the two children, moved to a new apartment on Fludd Street when Guydetra was in the second grade.  The couple moved again to a home Simmons purchased on Endo Drive three years later.  This was the couple�s primary residence until the couple separated in 1999.  Seabrook still resides at the Endo Drive home.   

In the summer of 1998, Seabrook filed for bankruptcy under Chapter 13 of the Bankruptcy Code.  Seabrook indicated she was divorced in the filings.  In January 2000, Seabrook filed for divorce from her common law marriage to Simmons.  Simmons answered denying a common law marriage existed, and he argued judicial estoppel barred Seabrook from alleging a common law marriage due to her assertion in her bankruptcy filings. 

A hearing was held in family court to determine whether a common law marriage existed.  Simmons testified that he never resided with Seabrook or considered her his wife, and he presented testimony from witnesses to that effect.  Numerous witnesses, including Seabrook and the parties� two children, testified that Simmons resided at the Endo Street house with Seabrook and the children for nearly thirty years, that Simmons maintained his clothes and the safe containing his cash there, that Seabrook introduced Simmons as her husband, and that the parties sometimes referred to each other as husband and wife.  When Seabrook�s daughter from a prior relationship had a family court hearing, Simmons provided an affidavit in which he identified himself as her step-father and claimed that he had lived with her and Seabrook for more than twenty-six years.  Simmons directed Seabrook to pay all of his bills by signing his name on checks from his bank accounts.  Seabrook identified Simmons as her husband or common law husband and beneficiary on life insurance applications in 1994 and 1995.  Although Simmons indicated that he was single in an insurance application in 1986, he identified Seabrook as his spouse and beneficiary on an insurance application in 1987.  Simmons also applied in 1986 to change his life insurance policy to add a spouse rider, and Seabrook signed the application as �Mary G.S. Simmons.�  Further, Seabrook was identified as the �daughter-in-law� and representative payee for the supplemental security income for Simmons� mother, Anna Hart.     

After the hearing, the family court found a valid common law marriage existed and found the doctrine of judicial estoppel to be inapplicable in the case.  The family court denied Simmons� motion to alter or amend the judgment.  This appeal followed.

STANDARD OF REVIEW

In appeals from the family court, the appellate court has the authority to find the facts in accordance with its view of the preponderance of the evidence.  Rutherford v. Rutherford, 307 S.C. 199, 204, 414 S.E.2d 157, 160 (1992); Owens v. Owens, 320 S.C. 543, 546, 466 S.E.2d 373, 375 (Ct. App. 1996).  This broad scope of review does not, however, require the appellate court to disregard the findings of the family court.  Stevenson v. Stevenson, 276 S.C. 475, 477, 279 S.E.2d 616, 617 (1981).  Neither is the court required to ignore the fact the family court, which saw and heard the witnesses, was in a better position to evaluate their credibility and assign comparative weight to their testimony.  Cherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d 541, 541 (1981).[2]

LAW/ANALYSIS

Simmons argues the family court erred in finding he and Seabrook were married at common law.  First, Simmons contends the evidence does not support the family court�s finding of a valid common law marriage. Second, Simmons alleges the family court erred in failing to find judicial estoppel precluded Seabrook from claiming the parties were married at common law.  We find both of Simmons� arguments to be without merit.

I.  Common Law Marriage   

Simmons contends the evidence does not support the family court�s finding of a valid common law marriage.  We disagree.

A party moving for a determination of a common law marriage has the burden of proving the existence of a common law marriage by the preponderance of the evidence.  Barker v. Baker, 330 S.C. 361, 369, 499 S.E.2d 503, 507 (Ct. App. 1998).  In South Carolina, a strong but rebuttable presumption exists �in favor of marriage by cohabitation, apparently matrimonial, coupled with social acceptance over a long period of time.�  Id. at 367, 499 S.E.2d at 507. 

A �common law� marriage is formed when a man and woman exhibit a present intent to enter into a marriage contract.  Tarnowski v. Lieberman, 348 S.C. 616, 619, 560 S.E.2d 438, 440 (Ct. App. 2002).  �It is essential to a common law marriage that there shall be 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).  Because it is often difficult to ascertain direct evidence of the parties� mutual intent where there is no public declaration of the contract of marriage, �the existence of a common-law marriage frequently is proved by circumstantial evidence.�  Barker, 330 S.C. at 368, 499 S.E.2d at 507.  Circumstantial evidence of a common law marriage includes where the parties have cohabitated for a period of time and where the parties have �held themselves out as husband and wife.�  Id.   

The preponderance of the evidence presented in this case supports the family court�s determination that a valid common law marriage existed between Seabrook and Simmons.  The family court saw and heard the witnesses and was in a better position to evaluate their credibility and assign comparative weight to their testimony.  We find no reason to disregard the findings of the family court.  The evidence clearly establishes that after Seabrook�s 1971 divorce from Harold, the parties intended to be married, held themselves out as married, cohabitated together for a substantial period of time, and had two children.  Thus, under the preponderance of the evidence standard and under the more lenient any evidence standard, there was evidence to support the family court�s finding of a common law marriage.

II.  Judicial Estoppel

Simmons alleges the family court erred in failing to find judicial estoppel precluded Seabrook from claiming the parties were married at common law.  Specifically, Simmons argues the assertion Seabrook made in her bankruptcy filings that she was divorced precluded her from arguing the parties were married at common law.  We disagree. 

Judicial estoppel is an equitable concept that prevents a litigant from asserting a position inconsistent with, or in conflict with, one the litigant has previously asserted in the same or a related proceeding.  Hayne Fed. Credit Union v. Bailey, 327 S.C. 242, 251, 489 S.E.2d 472, 477 (1997).  Judicial estoppel is limited to inconsistent statements of fact.  Hawkins v. Bruno Yacht Sales, 353 S.C. 31, 42, 577 S.E.2d 202, 208 (2003).  The application of judicial estoppel is discretionary and must be determined according to the facts of each individual case.  Carrigg v. Cannon, 347 S.C. 75, 83, 552 S.E.2d 767, 772 (Ct. App. 2001).  The purpose of the doctrine is to ensure the integrity of the judicial process and to prevent manipulation of the judicial system by the litigants.  Quinn v. Sharon Corp., 343 S.C. 411, 414, 540 S.E.2d 474, 475 (Ct. App. 2000).

Our state supreme court has delineated the following necessary elements for the doctrine of judicial estoppel to apply:

(1) two inconsistent positions taken by the same party or parties in privity with one another; (2) the positions must be taken in the same or related proceedings involving the same party or parties in privity with each other; (3) the party taking the position must have been successful in maintaining that position and have received some benefit; (4) the inconsistency must be part of an intentional effort to mislead the court; and (5) the two positions must be totally inconsistent. 

Cothran v. Brown, 357 S.C. 210, 215-16, 592 S.E.2d 629, 632 (2004).

In the late 1990s, the relationship between Seabrook and Simmons deteriorated, and Simmons spent a substantial amount of time away from the home.  Seabrook began experiencing financial difficulties, and she testified that she consulted Simmons about whether she should file for bankruptcy.  According to Seabrook, Simmons told her that he did not have to file any documents along with her bankruptcy application because their finances were separate and they were �common law divorced.�  Seabrook testified that because she did not know any better, she then put her status as �divorced� on her bankruptcy filings.  Simmons testified that because his finances were separate from Seabrook�s, her filing bankruptcy did not affect him in any way. 

Charles Summerall testified regarding bankruptcy filings.  Sumerall stated that if Seabrook was married at the time she filed for bankruptcy, the law required her to fill out the section indicating the income and assets of her spouse so that the bankruptcy court could determine her disposable income available for repaying creditors.  However, Nathan Davis, an attorney who primarily practiced bankruptcy law, testified that Seabrook was required to list Simmons� income and assets only if he provided a �wealth of income� for her support.  He also noted that since Simmons was not a creditor of Seabrook�s, her discharge of all but five percent of her debt had no impact on him. 

In ruling on the judicial estoppel issue, the family court found that Simmons was not affected in any way by the payment or discharge of Seabrook�s debts and that Simmons and Seabrook were not �in privity in any way with regard to the bankruptcy and this domestic case.�  The court noted that the parties� relationship had substantially deteriorated when Seabrook filed the bankruptcy case, and Seabrook �did not understand the legalities of common law marriage nor of how a common law marriage ended.�  Thus, the court held that Seabrook did not �maliciously or intentionally mislead the bankruptcy court in her filing.�  The court denied Simmons� motion to dismiss based upon judicial estoppel. 

The evidence in the record supports the family court�s findings.  Seabrook testified that she believed Simmons when he told her that they were �common law divorced.�  There was no evidence that Seabrook intentionally misled the bankruptcy court when she acted under her erroneous assumption.  Moreover, the bankruptcy action was not related to the divorce action.  Further, we give greater weight to the family court�s findings as it viewed the witnesses and was able to judge their credibility.  Accordingly, we find the family court did not err in denying Simmons� motion to dismiss based upon judicial estoppel.

CONCLUSION

We hold the family court correctly found judicial estoppel does not preclude Seabrook from claiming the parties were married at common law.  Moreover, reviewing the finding of a common law marriage under either the preponderance of the evidence or the any evidence standard of review, the evidence in this record clearly supports a finding the parties were married at common law.  Therefore, the order of the family court is hereby

AFFIRMED.

HEARN, C.J., BEATTY and SHORT, JJ., concur.

[1] Because oral argument would not aid the court in resolving the issues on appeal, we decide this case without oral argument pursuant to Rule 215, SCACR. 

[2]  There is some question regarding the standard of review in common law marriage cases.  Although the line of cases from family court apply the traditional family court preponderance of the evidence standard of review, a line of cases from probate court apply the legal any evidence standard.  See Barker v. Baker, 330 S.C. 361, 370, 499 S.E.2d 503, 508 (Ct. App. 1998) (holding that in an action at law, where the existence of a common law marriage is a question of fact, the court is bound by the lower court�s factual findings and credibility determinations); Richland Mem�l Hosp. v. English, 295 S.C. 511, 513, 369 S.E.2d 395, 396 (Ct. App. 1988) (holding the issue of common law marriage sounds in law); Weathers v. Bolt, 293 S.C. 486, 488, 361 S.E.2d 773, 774 (Ct. App. 1987) (noting that the review in the case was limited to a determination of whether or not there was any evidence to support the findings of the trial judge).  Thus, when applying the probate court standard of review, we must affirm if any evidence supports the lower court�s findings.  Tarnowski v. Lieberman, 348 S.C. 616, 619, 560 S.E.2d 438, 440 (Ct. App. 2002).  In the present case, we have applied the preponderance of the evidence standard.  However, we find the facts in the record are such that the family court may be affirmed under either standard.