Opinion
3:01-CV-1951-M
May 10, 2002
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's Motion for Summary Judgment, filed October 9, 2001. Plaintiff alleges Defendant Steven Melman ("Melman") harmed him by fraudulently concealing his Pennsylvania common law marriage to a woman named "Ayelet" when he induced Plaintiff's daughter, Velinda Savariego ("Velinda") to many him, and induced Plaintiff to host a wedding ceremony for the couple. Melman disputes ever having a common law marriage as defined by Pennsylvania common law.
On February 26, 2002, the Court entered a Memorandum Opinion and Order, in which it continued Melman's alternative Motion for Summary Judgment for sixty days to allow Plaintiff an opportunity to conduct further discovery and supplement his evidence. This deadline expired Monday, April 29, 2002. During this period of time, Plaintiff did not subpoena any witnesses, did not conduct any depositions, and did not serve any written discovery requests. Although Plaintiff contacted Melman's counsel to set up a deposition on the eve of the deadline, Plaintiff unilaterally canceled the deposition and then on April 22, 2002, filed a Motion for Continuance. That Motion was denied by the Court on April 23, 2002.
A party cannot forestall summary judgment by contending more discovery is needed, unless that party shows diligence in proceeding to discovery. In the Court's view, Plaintiff did not do so. The Court will therefore move to the merits of Melman's Motion for Summary Judgment.
See Beattie v. Madison Co. Sch. Dist., 254 F.3d 595, 597 (5th Cir. 2001).
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that, as a matter of law, the movant is entitled to judgment. Kerr v. Lyford, 171 F.3d 330, 336 (5th Cir. 1999). However, the non-movant, here the Plaintiff, must make a positive showing that a genuine dispute of material fact exists. Kee v. City of Rowlett, Tex., 247 F.3d 206, 210 (5th Cir. 2001), cert denied, 70 U.S.L.W. 3091 (Oct. 1, 2001) (No. 01-145).
ANALYSIS
A. Plaintiff and Defendant's EvidenceOn November 13, 2001, after responding to Melman's Motion for Summary Judgment, Plaintiff filed a Motion to Continue Melman's Motion. In Plaintiff's Motion to Continue, he requested additional time to depose Steven Melman, Rosa Golish, Steven Coren, Rabbi Dov Brisman, and Dr. Yudel Mayefsky, as to the alleged relationship between Melman and "Ayelet," Melman's alleged common law wife. To his Response, Melman attached as exhibits affidavits from Rosa Golish, Steven Coren, Rabbi Dov Brisman, and Dr. Yudel Mayefsky, in which each disclaimed having any knowledge regarding Melman's living arrangements during his courtship and marriage to Velinda, and each denied Melman was reputed to be married to "Ayelet" when he was courting and mated to Velinda. In his Second Supplemental Reply to Plaintiff's Second Supplemental Response to Defendant's Motion, Melman also files the affidavit of his housekeeper, Maria A. Whitmore, who apparently was in Melman's home on a bi-weekly basis from 1996 until September 2000, and his realtor, Hank Holmes, who listed Melman's Pennsylvania home for sale in January 1999. Ms. Whitmore states that she did not observe Melman cohabiting with Ayelet, denies that Melman had a reputation for being married to Ayelet, and states that the first and only time that Ms. Whitmore was aware that Melman was mated was his March 1999 marriage to Velinda. Mr. Holmes states that Melman was not cohabiting with Ayelet from January through March 1999, and verifies that, during the Spring of 2000 when the home was again listed for sale, it remained unoccupied.
On October 29, 2001, Plaintiff appended his and Velinda's affidavits to his Response to Melman's Motion. Both affidavits referenced existing evidence supportive of Plaintiff's case, but no such evidence was provided to the Court in October and none was included with the supplementary evidence Plaintiff recently submitted. The evidentiary gaps the Court was concerned with in its February 26, 2002 Memorandum Opinion and Order have simply not been filled. For instance, Plaintiff's Response and Supplemental Response referred to the existence of public records which allegedly showed that Ayelet A. Melman lived at Melman's residence from October 1997 through March 2001. These "public" records have still not been provided for the Court or Melman. Although Velinda, in her affidavit, referred to the procurement of four independent investigation agencies to investigate Melman and existing reports that followed from their investigations, none of the reports, nor the public record information allegedly compiled within them, have been provided for the Court or the Defendant. The only filed evidence consists of unauthenticated hearsay from an Internet search apparently conducted by Velinda. These papers are not "public records" nor "private investigator" reports, nor are they admissible summary judgment evidence. They would more than likely be inadmissible at trial. Moreover, even if the Court were to consider the material proffered by Plaintiff, it is not of the caliber that can save Plaintiff's claims from summary dismissal because, as discussed below, the high evidentiary burden to prove the existence of a common law marriage under Pennsylvania law has not been met.
In Melman's Supplemental Brief to his Motion, filed February 11, 2002, he states that "plaintiff never produced the alleged public records referred to in his brief and in his daughter's affidavit despite requests for these records."
Loujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990) ("[t]he object of [Federal Rule of Civil Procedure 56] is not to replace conclusory allegations of the Complaint or Answer with conclusory allegations of an affidavit"); Cronquist v. City of Minneapolis, 237 F.3d 920, 927 (8th Cir. 2001) (hearsay evidence including inadmissible documents will not defeat a summary judgment motion).
B. Common Law Marriage under Pennsylvania Law
Although the foundation upon which Pennsylvania's recognition of common law marriage is less than solid, its existence is not disputed. However, "[w]hen an attempt is made to establish a marriage without the usual formalities, the claim must be reviewed with `great.'"
See Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020 n. 4 (Pa. 1998) (stating that "the doctrine's continued viability is seriously in question"). Two justices, in a concurring opinion, advocated for the abolishment of the common law marriage in Pennsylvania. Id. at 1023 (Nigro, J., and Castille, J., concurring).
Estate of Gavula, 417 A.2d 168, 171 (Pa. 1980).
To prove a common law marriage, Pennsylvania law generally requires words in the present tense, verba in praesenti, spoken with the specific purpose that the legal relationship of husband and wife be created. Instead of presenting words in the present tense, Plaintiff offers papers from the Internet search, which he claims demonstrate constant cohabitation and a reputation of marriage between Ayelet and Melman. Melman argues this offer of proof is insufficient under Pennsylvania case law. The Court concurs.
Plaintiff argues that in the absence of direct testimony regarding the exchange of words in the present tense, a rebuttable presumption of common law marriage exists where there is constant cohabitation and a reputation of marriage "which is not partial or divided but is broad and general." However, Plaintiff unreasonably attempts to extend the parameters of this presumption beyond its proper context. The rebuttable presumption test was created as a corollary to the Dead Man's Act, to target situations where the estate of an alleged spouse could not prove the existence of a common law marriage to obtain benefits from the estate of the other alleged spouse because there was no way to prove a present tense exchange of words. Even in that context, the presumption is limited. As stated in Faber v. TGI-Fridays, Inc., "[c]onstant cohabitation, "even when conjoined with general reputation are not marriage, [but] merely circumstances which may give rise to a rebuttable presumption of marriage.'" Regardless of its reach, however, the rebuttable presumption does not apply in this instance, because both the alleged common law wife and husband are alive and able to testify.
Estate of Manfredi, 159 A.2d 697, 700 (Pa. 1960).
Estate of Nikitka, 29 A.2d 521, 522 (Pa. 1943).
148 F. Supp.2d 556, 558 (E.D. Pa. 2001) (wife failed to establish claim for consortium where she could not demonstrate the existence of a common law marriage by cohabitation for ten years and reputation for being mated) (quoting Canute v. Canute, 557 A.2d 772, 774 (1989))).
As further stated in Faber, the `rule which permits a finding of marriage entered into based upon reputation and cohabitation alone is one of necessity to be applied only in cases where other proof is not available.'" Although it might be argued that neither Melman nor Ayalet are available in this case given that neither has an interest in having this Court determine that they had a common law marriage, Pennsylvania courts do not adopt this approach.
Id. at 522.
Pennsylvania cases on this issue generally involve one putative spouse seeking to establish his or her marital status to obtain some form of benefit from the estate of the alleged spouse, or claims by one estate against the other. Here, the alleged common law husband contests the existence of the institution, and the purported wife is silent. Nevertheless, in circumstances where the alleged parties to the marital contract have the capacity to testify, Pennsylvania law is clear. As stated by its Supreme Court:
Brandywine PaperBoard Mills v. Workers' Compensation Appeal Bd., 751 A.2d 1205, 1206 (Pa. Commonw. Ct. 2000); Commonwealth v. Wilson, 672 A.2d 293, 301 (Pa.), cert. denied, 519 U.S. 951 (1996); Commonwealth v. Gorby, 588 A.2d 902, 907 (Pa. 1991), aff'd in relevant part, 787 A.2d 367 (Pa. 2001); Estate of Gavula, 417 A.2d 168, 171 (Pa. 1980); Estate of Manfredi, 159 A.2d 697, 700 (Pa. 1960); Estate of Wagner, 159 A.2d 495, 497 (Pa. 1960); Pierce v. Pierce, 49 A.2d 346, 349 (Pa. 1946); Estate of Nikitka, 29 A.2d 521, 522 (Pa. 1943).
Plaintiff states that Ayelet lives in Israel, but does not otherwise offer proof of an inability to testify.
We have allowed, as a remedial measure, a rebuttable presumption in favor of a common law marriage based on sufficient proof of cohabitation and reputation of marriage where the parties we otherwise disabled from testifying regarding verba in praesenti. However, where the parties are available to testify regarding verba in praesenti, the burden rests with the party claiming a common law marriage to produce clear and convincing evidence of the exchange of words in the present tense spoken with the purpose of establishing the relationship of husband and wife, in other words, the marriage contract. In those situations, the rebuttable presumption in favor of a common law marriage upon sufficient proof of constant cohabitation and reputation for marriage does not arise.
Staudenmayer, 714 A.2d at 1021.
Further, in the bankruptcy case of In re Veneziale, the court was presented with a situation similar to the one present here. There, the debtor-mortgagor was alleged to have been in a common law marriage with a deceased creditor of the defendant bank. She and the decedent, using the same last name, signed a promissory note for the purchase of the real property, and then granted a mortgage on the property to secure the note. The deed identified the couple as husband and wife. When the debtor ceased making payments on the note, the bank instituted a foreclosure proceeding against the debtor, arguing that she held title to the entire property because she and the decedent held the property as tenants by the entireties, a form of title available only to a married couple. The Bankruptcy Court for the Eastern District of Pennsylvania disagreed that a common law marriage was proven. In doing so, it expressly declined to consider evidence of cohabitation and reputation to prove the existence of a common law marriage:
267 B.R. 695, 698 (E.D. Pa. 2001).
Apparently relying upon the rebuttable presumption, the [b]ank argued that the debtor and [the decedent] had a common law marriage because, at the time of the loan transaction, the debtor was generally holding herself out as the wife of [the decedent.] However, Pennsylvania courts have recognized the use of a rebuttable presumption only when the parties are not available to testify about the occurrence of an exchange of verba in praesenti. There is no evidence that the debtor was not available to testify in this case, and her proffered testimony indicated that the debtor and [the decedent] never exchanged words in the present tense to create a common law marriage.
Id at 700 (citations omitted).
The Court finds this persuasive authority helpful. Melman, who is a party to the alleged common law marriage, testified by affidavit that words of present intent were not exchanged between him and Ayelet. Plaintiff has offered no credible evidence to rebut this. Plaintiff can thus not meet his burden of proving by clear and convincing evidence the existence of a common law marriage between Melman and Ayelet, as required by Pennsylvania law.
See Staudenmayer, 714 A.2d at 1020.
The evidence offered by Plaintiff goes to the issue of cohabitation. Even if it were properly authenticated, it would be insufficient. As the Court put it in Staudenmayer, "we question the utility of constant cohabitation as an element of that presumption. Cohabitation between unmarried people today does not carry with it the same social taboo as when the common law marriage doctrine was developed, and is perhaps less indicative of an intent by a man and a woman to be husband and wife than it was fifty or one hundred years ago."
Id. at n. 8.
Plaintiff's allegations are simply insufficient to sustain the heavy burden placed on him to establish that Melman had a common law marriage at the time he was engaged to Velinda. Accordingly, the Court GRANTS Melman's Motion for Summary Judgment.
SO ORDERED.