Opinion
No. 1161 C.D. 2014
03-04-2015
Anthony Monteleone, Appellant v. Board of Pensions and Retirement, City of Philadelphia
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Appellant Anthony Monteleone (Monteleone) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court), denying Monteleone's appeal from a decision of the Philadelphia Board of Pensions and Retirement (Board). The Board denied Monteleone's application seeking the Board's recognition of his alleged common law marriage to Deborah Smith for the purpose of establishing Ms. Smith as a designated spousal beneficiary of his pension benefits. We affirm the trial court's order.
At the outset, and as noted by the Board, Monteleone and Ms. Smith were formally married on December 30, 2011. (Board finding of fact (FF) no. 8.)
We glean the following background regarding Monteleone's relationship with Ms. Smith from the Board's factual findings. On or about March 20, 1972, Monteleone began working for the Philadelphia Sheriff's Department as a Sheriff's Guard, and he was promoted to the position of Deputy Sheriff effective March 6, 1978. In 1986, Monteleone named his daughter, Doreen, as his pension beneficiary, and named his three other children as his contingent beneficiaries.
In December 1986, while Monteleone was still married to another woman, Carol Monteleone, Monteleone and Ms. Smith purchased a house on Jamison Avenue in the City of Philadelphia. Monteleone remained married to Carol Monteleone until her death in 1988. In April 1993, when Monteleone was preparing to retire, he submitted necessary paperwork to the Board for the purpose of receiving his pension benefits. Monteleone again identified his daughter Doreen as his beneficiary. On the same day, Monteleone changed his designated life insurance beneficiary to Ms. Smith, identifying her on the form as his "fiancée."
This matter came before the Board in the summer of 2012, when Monteleone applied to the Board for pre-approval of common law status for Ms. Smith in order to establish her as an "Option 4" pension survivor. Option 4 is one of five pension distribution options for retirees under the Philadelphia Retirement Code, and Option 4 provides for the following benefits:
[T]he retired member will receive retirement benefits in the form of an annuity for life. If the retired member elected this option or dies without having elected any option, one-half of the amount of the member's retirement benefit, without reduction, shall be paid to the member's surviving spouse or surviving Life Partner, provided that they were married or Life Partners at least two (2) years before retirement or the date on which a
separated member became eligible to apply for retirement benefits.Phila. Code § 22-306(1) (emphasis added). Thus, a retiring member who has not married two years or more before retirement is not eligible to choose Option 4. Consequently, in order for Monteleone to elect Option 4 to make Ms. Smith eligible for Monteleone's pension benefits in the event of his death, he was required to have been married to her two years before his retirement in 1993.
In support of his application, Monteleone included the following items: (1) a July 9, 2012 letter from the Police and Fire Federal Credit Union, indicating that Monteleone and Ms. Smith opened a joint account in December 1986; (2) a notarized July 12, 2012 letter from his daughter Doreen, in which she stated that she has known her father and Ms. Smith to have been "a couple" since August 1985; (3) a notarized letter dated July 13, 2012 from Marge Giedemann-Williams with an identical statement; (4) a notarized letter dated July 27, 2012 from Barbara Lombardi, including the same language used by Doreen and Ms. Giedemann-Williams; (5) a notarized letter dated July 16, 2012, from Peter Monteleone, stating that Monteleone met Ms. Smith in 1985 and that they have been together "from 1984 and going strong ever since;" (6) a notarized letter dated July 16, 2012 from Gloria Stuhlman, indicating that she has known Monteleone and Ms. Smith since 1985; (7) a notarized letter dated July 24, 2012, from Andrew Ogdin, indicating that Monteleone and Ms. Smith have lived together "as a couple" since 1985 and that they "have been in a loving committed relationship for [twenty-seven] years;" (8) a death certificate for Carol Monteleone; and (9) a mortgage agreement regarding the house purchased in Philadelphia by Monteleone and Ms. Smith in 1986.
On March 28, 2013, the Board denied Monteleone's application, and Monteleone appealed. On September 4, 2013, the Board conducted a hearing, during which Monteleone testified by telephone. In his testimony, Monteleone's counsel asked him when, "for the first time . . . did you and [Ms. Smith] exchange vows . . . declaring yourselves to be husband and wife?" Monteleone testified that he and Ms. Smith had exchanged vows "in 1986, 1987, and the only thing that separates us as being married is the Marriage Certificate." (Reproduced Record (R.R.) at 132a.) Monteleone testified that he and Ms. Smith had bought the house in Philadelphia jointly. (R.R. at 133a.) Monteleone also testified regarding his conversation with a Board pension counselor in 1993, as he was preparing to retire:
Q. Were you asked specifically who you wanted to be the beneficiary of your pension should you die?
A. Yes. I told her that my wife passed away and that I wanted [Ms. Smith] as the beneficiary.
. . .
Q. At that time, you and [Ms. Smith] were living together as husband and wife in a house titled in both your names with a mortgage in both your names; correct?(R.R. at 133a-35a.) In response to questions posed on cross-examination, Monteleone indicated that Ms. Smith and he filed separate tax returns before their formal marriage in 2011. (R.R. at 139a-40a.) On redirect examination, following a Board member's question regarding Monteleone's designation in 1993 of Ms. Smith as his fiancée when he made her his beneficiary for life insurance purposes, Monteleone stated that he considered Ms. Smith his common law wife at the time he completed that designation in 1993. (R.R. at 143a.)
A. Correct.
Q. So when you came over here, you told the pension counselor that you wanted [Ms. Smith] to be your beneficiary? Why did you tell her that?
A. Well, because my wife had died and I knew I was—[Ms. Smith] and I were married. I wanted her to be the beneficiary.
Q. What were you told when you asked to have [Ms. Smith] made the beneficiary of your pension?
A. It wasn't a good idea.
Q Did the counselor give you any reason for saying that?
A. No. She said it's not a very good idea, and I asked her twice, and twice she said it's not a good idea. Then I said: Well, daughter on there, my youngest daughter.
The three Board members conducting the hearing unanimously denied the application and referred the matter to the full Board for consideration and resolution. The full Board found that:
• Monteleone was married to his wife Carol until her death in 1988;The Board determined that Monteleone and Ms. Smith did not have a broad reputation as husband and wife prior to 1993 or at any time up until their marriage in 2011. The Board applied Section 22-306(1) of the Philadelphia Retirement Code (Option 4), concluding that Monteleone had not been married to Ms. Smith at least two years before his retirement. The Board also noted this Court's 2003 decision in PNC Bank Corporation v. Workers' Compensation Appeal Board (Stamos), 831 A.2d 1269 (Pa. Cmwlth. 2003), which abolished the doctrine of common law marriage. In recognition of our decision, the Board noted a regulation it had adopted following Stamos, Regulation 7.1. In finding of fact number 32, the Board noted that "Regulation 7.1 establishes a 'measuring date' of slightly over a year from the date of the [Stamos] decision . . . allowing members who can establish that a common law marriage existed prior to that date to avail themselves of spousal benefits." The Board concluded that, because Monteleone retired ten years before our decision in Stamos, Regulation 7.1 did not apply. Rather, the Board considered the developed common law to determine whether Monteleone's relationship with Ms. Smith constituted a common law marriage.
• If Monteleone exchanged vows with Ms. Smith in 1986, he was still married at that time;
• Monteleone knowingly made his daughter Doreen his Option 4 beneficiary both in 1986 and in 1993;
• Monteleone's decision to marry Ms. Smith in 2011 suggested that he did not consider himself to be married to her before that time; and
• None of the notarized statements referred to Monteleone's relationship with Ms. Smith before their formal marriage as husband and wife, but rather referred to Monteleone and Ms. Smith as a "couple" or as being "together."
The General Assembly, by the Act of November 24, 2004, P.L. 954 (Act 144), amended Section 1103 of the Marriage Law, 23 Pa. C.S. § 1103, to provide that "[n]o common-law marriage contracted after January 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 January 1, 2005, invalid."
The Board recognized that vows may create a common law marriage, but that the vows Monteleone exchanged with Ms. Smith in 1985 and 1986 were ineffectual because, at that time, he was still married to Carol Monteleone. The Board also concluded that, although a party may establish a common law marriage in the absence of such vows through constant cohabitation and a demonstration that two people have a broad reputation of being married, Monteleone had failed to offer sufficient evidence of a reputation for being married to Ms. Smith until the time they formally wed in 2011.
Monteleone appealed the Board's decision to the trial court. The trial court first determined that Monteleone had waived all of the issues he sought to have addressed in his appeal. On the merits, the trial court concluded that the Board had not erred in concluding that the vows Monteleone and Ms. Smith exchanged in 1985 and 1986 were ineffective and that, alternatively, Monteleone had failed to establish a broad reputation for being husband and wife.
The trial court based its finding of waiver on the failure of Monteleone's counsel to file a brief in a timely manner and his failure to appear for the oral argument the trial court had scheduled. The trial court opined that Pa. R.A.P. 2188 provided authority for the trial court to reach that conclusion. We do not agree, as Pa. R.A.P. 2188 provides an appellee with the right to seek dismissal, and the City never requested such relief. In this appeal, the City does not press for waiver, and we will proceed to consider the merits of the appeal. We note, however, that counsel for Monteleone, who purported to fault the trial court for refusing to grant a continuance, has no grounds for such complaint. The granting of a continuance is within the discretion of a court, and here, counsel for Monteleone failed to make such a request until one day before the scheduled oral argument, and the trial court's staff apparently advised counsel that the trial court was denying the motion.
In his appeal to this Court, Monteleone argues that the Board erred in finding from his testimony that Ms. Smith and he exchanged vows only in 1985 and 1986 and that those vows were insufficient to create a common law marriage after the death of Carol Monteleone in 1988. Rather, he contends that the Board should have inferred based on other testimony that Ms. Smith and he continued to exchange vows after Carol Monteleone's death. Monteleone does not argue alternatively that he has established the existence of a common law marriage based upon cohabitation and a broad reputation of being married.
Our review of a decision of the Philadelphia Board of Retirement is limited to considering whether the Board violated any constitutional rights, erred as a matter of law, or rendered factual findings that are not supported by substantial evidence. DeBerry v. Bd. of Pensions & Ret., 585 A.2d 616, 618 (Pa. Cmwlth. 1991); 2 Pa. C.S. § 754(b).
We begin by reviewing the law as it relates to common law marriages:
Marriage is a civil contract. Historically, there were two forms of marriage: ceremonial and common law. A
common law marriage could only be created by an exchange of words in the present tense establishing a marriage contract, or in other words the legal relationship of husband and wife. All that was needed is proof of an agreement to enter into the legal relationship.Serrano v. Workers' Comp. Appeal Bd. (Patterson UTI, Inc.), 94 A.3d 425, 430 (Pa. Cmwlth. 2014) (citations omitted). In Serrano, relying upon our Supreme Court's decision in Staudenmayer v. Staudenmayer, 714 A.2d 1016 (Pa. 1988), we opined that the
exchange of words [creating a common law marriage] is known in common law as the verba in praesenti. [Staudenmayer, 714 A.2d at 1020]. A party claiming a common-law marriage bears the burden of producing clear and convincing evidence of the verba in praesenti. Id. Further, in certain cases, a putative spouse who cannot establish the creation of a common-law marriage by an exchange of words may be entitled to a rebuttable presumption of marriage by showing constant cohabitation and reputation of marriage. Id.Serrano, 94 A.3d at 428-29.
Monteleone claims that the Board mischaracterized the evidence concerning the exchange of vows between Ms. Smith and Monteleone in 1985 and 1986. Monteleone argues that when he testified that he exchanged vows with Ms. Smith in 1985 and 1986, those were simply examples of the dates upon which such exchanges occurred. Monteleone contends that it is reasonable to infer that Ms. Smith and he continued to exchange vows after his wife's death, pointing to a passage in his testimony wherein he testified that he and Ms. Smith "were married" when he discussed his pension options with the pension counselor. (R.R. at 134a.) Of course, in rendering factual findings, the Board is the ultimate fact finder and arbiter of credibility of witnesses. Merlino v. Philadelphia Bd. of Pensions & Ret., 916 A.2d 1231, 1234 (Pa. Cmwlth. 2007). Because the testimony to which Monteleone refers does not specifically indicate that he and Ms. Smith actually exchanged vows between 1986 and the date of their formal marriage in 2011, the Board did not err in determining that the only times Monteleone and Ms. Smith exchanged marital vows was in 1985 and 1986. Monteleone's testimony that he regarded Ms. Smith and himself as being married when he spoke with the counselor does not support an implication that they exchanged vows after his wife's death. Consequently, we reject this line of argument. Based upon the testimony as a whole, we conclude that the Board's factual finding that Monteleone and Ms. Smith exchanged vows only in 1985 and 1986 is supported by substantial evidence.
Additionally, the Board could have reached other inferences based upon Monteleone's testimony. As quoted above, Monteleone testified that he responded to a question from the retirement counselor as follows: "Yes. I told her that my wife has passed away and that I wanted [Ms. Smith] as the beneficiary." (R.R. at 134a.; emphasis added.) The Board, after considering Monteleone's testimony in its entirety could reasonably infer that he regarded Carol Monteleone as the only woman to whom he had ever been married. --------
Monteleone next argues that the trial court erred in its conclusion that his exchanges of vows with Ms. Smith in 1985 and 1986 were ineffectual because the exchanges occurred during Monteleone's marriage to another woman, his now-deceased wife, Carol. Monteleone argues that even if the only vows he exchanged with Ms. Smith occurred before his wife's death, when his wife died, that event eliminated any impediment to his common law marriage and Ms. Smith's and his intent to alter their relationship following that event combined with the earlier vows resulted in a common law marriage. (Monteleone Brief at 17.)
This argument, however, is at odds with the concept of verba in praesenti, which recognizes the notion that a marital relationship springs into existence at the time vows are exchanged. Contrary to Monteleone's argument that presently-made vows may create a common law marriage in the future following an event that removes an impediment, i.e., Monteleone's then-existing marriage, the doctrine does not provide for the triggering of a marriage based upon earlier exchanges of vows that could not create a marriage at the time of the exchange. The concept does not reflect a policy whereby two people can exchange vows for the purpose of creating an anticipated marital relationship in the future when obstacles to the marriage no longer exist. This is likely because the law recognizes that a person's intentions may change with the passage of time, and it is not sound policy to find commitment to a relationship unless the expression of commitment comes at a time when those exchanging vows are not under any impediment.
We find support for this view in the Superior Court's decision in Cann v. Cann, 632 A.2d 322 (Pa. Super. 1993), a case involving a challenge to a trial court's order in a divorce decree. That case involved an alleged common law marriage where the putative husband began a relationship with a woman while still married to another woman. The husband sought to refute the woman's contention that he was her common law husband by asserting that the impediment of his existing marriage prevented his relationship with the other woman from creating a common law marriage. The alleged common law wife argued that the husband's first wife had disappeared and invoked a legal presumption that the wife had died, thus removing the impediment to the common law marriage. The Superior Court noted that common law marriages can be created using verba de praesenti and through evidence of cohabitation and reputation, but added a caveat with regard to the relationship at issue in that case, where one of the alleged spouses in the common law marriage was already married at the time the new relationship began:
"Where a relationship is meretricious at its inception, there must be clear evidence of a change in status to rebut the presumption that the non-marriage continued after the impediment to the marriage was removed." Steadman v. Turner . . . 516 A.2d 21, 23 ([Pa. Super.] 1986). In making this determination, the court may only look to instances occurring after the impediment to the marriage was removed in finding a common law marriage.Cann, 632 A.2d at 323 (footnotes omitted). The Superior Court also adopted the definition of "meretricious relationship" as a contract for marriage entered into by two people that is void because one or both of the putative spouses are legally incapable of entering into such a contract. Id. at 323 n.1. In this case, therefore, because Monteleone had a legal impediment at the time he attempted to enter a marriage contract in 1985 or 1986, the attempted common law marriage was void. Further, as the Superior Court in Cann noted, a court considering whether two people are in a common law marriage may only look to the actions of the parties after an impediment has been removed. Therefore, the Board correctly refused to accept the exchange of vows between Ms. Smith and Monteleone in 1985 and 1986 as events that created a marriage after the later death of Carol Monteleone.
Appellee testified that on June 19, 1982, five years after the impediment was removed, the couple formally exchanged vows. At that time the couple expressed a present intention to marry. In addition there is corroborative evidence introduced by appellee that supports a finding that the parties were married in 1982.
Monteleone argues, however, that Ms. Smith and he intended to alter their relationship after the death of Carol Monteleone. Monteleone argues that this intent, which he claims is reflected in his testimony, "ratified" his vows with Ms. Smith. Thus, in a sense, Monteleone also contends that notwithstanding the timing of his vows, after the death of his wife Ms. Smith and he "agreed to alter their formal relationship and to be henceforth husband and wife." (Monteleone Brief at 16.) Monteleone did testify to the effect that in 1993 he told the retirement counselor that Ms. Smith and he had a common law marriage, but he did not provide specific testimony indicating that he exchanged words of similar character with Ms. Smith such as to constitute a marriage contract, nor did he testify regarding the timing of such an agreement. The Board did not err in finding insufficient the evidence concerning any alleged exchange of promises after Carol Monteleone's death and two years before Monteleone formally retired. While it is true that the law formerly applicable to purported common law marriages does not require the use of vows, where a party bases a claim that a common law marriage exists and does not establish such through evidence of cohabitation and reputation, the party must offer sufficient evidence of some words conveying a present intent to be married. Serrano. Monteleone did not offer such evidence.
Accordingly, we will affirm the trial court's order.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 4th day of March, 2015, the order of the Court of Common Pleas of Philadelphia County is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge