McKinney v. McKinney

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

Shannon Knox McKinney, Appellant/Respondent,

v.

Larry A. McKinney, Respondent/Appellant.

Appeal From Greenville County

 Robert N. Jenkins, Sr., Family Court Judge

Unpublished Opinion No.  2004-UP-600

Submitted November 1, 2004 – Filed December 3, 2004

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

T. Preston Reid, of Greenville, for Appellant-Respondent.

Jack D. Griffeth, of Greenville, for Respondent-Appellant.

PER CURIAM:  Shannon Knox and Larry McKinney both appeal from a family
court order finding that Knox and McKinney were not married under common law
from 1993 to 1998 and that a bifurcated evidentiary trial needed to be held
to determine if a common law marriage existed between the parties from 1998
to 2002.  We affirm in part, reverse in part, and remand.
[1]

FACTS

Knox and McKinney were romantically involved and lived together
from August 1993 to January 2002.  During that time, neither party maintained
a separate residence.  The couple lived in four different homes during the eight
years they lived together, including a home they built together in 1996.  McKinney
is an electrical engineer and a successful businessman who owns and is a partner
in many businesses.  Knox, who has a high school education, was responsible
for household duties such as cleaning and buying groceries. 

Knox claims the couple held themselves “out as husband and wife to
the general public, friends and neighbors, in business relations, and in many
organizations with which [the couple was] associated.”  She also claims the
couple had family memberships at gyms and private clubs, including the Greenville
Country Club.  Additionally, Knox asserts the couple held a joint checking account
at a local bank.  Further, Knox submitted copies of their water and power contract,
listing her as McKinney’s spouse.  However, McKinney claims that both parties
did not intend to be married and used different names throughout their relationship,
including tax returns, bank accounts, and driver’s licenses.  McKinney also
alleges they used separate names when introducing themselves to others and in
written contracts.  McKinney submitted affidavits from 16 individuals who knew
the couple and stated that they did not hold themselves out to the public as
a married couple.   

In 1998, the couple decided to purchase a condominium in Greenville.  Knox
claims that McKinney told her she had to sign a “Waiver Agreement” before they
could close on the condominium.  The Waiver Agreement stated that “although
[Knox and McKinney] may live together, date and see [each] other on a frequent
basis, they are not husband and wife, either legally or by common law.”  The
agreement further provided that it could be “presented [in court] as conclusive
and binding evidence that the parties have never been married to each other.” 
Knox claims that McKinney and his attorney pressured her into signing the agreement. 
She further claims that she did not sign it freely or voluntarily and that she
was fraudulently induced to sign it.  McKinney argues that Knox consulted with
an attorney before signing the agreement.  The couple separated in January 2002. 

On July 2, 2002, Knox filed a motion for temporary relief and a complaint seeking
alimony and equitable distribution of the couple’s property based on the couple’s
common law marriage.  On August 19, 2002, McKinney filed an answer and a motion
to dismiss on the grounds that the parties are not husband and wife, and therefore,
the court lacked subject matter jurisdiction.  The motion was heard on August
29, 2002.  On September 9, 2002, the family court filed its order finding that
Knox and McKinney were not married under common law because of the Waiver Agreement. 
Thus, the court found it was without subject matter jurisdiction to adjudicate
Knox’s claims and dismissed the action under Rule 12(b), SCRCP.  The court further
determined that any irregularity in the consummation of the Waiver Agreement
should be tested in the Court of Common Pleas. 

On September 16, 2002, Knox filed a motion for a new trial and/or motion to
alter or amend judgment, arguing the court erred in finding it did not have
subject matter jurisdiction and by denying Knox a full evidentiary hearing as
to the existence of a common law marriage.  The motion was heard on October
30, 2002.  On December 2, 2002, the family court filed an amended order, finding
that it did have subject matter jurisdiction pursuant to section 20-7-420(5)
of the South Carolina Code (1985).  The court then found that “whether the intent
of the parties to remain unmarried changed after January 30, 1998 is
a question of fact to be found from evidence showing their mutual intent after
that date” (emphasis added).  The court granted a bifurcated evidentiary trial
“limited to determine the existence/non-existence of a common law marriage between
the parties after January 30, 1998” (emphasis added).  Knox and McKinney
both now appeal.

STANDARD OF REVIEW

The issue of common law marriage is a case at law. 
Richland Memorial Hosp. v. English, 295 S.C. 511, 513, 369 S.E.2d 395,
396 (Ct. App. 1988).  “In an action at law, on appeal of a case tried without
a jury, the findings of fact of the judge will not be disturbed upon appeal
unless found to be without evidence which reasonably supports the judge’s findings.” 
Townes Assoc., Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d
773, 775 (1976). 

LAW/ANALYSIS

On appeal, Knox argues the family court erred in finding she and McKinney were
not married under common law before the parties signed the January 30, 1998
Waiver Agreement.

Section 20-7-420(5) of the South Carolina Code (1985) grants the family court
exclusive jurisdiction to hear and determine the validity of marriages.  “In
South Carolina, a common-law marriage exists if the parties intend to enter
into a marriage contract.”  Barker v. Baker, 330 S.C. 361, 367, 499 S.E.2d
503, 506 (Ct. App. 1998).  “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.  Cohabitation without such an agreement does
not constitute marriage.”  Johnson v. Johnson, 235 S.C. 542, 550, 112
S.E.2d 647, 651 (1960).  “A valid common law marriage requires that the facts
and circumstances show an intention on the part of both parties to enter into
a marriage contract.”  Owens v. Owens, 320 S.C. 543, 545, 466 S.E.2d
373, 375 (Ct. App. 1996).  The party claiming a common law marriage must prove
it by a preponderance of the evidence.  Yarbrough v. Yarbrough, 280 S.C.
546, 551, 314 S.E.2d 16, 18-19 (Ct. App. 1984).  However, direct evidence of
the parties’ intent is not often available, thus the existence of a common-law
marriage is frequently proved by circumstantial evidence.  Barker, 330
S.C. at 367-368, 499 S.E.2d at 507.  Typically, the circumstantial evidence
relied upon to prove a common-law marriage is the amount of time a couple has
lived together and whether the couple publicly held themselves out as husband
and wife.  Id.  “While the presumption of marriage from cohabitation
and reputation is ordinarily a rebuttable presumption, the degree of proof to
overcome it is generally very high, especially where the parties have cohabitated
as husband and wife for a long time.”  Owens, 320 S.C. at 546, 466 S.E.2d
at 375.  “The presumption of marriage can be dispelled only by evidence which
is ‘clear, distinct and satisfactory.’” Id. (quoting Jeanes v. Jeanes,
255 S.C. 161, 177 S.E.2d 537 (1970)).  Thus, the family court was required to
determine if Knox presented enough evidence of a common law marriage to trigger
the presumption.

In its order, the family court concluded that Knox had failed to prove that
she and McKinney were married under common law from 1993 to 1998.  On appeal,
because this is an action at law, we are bound by the family court’s findings
of fact unless they are without evidence to support them.  The presumption of
a common law marriage is triggered by proof of cohabitation and reputation as
husband and wife.  Knox stated at both hearings that she needed more time for
discovery and requested an evidentiary trial.  By failing to hold a trial, Knox
was deprived of her right to put up her own witnesses and cross-examine the
witnesses against her. [2]   Thus, the court erred by not
holding an evidentiary trial to determine the couple’s marital status from 1993
to 1998. 

On cross appeal, McKinney argues the family court erred in determining that
an evidentiary trial should be held to determine if the parties remained unmarried
after the January 30, 1998 Waiver Agreement.

Because we hold an evidentiary trial
should be held to determine whether Knox and McKinney were married
from 1993 to 1998, we affirm the family court’s determination that
an evidentiary trial should be held to establish the couple’s status
from 1998 to 2002.

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED.

ANDERSON, STILWELL, and SHORT, JJ., concur.

[1] We decide this case without oral argument pursuant
to Rule 215, SCACR.

[2] Our supreme court has acknowledged that, “[t]he right to confrontation,
although historically limited to criminal prosecutions, has been applied
in the civil context.”  South Carolina Dep’t of Social Servs. ex rel.
Texas v. Holden, 319 S.C. 72, 78, 459 S.E.2d 846, 849 (1995).  In
determining when the right to confrontation applies, our supreme court
stated, “Where important decisions turn on questions of fact, due process
requires an opportunity to confront and cross-examine adverse witnesses.” 
Brown v. South Carolina State Board of Education, 301 S.C. 326,
329, 391 S.E.2d 866, 867 (1990).