Tahaei v. Tahaei

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD
NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY
PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Seyed D. Tahaei (a.k.a., David
Tahaei), Respondent,

v.
Sherri L. Tahaei (f.k.a., Sherri
L. Smith), Appellant.

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

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Unpublished Opinion No. 2012-UP-078
Submitted March 1, 2011 – Filed February 8, 2012
Withdrawn, Substituted and Refiled August 1, 2012

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AFFIRMED IN PART AND REVERSED IN PART
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Sherri L. Tahaei, pro se, of Summerville.

Thomas J. Rode, of Charleston, for Respondent.
R. Clenton Campbell, of Walterboro, for Guardian ad
Litem.

PER CURIAM: Sherri L. Tahaei (f.k.a. Sherri L. Smith) (Sherri), pro
se, appeals the family court's final order finding she failed to establish the
existence of a common-law marriage. She argues the family court erred in:
(1) finding no common-law marriage existed; (2) failing to enforce multiple
orders requiring Seyed D. Tahaei (Seyed) to produce immigration and
financial documents; and (3) failing to grant her motion for a continuance
after Seyed failed to timely provide discovery documents. We affirm in part
and reverse in part.1

"The family court is a court of equity." Lewis v. Lewis, 392 S.C. 381,
386, 709 S.E.2d 650, 652 (2011). In appeals from the family court, the
appellate court reviews factual and legal issues de novo. Simmons v.
Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011). "De novo review
permits appellate court fact-finding, notwithstanding the presence of evidence
supporting the [family] court's findings." Lewis, 392 S.C. at 390, 709 S.E.2d
at 654-55. However, this broad standard of review does not require the
appellate court to disregard the factual findings of the family court or ignore
the fact that the family court is in the better position to assess the credibility
of the witnesses. Pinckney v. Warren, 344 S.C. 382, 387, 544 S.E.2d 620,
623 (2001). Moreover, the appellant is not relieved of the burden of
demonstrating error in the family court's findings of fact. Id. at 387-88, 544
S.E.2d at 623.

I. Common-Law Marriage

Sherri argues the family court erred in finding she failed to meet her
burden of proof because she provided sufficient evidence to prove a
common-law marriage existed. We agree.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
"Whether a common-law marriage exists is a question of law." Callen
v. Callen, 365 S.C. 618, 623, 620 S.E.2d 59, 62 (2005). "The proponent of
the alleged marriage has the burden of proving the elements by a
preponderance of the evidence." Id. "A common-law marriage is formed
when two parties contract to be married." Id. at 624, 620 S.E.2d at 62. "No
express contract is necessary; the agreement may be inferred from the
circumstances." Id. "The fact finder is to look for mutual assent: the intent
of each party to be married to the other and a mutual understanding of each
party's intent. Consideration is the participation in the marriage. If these
factual elements are present, then the court should find as a matter of law that
a common-law marriage exists." Id.

"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." Id. (internal quotation
marks omitted). "This presumption may be overcome by strong, cogent
evidence that the parties in fact never agreed to marry." Id. (internal
quotation marks omitted).

We find the family court erred as a matter of law because Sherri
provided ample evidence to support her contention she and Seyed were
common-law married. First, the family court erred in finding Seyed never
listed Sherri as his wife "on any documentation." Multiple documents in the
record indicate a common-law marriage existed. For example: (1) checks
from a joint bank account in the name of "D.S. Tahaei" and "S.L. Smith-
Tahaei"; (2) an insurance card signed by Seyed listing "Sherri L. Smith-
Tahae[i]" as an insured; (3) two newspaper articles announcing the birth of
their second child and identifying the couple as "David and Sherri Tahaei";
(4) a country club membership application signed by Seyed listing "Sherri
Tahaei" as "spouse"; and (5) a health insurance policy questionnaire signed
by Seyed indicating he has "a common-law marriage" and listing "Sherri L.
Smith-Tahaei" as his wife. Additionally, Sherri testified she and Seyed
cohabitated for approximately eight years. Moreover, Sherri's next door
neighbor testified Seyed introduced Sherri as his wife and that she believed
Sherri and Seyed were living together as husband and wife. Finally, Sherri's
daughter from an earlier relationship testified Seyed raised her as his step-
daughter and explained she called him "Daddy David."

We find Sherri proved by a preponderance of the evidence she and
Seyed agreed to live as husband and wife. See id. at 624, 620 S.E.2d at 62.

Seyed provided very little in the way of rebuttal evidence. He disputed
the validity of the documents Sherri entered and testified he moved out for a
period of time during the cohabitation. Seyed's testimony was not strong,
cogent evidence sufficient to rebut the presumption the couple agreed to
marry. See id.

Accordingly, we reverse the family court's finding that Sherri failed to
establish the existence of a common-law marriage.

II. Remaining Issues

With regard to Sherri's remaining issues on appeal, we affirm pursuant
to Rule 220(b), SCACR, and the following authorities:

1. As to whether the family court erred in failing to enforce multiple
orders requiring Seyed to produce immigration and financial documents to
Sherri: Halverson v. Yawn, 328 S.C. 618, 621, 493 S.E.2d 883, 884 (Ct.
App. 1997) (holding a trial court's exercise of its discretionary powers with
respect to sanctions imposed in discovery matters will not be disturbed on
appeal absent a clear abuse of discretion).

2. As to whether the family court erred in denying Sherri's motion
for a continuance: Moore v. Moore, 376 S.C. 467, 482, 657 S.E.2d 743, 751
(2008) (holding the grant or denial of a continuance is within the sound
discretion of the trial court and is reviewable on appeal only when an abuse
of discretion appears in the record).

AFFIRMED IN PART AND REVERSED IN PART.

WILLIAMS, GEATHERS, and LOCKEMY, JJ., concur.