Smith v. Wilbanks

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

Hazel Skelton
Smith, Appellant,

v.

Gina Wilbanks,
Individually and as Personal Representative of the Estate of J.C. Smith, Jr., Respondent.

Appeal From Anderson County

Barry W. Knobel, Family Court Judge

Unpublished Opinion No. 2009-UP-428

Submitted June 1, 2009 – Filed September
8, 2009   

AFFIRMED

Michael S. Gambrell, of Greenville, for Appellant.

William Hood, of Anderson, for Respondent.

PER CURIAM: Hazel Skelton Smith appeals the
family court's finding she failed to prove by the preponderance of the evidence
that she and J.C. Smith, Jr.
(Decedent), her deceased former husband, shared a common-law
marriage after their divorce.  She maintains the couple's continued
cohabitation, their purchase of adjoining burial plots, Decedent's leaving a
life estate in his home to her, their sharing of household chores, and the
community's recognition of their relationship were evidence of common-law
marriage.  She also contends she is prejudiced by the failure of a
substantial portion of her transcript to be transcribed.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities:

1. As to whether the family
court erred in finding Smith failed to establish a marital relationship by the
preponderance of the evidence: Richland Mem'l Hosp. v. English, 295
S.C. 511, 513, 369 S.E.2d 395, 396 (Ct. App. 1988) (stating the determination of the existence of a
common-law marriage is a matter of law); Pittman v. Lowther, 363 S.C.
47, 50, 610 S.E.2d 479, 480 (2005) (providing that in law actions tried without
a jury, the factual findings of the trial court are to be upheld if supported
by any evidence);  Barker v. Baker, 330 S.C. 361, 370, 499 S.E.2d 503,
508 (Ct. App. 1998) (holding because the existence of a common-law marriage is a question of fact in an action sounding in law, this
court is bound by the family court's factual findings, particularly credibility
determinations); 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."); Johnson v. Johnson, 235 S.C. 542, 550, 112
S.E.2d 647, 651 (1960) (finding
an essential element of a common-law marriage is a mutual agreement between the
parties to assume the relationship of husband and wife); Callen, 365
S.C. at 624, 620 S.E.2d at 62 ("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."); Barker, 330 S.C. at 368-69, 499 S.E.2d at 507 ("[I]f a party claiming a common-law marriage presents proof of apparent[]
matrimonial cohabitation and long-term social acceptance of the couple as
married, a presumption arises that the couple entered into a common-law
marriage, notwithstanding the absence
of any proof of an express agreement to enter into a common-law marriage.  The
presumption, however, in no way lessens the claimant's burden of proving a
common-law marriage by the preponderance of the evidence. . . . Instead, the
presumption simply designates the facts that, if proven to the satisfaction of
the fact-finder, will be sufficient to establish a common-law marriage unless properly rebutted."); id. at 370, 499
S.E.2d at 508 ("The probate court's conclusion that [alleged husband]
failed to prove the existence of a common-law marriage is inextricably intertwined with the
court's determination of the credibility of the witnesses.  For this [c]ourt to
determine that [he] in fact established long-term social acceptance of [alleged
wife] and him as married would require us to reject the probate court's
credibility findings, an action we cannot take in this case.").

2.  As to whether Smith is prejudiced by the failure of a portion of her
transcript to be transcribed: State v. Ladson, 373 S.C. 320, 325, 644 S.E.2d 271, 274 (Ct. App.
2007) (holding a new trial is appropriate if an appellant establishes the
incomplete nature of the transcript prevents the appellate court from conducting
a meaningful appellate review); id. at 324-25, 644 S.E.2d at 273 ("Most
jurisdictions require an appellant to demonstrate specific prejudice flowing
from an incomplete or reconstructed record. . . . We believe our supreme court
would follow a rule requiring the party challenging a reconstructed record on
appeal to demonstrate prejudice flowing from an inadequate record."); Sweat
v. Crawford, 292 S.C. 324, 327, 356 S.E.2d 147, 149 (Ct. App. 1987) (finding
omissions from the record did not prejudice appellant because the evidence included
in the record sufficiently supported the findings of fact made by the referee
and concurred in by the circuit court).

AFFIRMED.

HEARN, C.J., and THOMAS and KONDUROS, JJ., concur.

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