Malinda Sullivan-Carter v. Sammy Carter

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Malinda J. Sullivan-Carter, Appellant,

v.

Sammy Joe Russell Carter, Respondent.

Appellate Case No. 2019-001841

Appeal From Kershaw County
Rosalyn Frierson-Smith, Family Court Judge
Gwendlyne Y. Jones, Family Court Judge

Opinion No. 5980
Heard December 6, 2022 – Filed April 19, 2023

REVERSED IN PART, VACATED IN PART

Miles Edward Coleman, of Nelson Mullins Riley &
Scarborough, LLP, of Greenville, and Jacob Daniel
Taylor, of Nelson Mullins Riley & Scarborough, LLP, of
Denver, Colorado, both for Appellant.

Ryan W. Lane, of The Lane Law Firm, LLC, of
Columbia, for Respondent.

THOMAS, J.: In this family court action filed by Malinda J. Sullivan-Carter
against Sammy Joe Russell Carter, Malinda appeals, arguing the family court erred
in (1) finding a common-law marriage existed; (2) equitably dividing the parties'
property; and (3) awarding Sammy attorney's fees. We reverse in part and vacate
in part.
I. FACTS

Malinda filed this "Action to Find Marriage Void" on February 21, 2017. Sammy
answered and counterclaimed, seeking, inter alia, a finding of a common-law
marriage, equitable distribution, and attorney's fees. The family court bifurcated
this action, and the first hearings were held in April and August of 2018. During
these hearings, the parties litigated the issue of whether a common-law marriage
existed. 1

The parties began living together in 1992 or 1993 and were married in July 1994.
At the time, Sammy believed he had been twice-divorced. In 1995, Sammy
learned his first marriage was not dissolved. Malinda testified she sought legal
counsel and was advised to remarry or to "keep everything separate." Sammy's
divorce from his first wife was not final until August 25, 1995. Malinda testified
she thereafter asked Sammy if he wanted to get married. According to Malinda,
Sammy wanted to "leave it like it is." Malinda testified she continued to keep her
affairs separate and considered herself unmarried. Sammy testified he told
Malinda he did not want to get married again because they were already married.
Sammy claimed he still referred to Malinda as his wife, but when they got into an
argument, he told her "to consider herself divorced."

Throughout their purported marriage, the parties lived on property at Rocky
Branch Lane, which was titled solely in Malinda's name. Sammy admitted
Malinda made the mortgage payments on the Rocky Branch Lane property. In
approximately 2003, the parties purchased two contiguous lots on Sessions Road.
The installment notes on the lots on Sessions Road were solely in Malinda's name.
Sammy claimed they were in Malinda's name because he owed back taxes. Both
parties contributed to the monthly payments on the lots and improvements, such as
a well, driveway, and septic tank.

Sammy testified he worked for himself doing carpentry, had an eighth-grade
education, and could read "a little bit" of "basic information." He claimed he was

1
Like our Chief Justice of the Supreme Court of South Carolina, we find
bifurcation in family court is generally ill-advised. See Stone v. Thompson (Stone
II), 426 S.C. 291, 296, 826 S.E.2d 868, 871 (2019) (Beatty, C.J., concurring) ("I
write separately to express my displeasure with the manner of trial of this case. In
my view, bifurcation in a domestic relations case should be rare if ever at all.").
in good health and earned approximately $1,600 per month. Sammy testified he
considered the money he earned to be his money. According to Sammy, he did not
have a bank account. He testified he gave Malinda cash for their shared auto
insurance premiums, money toward the Sessions Road property payments, and the
electricity bills. He also claimed he sometimes paid for groceries and gave money
to Malinda when she needed it. Sammy claimed he received a birthday card from
Malinda's mother that was for a "son-in-law." Malinda's mother, Nancy Barber,
denied she sent the card. Sammy introduced a layaway receipt indicating he
purchased a curio cabinet as a gift for Malinda. The receipt stated, "This is a
surprise Christmas gift for wife. Layaway. Hold for delivery . . . ."

Malinda testified she has health problems, including heart issues requiring two
open-heart surgeries, chronic obstructive pulmonary disease, bursitis, and a brain
aneurysm. She explained she has been on permanent disability since one of her
open-heart surgeries. Her financial declaration indicated a monthly income of
$1,410. Malinda testified she kept her own, separate bank account. She explained
she declared bankruptcy after her open-heart surgery while waiting for her
disability to be approved. She testified Sammy was not affected by the
bankruptcy. 2 According to Malinda, the parties kept "[p]retty darn separate"
finances. Malinda testified Sammy did not give her any money except exactly
what was due on the few bills he paid. Malinda introduced her tax returns from
approximately 1993-2010, which indicated she filed as Head of Household and
claimed her children as dependents. Malinda denied Sammy ever owed back
taxes, explaining she offered to help Sammy but he refused to file taxes.

Both parties were named on an auto insurance policy, and Sammy had been
covered under Malinda's employer's health insurance for "a few years" when she
worked for Mack's Truck Co. According to Malinda, the parties shared the auto
insurance policy to get the multi-vehicle discount. The parties' vehicles were
always independently, not jointly, owned.

Malinda's son, Charlton Richard Carter, III, testified he was thirteen years old and
his sister, Megan Ray, was approximately eight years old when Malinda met
Sammy. Charlton testified he and Megan both referred to Sammy as Sammy,
never as father or daddy. Charlton maintained he lived with his father and had
never lived with the parties.

2
Sammy acknowledged Malinda had to file for bankruptcy on her own.
Megan testified her two children called Sammy "Poppy" and he had "an active and
ongoing relationship" with the children. Megan testified the parties lived on the
Rocky Branch Lane property where Megan grew up. According to Megan, the
parties referred to each other as husband and wife and she referred to Sammy as
her stepfather. Bill Ray, Megan's husband, testified he had known the parties for
fifteen years. Bill maintained Malinda introduced Sammy as her husband when
Bill first met the parties. Travis Dinkins, a Rocky Branch Lane neighbor, testified
he had known Sammy for twenty years, lived near the parties for eight years, and
witnessed their continuous cohabitation. According to Dinkins, the parties held
themselves out as being married.

The parties separated numerous times during the alleged marriage for up to a
month each time. Sammy admitted that during one separation, he lived with
another woman for a month. Malinda testified she stayed with Sammy despite his
numerous affairs because she loved him, not as a husband, but as a lover, best
friend, and companion.

By order filed November 2, 2018, the family court found a common-law marriage
existed between the parties. Malinda did not immediately appeal the order finding
a common-law marriage, and the hearing on the remainder of the action, including
a divorce and equitable distribution, was held in August 2019 before a different
family court judge. The court entered a decree of divorce, equitably distributed the
marital estate, and awarded Sammy $4,500 in attorney's fees. This appeal follows.

II. STANDARD OF REVIEW

"Appellate courts review family court matters de novo, with the exceptions of
evidentiary and procedural rulings." Stone v. Thompson (Stone III), 428 S.C. 79,
91, 833 S.E.2d 266, 272 (2019). "De novo review permits appellate court fact-
finding, notwithstanding the presence of evidence supporting the trial court's
findings." Lewis v. Lewis, 392 S.C. 381, 390, 709 S.E.2d 650, 654–55 (2011).
"Even under de novo review, the longstanding principles that trial judges are in
superior positions to assess witness credibility and that appellants must show the
trial judge erred by ruling against the preponderance of the evidence remain
applicable." Stone III, 428 S.C. at 91–92, 833 S.E.2d at 272; see Powell v. Dolin,
437 S.C. 499, 507, 879 S.E.2d 26, 30 (Ct. App. 2022) (citing Stone III and
applying the de novo standard of review in a family court action litigating the
existence of a common-law marriage).

III. LAW/ANALYSIS
A. Appealability

Sammy argues this court lacks jurisdiction to hear the appeal of the 2018 family
court order establishing the parties' common-law marriage due to Malinda's failure
to (1) immediately appeal the order and (2) list the order in her notice of appeal.
We disagree.

Sammy maintains Malinda's failure to immediately appeal the 2018 order divested
this court of jurisdiction to hear the appeal. In Stone v. Thompson, (Stone I), the
family court bifurcated the issues of common-law marriage from the divorce and
equitable distribution action and found the parties were common-law married. 418
S.C. 599, 601–02, 795 S.E.2d 49, 50–51 (Ct. App. 2016), rev'd, 426 S.C. 291, 826
S.E.2d 868 (2019). One of the parties appealed, and this court dismissed the
appeal, finding the order was not immediately appealable. Id. at 607, 795 S.E.2d at
53. In reversing this court, our supreme court found the order was immediately
appealable under our general appealability statute, South Carolina Code Section
14-3-330(1), because it involved the merits of the causes of action. 3 Stone II, 426
S.C. at 292–93, 826 S.E.2d at 868–69. The court in Stone, however, did not
mandate that an order granting a common-law divorce must be immediately
appealed. "Some 'interlocutory' orders are immediately appealable because they
affect the merits or a substantial right, but the governing statute does not require an
immediate appeal. Other interlocutory orders must be appealed immediately, or
the right to appeal is lost." 15 S.C. Jur. Appeal & Error § 70 (1992).

Relying on Stone II, we conclude the intermediate order finding a common-law
marriage existed is immediately appealable under section 14-3-330(1) because it
involved the merits of the causes of action. However, we do not find Malinda was

3
Section 14-3-330(1) provides for appeal of an intermediate order as follows:

Any intermediate judgment, order or decree in a law case
involving the merits in actions commenced in the court of
common pleas and general sessions . . . provided, that if
no appeal be taken until final judgment is entered the
court may upon appeal from such final judgment review
any intermediate order or decree necessarily affecting the
judgment not before appealed from.

S.C. Code Ann. § 14-3-330(1) (2017).
either required to immediately appeal the order or to specifically list the order in
her notice of appeal. See § 14-3-330(1) (concluding if a party timely files a notice
of appeal from a final judgment, "the court may upon appeal from such final
judgment review any intermediate order or decree necessarily affecting the
judgment not before appealed from"); see generally Lancaster v. Fielder, 305 S.C.
418, 421, 409 S.E.2d 375, 377 (1991) ("[U]nder Section 14-3-330(1), a party need
not challenge the final judgment itself in order to contest an intermediate
judgment."); State v. Cooper, 342 S.C. 389, 397 n.3, 536 S.E.2d 870, 875 n.3
(2000) (finding the State's failure to list the final judgment in its notice of appeal
did not preclude the court's review of intermediate and post-judgment orders).

B. Common-Law Marriage

Malinda argues the family court erred in finding a common-law marriage existed.
We agree.

The order establishing the existence of a common-law marriage was filed on
November 2, 2018, several months before our supreme court prospectively
abolished common-law marriage in Stone III. 4 The court relied on (1) the parties'
cohabitation for a long period of time after the impediment to their marriage was
removed; (2) Sammy's illiteracy; (3) Malinda's filing of tax returns as Head of
Household both before and after the impediment was removed; (4) Malinda's
failure to change the way she handled her finances after the impediment was
removed; (5) Malinda's admission the parties were lovers, best friends, and
companions; and (6) Sammy's belief the first marriage ceremony was sufficient
after the impediment was removed.

In finding the existence of a common-law marriage, the family court relied on a
probate action, Campbell v. Christian, 235 S.C. 102, 110 S.E.2d 1 (1959),
abrogated by Stone v. Thompson (Stone III), 428 S.C. 79, 833 S.E.2d 266 (2019),

4
The court in Stone III also changed the evidentiary burden of proof to apply in
future common-law marriage litigation. 428 S.C. at 89, 833 S.E.2d at 271. "To
sum up, in the cases litigated [after Stone III], a party asserting a common-law
marriage is required to demonstrate mutual assent to be married by clear and
convincing evidence. Courts may continue to weigh the same circumstantial
factors traditionally considered, but they may not indulge in presumptions based on
cohabitation, no matter how apparently matrimonial." Id.
and found this case had similar facts because the alleged common-law spouse in
Campbell was illiterate. We find Campbell distinguishable.

Campbell married Mattie Grey. They had no children.

While married to Mattie, Campbell had illicit relation
with Beulah Poole, an illiterate, ignorant girl; and on
November 18, 1921, she bore him a child. He was then
forty-five, she fourteen.

On January 11, 1923, Mattie having died, Campbell
married her niece, Gertrude. One child, Cornelia, was
born to them on November 16, 1923. During this
marriage, Campbell's relations with Beulah continued,
with the result that she had two more children by him,
one on January 28, 1925, the other on January 18, 1928.
On December 10, 1927, he divorced Gertrude . . . .

About a year after the divorce, Beulah came into his
home and took the name of Campbell, and they lived
together for more than twenty-four years, during which
five children were born to them, one in 1931, one in
1932, one in 1935, one in 1938, and one in 1943. In the
spring of 1954[,] he deserted her and moved to another
house in the city of Anderson.

235 S.C. at 105, 110 S.E.2d at 2–3.

In finding a common-law marriage existed, the court explained,

There is in the record before us considerable evidence
that from the time that Campbell took Beulah into his
home, a year or so after his divorce from Gertrude, he
and she lived together as husband and wife, and that they
were so recognized in the community. An elderly
neighbor, who had known Campbell throughout the
latter's life, testified that 'they lived openly as husband
and wife'; that 'he carried the children around with him
and they went by the name of Campbell and went to
school under the name of Campbell'; and that the general
public considered them as man and wife. One of
Campbell's sons testified, without objection, that when
strangers came to the house Campbell, after introducing
himself, would introduce Beulah as his wife. His
daughter Myrtis testified that during the many years that
Campbell and Beulah lived together she visited in their
home and understood that they were married; and that the
people of the community knew them as man and wife.

Id. at 106, 110 S.E.2d at 3. The court also noted that the birth certificates of the
children born in 1921 and 1925 indicated either no father or Campbell as the
father, but not married. Id. However, the birth certificates of the children born in
1928, 1935, and 1943 named both Campbell and Beulah as parents and indicated
the parents were married. Id. at 107, 110 S.E.2d at 3. The court noted that
"[t]hroughout the record of this case Beulah appears as a woman illiterate,
uneducated, and of childlike simplicity." Id. at 108, 110 S.E.2d at 4. The court
found "there was ample evidence . . . to support the conclusion that after the barrier
to their marriage had been removed by Campbell's divorce from Gertrude, he and
Beulah entered into a new mutual agreement whereby their previously illicit
relationship was terminated and a valid common-law marriage established." Id. at
109, 110 S.E.2d at 5.

Here, although Sammy claimed to be somewhat illiterate, there is evidence he was
educated through the eighth grade, he was financially independent as a
carpenter/handy man, and he recognized documents handed to him to identify in
court. We find the family court erred in relying solely on Campbell. Under our de
novo review, we find Sammy failed to prove a common-law marriage.

In general, "[a] common-law marriage is formed when two parties contract to be
married." Callen v. Callen, 365 S.C. 618, 624, 620 S.E.2d 59, 62 (2005). There
must be mutual assent to the marriage: "the intent of each party to be married to
the other and a mutual understanding of each party's intent." Id. Cohabitation is a
factor, but it is not alone dispositive. Id. When "'apparently matrimonial'
cohabitation" exists, "a rebuttable presumption arises that a common-law marriage
was created." Id. However, this rebuttable presumption does not exist when an
impediment to marriage initially exists. Id. at 624, 620 S.E.2d at 62. The court in
Callen explained:

When, however, there is an impediment to marriage, such
as one party's existing marriage to a third person,
no common-law marriage may be formed, regardless
whether mutual assent is present. Further, after the
impediment is removed, the relationship is not
automatically transformed into a common-law marriage.
Instead, it is presumed that relationship remains non-
marital. For the relationship to become marital, "there
must be a new mutual agreement either by way of civil
ceremony or by way of recognition of the illicit relation
and a new agreement to enter into a common[-]law
marriage."

Id. (quoting Kirby v. Kirby, 270 S.C. 137, 141, 241 S.E.2d 415, 416 (1978); see
Yarbrough v. Yarbrough, 280 S.C. 546, 551, 314 S.E.2d 16, 19 (Ct. App. 1984)
("In order for a common[-]law marriage to arise, the parties must agree to enter
into a common[-]law marriage after the impediment is removed, though such
agreement may be gathered from the conduct of the parties.").

In this case, we do not find evidence of a new, mutual agreement by the parties
after Sammy's 1995 divorce. To the contrary, Malinda requested a new ceremony,
and Sammy's response was inconsistent at best when he alternately told Malinda he
did not want to get married again because they were already married, but other
times told her "to consider herself divorced." Sammy's possible misunderstanding
of the parties' status does not equate to a mutual agreement. See Callen, 365 S.C.
at 626, 620 S.E.2d at 63 ("A party need not understand every nuance of marriage
or divorce law, but he must at least know that his actions will render him married
as that word is commonly understood."); see generally Stone III, 428 S.C. at 89,
833 S.E.2d at 271 ("A party is not required to show his opponent had legal
knowledge of common-law marriage; ignorance of the law remains no excuse. He
must demonstrate that both he and his partner mutually intended to be married to
one another . . . .").

We also find the reliance by the family court on Malinda's tax filings as supporting
a common-law marriage due to her filing as Head of Household with either one or
two dependent children was error. Tax filing as Head of Household indicates an
unmarried status. See Jacob Goldin & Zachary Liscow, Beyond Head of
Household: Rethinking the Taxation of Single Parents, 71 Tax L. Rev. 367, 367
(2018) ("Since 1951, unmarried taxpayers with qualifying dependents—usually
children—have been able to claim the [H]ead of [H]ousehold filing status . . . .);
Powell, 437 S.C. at 511–12, 879 S.E.2d at 33 (considering a party's filing of tax
returns as Head of Household as a factor "decidedly against a finding of common[-
]law marriage"). Although Sammy presented some testimony that the parties held
themselves out to a neighbor and Malinda's son-in-law as married, the
documentary evidence showed a contrary intent by Malinda. She kept a separate
bank account, filed taxes as Head of Household, was the sole owner of the alleged
"marital" residence, was the only party listed on its mortgage, filed bankruptcy as
an individual, and owned the Sessions Road properties exclusively in her name.
We find Sammy's documentary evidence, which included a receipt for a curio
cabinet and the seller's letters to the parties regarding the Sessions Road properties,
failed to overcome the presumption that the relationship remained non-marital after
the impediment was removed.

C. Equitable Distribution

Malinda argues the court erred in equitably distributing property that was non-
marital. We agree.

Because no common-law marriage existed between the parties, the family court
lacked jurisdiction to equitably apportion Malinda's non-marital property. See S.C.
Code Ann. § 20-3-630(B) (2014) ("The court does not have jurisdiction or
authority to apportion non[-]marital property.").

D. Attorney's Fees

Malinda argues the family court erred in awarding Sammy $4,500 in attorney's
fees. Because we reverse the finding of a common-law marriage, we likewise
reverse the award of attorney's fees. See Rogers v. Rogers, 343 S.C. 329, 334, 540
S.E.2d 840, 842 (2001) ("[S]ince the beneficial result obtained by counsel is a
factor in awarding attorney's fees, when that result is reversed on appeal,
the attorney's fee award must also be reconsidered."); Stone III, 428 S.C. at 94, 833
S.E.2d at 274 ("[B]ecause our decision constitutes a reversal on the merits, we
likewise reverse the family court's award of attorney's fees.").

IV. CONCLUSION

Based on the foregoing, we reverse the finding of a common-law marriage and the
award of attorney's fees. We vacate the equitable distribution award.

REVERSED IN PART, VACATED IN PART.

WILLIAMS, C.J., and LOCKEMY, A.J., concur.