
    In re Estate of John Michael Noll Sr.
    
      C.P. of Berks County,
    no. 72559.
    
      William J. Gallagher, for administratrix.
    
      John Paul Simpkins, for guardian ad litem.
    March 13, 1995
   SCHMEHL, J.,

In this matter, the court must decide whether a common-law marriage existed between the decedent, John Michael Noll Sr., and Dianne L. Riffey. Riffey seeks status as the decedent’s common-law spouse so that she may receive an intestate share of the decedent’s estate and be entitled to the family exemption.

This matter was originally heard in the Orphans’ Court Division of the Court of Common Pleas of Philadelphia, but was transferred to Berks County on August 10, 1994 as the decedent was a resident of Berks County and letters of administration had been issued by the Register of Wills for the County of Berks.

On December 3, 1993 Dianne L. Riffey, the administratrix for the estate of John Michael Noll Sr., filed her first and final account. The account, under “receipts,” shows $499,886 as a settlement amount received pursuant to an order of the Honorable Alex Bonavitacola in Dianne L. Riffey, Administratrix of the Estate of John Michael Noll Sr., Deceased and Dianne L. Riffey in her own right v. United Parcel Service Inc. and Michael Joseph Konnick, the action filed as á result of the decedent’s death. Anote to this entry states that “Pursuant to the court order dated October 29, 1993, $10,000 of this amount is apportioned to the survival action and $340,000 to the wrongful death action. The balance will be apportioned after the marital status of Dianne L. Riffey is determined.” On February 18,1994 Riffey filed a restated account for the estate of John Michael Noll Sr. This account listed only the $10,000 amount apportioned to the survival action in the previous account.

In March 1994 John Paul Simpkins, Esquire, guardian ad litem for the parties’ minor child, John Michael Noll Jr., filed a petition for discovery to gain information about the financial and other affairs of the decedent and Riffey. Riffey, in April of 1994 also petitioned for leave of court to take discovery for the purpose of providing testimony to substantiate her claim that she and the decedent were husband and wife. The matter was heard by the Honorable Kathryn S. Lewis, Court of Common Pleas of Philadelphia, Orphans’ Court Division, on June 13, 1994.

On February 6, 1995 a stipulation by counsel for Riffey and the guardian ad litem was filed allowing this court to render a decision based upon the transcript of the June 13, 1994 hearing to determine the legal status of Riffey as the putative common-law spouse of the decedent. The court recognizes the inherent problems of deciding a case such as this solely on a cold record. However, after reviewing the transcript and the record transmitted from Philadelphia, this court has determined that it is, in fact, able to make a decision on this matter based upon these documents.

The facts, as gleaned from the record, are as follows. Riffey and the decedent met at their place of employment in 1987. (N.T., p. 86.) That same year they began to reside together, at first with the decedent’s mother in Fleetwood, Pennsylvania. They moved into their own apartment in 1991. (N.T., p. 89.) They entered into a lease on their apartment together, under the names of John M. Noll and Dianne Riffey. (Exhibit A-6, referenced at N.T., pp. 90-91.) Riffey and the decedent had a joint bank account under the names of Dianne Riffey and John Michael Noll. (N.T., p. 102.)

Riffey testified she considered herself to be married to the decedent at the time of her son’s birth, but did not consider herself married to him prior to giving birth to her son. (N.T., pp. 100-101.) Riffey never named the decedent as her beneficiary on her life insurance policy nor did she ever name the decedent as her husband on her health insurance, explaining that he had his own insurance. (N.T., p. 103.) To the best of Riffey’s knowledge she was not named as spouse on the decedent’s insurance policy with his employer. (N.T.,p. 106.) Riffey stated she never received any correspondence from anyone as “Mrs. John Michael Noll” but had been referred to as Mrs. John Michael Noll by her son’s doctor. (N.T., p. 111.) She and the decedent did not file income tax returns together as husband and wife. (N.T., p. 112.) When asked under what circumstances she held herself out as the wife of the decedent she stated “I just feel like my everyday living was representation enough of me being Mrs. Noll.” (N.T., p. 112.)

At trial, three witnesses testified as to their knowledge of a common-law marriage between Riffey and the decedent. John Douglas Jeffreys owned the business where both Riffey and the decedent were employed. He believed the decedent and Riffey were married. Jeffreys stated that prior to the birth of the decedent’s son, he asked the decedent if he intended to marry Riffey, at which point the decedent stated he considered himself already to be married to Riffey but had no intention of engaging in any public ceremony. (N.T., p. 8.) At another time, Jeffreys had to discipline Riffey for some infraction of company rules and the decedent paced outside the room where this was occurring. When Jeffreys told the decedent that the matter was not any of his business, the decedent told Jeffreys that any matter that concerned his wife was a matter concerning him. This occurred after the birth of their child. (N.T., pp. 20-21.) At social gatherings the decedent had told people to keep their eyes off of his wife, referring to Riffey. (N.T., p. 10.) Jeffreys also testified that he was unaware of any specific records that listed Riffey as the decedent’s wife. Jeffreys also testified that his company had a very strict rule that no employee was allowed to receive the paycheck of another employee, but that the decedent and Riffey did enjoy this benefit. (N.T., pp. 25-26.)

Steven Scott Cinesi also testified. Cinesi knew the decedent and Riffey. Cinesi testified he believed that the decedent and Riffey were husband and wife, but his best recollection to support this was that the decedent would make occasional references to Riffey such as “the ball and chain” or “the better half.” (N.T., p. 40.)

Maqorie Lambert, Riffey’s sister, testified that she considered the decedent and Riffey to be husband and wife (N.T., p. 67), basing this on the fact that they were “family,” and that one could tell that they loved each other, the same as she felt toward her own husband. (N.T., p. 68.) The decedent, in discussing his relationship with Riffey, stated to Lambert that Riffey was “his old lady.” (N.T., p. 68.) Lambert stated she believed the term “old lady” means wife. (N.T., p. 69.) Lambert stated that the reputation of the decedent and Riffey was that they were husband and wife amongst her family. (N.T., p. 70.) However, Lambert had no recollection of the decedent ever telling her that her sister, Riffey, was his wife, nor does she have any recollection that Riffey said the decedent was her husband. (N.T., p. 74.) Lambert first presumed that Riffey and the decedent were married after the birth of their child. (N.T., p. 74.)

While a common-law marriage is generally acceptable in Pennsylvania, it is a matter to be tolerated and not encouraged. A common-law marriage is subject to great scrutiny, and a heavy burden is imposed upon the one who grounds a claim on an allegation of common-law marriage, especially where one party is dead and the claim is to share in the decedent’s estate. In re Estate of Stauffer, 504 Pa. 626, 629, 476 A.2d 354, 356 (1984). The decedent was killed in a motor vehicle accident, leaving behind a child and Ms. Riffey. Despite these tragic circumstances and the compassion the court has for Ms. Riffey, there is insufficient evidence to find that a common-law marriage existed., “When the lips of a man are sealed by death, and he leaves no satisfactory evidence as to the existence of such [common-law marriage] contract, courts will be very slow to establish it in derogation of the undoubted rights of those who follow him.” Manfredi Estate, 399 Pa. 285, 292, 159 A.2d 697, 701 (1960). (citations omitted)

Words in praesenti are usually required to establish a common-law marriage relationship (see McGrath’s Estate, 319 Pa. 309, 179 A. 599 (1935)), but due to the difficulty in proving such words in praesenti, a rebuttable presumption of marriage has been created where two “absolutely essential” elements exist: constant (not irregular or inconstant) cohabitation plus a reputation of marriage which is not partial or divided but is broad and general. In re Estate of Rees, 331 Pa. Super. 225, 228, 480 A.2d 327, 328 (1984); Manfredi Estate, supra at 291, 159 A.2d at 700. In the present matter, there is absolutely no evidence of any words in praesenti being exchanged between the decedent and Ms. Riffey. There was never, ever, a ceremony of any kind. Thus, in order for there to be found a common-law marriage, it must be shown that the decedent and Ms. Riffey had constant cohabitation and a reputation of marriage. In the Rees case the court stated:

“Cohabitation and reputation ... do not create the marriage but rather are circumstances giving rise to a rebuttable presumption of one. Wagner Estate, 398 Pa. 531, 533, 159 A.2d 495, 497 (1960); Manfredi Estate, supra, 399 Pa. at 291, 159 A.2d at 700; Nikitka’s Estate, 346 Pa. 63, 29 A.2d 521 (1943). Moreover, the rule which permits a finding of marriage duly entered into based upon reputation and cohabitation alone is one of necessity to be applied only in cases where other proof is not available. Nikitka’s Estate, supra, 346 Pa. at 65, 29 A.2d at 522.” Rees, supra at 228, 480 A.2d at 328. (footnote omitted)

There is no question that the parties resided together constantly and regularly with each other from 1987 up until the decedent’s death in 1991. The first prong for a presumption of common-law marriage is easily met in this matter. However, there is a dearth of information regarding their reputation as having been married.

In support of her case, Riffey submitted an affidavit by Linda Kreider, a co-worker of Riffey and the decedent. Kreider’s affidavit states that, based upon her observations and discussions, she knew that the decedent and Riffey lived together for a long period of time, had a son together, and maintained joint bank accounts and used their combined incomes for shared living expenses and such. She further stated “Based on my observations and discussions I had with John Michael Noll and Dianne Riffey, I considered them to be husband and wife.” An additional affidavit by Robert R Matthews was submitted in support of Riffey’s case. Matthews was a friend of the decedent and Riffey. This affidavit also stated that he observed the decedent and Riffey sharing a residence, having a son together and sharing expenses paid out of joint accounts and that he also considered the decedent and Riffey to be husband and wife.

The strongest testimony regarding the decedent and Ms. Riffey’s reputation as having been husband and wife came from John Michael Jeffreys, their mutual employer, who stated that the decedent considered himself to be married to Riffey but had no intention of engaging in any public ceremony, and that the decedent had referred to Riffey as his wife. Jeffreys also submitted an affidavit prior to testimony, but was the only affiant to actually testify at the hearing.

The trial transcript indicates that counsel stipulated that the affidavits of Kreider and Matthews were submitted to the court with the understanding that the affiants would testify if they were called in accordance with their affidavits, although there was no admission that the testimony was true. (N.T., p. 83.) Those affidavits, while they contain information that would be somewhat helpful in discerning whether or not a common-law marriage existed, are not convincing as they are very general and rather vague in nature. Thus even taking the assertions in them to be true, they do not provide to this court the strong information necessary to find that a common-law marriage existed. The parties did in fact live together for a long time, but the beliefs of those who testified or produced affidavits that the decedent and Riffey were married seem based more upon their presumptions than any actual knowledge of a marriage. And despite agreement of counsel, the record does not have the benefit of cross-examination.

Jeffreys alone gave testimony that the decedent referred to Riffey as his wife. None of the other witnesses for Riffey had specific recollections of the decedent referring to Riffey as his wife. Even Riffey stated that she only considered herself to be married to the decedent after her son was bom, and that she never named the decedent as a beneficiary on any type of insurance policy, nor did she ever receive correspondence from anyone as Mrs. Noll. The only individual she could name who had ever referred to her as Mrs. Noll was her son’s doctor.

While there is ample evidence that Riffey and the decedent lived together for a long period of time, there is not sufficient evidence of a broad reputation that they were husband and wife. “The mere fact that they [the alleged contracting parties] were known to a few people as man and wife is not sufficient evidence to establish marriage.” Manfredi, supra at 292, 159 A.2d at 700. Furthermore, there is evidence in the record that contradicts the existence of a common-law marriage. The petition for grant of letters does not list any spouse, and was signed by Riffey, although there is a note that letters were being taken out for purposes of litigation. However, the certificate of death lists the decedent’s marital status as “never married;” the informant was the decedent’s own mother, Minnie Noll. Additionally, a renunciation was signed by Minnie Noll asking that letters of administration be issued to Riffey “mother of the minor sole heir of the decedent” not wife or other such designation.

Riffey argues that there should be presumed to have been a marriage because of the question of legitimacy of her child, but any presumption of marriage where there is a question of legitimacy of a child involved would seem, to this court, to be put in place to protect the child, and not to benefit the surviving purported spouse. If this was a situation where the minor child would himself suffer loss or harm if a common-law marriage was not found to exist, the balancing and evaluations might be different, although the result might not differ.

The correct focus of this case was aptly summarized by the guardian ad litem for the child in his closing statement. The court joins in his respect for the relationship that Ms. Riffey has with her son and the relationship that she had with the decedent and does not wish to ‘ ‘tarnish her feelings for that relationship and her memories.” This court’s primary responsibility is to assess whether or not a common-law marriage existed, and that this assessment directly impacts what is best for the child.

For the foregoing reasons, the court enters the following order.

ORDER

And now, March 13, 1995, the court finds that a common-law marriage does not exist nor ever existed between the decedent, John Michael Noll, and Dianne Riffey.

December 22, 1994 
      
      . The record before this court does not contain a copy of the order of October 29, 1993.
     
      
      . The delay in this court’s decision was due to the stipulation not bringing the matter before the court prior to February 1995.
     