The April 3, 2019 Supreme Court opinion in Stone v. Thompson, 426 S.C. 291, 826 S.E.2d 868 (2019), addresses the appealability of final orders from bifurcated proceedings for marital dissolution when a common-law marriage is alleged. Stone filed an action in the family court to establish a common-law marriage and for equitable distribution of marital property. The family court bifurcated the proceedings in order to first address the issue of whether the parties were married. After a seven-day trial, the family court determined the parties were married. Thompson appealed the finding of common-law marriage to the Court of Appeals, which dismissed the appeal as interlocutory as the issue of equitable distribution remained to be addressed. The Supreme Court granted certiorari on the issue of the appealability of the final order establishing a common-law marriage when the litigation posture anticipated a subsequent final order issuing.
The Supreme Court reversed the Court of Appeals by finding the order finding a common-law marriage was immediately appealable. In doing so the Supreme Court interpreted the “substantial matter” language of S.C. Code § 14-3-330(1), which authorizing appeals of:
(1) 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, brought there by original process or removed there from any inferior court or jurisdiction, and final judgments in such actions; 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) (1976). An order involves the merits under § 14-3-330(1) when it finally determines some substantial matter forming the whole or part of a cause of action or defense
In deciding the order finding a common-law marriage determined a “substantial matter,” the Supreme Court noted, “Stone’s actions for divorce and equitable distribution require a determination the parties are married. This determination is substantial, not only as a part of the causes of action, but also in terms of the larger effects of marriage across other areas of law.” It thus found the appeal was appropriate. Rather than remanding the matter back to the Court of Appeals for a decision on the merits of Thompson’s appeal, it retained jurisdiction to resolve the remaining issues. A second Supreme Court opinion will likely issue on whether a common-law marriage exists. If it finds one does, the parties will be back to the family court to address property division.
In his concurrence Chief Justice Beatty expressed displeasure with this case having been bifurcated:
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. The emotional and contentious nature of most domestic relations cases all but guarantees an expensive, long, and tortuous path to resolution. Bifurcation only adds to the expense and delayed resolution. Moreover, bifurcation thwarts this Court’s long-held policy to avoid piecemeal appeals. This case is a prime example of this problem.
One way to avoid the problem noted by Beatty would be to abolish common-law marriage, something I’ve long advocated. It is shocking that folks can find themselves unwittingly or accidentally committing to one of the most consequential commitments humans can make [an apropos joke I heard just last week: What’s the longest sentence in the English language? “I do.”]. There simply shouldn’t be confusion over whether folks are married or not.
However given that South Carolina still recognizes common-law marriage, it seems ridiculous to litigate marital property or spousal support issues before one establishes that a marriage has taken place. Common-law marriage cases are one of the few family court proceedings where I would always bifurcate. Whenever a party is required to establish a legal status [spouse; de facto custodian] before obtaining relief, bifurcation should be the norm.
