The August 24, 2022, Court of Appeals opinion in Powell v. Dolin, 437 S.C. 499, 879 S.E.2d 26 (Ct. App. 2022), demonstrates the impact Stone v. Thompson, 428 S.C. 79, 833 S.E.2d 266 (2019), will have on the litigation of common law marriage claims and further demonstrates why common law marriage needed to end.
Zane Powell and Renee Dolin began living together in 2001-02. Dolin purchased a duplex in downtown Charleston that Powell helped renovate. They had two children together and, for about a decade, ran a pizza shop together.
In 2011, after a domestic dispute, Dolin obtained an order of protection against Powell. Powell filed an action seeking to vacate the order of protection. In his complaint he alleged the parties were not married. Dolin filed an answer also disclaiming the parties being married. The parties reached an agreement on custody and support that was filed with the court but not made a court order. The case was administratively dismissed in 2012. Thereafter. while Powell alleged he occasionally spend nights at Dolin’s residence in the 2011-15 period, the parties appear to have remained separated. They dated other people and Powell lived with two different women around 2015-16. Powell sometimes watched the children when Dolin went out on dates.
In June 2018, Dolin began listing the duplex for sale. Three days later Powell filed an action against Dolin seeking establishment of a common law marriage, divorce on the ground of habitual intoxication, equitable distribution of “marital” assets, and custody of the parties’ two children. During the litigation the parties agreed to Dolin having custody, with Powell having visitation and paying child support, and the exchange of financial declarations and income documentation within three days.
At trial, the family court found a common law marriage was established as of October 5, 2003, and awarded Powell half the proceeds from the sale of the duplex. It awarded Dolin custody but reduced Powell’s pendente lite child support obligation. It awarded Dolin a bit over half her requested attorney’s fees. She appealed.
The Court of Appeals reversed the finding of common law marriage. It noted that this case was tried prior to Stone v. Thompson, which, among its numerous holdings on common law marriage, held that cohabitation or child bearing no longer created a presumption of marriage and raised the burden of proving common law marriage to “clear and convincing evidence.” It appears the family court based its finding of common law marriage largely on the prior presumptions surrounding cohabitation and child bearing, and on Powell’s largely inconsistent and self-serving testimony.
The Court of Appeals opinion delineates numerous reasons to reject the finding of common law marriage: foremost, the parties’ filings in the 2011 domestic abuse case, Dolin’s habitual representation as being single or head of household in government forms, and the minimal and inconsistent evidence that Powell held himself out as married during this 17 year period. There appears to be almost no evidence—even from third parties– that Dolin considered herself married.
Even under pre-Stone v. Thompson presumptions and standard of review, this does not appear a particularly close case on the issue of a common law marriage. Like almost every common law marriage case I have litigated, to justify a finding of common law marriage the family court had to overlook immense amounts of perjury from the party alleging marriage. This was the primary reason I was advocating the abolition of common law marriage a decade before Stone.
Because the Court of Appeals reversed the finding of marriage, it reversed the distribution of the duplex proceeds. The Court of Appeals also remanded the issue of child support as Powell failed to comply with the temporary order’s requirement that he provide financial information and the family court therefore erred in relying on his income representations in setting child support. It further remanded the attorney fee award for consideration of whether Dolin was entitled to more of her fees, especially in light of her successful results in the appeal.
Powell is a classic example of why I hate common law marriage. A family court judge overlooked a whole lot of perjury to award Powell proceeds from the sale of the duplex. This case demonstrates a Court of Appeals very willing to apply Stone v. Thompson to reverse the creation of a common law marriage when there’s almost no evidence one party considered him or herself married.
