In the April 19, 2023, opinion in Sullivan-Carter v. Carter, 439 S.C. 406, 887 S.E.2d 146 (Ct.App. 2023), the Court of Appeals reversed a finding of common-law marriage and vacated the family court’s equitable distribution and attorney fee awards.
In July 1994, Sammy Carter married Malinda Sullivan-Carter (his third marriage) while he was not yet divorced from his first wife. In 1995 he learned his first marriage hadn’t been dissolved. When his divorce from his first wife became finalized in August, 1995, Malinda 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.”
They lived on properly solely titled and mortgaged in Malinda’s name. Malinda filed taxes as “head of household.” The parties shared expenses but not bank accounts or property. At one point Malinda declared bankruptcy but Sammy was not part of the bankruptcy.
In February 2017, Malinda filed an action to find her marriage to Sammy void. Sammy counterclaimed for a finding of a common-law marriage, equitable distribution, and attorney’s fees. The family court bifurcated this action with the first trial determining whether a common-law marriage existed. After the first trial found a common-law marriage, the second trial addressed equitable distribution and attorney’s fees. After that order issued Malinda appealed the finding of common-law marriage.
As a threshold issue, the Court of Appeals had to determine whether Malinda’s appeal was time-barred because she did not appeal when the order finding common-law marriage issued. Such orders would appear to be a final order. Looking to Stone v. Thompson, (Stone II) 426 S.C. 291, 826 S.E.2d 868 (2019), which allowed the appeal of a final order determining a common-law marriage existed despite issues of marital dissolution remaining unresolved, the Court of Appeals found Malinda’s appeal was not untimely. It read Stone II as treating orders from bifurcated trials that find a common-law marriage to be interlocutory, and thus not subject to mandatory appeal. It further read Stone II as allowing a discretionary appeal because the finding of marriage implicated a “substantial right.”
On the merits, the Court of Appeals reversed the finding of common-law marriage. The evidence supporting Sammy’s claim that the parties held themselves out as married was weak and largely self-serving. The Court of Appeals held “Sammy’s possible misunderstanding of the parties’ status does not equate to a mutual agreement.” It also noted that Malinda filing taxes as head of household was evidence against a finding of common-law marriage (the family court held the opposite). Even applying the preponderance of the evidence test to weigh the trial record [Stone v. Thompson, (Stone III) 428 S.C. 79, 833 S.E.2d 266 (2019) imposed a clear and convincing evidence test for common-law marriage “cases litigated hereafter”], the Court of Appeals found no marriage existed. Having so found, it vacated the equitable distribution and attorney fee awards to Sammy.
I am long on record loathing common-law marriage and think the family courts have been too willing to find such marriages on rather weak or contradictory evidence of intent. Thus, I applauding when, in Stone III, the South Carolina Supreme Court prospectively abolished it in 2019. Even after Stone III, family courts are finding common law marriages and our appellate courts are reversing those findings. Sullivan-Carter isn’t the first post-Stone III decision to reverse a family court’s finding of common-law marriage. I doubt it will be the last. Common-law marriage may simply be unkillable.
