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In re Estate of Smith

Court of Appeals of Tennessee, Knoxville

October 4, 2017


          Session August 10, 2017

         Appeal from the Probate Court for Monroe County No. 2014-149 Dwaine Thomas, Judge.

         In this appeal, the trial court determined that the woman who claimed to be the decedent's common law wife had failed to establish her status as his wife and heir. The alleged widow asserts that she presented satisfactory evidence to prove that she was the common law spouse. As modified, we affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Affirmed as Modified; Case Remanded

          Debbie Burns, Madisonville, Tennessee, pro se.

          Steven B. Ward and Doris Matthews, Madisonville, Tennessee, for the appellee, Cora Davis, Personal Representative for the Estate of Jimmy L. Smith.

          John W. McClarty, J., delivered the opinion of the court, in which Charles D. Susano, Jr, and Thomas R. Frierson, II, JJ., joined.



         I. BACKGROUND

         Jimmy L. Smith ("Decedent") died a resident of Monroe County, Tennessee on November 20, 2014. Decedent left no will. Debbie Burns, who claimed to be Decedent's common law wife, was appointed personal representative and opened an estate for Decedent on January 8, 2015. One of Decedent's sons, Jimmy L. Smith, Jr., [1]objected to the appointment of Ms. Burns and authorized Cora Davis, Decedent's sister, to appear on his behalf. Ms. Davis filed a motion to set aside the appointment of Ms. Burns as personal representative on February 3, 2015, asserting "that, to the best of her knowledge, the deceased and Debbie Burns were never married and that [Ms. Burns], therefore would not have first priority to serve as administrator." Decedent's son, Jimmy L. Smith, Jr., also submitted a response in which he stated that "[t]o the best of his knowledge, his father . . . was never married to Debbie Burns . . . ."

         On September 14, 2015, almost ten full months after Decedent's death and eight months after her appointment as personal representative in Tennessee, Ms. Burns filed a Petition for Declaratory Judgment of Common Law Marriage in Charleston County, South Carolina, the former domicile of couple. Unlike Tennessee, South Carolina is a jurisdiction that recognizes the validity of a marriage despite a couple's noncompliance with statutory ceremony and license requirements. The state of South Carolina allows claimants the opportunity to convince the trier of fact that a common law marriage exists. South Carolina has codified the common law marriage doctrine in section 20-1-360 of the South Carolina Code, which states that the failure to obtain a marriage license would not render a marriage illegal. S.C. Code Ann. § 20-1-360.

         In her Petition for Declaratory Judgment of Common Law Marriage before the South Carolina Probate Court, Ms. Burns argued, inter alia, the following:

(a) she and Decedent were aware of the common law marriage requirements in South Carolina; (b) she and Decedent entered into an implied contract to be married in 1986, thus establishing their common law marriage by this implied contract, cohabitation as husband and wife, and holding themselves out as being married to their family, friends, and the community; (c) in 1988, she and Decedent applied for a South Carolina marriage license, but the marriage was not solemnized because a minister could not be found to marry them due to this being their second and third marriages, respectively; (d) she and Decedent received mail as husband and wife and paid utilities as husband and wife; (e) she and Decedent filed joint tax returns as husband and wife in 1987, and in subsequent years chose to file married filing separately; (f) she is recognized as Decedent's spouse by the Social Security Administration and is receiving survivor benefits since Decedent's death as of February 2015; (g) she and Decedent did live and cohabitate as man and wife, held themselves out to the world as man and wife, and acquired a reputation within the community in which they resided as husband and wife; (h) she and Decedent opened joint bank accounts as husband and wife in Charleston County, South Carolina; (i) in 1993, Decedent was involved in a legal action in Monroe County and averred in the complaint "[t]hat [at] all times [material] hereto the Plaintiffs Jimmy Leon Smith and Debbie Faye Smith were and are husband and wife"; (j) In 1996, Decedent deeded a parcel of land to Ms. Burns as his wife, and in the case of State of Tennessee ex rel. Linda Smith, an action for child support, the trial court found that Decedent conveyed a parcel of land to "his current wife, " Debbie F. Smith in order to avoid attachment from child support; and (k) she demonstrated the devotion to the usual duties and responsibilities of a wife, buying groceries, driving Decedent to and from work, arranging their meals, caring for Decedent in sickness and in health, displaying photographs of themselves and family in their home, and entertaining others in their home.

         Ms. Burns requested a declaratory judgment "that the common law marriage of Petitioner and Decedent was, and is, valid and existing, and that Petitioner and Decedent were husband and wife."

         After reviewing the evidence presented by Ms. Burns, the South Carolina Probate Court held on February 2, 2016, that "Petitioner has shown that she and the Decedent consistently held themselves out to the community as husband and wife and that they intended to create a spousal relationship while they resided together in Charleston County, South Carolina" from 1986 to 1991. (Emphasis added.). The court specifically held that Ms. Burns "submitted sufficient evidence to support the arguments she made in her Petition" and decreed that pursuant to South Carolina law, Ms. Burns "was the common law spouse of the Decedent . . . and . . . entitled to all spousal rights as an heir . . . ." (Emphasis added.). The South Carolina court noted that Decedent's sons had failed to appear at the hearing. Ms. Davis did not make an appearance and accused Ms. Burns of "forum shopping."

         Despite recognizing that South Carolina law must be applied to determine if Ms. Burns was Decedent's common law spouse, the Monroe County Probate Court did not feel compelled to accept the ruling of the South Carolina court on the issue. Instead, in an order entered October 25, 2016, the court made the following findings of fact and law:[2]

Title 20 of the South Carolina Code requires four elements to be shown to prove common law marriage to have occurred: 1. Legally free to marry under present law; 2. Co-habitation for a period of time; 3. Intent to be married; and 4. Reputation as a married couple. In this case no proof has been presented that would lead this Court to believe that the Parties were not free to marry. It is also undisputed that the parties did co-habitate for a number of years[;] however, at the time of Mr. Smith's death, and for a number of years preceding his death, they were not co-habitating.
The issue of intent to be married is somewhat more troubling. Petitioner Burns testified it was her intent to be married. Petitioner Davis argues that the "Dead Man['s] Statute" would prohibit Ms. Burns from providing testimony about the expressed intentions of Mr. Smith to her. The Court finds that the "Dead Man['s] Statute" does in fact prohibit the testimony of any expressed intentions of Mr. Smith to Ms. Burns as it would be testimony of a party opponent in regard to a transaction directly effecting the pecuniary interests of the testifying party opponent.[3]See Pritchard on Wills and Administration of Estates, Seventh ...

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