In The Court of Appeals

Shannon Knox McKinney, Appellant/Respondent,


Larry A. McKinney, Respondent/Appellant.

Appeal From Greenville County
 Robert N. Jenkins, Sr., Family Court Judge

Unpublished Opinion No.  2004-UP-600
Submitted November 1, 2004 – Filed December 3, 2004


T. Preston Reid, of Greenville, for Appellant-Respondent.

Jack D. Griffeth, of Greenville, for Respondent-Appellant.

PER CURIAM:  Shannon Knox and Larry McKinney both appeal from a family court order finding that Knox and McKinney were not married under common law from 1993 to 1998 and that a bifurcated evidentiary trial needed to be held to determine if a common law marriage existed between the parties from 1998 to 2002.  We affirm in part, reverse in part, and remand. [1]


Knox and McKinney were romantically involved and lived together from August 1993 to January 2002.  During that time, neither party maintained a separate residence.  The couple lived in four different homes during the eight years they lived together, including a home they built together in 1996.  McKinney is an electrical engineer and a successful businessman who owns and is a partner in many businesses.  Knox, who has a high school education, was responsible for household duties such as cleaning and buying groceries. 

Knox claims the couple held themselves “out as husband and wife to the general public, friends and neighbors, in business relations, and in many organizations with which [the couple was] associated.”  She also claims the couple had family memberships at gyms and private clubs, including the Greenville Country Club.  Additionally, Knox asserts the couple held a joint checking account at a local bank.  Further, Knox submitted copies of their water and power contract, listing her as McKinney’s spouse.  However, McKinney claims that both parties did not intend to be married and used different names throughout their relationship, including tax returns, bank accounts, and driver’s licenses.  McKinney also alleges they used separate names when introducing themselves to others and in written contracts.  McKinney submitted affidavits from 16 individuals who knew the couple and stated that they did not hold themselves out to the public as a married couple.   

In 1998, the couple decided to purchase a condominium in Greenville.  Knox claims that McKinney told her she had to sign a “Waiver Agreement” before they could close on the condominium.  The Waiver Agreement stated that “although [Knox and McKinney] may live together, date and see [each] other on a frequent basis, they are not husband and wife, either legally or by common law.”  The agreement further provided that it could be “presented [in court] as conclusive and binding evidence that the parties have never been married to each other.”  Knox claims that McKinney and his attorney pressured her into signing the agreement.  She further claims that she did not sign it freely or voluntarily and that she was fraudulently induced to sign it.  McKinney argues that Knox consulted with an attorney before signing the agreement.  The couple separated in January 2002. 

On July 2, 2002, Knox filed a motion for temporary relief and a complaint seeking alimony and equitable distribution of the couple’s property based on the couple’s common law marriage.  On August 19, 2002, McKinney filed an answer and a motion to dismiss on the grounds that the parties are not husband and wife, and therefore, the court lacked subject matter jurisdiction.  The motion was heard on August 29, 2002.  On September 9, 2002, the family court filed its order finding that Knox and McKinney were not married under common law because of the Waiver Agreement.  Thus, the court found it was without subject matter jurisdiction to adjudicate Knox’s claims and dismissed the action under Rule 12(b), SCRCP.  The court further determined that any irregularity in the consummation of the Waiver Agreement should be tested in the Court of Common Pleas. 

On September 16, 2002, Knox filed a motion for a new trial and/or motion to alter or amend judgment, arguing the court erred in finding it did not have subject matter jurisdiction and by denying Knox a full evidentiary hearing as to the existence of a common law marriage.  The motion was heard on October 30, 2002.  On December 2, 2002, the family court filed an amended order, finding that it did have subject matter jurisdiction pursuant to section 20-7-420(5) of the South Carolina Code (1985).  The court then found that “whether the intent of the parties to remain unmarried changed after January 30, 1998 is a question of fact to be found from evidence showing their mutual intent after that date” (emphasis added).  The court granted a bifurcated evidentiary trial “limited to determine the existence/non-existence of a common law marriage between the parties after January 30, 1998” (emphasis added).  Knox and McKinney both now appeal.


The issue of common law marriage is a case at law.  Richland Memorial Hosp. v. English, 295 S.C. 511, 513, 369 S.E.2d 395, 396 (Ct. App. 1988).  “In an action at law, on appeal of a case tried without a jury, the findings of fact of the judge will not be disturbed upon appeal unless found to be without evidence which reasonably supports the judge’s findings.”  Townes Assoc., Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976). 


On appeal, Knox argues the family court erred in finding she and McKinney were not married under common law before the parties signed the January 30, 1998 Waiver Agreement.

Section 20-7-420(5) of the South Carolina Code (1985) grants the family court exclusive jurisdiction to hear and determine the validity of marriages.  “In South Carolina, a common-law marriage exists if the parties intend to enter into a marriage contract.”  Barker v. Baker, 330 S.C. 361, 367, 499 S.E.2d 503, 506 (Ct. App. 1998).  “It is essential to a common law marriage that there shall be a mutual agreement between the parties to assume toward each other the relation of husband and wife.  Cohabitation without such an agreement does not constitute marriage.”  Johnson v. Johnson, 235 S.C. 542, 550, 112 S.E.2d 647, 651 (1960).  “A valid common law marriage requires that the facts and circumstances show an intention on the part of both parties to enter into a marriage contract.”  Owens v. Owens, 320 S.C. 543, 545, 466 S.E.2d 373, 375 (Ct. App. 1996).  The party claiming a common law marriage must prove it by a preponderance of the evidence.  Yarbrough v. Yarbrough, 280 S.C. 546, 551, 314 S.E.2d 16, 18-19 (Ct. App. 1984).  However, direct evidence of the parties’ intent is not often available, thus the existence of a common-law marriage is frequently proved by circumstantial evidence.  Barker, 330 S.C. at 367-368, 499 S.E.2d at 507.  Typically, the circumstantial evidence relied upon to prove a common-law marriage is the amount of time a couple has lived together and whether the couple publicly held themselves out as husband and wife.  Id.  “While the presumption of marriage from cohabitation and reputation is ordinarily a rebuttable presumption, the degree of proof to overcome it is generally very high, especially where the parties have cohabitated as husband and wife for a long time.”  Owens, 320 S.C. at 546, 466 S.E.2d at 375.  “The presumption of marriage can be dispelled only by evidence which is ‘clear, distinct and satisfactory.’” Id. (quoting Jeanes v. Jeanes, 255 S.C. 161, 177 S.E.2d 537 (1970)).  Thus, the family court was required to determine if Knox presented enough evidence of a common law marriage to trigger the presumption.

In its order, the family court concluded that Knox had failed to prove that she and McKinney were married under common law from 1993 to 1998.  On appeal, because this is an action at law, we are bound by the family court’s findings of fact unless they are without evidence to support them.  The presumption of a common law marriage is triggered by proof of cohabitation and reputation as husband and wife.  Knox stated at both hearings that she needed more time for discovery and requested an evidentiary trial.  By failing to hold a trial, Knox was deprived of her right to put up her own witnesses and cross-examine the witnesses against her. [2]   Thus, the court erred by not holding an evidentiary trial to determine the couple’s marital status from 1993 to 1998. 

On cross appeal, McKinney argues the family court erred in determining that an evidentiary trial should be held to determine if the parties remained unmarried after the January 30, 1998 Waiver Agreement.

Because we hold an evidentiary trial should be held to determine whether Knox and McKinney were married from 1993 to 1998, we affirm the family court’s determination that an evidentiary trial should be held to establish the couple’s status from 1998 to 2002.



[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Our supreme court has acknowledged that, “[t]he right to confrontation, although historically limited to criminal prosecutions, has been applied in the civil context.”  South Carolina Dep’t of Social Servs. ex rel. Texas v. Holden, 319 S.C. 72, 78, 459 S.E.2d 846, 849 (1995).  In determining when the right to confrontation applies, our supreme court stated, “Where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.”  Brown v. South Carolina State Board of Education, 301 S.C. 326, 329, 391 S.E.2d 866, 867 (1990).