THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Varanda Odom Roberson,        Appellant,

v.

Christopher Roberson,        Respondent.

Appeal From Aiken County
Peter R. Nuessle, Family Court Judge

Unpublished Opinion No. 2005-UP-074
Submitted January 1, 2005 – Filed January 31, 2005

AFFIRMED

Vicki Johnson Snelgrove, of Aiken, for Appellant.

Christopher Roberson and Patricia Thomas James, both of Aiken, for Respondent.

PER CURIAM: In this domestic action, Varanda Roberson appeals the family court’s failure to recognize her relationship with Christopher Roberson as a common law marriage.  We affirm. [1]

FACTS

Varanda and Christopher Roberson’s relationship began with the pair dating in high school.  After conceiving a child in 1992, Varanda and Christopher moved in together, living in this capacity for approximately ten years interrupted only by two periods of separation.  During this period of cohabitation, the parties had four more children.  Sometime during the relationship, Varanda began using “Roberson” as her surname and Christopher’s family once listed her as his spouse in an obituary.  School records for the children, who were all named “Roberson,” listed the parties as “Mr. and Mrs. Roberson.” Christopher sent flowers addressing her as Varanda Roberson and the two registered for a vacation under the name of Roberson. 

In January 2003, Christopher left the home he shared with Varanda and the children.  Varanda brought an action in March 2003 seeking custody of the children, child support, alimony, and equitable division of the marital assets.  After a temporary hearing deciding custody, visitation, and child support, the family court bifurcated the issues at trial with the intention to hear initially only the common law marriage issue.  After a trial, the family court found that no common law marriage existed and therefore the court lacked authority to divide the property.  Varanda appeals.

STANDARD OF REVIEW

The issue of common law marriage sounds in law. Richland Mem'l Hosp. v. English, 295 S.C. 511, 513, 369 S.E.2d 395, 396 (Ct. App. 1988).  Our review in this case is limited to a determination of whether or not there is any evidence to support the findings of the trial judge. Weathers v. Bolt, 293 S.C. 486, 488, 361 S.E.2d 773, 774 (Ct. App. 1987). Because this action sounds in law, and the existence of a common law marriage is a question of fact, this court is bound by the lower court’s factual findings, and its credibility determinations. Barker v. Baker, 330 S.C. 361, 370, 499 S.E.2d 503, 508 (Ct. App. 1998). We must affirm if any evidence supports the lower court’s findings. Tarnowski v. Lieberman, 348 S.C. 616, 619, 560 S.E.2d 438, 440 (Ct. App. 2002).

LAW/ANALYSIS

Varanda argues that the trial court committed error by failing to recognize a common law marriage existed with Christopher.  We disagree.

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 at 367, 499 S.E.2d at 506.  “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 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, 167, 177 S.E.2d 537, 540 (1970)). 

The family court determined that Christopher presented sufficient evidence that rebutted the presumption of marriage to overcome evidence of the couple’s long period of cohabitation.  The court found several facts of their behavior important: Christopher neglected to place Varanda’s name on the deed or mortgage to a new house he bought, his job health insurance covered his children, but not Varanda, and the parties never established joint ownership of property or joint assets.  The court found and the record supports the notion that although Christopher knew Varanda had taken his surname, he was not pleased with the fact and even proposed marriage to her on two occasions, evincing his belief that the parties were not married.  As 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 and we find that in the instant case, sufficient evidence exists.

AFFIRMED.

ANDERSON, STILWELL, and SHORT JJ., concur.