HUTTON v. BRINK (2005)

Order, Supreme Court, New York County (Judith J. Gische, J.), entered June 10, 2004, which, in an action for divorce, granted defendant's motion to dismiss for failure to state a cause of action, unanimously affirmed, with costs.

 Plaintiff alleges that the parties, after holding themselves out as husband and wife for some three years, entered into a Pennsylvania common law marriage.   Under Pennsylvania law, “[a] common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created by that [exchange]” (see Staudenmayer v. Staudenmayer, 552 Pa. 253, 261-262, 714 A.2d 1016 [1998] ).   According to plaintiff, toward the end of a two-week sojourn in Pennsylvania for the purpose of attending parenting classes, he and defendant, during a dinner they were having with two friends, “toasted to one another as ‘Husband’ and ‘Wife’ and publicly avowed our mutual commitment to one another as a loving married couple.”   The motion court correctly held that the alleged toast did not contain an exchange of words manifesting a specific, present intent to enter into a marriage.   At most, the toast manifested nothing more than the parties' alleged long-time practice of holding themselves out as husband and wife.