BASIC (01-16)

PR 02605.034 New Mexico

A. PR 16-032 Effective Date of Divorce for NH's widow - New Mexico State Law

DATE: November 19, 2015

1. SYLLABUS

The NH died and had his permanent home in New Mexico, and therefore, we apply New Mexico law to determine if the NH and Claimant had a valid marriage at the time of his death, or if the Claimant would be able to inherit from the NH as his spouse under intestate succession laws. It is our opinion that under New Mexico law, the NH and Claimant were validly married at the time of his death. The NH died in March 2015 and one day later, in March 2015, the trial court entered its Final Decree of Divorce. The First Amended Findings of Fact and Conclusions of Law entered on October xx, 2014, did not constitute a Final Judgment of Divorce. The NH and Claimant’s marriage ended with the NH’s death. Thus, for purposes of determining Claimant’s status as the NH’s widow for entitlement to lump sum death payment and underpayment, it is our opinion that under New Mexico law, the NH and Claimant remained validly married at the time of the NH’s death.

2. OPINION

QUESTION PRESENTED

This memorandum is in response to your request for an opinion on the effective date under New Mexico law of the divorce between the deceased number holder C~ (NH) and his former spouse D~ in order to establish whether D~ is entitled an underpayment due to the NH and to a lump sum death payment as the NH’s legal widow.1 Specifically, you asked whether the divorce became final on October, 2014, when the trial court entered its First Amended Findings of Fact and Conclusions of Law (First Amended Findings), or on March, 2015, which was one day after the NH died and the date that the trial court entered its Stipulated Final Decree of Dissolution of Marriage (Final Decree of Divorce).

SHORT ANSWER

It is our opinion that under New Mexico law, the NH and D~ were validly married at the time of his death.

BACKGROUND

D~ provided a photocopy of a New Mexico marriage certificate showing that she and the NH obtained a marriage license and were married in a solemnized marriage ceremony on September, 2005, in New Mexico. See 20 C.F.R. §§ 404.709 (if a claimant provides “preferred” evidence, the agency will “generally find it is convincing evidence), 404.725 (a copy of the public record of marriage qualifies as preferred evidence of a valid ceremonial marriage). On September XX, 2013, D~ filed a petition of dissolution of marriage from the NH in the Lovington District Court in the Fifth Judicial District of New Mexico. See Court Docket Sheet dated June XX, 2015, D~ v. C~, No. XX (Fifth Judicial District, Lea County, New Mexico) (Docket Sheet). On November XX, 2013, the NH filed a counter petition seeking dissolution of marriage. See id. After a hearing on August XX, 2014, the parties filed their respective Proposed Findings of Facts and Conclusions of Law. See id. The trial court issued its Findings of Fact and Conclusions of Law on September XX, 2014, and on October XX, 2014, issued its First Amended Findings of Fact and Conclusions of Law (First Amended Findings). See id.

You have advised that the NH died on March XX, 2015, in Hobbs, New Mexico, where he was domiciled. One day later, on March XX, 2015, the trial court entered its Final Decree of Divorce. See Docket Sheet. D~ provided a copy of a document titled “STIPULATED FINAL DECREE OF DISSOLUTION OF MARRIAGE” (Final Decree of Divorce), in which the trial court stated that it had entered its First Amended Findings on October XX, 2014, but that the parties conferred subsequent to these findings and entered into additional stipulations.

In this Final Decree of Divorce, the trial court “adopted and incorporated” these additional stipulations. The Final Decree of Divorce also addressed the court’s jurisdiction, the legal grounds for the dissolution (incompatibility), the fact that the parties had no minor children, that there would be no award of spousal support, the disposition of the parties’ community assets, the disposition of retirement benefits and their residence, and the payment of attorney fees. After setting forth the parties’ stipulations, in the last portion of the Final Decree of Divorce, the trial court “ORDERED, ADJUDGED, and DECREED” that the court had jurisdiction; that the court adopted and incorporated the parties’ stipulations, including those stipulations entered into after the court’s First Amended Findings; that an incompatibility between the parties existed which “destroyed the legitimate ends of their marriage and the marriage should therefore be dissolved;” that the parties had no minor children; that neither party would be awarded spousal support; that the parties’ community assets would be divided pursuant to a Statement of Assets and Liabilities; that the retirement benefits would be disposed of as outlined in this decree; that the parties’ residence would be disposed of as outlined in this decree; and that the parties would pay their own attorney fees. The Final Decree of Divorce concludes: “IT IS SO ORDERED.” The trial court entered the Final Decree of Divorce on March XX, 2015, as shown on the court’s file stamp and the Docket Sheet.

ANALYSIS

A Number Holder’s Widow May Be Entitled under the Social Security Act to a Lump Sum Death Payment and to an Underpayment

Your legal opinion request asks only whether D~ qualifies as the NH’s widow for entitlement to a lump sum death payment2 and an underpayment3 owed to the NH. Therefore, we focus only on this relationship requirement and do not address the remaining requirements for entitlement to a lump sum death payment or underpayment, including whether the NH and D~ were living in the same household at the time of the NH’s death or whether D~ meets the other requirements for entitlement to widow’s benefits. See 42 U.S.C. §§ 402(i), 404(d)(1); 20 C.F.R. §§ 404.390-404.392, 404.503(b). In resolving this issue, we must determine whether D~ was legally married to the NH at the time of his death on March XX, 2015, or if their marriage had terminated prior to his death. See Program Operations Manual System (POMS) GN 00305.120 (a marriage can be terminated by divorce, annulment, or by death of either spouse; apply state law to determine whether a divorce is final). To determine an applicant’s status as a widow for both lump sum death payment and underpayment purposes, the agency applies the laws of the state where the number holder had his permanent home when he died to determine if the applicant and number holder had a valid marriage at the time the insured died, or if, under application of that state’s intestate succession laws, the applicant would be able to inherit a widow’s share of the insured’s personal property. 20 C.F.R. § 404.345; see also 20 C.F.R. § 404.303 (defining permanent home as the true and fixed home (legal domicile) of a person). Here, you advised that the NH died and had his permanent home in New Mexico, and therefore, we apply New Mexico law to determine if they had a valid marriage at the time of his death, or if D~ would be able to inherit from the NH as his spouse under intestate succession laws. See 20 C.F.R. § 404.345.

Under New Mexico Law, the NH and D~ Were Validly Married at the Time of the NH’s Death Because the First Amended Findings of Fact and Conclusions of Law entered on October XX, 2014, Did Not Constitute a Final Judgment of Divorce

As explained above, we apply the laws of New Mexico to determine the relationship between the NH and D~ at the time of his death on March XX, 2015. The general standard for determining the finality of a judgment in New Mexico is that “an order or judgment is not considered final unless all issues of law and fact have been determined and the case disposed of by the trial court to the fullest extent problem.” Kelly Inn No. 102, Inc. v. Kapnison, 824 P.2d 1033, 1038 (N.M. 1993) (internal citations and quotation marks omitted). Whether an order is a final order is viewed in a practical and not technical context and is determined by examining the substance of the document and not its form. See id.; see also Khalsa v. Levinson, 964 P.2d 844, 848 (N.M. Ct. App. 1998). In New Mexico, trial courts that preside over civil non-jury trials must file findings of fact and conclusions of law. See Khalsa, 964 P.2d at 848(citing NMRA, Rule 1-052(B)(1)(a)). These findings are the decision in the case, but they are not a judgment. Id. New Mexico rules further provide that a judgment must also be entered. Id. (citing NMRA, Rule 1-054(B)). “The difference between the decision and the judgment is the inclusion of decretal language that carries the decision into effect by ordering that something happen or, when appropriate, by entering judgment for a sum certain in favor of one party and against the other,” and ”[f]indings of fact and conclusions of law that do not contain decretal language are not appealable.” Id. (internal citations omitted). “Language contained in the trial court’s decision which is not carried forward in the judgment or final decree is of no effect.” Sheets v. Sheets, 744 P.2d 924, 929 (Ct. App. N.M. 1987). Thus, under New Mexico law, a final judgment determines all issues of law and fact. Further, under New Mexico law, there is a distinction between a court’s findings of fact and law and the court’s judgment as only the judgment that contains decretal language carries the decision into effect by ordering that something happen.

We also note that this matter involves a stipulated final decree of dissolution, which can be a final judgment containing decretal language. The New Mexico Supreme Court has stated that “[t]he rules governing our interpretation of . . . [a] stipulated final decree are well settled,” and that [w]here the decree is clear and unambiguous, neither pleadings, findings nor matters dehors4 the record may be used to change its meaning or even to construe it;” rather, “[i]t must stand and be enforced as it speaks.” Myers v. Olson, 676 P.2d 822, 823 (N.M. 1984) (explaining that the marriage of the parties at issue in the case “was dissolved by a stipulated final decree,” which among other things distributed the property of the parties). The New Mexico Supreme Court expressly stated that “a final decree of dissolution of marriage is deemed a final judgment,” and that “[t]he only means of modifying or setting aside the judgment would be by appeal or by timely motion for relief.” Myers, 676 P.2d at 823, citing Parks v. Parks, 574 P.2d 588, 591 (N.M. 1978) (involving a stipulation and property settlement agreement upon divorce, which was incorporated in the final decree). “[A] final dissolution decree which rests on or incorporates a stipulation between the parties as to property rights is res judicata as to a subsequent action by either party on a claim determined by the prior decree.” Myers, 676 P.2d at 824, 826 (under res judicata, a prior judgment on the merits bars a subsequent suit involving the same parties based on the same cause of action). “In New Mexico, parties in a divorce may agree and stipulate to a division of property and payment of alimony upon dissolution of marriage. In most cases a stipulation and agreement entered into without fraud or imposition and approved by the trial court is generally enforced and should not be set aside.” See Harkins v. Harkins, 681 P.2d 722, 723 (N.M. 1984) (citations omitted). Thus, it is clear that under New Mexico law, a final divorce decree incorporating the parties’ stipulations constitutes a final non-modifiable judgment. See Benavidez v. Benavidez, 660 P.2d 1017, 1020 (N.M. 1983), citing Parks v. Parks.

We next determine whether the October XX, 2014 First Amended Findings of Fact and Conclusions of Law and the March XX, 2015 Final Decree of Divorce are final non-modifiable judgments. We do not have a copy of the First Amended Findings of Fact and Conclusions of Law, but the document title indicates it is only the court’s findings of fact and conclusions of law, and is not a judgment in the case with decretal language that carries the judgment into effect. In contrast, the Final Decree of Divorce includes decretal language and states “IT IS HEREBY ORDERED, ADJUDGED, and DECREED” that the court has jurisdiction, adopts the stipulations, dissolves the marriage based on legal grounds in incompatibility, and disposes of the property. The Final Decree of Divorce concludes “IT IS SO ORDERED.” Further, as explained, an order or judgment is not considered final unless all issues of law and fact have been determined and the case disposed of by the trial court to the fullest extent.

Here, we know that all issues were not resolved with the First Amended Findings of Fact and Conclusions of Law because, as explained in the Final Decree of Divorce, the parties entered into additional stipulations after that document was entered. In contrast, the Final Decree of Divorce appears to resolve all issues of the divorce. Furthermore, as explained above, the New Mexico Supreme Court has specifically held that a final decree incorporating the stipulations of the parties to a divorce action constitutes a final judgment under New Mexico law. Thus, the March XX, 2015 Final Decree of Divorce constitutes the final judgment in the divorce proceedings between the NH and D~. As such, under New Mexico law, D~ and the NH were validly married at the time of the NH’s death on March XX, 2015. See 42 U.S.C. 416(h)(1)(A)(i) (an applicant is the widow of an insured individual if the courts of the state in which the insured individual is domiciled at the time of death would find such applicant and insured individual were validly married at the time he died); 20 C.F.R. § 404.345 (same).

The NH and D~’s Marriage Ended By Death

We further find that the NH and D~’s marriage ended with the NH’s death. See POMS GN 00305.120 (a marriage can be terminated by divorce, annulment, or by death of either spouse). “The general rule in New Mexico and virtually every other jurisdiction is that a pending divorce action becomes moot when one party to the action dies,” and thus, “one spouse’s death during the pendency of a divorce action deprives the court of jurisdiction to enter a final divorce decree.” Oldham v. Oldham, 247 P.3d 736, 742 (N.M. 2011), citing Romine v. Romine, 671 P.2d 651, 652 (N.M. 1983). The New Mexico Supreme Court explained that in 1993, the Legislature enacted section 40-4-20(B), which provided that the domestic relations court retained jurisdiction to conclude three specific tasks if a party to a divorce dies during pendency of the divorce proceeding: “division and distribution of marital property rights and debts, distribution of spousal or child support [, and] determination of paternity.” Oldham, 247 P.3d at 740, 742 (under the common law rule of abatement, if a party to a dissolution proceeding died before entry of a final decree, the proceedings terminated as a matter of law and the court was divested of jurisdiction over the matter; however, “[b]y enacting section 40-4-20(B), the Legislature departed from the common law rule that a pending divorce action abates when a party to the action dies before the entry of a final divorce decree.”). Section 40-4-20(B) states that if a party to a pending divorce proceeding “dies during the pendency of the action, but prior to the entry of a decree granting dissolution of marriage . . . the proceedings for the determination, division and distribution of marital property rights and debts, distribution of spousal or child support or determination of paternity shall not abate,” and “[t]he court shall conclude the proceedings as if both parties had survived.” N.M. Stat. Ann. § 40-4-2(B). The New Mexico Supreme Court noted, however, that “[n]othing in section 40-4-20(B) gives the court jurisdiction to enter a posthumous divorce decree” and that “[t]he Legislature did not intend for section 40-4-20(B) to reverse the longstanding rule that death terminates the marital relationship.” Oldham, 247 P.3d at 742.

Thus, in the present matter, while the trial court retained jurisdiction of the divorce proceedings between the NH and D~ for purposes of division and distribution of their property, it was the NH’s death that terminated their marriage.5 See Oldham, 247 P.3d at 744 (the decedent’s “estate must be defined through entry of a section 40-4-20(B) marital property judgment before the estate can be distributed in probate”). As such, the NH and D~ were married at the time of the NH’s death

CONCLUSION

In summary, based on the specific circumstances presented, we believe that under New Mexico law the NH and D~ were validly married at the time of the NH’s death because there was no final judgment of divorce prior to his death. There is nothing to support a conclusion that the trial court’s First Amended Findings of Fact and Conclusions of Law constituted a divorce decree under New Mexico law. Thus, for purposes of determining D~’s status as the NH’s widow for entitlement to lump sum death payment and underpayment, it is our opinion that under New Mexico law, the NH and D~ remained validly married at the time of the NH’s death.

Michael McGaughran

Regional Chief Counsel

By: M. Hasan Aijaz

Assistant Regional Counsel


Footnotes:

[1]

Under the Social Security Act, “surviving spouse” means widow. See 42 U.S.C. § 416(a)(2). Therefore, we use these terms interchangeably in this opinion.

[2]

The agency will pay a lump sum death payment to the deceased number holder’s widow living in the same household with the deceased at the time of death. See 42 U.S.C. § 402(i); 20 C.F.R. §§ 404.390-.391. Under section 202(i)(1), if there is no widow living in the same household at the time of death, the lump sum death payment is made to a widow (as defined in section 216(c)), who is entitled to widow’s benefits under section 202(e) on the deceased number holder’s record. See 42 U.S.C. §§ 402(i)(1); 20 C.F.R. §§ 404.390, 404.392(a)(1). In determining whether an applicant is entitled to widow’s benefits for purposes of the lump sum death payment under section 202(i)(1), the applicant must prove, among other requirements, that she is the insured’s widow based on a relationship described in 20 C.F.R. §§ 404.345 or 404.346. See 20 C.F.R. § 404.335(a).

[3]

The agency will distribute an underpayment owed to a deceased number holder to his widow who was living in the same household with the deceased at the time of his death, or to his widow who is entitled to a monthly benefit on the number holder’s earnings record. See 42 U.S.C. § 404(d)(1); 20 C.F.R. § 404.503(b)(1). For underpayment purposes, the agency applies section 216(c) or (h) of the Act to determine if an individual is the deceased number holder’s widow. See 20 C.F.R. § 404.503(b)(1).

[4]

Defined as “outside” or “beyond the scope of.” Dehors, Black’s Law Dictionary (10th ed. 2014).

[5]

The Act provides that if the state courts would not find that the applicant and insured individual were validly married at the time of death, the agency will deem the applicant to be the widow of the insured individual “if such applicant would, under the laws applied by such courts in determining the devolution of intestate personal property, have the same status with respect to the taking of such property as a widow of such insured individual.” See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345. It is not necessary to examine this method of establishing a relationship between the NH and D~ since we found that they had a valid marriage under New Mexico law at the time of his death; however, we note that under New Mexico intestate succession laws, it appears that D~ would not be entitled to inherit as the NH’s surviving spouse, or widow the Final Decree of Divorce included a property division judgment that terminated all marital rights. Section 45-2-802(B)(3) of the New Mexico Probate Code provides that for purposes of intestate succession, a “surviving spouse does not include . . . an individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights, including a property division judgment entered pursuant to” section 40-4-20. N.M. Stat. Ann. §  45-2-802(B)(3); see also Karpien v. Karpien, 207 P.3d 1165 (N.M. Ct. App. 2009) (considering sections 40-4-20 and 45-2-802(B)(3), recognizing that the district court, upon the death of one of the divorcing parties and prior to the entry of a final decree, is permitted to continue the division of marital property as if both parties had survived, and concluding that the husband was precluded from being a “surviving spouse for purposes of inheritance or allowances under probate law”).


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PR 02605.034 - New Mexico - 01/11/2016
Batch run: 01/11/2016
Rev:01/11/2016