BASIC (12-05)

PR 04805.005 Arkansas

A. PR 05-176 Arkansas State Law Status of Annulment of Divorce Decree (NH Robert L~, Jr., SSN ~)(OGC Region VI Opinion 04-1595, Prior Opinion 03-1070) - REPLY

DATE: June 8, 2005

1. SYLLABUS

An entry of a judgment "nunc pro tunc" is designed to correct clerical errors and cannot be used by a trial court to change an earlier record in order to correct something that should have been done but was not. Under Gray v. Richardson, 474 F.2d 1370, 1372 (6th Cir. 1973), SSA is not bound by the nunc pro tunc order annulling the claimant's current marriage when all requirements have not been met. The order issued by the Circuit Case went beyond the grounds specified by statute and permitted by case law. Arkansas State law is very clear as to the proper grounds for annulment of a marriage, and obtaining or maintaining Social Security benefits under the Act is not a proper basis for annulment under Arkansas Code Ann. §9-12-201.

2. OPINION

The purpose of this memorandum is to respond to your request for an additional opinion regarding the possible entitlement of Bobbie N. F~ to widow's insurance benefits under the Social Security Act (the Act) as Robert L. L~ surviving spouse. Ms. F~ was married to Mr. L~ from April 17, 1955, until his death on April 9, 1988. She subsequently married Lindsey F~ on June 12, 1997, but later obtained an Arkansas divorce effective the same day she applied for widow's insurance benefits. Two weeks later, the Arkansas divorce was itself annulled.

On February 26, 2004, we responded to your initial request for a legal opinion. At that time, you asked whether, under Arkansas law, Ms. F~'s April 11, 2001, divorce was valid until dissolved by the judgment of annulment, or whether the divorce would be considered completely void. After reviewing the facts and the relevant law, it was our opinion that the judgment of annulment rendered the 2001 divorce voidable. That is, once the court issued the order setting aside the April 11, 2001, divorce decree, the effect of the order was to place Lindsey and Bobbie F~ in the same position as if they had never been divorced. Consequently, Ms. F~ could not be considered unmarried at the time she applied for widow's insurance benefits on her first husband's record. Therefore, our Office stated that Ms. F~ did not qualify as Mr. L~ widow for entitlement to widow's insurance benefits under the Act. Your inquiry also asked if the dissolution of divorce was a terminating event for widow's benefits under the Act. Because we concluded that Ms. F~ did not qualify for widow's insurance benefits, it followed that she was not entitled to such benefits under section 202(e) of the Act. 42 U.S.C. § 402(e).

After our Office issued its legal opinion on this matter, Ms. F~ was notified on March 15, 2004, at the initial determination level, that her entitlement to widow's insurance benefits was going to be terminated. On April 8, 2004, she requested reconsideration of the decision. In her request for reconsideration, Ms. F~ stated that her marriage to Mr. F~ had been annulled. Apparently, on or about March 29, 2004, Mr. F~ had petitioned the Circuit Court of Crittenden County, Arkansas, to annul their marriage and "reinstate the decree of divorce" previously entered on April 11, 2001, returning both parties to the "single and unmarried status as of June 12, 1997." The basis for the marriage annulment was the fact that the Social Security Administration (SSA) was seeking repayment of Social Security benefits, and that both parties had mistakenly entered into the marriage under the belief that they could collect such benefits. The Court's order indicated that for "good cause shown" Lindsey and Bobbie F~ were entitled to annulment of their marriage of June 12, 1997. However, the order was signed by the judge on March 29, 2004, "Nunc Pro Tunc" to June 12, 1997, and entered on the docket on March 30, 2004.

Your request for an additional opinion asks whether the SSA is bound by the above-described order of annulment issued by the Circuit Court of Crittenden County. Additionally, if the Social Security Administration does not accept the court's decree annulling the marriage between Bobbie and Lindsey F~, would Ms. F~ still be ineligible for widow's insurance benefits on Mr. L~ record. Finally, you ask whether Ms. F~ would be potentially eligible for widow's benefits on Mr. F~'s record.

After reviewing the facts presented and relevant law, as detailed below, we believe that the Social Security Administration is not bound by the March 30, 2004, annulment order, which resulted from a deliberate attempt by Lindsey and Bobbie F~ to manipulate the judicial process in order to secure Social Security benefits. Because the legitimacy of the March 30, 2004, order annulling the marriage between Lindsey and Bobbie F~ is questionable, we still believe Ms. F~ does not qualify as Mr. L~ widow for entitlement to widow's insurance benefits under the Act. Our February 26, 2004, opinion clearly stated that Ms. F~ was not unmarried at the time she filed for widow's insurance benefits on Mr. L~ record. No credible evidence has been presented to our Office that would change our conclusion on this matter. Finally, we believe your last question as to whether Ms. F~ would be potentially eligible for widow's benefits on Mr. F~'s record to be premature because he is still living.

As we understand the facts, on January 24, 2001, Ms. F~, age sixty-three, filed for Title II retirement benefits. At the time of the application, Ms. F~ stated she had been twice married and was currently married to her second husband, Mr. F~. They married on June 12, 1997, when she was fifty-eight years old. However, on April 11, 2001, Ms. F~ filed a claim for widow's insurance benefits under the Act on the record of her first husband, Mr. L~. As previously noted, Ms. F~ was married to Mr. L~ from April 17, 1955, until his death on April 9, 1988. Ms. F~ stated that her marriage to Mr. F~ ended in divorce on April 11, 2001, and that she was unmarried at the time she filed for widow's insurance benefits on her first husband's record. We assume from the Master Beneficiary Record submitted with the initial request for legal opinion that some award of benefits was made based on these representations by Ms. F~.

On March 6, 2003, Lindsey F~ filed for Title II retirement benefits. At the time he filed, Mr. F~ stated that he was married to Ms. F~, but that they previously had been divorced for about thirty days. The records provided in connection with the initial request for legal opinion show that the April 11, 2001 divorce decree was set aside by the Court on April 24, 2001, indicating that, at most, Bobbie and Lindsey F~ had only been divorced for about two weeks.

Ms. F~ was notified on March 15, 2004, at the initial determination level, that her entitlement to widow's insurance benefits was going to be terminated. On April 8, 2004, she requested reconsideration of the decision. In her request for reconsideration, Ms. F~ stated, "My marriage to Lindsey F~ has been annulled and never existed." See SSA Form 561-U2 (Request for Reconsideration dated April 8, 2004). In conjunction with filing her request for reconsideration, Ms. F~ submitted a copy of an "Order of Annulment" from the Domestic Relations Division of the Circuit Court of Crittenden County, Arkansas. The order indicated that for "good cause shown" Lindsey and Bobbie F~ were entitled to annulment of their marriage of June 12, 1997. However, the order was signed by Circuit Judge David B~ on March 29, 2004, "Nunc Pro Tunc" to June 12, 1997, and entered on the docket on March 30, 2004.

SSA requested that Ms. F~ produce a copy of the complaint for annulment of marriage filed with the Court. In response to the request, Ms. F~ produced a petition for annulment of marriage as well as a waiver of service and entry of appearance both filed with the Circuit Court of Crittenden County on or about March 29, 2004. Together, all the documentation indicated that Mr. F~ had petitioned the court to annul their marriage and "reinstate the decree of divorce" previously entered on April 11, 2001, returning both parties to "single and unmarried status as of June 12, 1997." Specifically, Mr. F~'s petition stated:

Defendant [Ms. F~] herein previously applied for Social Security benefits. The Social Security Administration is now seeking repayment of such benefits, contending she should not have married.

Plaintiff [Mr. F~] desires to have the marriage annulled as Defendant mistakenly entered into the marriage under the belief she could collect Social Security benefits.

As the defendant in the case, Ms. F~ entered her appearance by mail. Additionally, she waived any further service of process and the necessity for corroboration of the grounds specified in Mr. F~'s petition for annulment of their marriage, thereby allowing the court to issue its decree in time to be made part of her request for reconsideration.

As you know, one requirement for entitlement to widow's insurance benefits under the Act is that a claimant be unmarried at the time of filing, unless remarriage was after age sixty. 42 U.S.C. § 402(e)(1); 20 C.F.R. §§ 404.335(e) (2004). In order to determine the claimant's marital relationship to the insured individual, we look to the law of the state where the insured had a permanent home when he died. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344-45. Permanent home means the true and fixed home or legal domicile of the insured individual. 20 C.F.R. § 404.303. Mr. L~ died in 1988 while in Montana, but Agency records provided with your initial request for legal opinion demonstrate that he was domiciled in Arkansas. Therefore, we will still apply Arkansas law./

The State of Arkansas is a party to every marriage, and marriage is a contract that should not be dissolved capriciously./ See e.g. Napier v. Napier, 237 Ark., 159, 160, 371 S.W.2d 841, 842-43 (Ark. 1963). The subjects of marriage, divorce, and annulment are regulated by statute, and no divorce can be granted for any cause other than those specified in the statute, and no decree of annulment can be had except for the causes mentioned in the statute. See e.g. Phillips v. Phillips, 182 Ark. 206, 31 S.W.2d 134, 135 (Ark. 1930)(page citations to the Arkansas Reporter not available).

In Arkansas, a marriage may be annulled under certain circumstances. See Ark. Code Ann. § 9-12-201 (current through 2004)./ A marriage may be annulled:

When either of the parties to the marriage is incapable from want of age or understanding of consenting to any marriage, or is incapable of entering into the marriage state due to physical causes, or where the consent of either party shall have been obtained by force or fraud, the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction. Id.

Notwithstanding the imprecise statutory language asserting that the marriage shall be declared void if any of the above conditions are fulfilled, the Arkansas Supreme Court has interpreted this language to mean that, under these circumstances, the marriage would be considered voidable; that is "practically valid" until set aside by a court decree, but once set aside, the marriage is considered a nullity from the beginning. See Vance v. Hinch, 222 Ark 494, 496-99, 261 S.W.2d 412, 414-15 (Ark. 1953)(Arkansas Supreme Court interpreting prior Ark. Stat. Ann. § 55-106, which was a precursor to Ark Code Ann. § 9-12-201); see also Ragan v. Cox, 210 Ark 152, 159, 194 S.W.2d 681, 685 (Ark. 1946)(Arkansas Supreme Court interpreting Pope's Dig. § 9021, which was a precursor to Ark. Stat. Ann. § 55-106)./

Nunc pro tunc literally means "now for then." Birdwell v. Davis, 206 Ark. 445, 175 S.W.2d 992, 994 (Ark. 1943)(page citations to the Arkansas Reporter not available). It is based upon a power inherent in a court to make the record show at a later date what originally occurred. Id. The concept of nunc pro tunc is found under Rule 60 of the Arkansas Rules of Civil Procedure, which deals with obtaining relief from a judgment, decree, or order. See Ark. R. Civ. P. Rule 60(a), (b)(2004); see also Holt Bonding Company, Inc. v. State of Arkansas, 353 Ark. 136, 139, 114 S.W.3d 179, 182 (Ark. 2003)(referring to Rule 60(b) of the Arkansas Rules of Civil Procedure as a restatement of nunc pro tunc judgments or orders); Lord v. Mazzanati, 339 Ark. 25, 28-30, 2 S.W.3d 76, 78-79 (Ark. 1999)(referring to Rule 60(a) of the Arkansas Rules of Civil Procedure as a restatement of nunc pro tunc judgments or orders). Specifically, Rule 60 states:

Rule 60(a): Ninety-day limitation. To correct errors of mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.

Rule 60(b): Exception; Clerical Errors. Notwithstanding subdivision (a) of this rule, the court may at any time, with prior notice to all parties, correct clerical mistakes in judgments, decrees, orders, or other parts of the record and errors therein arising from oversight or omission. During the pendency of an appeal, such mistakes may be corrected before the appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court. Id.

Any correction of the record nunc pro tunc must be, ". . . auxiliary to the original action and not be by an independent action." Birdwell v. Davis, 175 S.W.2d at 994. The fact an order was labeled nunc pro tunc is not dispositive; rather, a reviewing court must look beyond the form of judgment to determine its true nature. See Holt Bonding Company, Inc. v. State of Arkansas, 353 Ark. at 141. A nunc pro tunc order is designed to correct a clerical error, but the trial court cannot change an earlier record to correct something that should have been done, but was not. See id. at 139 (a nunc pro tunc order is designed, ". . . to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken"); Griggs v. Cook, 315 Ark. 74, 78, 864 S.W.2d 832, 834 (Ark. 1993).

Finally, SSA is not bound by a decision in a State trial court a proceeding to which the Agency is not a party. See Gray v. Richardson, 474 F.2d 1370, 1372 (6th Cir. 1973); Social Security Ruling 83-37c. However, SSA is not free to ignore the adjudication of a State trial court where the following four prerequisites are found: (1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; (2) the issue was genuinely contested before the State court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the State trial court is consistent with the laws enunciated by the highest court in the State. Id.

Applying the highlighted principles to the facts of this case, we believe that SSA is not bound by the March 30, 2004, nunc pro tunc order from the Circuit Court of Crittenden County annulling the June 12, 1997, marriage between Lindsey and Bobbie F~. While the issue falls within the general category of domestic relations law and tangentially deals with an issue in a claim for Social Security benefits as determined by a State court of competent jurisdiction, the other two prerequisites specified under Gray v. Richardson have not been met. Id. It is clear from the documentation provided to our Office that the proceeding at issue was not genuinely contested before the State court by parties with opposing interests. This is documented by the fact that Ms. F~ waived any necessity for the corroboration of the grounds specified in Mr. F~'s petition for annulment of their marriage.

Additionally, our Office does not believe the resolution by the State trial court is consistent with the law enunciated by the highest court of the State. As previously noted in our opinion, the subjects of marriage, divorce, and annulment are regulated by statute, and no annulment can be had except for the causes mentioned in the statute. See e.g. Phillips v. Phillips, 31 S.W.2d at 135. Arkansas State law is very clear as to the proper grounds for annulment of a marriage, and obtaining or maintaining Social Security benefits under the Act is not a proper basis for annulment under Ark. Code Ann. § 9-12-201 (or any other code section identified by our research). In fact, the 2004 annulment order from the Circuit Court of Crittenden County annulling the marriage between Lindsey and Bobbie F~ runs counter to the often stated rule in Arkansas that marriage is a contract that should not be dissolved capriciously./ See e.g. Napier v. Napier, 237 Ark. at 160. In our opinion, annulling a marriage contract so that one of the parties can secure Social Security benefits is capricious. Id.

Essentially, the March 30, 2004, nunc pro tunc order from the Circuit Court of Crittenden County, annulling the F~'s 1997 marriage, was an attempt to reinstate the April 2001 divorce decree from the Chancery Court in Mississippi County, which itself had been annulled by that Court two weeks after it was issued. Our reading of Rule 60 of the Arkansas Rules of Civil Procedure requires that nun pro tunc orders relate to a prior judgment, decree, order, or "other parts of the record and errors therein" issued by that particular court, and not to judicial actions undertaken by other courts situated in different counties. Ark. R. Civ. P. Rule 60(a), (b).

The Arkansas Supreme Court has been clear that nunc pro tunc orders, especially those orders issued past the ninety-day time limit, are designed to correct clerical errors and cannot be used by a trial court to change an earlier record in order to correct something that should have been done but was not. Holt Bonding Company, Inc. v. State of Arkansas, 353 Ark. at 141; Griggs v. Cook, 315 Ark. at 78; Birdwell v. Davis, 175 S.W.2d at 994. It is our view that the March 30, 2004, order issued by the Circuit Court of Crittenden County annulling the F~'s 1997 marriage goes well beyond those grounds specified by statute and permitted by case law. Consequently, the Commissioner is not bound by the 2004 order from the Circuit Court of Crittenden County.

Therefore, consistent with SSA's statutes and regulations, Bobbie F~ does not qualify for widow's insurance benefits on her first husband's record because she was not unmarried at the time of application. Finally, we believe that your last question regarding whether Ms. F~ would potentially be eligible for widow's benefits on Mr. F~'s record is premature because he is still living.

Tina M. W~
Regional Chief Counsel
By: _____________________
Thomas C. S~


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PR 04805.005 - Arkansas - 12/19/2005
Batch run: 01/27/2009
Rev:12/19/2005