Under Gray v. Richardson, SSA is not bound by the nunc pro tunc order when all requirements have not been met. The declaratory judgment was not genuinely contested, thus the second Gray factor is not met.. No one with opposing interests appeared in court. The evidence in our records does not appear to establish the first element of a commom-law marriage.

You submitted an Ohio state court's nunc pro tunc judgment that the claimant, Korinna S. M~, and the deceased number holder (NH), Ralph L. A~, had a common-law marriage. You asked whether the Agency should recognize this state court judgment, for purposes of determining whether the claimant is entitled to an underpayment as the NH's widow. For the reasons discussed below, we conclude that the Agency is not bound by the nunc pro tunc judgment.

BACKGROUND

The NH died on May 28, 2005. At the time of his death, the NH was domiciled in Ohio.

On August 17, 2006, the claimant filed in the Columbiana County Court of Common Pleas, Probate Division, a complaint for declaratory judgment, seeking a declaration of the validity of a common-law marriage with the NH allegedly entered into in or about September 1990.

On November 1, 2006, the probate court entered a nunc pro tunc judgment, in which it found by clear and convincing evidence that the claimant and the NH became common-law husband and wife in or about September 1990, and remained so until the NH's death. In the judgment entry, the court stated that it had held a hearing, at which the claimant and four defendants, who were siblings of the NH, appeared; one defendant did not appear. The court further stated that it inquired of each of the defendants who appeared at the hearing; they all acknowledged that the claimant's allegations were true, and none of them objected to the court's determination of a common-law marriage.

SSA records contain documents dated 1991 to 2003, in which the NH denied being married to the claimant, and the couple referred to each other as "boyfriend" and "girlfriend." For example, in March 1992, the claimant reported to the Agency under penalty of law that the NH was her "boyfriend."

On December 20, 2007, the claimant filed a claim for the underpayment of the NH's Title II disability benefits as the NH's widow. The claimant reported that she was living with the NH at the time of his death.

DISCUSSION

Under the Agency's regulations, if an individual to whom an underpayment is due dies before receiving payment, such underpayment may be distributed to:

The deceased individual's surviving spouse as defined in section 216(c), (g), or (h) of the Act who was either:

1. (i)  

   Living in the same household (as defined in §404.347) with the deceased individual at the time of such individual's death, or

2. (ii)  

   Entitled to a monthly benefit on the basis of the same earnings record as was the deceased individual for the month in which such individual died.

20 C.F.R. § 404.503(b). Section 216(h)(1)(A)(i) of the Act, in turn, states that the Agency will determine that an applicant is the widow of an insured individual:

•  

  if the courts of the State in which such insured individual is domiciled at the time such applicant files an application, or, if such insured individual is dead, the courts of the State in which he was domiciled at the time of death…would find that such applicant and such insured individual were validly married at the time such applicant files such application or, if such insured individual is dead, at the time he died.

See also 20 C.F.R. § 404.345. Thus, the Act directs the Agency to look to state law to determine the relationship of the claimant to the insured NH. In this case, we need to determine whether the claimant is the widow of the NH. The question, then, is whether the Agency should recognize the Ohio probate court's nunc pro tunc judgment that a common-law marriage existed between the claimant and the NH.

Although the Commissioner is not bound by the decision of a state trial court in a proceeding to which he was not a party, he is also not free to ignore an adjudication of a state trial court where it is fair and consistent with the law as enunciated by the highest court of the state. See SSR 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)). Pursuant to Gray, the Commissioner is bound by a state court determination only where: (1) an issue in a claim for Social Security benefits 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 law enunciated by the highest court in the state. See id.

Based on the information provided to us, it appears that the second Gray factor is not satisfied in this case, because it does not appear that the nunc pro tunc declaratory judgment was genuinely contested in the Ohio probate court. To be genuinely contested, an issue must be disputed by parties with opposing interests. See, e.g., George v. Sullivan, 909 F.2d 857, 861 (6th Cir. 1990) (a court order did not bind the Commissioner and was not genuinely contested where no evidence was presented or any material controversy resolved); Winters v. Sec'y of Health & Human Servs., No. C-3-87-419, 1989 WL 280323 at * 2 (S.D. Ohio Dec. 11, 1989) (state court proceeding is "genuinely contested" when parties are cross examined and evidence is presented in favor and opposition to positions of the parties). Here, although a hearing was held, no one with opposing interests appeared to contest the claimant's complaint. The NH, who was deceased, obviously did not appear. According to the court's judgment entry, four of the NH's siblings appeared as defendants at the hearing (and one other defendant did not appear). The defendants who were present all acknowledged that the claimant's allegations were true, and did not object to the court's determination that a common-law marriage existed. Thus, rather than the proceeding being adversarial, it appears that the court merely rubberstamped the claimant's complaint based on the lack of objection by the defendants.

As you noted, evidence contained in SSA records contradicts the Ohio probate court's finding. There is no indication in the court's judgment entry that this evidence was presented to the court. As discussed below, had the court seen this evidence, it likely would have changed the outcome of the case, i.e., the court would not have found that the claimant and the NH entered into a common law marriage in or about September 1990.

Common-law marriages have been prohibited in Ohio since October 10, 1991, but common-law marriages occurring prior to that date remain valid. See Ohio Rev. Code § 3105.12(B). The Ohio Supreme Court has stated that common-law marriages are disfavored in Ohio and are recognized as lawful only when they meet certain requirements. See Nestor v. Nestor, 472 N.E.2d 1091, 1094 (Ohio 1984) (adopted as SSR 88-14); see also Smith-Wilkins v. Sec'y of Health & Human Servs., 880 F.2d 864, 866 (6th Cir. 1989). The elements of a common-law marriage are: (1) an agreement of marriage in praesenti; (2) cohabitation as husband and wife; and (3) the treatment and reputation as being husband and wife in the community and circle in which the couple resides. See Nestor, 472 N.E.2d at 1094; DeCarlo v. Estate of Maxwell, 854 N.E.2d 230, 233 n.2 (Ohio Ct. App. 2006) (citation omitted). The Ohio Supreme Court has held that the essential element of a common-law marriage claim is the agreement to marry in praesenti. See Nestor, 472 N.E.2d at 1094 ("The fundamental requirement to establish the existence of a common law marriage is a meeting of the minds between the parties who enter into a mutual contract to presently take each other as man and wife."). The party alleging a common-law marriage has the burden of proving all of the elements by clear and convincing evidence. See id. Clear and convincing evidence is "that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established." Cross v. Ledford, 120 N.E.2d 118, 123 (Ohio 1954).

Here, the evidence in the file does not appear to establish by clear and convincing evidence the first element of a common-law marriage. The agreement to marry in praesenti may be proven either by direct evidence of the agreement or "by way of proof of cohabitation, acts, declarations, and the conduct of the parties and their recognized status in the community in which they reside." Id. The file does not contain any direct evidence of an agreement between the claimant and the NH to marry in praesenti. To the contrary, as you indicated, in various Agency documents dated 1991 to 2003, the NH consistently denied that the claimant was his wife, and referred to her only as his "girlfriend." And, in March 1992, the claimant also reported to the Agency under penalty of law that the NH was her "boyfriend." If the Ohio probate court had been presented with this contrary evidence, it seems unlikely that it would have credited the claimant's allegations at the hearing.

Thus, because the court's declaratory judgment was not genuinely contested, the second Gray factor is not satisfied. Consequently, the Agency is not bound by the Ohio probate court's nunc pro tunc judgment of common-law marriage, and need not recognize this state court determination.

CONCLUSION

For the reasons discussed above, we conclude that the Agency is not bound by the Ohio probate court's nunc pro tunc judgment of common-law marriage.

Donna L. C~

Regional Chief Counsel, Region V

By: _____________________

Cristine B~

Assistant Regional Counsel

Under Gray v. Richardson, the Secretary may disregard a State court determination when it fails to satisfy any one of four criteria:

A State court of competent jurisdiction has already determined the issue in a claim for Social Security benefits;

The issue was "genuinely contested" before the State court "by parties with opposing interests";

The issue involves domestic relations law;

The State court resolved the issue consistently with the law enunciated by the State's highest court.

Under Ohio law, the validity of a marriage is determined by the law of the State where the marriage contract was made.

Under Michigan law, a marriage is void at its inception if a spouse obtained the consent of the other by force or fraud. Fraud sufficient to annul a marriage must have induced the defrauded party to agree to the marriage and, in addition, it must have been "wholly subversive of the true essence of the [marriage] relation."

Under both Michigan and Indiana law, the presumption favoring the last marriage is rebutted by proof that a prior marriage was not dissolved by death or divorce.

NOTE: Effective for benefits payable 1/91 and later, a legal spouse does not bar the entitlement or reentitlement of a deemed spouse.

You asked us to determine the effect of a marriage annulment on the eligibility of two claimants for wife's benefits, both of whom claim to be the legal spouse of the insured worker. We have concluded that the second claimant, Dorothy W~ C~, has always been and continues to be the legal spouse of the insured worker, Henry C~. She is entitled to collect wife's benefits on his account. A summary of the pertinent facts and the legal basis for our decision follow.

A. Facts of the case.

In 1986, Ellen N~ C~ (Ellen) began receiving wife's benefits as the wife of an insured worker, Henry C~ (Henry). At this time, Henry represented to SSA that Ellen was his only spouse and that he had not been married before his present marriage to Ellen./ In December 1989, Dorothy W~ C~ (Dorothy) applied for wife's benefits as Henry's wife. SSA determined that Dorothy was Henry's lawful spouse and awarded her wife's benefits, terminating Ellen's benefits in July 1990. Ellen filed a reconsideration with SSA in July 1990, protesting termination of her wife's benefits because of Dorothy's entitlement.

Subsequently, in early 1990, Henry initiated judicial proceedings to annul his marriage to Dorothy in Ohio Domestic Relations Court. He filed an affidavit with the court, swearing he had not seen Dorothy since February 1, 1947 and could not locate her with reasonable effort. Accordingly, Dorothy received publication notice of the annulment proceeding. See, Ohio Rev. Code § 3105.06 (authorizing publication notice for annulment proceedings). In August 1990, the court annulled the Michigan marriage between Henry and Dorothy on the grounds that Dorothy had procured the marriage through fraud. Dorothy, however, neither learned of nor appeared and participated in the annulment proceeding and, consequently, the annulment decree was entered ex parte.

SSA has gathered the following information from the parties:

Henry and Dorothy were married in Grand Rapids, Michigan, on February 1, 1947. According to Dorothy, she and Henry lived together for almost the first two years of their marriage, until sometime in December of 1948. Dorothy alleges she notified Henry that she intended to move to Ohio and live with her sister who resided there in order to escape domestic difficulties in their marriage. She then left Henry and went to Ohio, moving into her sister's home. Dorothy claims Henry visited her in Ohio on one occasion, but they did not reconcile at this time. She did not meet Henry again, and she assumed he returned to Michigan and lived there. Dorothy never sought, obtained, nor received notice of a judicial dissolution of this marriage. When SSA informed her about the annulment, she protested that her marriage should not have been annulled.

In addition, Dorothy's sister, Annie S~ (Annie), alleges she was acquainted with Henry long before he and her sister married. According to Annie, once married, the couple lived together in Grand Rapids, Michigan for a few years, and then Dorothy moved to Cleveland, Ohio. Annie knew of no divorce terminating the marriage.

Moreover, although he admits he married Dorothy, Henry alleges he and Dorothy cohabited during only the first week of their marriage and, then, Dorothy left him for a paramour./ Henry also contends that, soon after Dorothy left him, he consulted with an attorney, but decided not to judicially dissolve the marriage because of financial restrictions. Henry also contends that he never again met Dorothy after she left him and that, when he inquired about her whereabouts, Dorothy's family informed him she was dead. Henry acknowledges that he never obtained a judicial dissolution of this marriage until 1990, when he obtained the Ohio annulment. In August, 1950, Henry and Ellen N~ C~ (Ellen) were married in Lawrenceburg, Indiana.

B. Discussion of the law.

The Social Security Act entitles the wife of an insured worker to wife's benefits on the worker's earnings record if she satisfies several statutory requirements and, thus, meets the definition of "wife" under the Act. 42 U.S.C. § 402(b)(1); c.f., S.S.R. 67-58, 1967 C.B. 9. Among these requirements is section 216(h), which provides in pertinent part:

An applicant is the wife . . . of a fully or currently insured individual . . . if the courts of the State in which such insured individual is domiciled at the time such applicant files an application . . . would find that such applicant and such insured individual were validly married at the time such applicant files an application. If such courts would not find that such applicant and such insured were validly married at such time, such applicant shall, nevertheless, be deemed to be the wife . . . of such insured individual if such applicant would, under the laws applied by such courts in determining the devolution of intestate property, have the same status with respect to the taking of such property as a wife of such insured individual.

42 U.S.C. § 416(h)(1)(A). Under this section, then, a woman is a "wife" for the purposes of receiving wife's benefits if the courts in the worker's state of domicile would, at the time of her application, find (1) she and the worker are validly married, or (2) she has the status as a wife under the laws of intestacy, and would take a wife's share of the worker's intestate estate. 20 C.F.R. § 404.345 (1990). Accordingly, whether Dorothy or Ellen is entitled to benefits depends on whether, under Ohio law, their respective marriages to Henry are valid and whether the annulment affects the validity of either marriage. Dorothy or Ellen might also be a wife if, under Ohio intestacy law, she would have the same status as a wife for the purposes of inheriting from the worker, if he died intestate.

In general, although he is not bound by a state court decision in a proceeding to which he was not a party, the Secretary of the Department of Health and Human Services (the "Secretary") may not disregard a state court's determination of an issue in a claim for social security benefits if it fairly and consistently represents state law. Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973) (holding); George v. Sullivan, 909 F.2d 857, 860 (6th Cir. 1990); see also, S.S.R. 83-37c, 1983 C.B. 17 (adopting Gray v. Richardson, 474 F.2d 1370). Nevertheless, under the rule from Gray v. Richardson, 474 F.2d 1370, the Secretary may disregard a state court determination when it fails to satisfy any one of four criteria:

1. A state court of competent jurisdiction has already determined the issue in a claim for social security benefits;

2. The issue was "genuinely contested" before the state court "by parties with opposing interests";

3. The issue involves domestic relations law;

4. The state court resolved the issue consistently with the law enunciated by the state's highest court.

George v. Sullivan, 909 F.2d at 860; accord, Gray v. Richardson, 474 F.2d at 1373. As a result, we conclude for the reasons that follow that SSA may ignore the Ohio annulment and, instead, make its own, independent determination as to which of the marriages is valid under Ohio law, the worker's state of domicile.

We advise SSA to disregard the annulment. In so doing, we have determined that the second claimant, Dorothy W~ C~, is the legal spouse of the insured worker, Henry C~, and is exclusively entitled to collect wife's benefits on his account.

1. SSA may disregard the Ohio annulment because it did not meet the criteria specified in Gray v. Richardson.

The annulment proceeding and decree did not satisfy the second and fourth criteria of the list enumerated by the Sixth Circuit in Gray v. Richardson, 474 F.2d at 1373; George v. Sullivan, 909 F.2d at 860. The second criterion was not satisfied because the annulment resulted from an ex parte proceeding and was, therefore, not the product of a "genuinely contested" state court proceeding. Only Henry was present, Dorothy having received no actual notice and having had no opportunity to "genuinely contest" the annulment. As a result, the court was not apprised of Dorothy's version of the facts and, had it considered them, may have refused to grant the annulment.

The Ohio annulment also failed to meet the fourth criterion because the court improperly applied Ohio law when it annulled the Michigan marriage between Dorothy and Henry. First, under Ohio law, the validity of a marriage is determined by the lex loci contractus, or the law of the state where the marriage contract was made. Mazzolini v. Mazzolini, 168 Ohio St. 357, 358, 155 N.E.2d 206, 208 (1958) (citing McDowell v. Sapp, 39 Ohio St. 558, 560 (1883) for this proposition). Thus, Michigan law governs the validity of the marriage between Dorothy and Henry because it was solemnized in Michigan. Although the court ostensibly applied the principal of lex loci contractus, it nevertheless held the marriage void for fraud under both Michigan law and Ohio law (annulment decree, Pages 3-4). The court's holding based on Ohio law is erroneous. The principal of lex loci contractus generally prohibits a court from applying any law other than the law of the place where the marriage was contracted in determining the validity of an out-of-state marriage, Id. Consequently, the court should have only applied Michigan law in this case./

Second, the court should not have held the marriage void for fraud under Michigan law. The court decided Dorothy lacked "serious intent to remain married and enter into the relation of husband and wife" at the time she married Henry (annulment decree, page 3). In so deciding, the court appears to have found that Dorothy falsely told Henry she loved nobody but Henry, but then left Henry for a paramour shortly after the marriage ceremony. Id.

This type of wrongdoing is probably insufficient to constitute fraud warranting a marriage annulment. In Michigan, a marriage is void at its inception if a spouse obtained the consent of the other by force or fraud. M.C.L.A. § 552.2. Fraud sufficient to annul a marriage must have induced the defrauded party to agree to the marriage and, in addition, it must have been "wholly subversive of the true essence of the [marriage] relation." Yanoff v. Yanoff, 237 Mich. 383, 387, 211 N.W. 735, 736 (1927), overruled on other grounds, Sarafin v. Sarafin, 401 Mich. 634, 258 N.W.2d 461 (1977); Leavitt v. Leavitt, 13 Mich. 452, 457 (1865). Although we have found no Michigan case directly on point with the present case, one Michigan Supreme Court opinion indicates that an annulment is proper when a spouse's disingenuous display of affection prior to the marriage belied an ulterior motive to obtain a particularly devious objective. See, Abrahams, Annulments for Lack of Love and Affection, 16 Clev.-Marshall L. Rev. 180 (1967). For instance, Sampson v. Sampson, 332 Mich. 220, 50 N.W.2d 767 (1952), involved an annulment of a marriage between an elderly widow and a young sailor. In affirming the annulment, the Michigan Supreme Court opined that the sailor never intended a "real marriage" with his wife, but had married the widow for the sole purpose of defrauding her out of her property. Thus, two facts, the sailor's lack of affection and his hidden motive for marriage, combined to warrant the annulment. Accord, Gillett v. Gillett, 78 Mich. 184, 43 N.W. 1101 (1889)(sustaining annulment where young woman married old and "broken" man because he was about to receive a liberal pension and, thus, her "motive for conspiracy was manifest"). In the present case, however, Henry did not allege and the court did not conclude that Dorothy's claims of love belied a devious ulterior motive to defraud Henry. Indeed, most state courts hold that a marriage may not be annulled simply because a party falsely pledged her love to her spouse at the time of their marriage. Abrahams, supra, at 180. Michigan courts would probably follow this well-settled rule.

Moreover, we believe the court lacked sufficient proof to annul the marriage for fraud. In Michigan, proof of fraud must be "clearly" established. Yanoff v. Yanoff, 237 Mich. at 387, 211 N.W. at 736 (common law rule) (baby's birth date showed conception must have occurred long before husband and wife ever met). Nevertheless, Henry did not allege and the court did not consider facts showing that Dorothy had a paramour before, rather than after, the parties' marriage and, thus, intentionally deceived Henry at the time of the marriage./ Additionally, Henry did not allege and the court did not consider whether the parties lived together after Henry discovered the alleged fraud, which would preclude an annulment under Michigan law. M.C.L.A. § 552.37; Boyce v. McKenna, 211 Mich. 204, 178 N.W. 701 (1920) (a couple must not voluntarily live together after the defrauded party has discovered, and obtained satisfactory proof, of the fraud). As a result, SSA should ignore the Ohio annulment in making its benefits determination.

2. The first marriage is the only valid marriage for benefit purposes.

Once having decided to disregard the annulment, SSA must then decide whether Ohio courts would find either the first or second marriage valid. 42 U.S.C. § 416(h)(1)(A). Ohio courts would employ the principle of lex loci contractus and, thus, apply the laws of Michigan and Indiana in determining which of these out-of-state marriages was valid. Mazzolini v. Mazzolini, 168 Ohio St. at 358, 155 N.E.2d at 208. Where one spouse has entered into two marriages, the law in both Indiana and Michigan presumes that his second marriage is valid and that his prior marriage has terminated. Boulton v. McIntire, 119 Ind. 574, 21 N.E. 445 (1889); Beaudin v. Suarez, 365 Mich. 534, 113 N.W.2d 818 (1962). Nevertheless, this presumption favoring the later marriage is rebutted by a "high degree of proof" to the contrary. Rainer v. Snider, 174 Ind. App. 615, 369 N.E.2d 666 (1977); In re Adams Estate, 362 Mich. 624, 626, 107 N.W.2d 764, 766 (1961) ("clear and positive proof"). Under the facts in the present case, the courts in both states would probably find that this presumption has been rebutted and the first marriage, between Dorothy and Henry, is valid.

Courts in Indiana and Michigan appear to require proof that a prior marriage was not dissolved by death or divorce. Boulton, 119 Ind. 574, 21 N.E. 445; Rainer, 174 Ind. App. 615, 369 N.E.2d 666 (proof that prior marriage was not dissolved by death or divorce is sufficient to rebut the presumption); Beaudin v. Suarez, 364 Mich. 534, 113 N.W.2d 818 (proof that prior marriage was not dissolved is sufficient to rebut the presumption); In re Adam's Estate, 362 Mich. 624, 107 N.W.2d 764 (1961); Quinn v. Quinn, 4 Mich. App. 536, 145 N.W.2d 252 (1966) (one uncorroborated sighting of wife's prior spouse was insufficient to prove that he was alive at time of subsequent marriage and, thus, such proof failed to rebut the presumption). In the present case, Dorothy was alive when Henry remarried. Although Henry claims he believed Dorothy was dead when he remarried, Dorothy's claims that Henry knew she lived in Ohio and that he once visited her there, are more convincing./ Moreover, a 1947 marriage certificate and the clear admissions of Dorothy and Henry show that they were married. Both parties also admit that they, themselves, did not judicially dissolve their marriage/ and were never notified of marriage dissolution proceedings. In sum, the facts in this case appear to rebut the presumption of the validity of the second marriage between Ellen and Henry. Because her marriage is invalid in Ohio, Ellen may not establish she is Henry's "wife" for the purposes of obtaining wife's benefits. 42 U.S.C. § 416(h)(1)(A).

Furthermore, Ellen may not establish entitlement to wife's benefits under the alternative definition of "wife." 42 U.S.C. § 416(h)(1)(A). A claimant is considered the "wife" of the insured worker if she would have the status of wife under the laws of intestacy in the worker's state of residence, and inherit accordingly. Under the Ohio statute of descent and distribution, the surviving "spouse" of the deceased inherits a portion of the intestate estate. Ohio Rev. Code § 2105.06. Once again, Ohio courts would apply Indiana law, the place of Ellen's marriage, and would conclude that she is not Henry's "spouse" because their marriage was invalid. Consequently, Ellen would not inherit as Henry's "surviving spouse" and, therefore, may not obtain wife's benefits because she lacks the "same status" as a wife under the Ohio laws of intestacy./ 42 U.S.C. § 416(h)(1)(A).

SSA is bound by a State court ruling that meets the criteria in Gray v. Richardson. The issues before the Ohio State trial court, i.e., the existence of a common-law marriage from which a divorce was sought, 1. were genuinely contested by the NH who was ceremonially married to another, 2. fell within the category of domestic relations law, 3. were resolved in accordance with Ohio's clear and convincing evidence standard, and 4. formed the basis of a claim for social security benefits.

INTRODUCTION

Irma W~, a current recipient of Supplemental Security Income (SSI), has twice applied for benefits on the account of the wage-earner, Donald G.~ W~. Her first application for wife's benefits was denied by an Administrative Law Judge (ALJ), who found that Ms. W~ had not established a valid common-law marriage under Ohio state law. In her current application, Ms. W~ alleges entitlement as a divorced spouse, and she relies upon new evidence: a decision from an Ohio state court finding that she had a valid common-law marriage to Mr. W~ and granting her a divorce.

You asked for our advice on a number of questions. (1) Is the agency bound by the state court's decision on the common-law marriage and subsequent divorce? (2) If the agency is bound by the decision, what date should the agency recognize as the date of the marriage of Irma W~ and Donald W~? (3) Can the decision on Irma W~'s prior application be reopened and revised to allow benefits to be paid retroactive to July 19927 (4) Does the Ohio court decision affect the entitlement of Virginia W~, a woman whom Mr. W~ ceremonially married in 19647

As we explain, it is our opinion that, for purposes of the current application, the agency is bound by the Ohio state court decision that Donald and Irma W~ were validly married from 1955 until September 18, 1996. The agency's decision on the prior application cannot be reopened under the principles of administrative finality. However, because Irma W~ completed an SSI redetermination in July 1994, that date can be used as a protective filing for her current application. Furthermore, under section 216(h)(1)(B) of the Social Security Act, Virginia W~ is deemed to be validly married to Donald W~ and therefore remains entitled to benefits on his account, even though her marriage was apparently invalid as a result of a legal impediment.

FACTS

From our review of the claims folder, we understand that, in an application for retirement benefits filed on March 12, 1986, Donald W~ reported only a ceremonial marriage to Virginia n6e G~ that took place on January 4, 1964, and continued. In August 1989, Virginia W~ applied for wife's benefits on Mr. W~'s account. Mr. W~ completed an SSA-3 "Marriage Certification," in which he again stated that his marriage to Virginia was his only marriage.

In her July 30, 1992, application for wife's benefits on Mr. W~'s account, Irma W~ stated that she was currently married to Mr. W~ and that she had been ceremonially married to him in 1954 in Cleveland, Ohio.

Questions were raised concerning this marriage, apparently because Mr. W~'s previous application had not mentioned Irma and local SSA personnel were unable to obtain proof of the ceremonial marriage. Ms. W~'s application was initially denied by a notice dated October 28, 1992, on the grounds that she did not meet the "marriage requirement" of the law.

Also in July 1992, she apparently applied for SSI and was found entitled as an aged individual.

During the development of Ms. W~'s wife's benefits claim, the agency obtained documentary evidence (income tax returns, property mortgages, insurance papers, and commercial papers) that Irma and Donald lived together and held themselves out to the public as husband and wife. In a Report of Contact, however, Mr. W~ denied being married to Irma.

The Agency determination that Irma was not "married" to Donald was upheld on reconsideration and after a hearing before an ALJ. The ALJ found in particular that even though Donald and Irma had held themselves out to the public as husband and wife, they did not establish a valid common-law marriage because they did not produce clear and convincing evidence of any present intent to marry as required by Ohio law. The Appeals Council denied a request for review, and Irma did not seek judicial review.

In June 1995, Irma W~ sued Mr. W~ for divorce in the Court of Common Pleas for Washington County, Ohio. According to documents in the claim file, Mr. W~ contested the divorce and a trial took place in July 1996. In September 1996, the court issued a decision finding that the parties had established a valid common-law marriage commencing in 1955. The court granted Irma a contested divorce on September 18, 1996.

On April 4, 1997, Irma W~ filed her current application for wife's benefits on Donald W~'s account and also requested reopening of the decision on the 1992 application. She submitted the state court documents that she had been married to Donald and that she was divorced from him in September 1996.

DISCUSSION

We identify and discuss five issues: (1) the agency can consider Ms. W~'s current application because res judicata does not apply; (2) the agency is bound by the Ohio court's ruling that Irma and Donald W~ had a valid marriage; (3) nonetheless, the decision on Irma W~'s prior application is final and binding, and the decision cannot be reopened; (4) Irma W~'s current application, however, can be given a protective filing date of July 1994 based on an SSI redetermination; and (5) the award of benefits to Irma does not affect the entitlement of Virginia W~.

1. The agency can consider Ms. W~'s current application because res judicata does not apply.

Under the POMS, an adjudicator may apply res judicata1_/ to deny a subsequent application where the facts and issues are the same. POMS GN 03101.160; GN 04040.010. But res judicata should not be applied if there are new facts or evidence submitted with the subsequent application. Id.

Here, Ms. W~'s new evidence (the state court judgment that she had a valid marriage to Mr. W~ and granting her a divorce) is relevant to her status as a spouse for purposes of Social Security benefits. Therefore, under the POMS standard, res judicata does not apply and the agency must adjudicate her current application.

2. The Agency is bound by the state court determination of Ms. W~'s marital status.

Under the Social Security Act, the agency determines questions of family status by applying the law of the state in which the insured is domiciled. 42 U.S.C. § 416(h)(1)(A). Since Mr. W~ was domiciled in Pennsylvania when Ms. W~ filed her application, Pennsylvania law would control the family status determination. However, because the alleged common-law marriage took place in Ohio and Ms. W~ was domiciled in Ohio, Ohio courts had jurisdiction to determine the issues of marriage and divorce. The courts of Pennsylvania, in turn, would accord "full faith and credit" to the Ohio court's determination that the parties were married and granting them a divorce.

In Social Security Ruling 83-37c, which adopts the Sixth Circuit Court of Appeals decision in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), the agency explains when it is bound by state court decisions on family law issues. See 20 C.F.R. § 402.35(b)(1). In Gray, the Social Security Administration had denied benefits to an illegitimate child, finding that the child had not proven her relationship to the insured. The court of appeals found that substantial evidence in the record supported the Agency's findings, but the Agency was nonetheless required to follow the holding of a state court that had ruled that the wage earner was the father of the child.

The court of appeals ruled that the state court's decision must be followed where: (1) an issue in a claim for social security benefits 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 law enunciated by the highest court in the state.

Under these criteria, the agency is bound by the Ohio state court's determination that Irma and Donald W~ were validly married. The state court was competent to determine the W~'s marital relationship and marital relationship is at issue in the current application. We believe that the issue was genuinely contested; the trial court's ruling so states, and a trial was held. We would expect Mr. W~ to contest the divorce since it would presumably affect his current ceremonial marriage to Virginia W~.

The issues of marriage and divorce are within the category of domestic relations law. The trial court weighed the evidence differently than did the ALJ but the court's decision is generally consistent with Ohio law because the court applied the clear and convincing evidence test and considered whether the parties had a present intent to enter into a common law marriage. See Nestor v. Nestor, 472 N.E.2d 1091 (1984) (adopted as Social Security Ruling 88-14). Because the Ohio state court's decision satisfies the Gray criteria, SSR 83-37 provides that the state court's decision should be binding on the Agency. The Agency should, therefore, award divorced spouse's benefits to Irma W~ based on her current application.

3. The prior decision is not subject to reopening and revision.

Even though on the current application the agency is bound by the state court decision, in our view the agency cannot reopen the prior decision under the agency's rules concerning administrative finality. Ms. W~'s first application for wife's benefits filed on July 30, 1992, was denied at all administrative levels, and the ALJ's decision became final when Ms. W~ did not seek judicial review. See 20 C.F.R. § 404.955. Although the regulations allow under certain circumstances a final and binding decision to be reopened and revised, 20 C.F.R. § 404.987, none of these circumstances is present here.

Under 20 C.F.R. § 404.988(b), a decision can be reopened within four years from the date of the initial determination if there is "good cause," which includes new and material evidence. While the state court judgment is new and material evidence, the reopening was not requested within four years of October 28, 1992, the date of the initial determination on her claim.

Therefore, the new evidence cannot justify a reopening under this regulation.

The regulations also allow reopening "at any time" for certain reasons. The district office processing Ms. W~'s current application suggested that POMS GN 04020 (entitled "Unrestricted Reopening—AN ADVERSE CLAIM HAS BEEN FILED AGAINST THE SAME EARNINGS RECORD(E/R)") might apply to allow a reopening if Irma W~'s entitlement nullified Virginia W~'s entitlement. In our view, the applicable regulation and the POMS apply only to and allow reopening only of claims that have been awarded. These authorities do not apply to situations where, as here, the prior claim has been denied. Under 20 C.F.R. § 404.988(c)(2), a decision can be reopened at any time if "[a]nother person files a claim on the same earnings record and allowance of the claim adversely effects your claim." And the POMS provision applies where "adverse" awards of claims are involved; that is, there is an earlier award to a claimant and a current award to a new claimant that defeats the entitlement of the prior claimant. POMS GN 04020(A). The POMS further provides that the claim to be reopened is the earlier claim that "gave rise to the earlier entitlement of the earlier claimant." The "earlier claim" here would be the award to Virginia W~, not the denial of Irma W~'s claim. In short, nothing in the POMS provision or the regulation supports the view that Ms. W~'s prior claim can be reopened "at any time." Therefore, reopening is not available.

4. Entitlement should be established based upon a July 1994 SS! redetermination.

Even though the prior decision cannot be reopened, we have considered whether Ms. W~ can be found entitled earlier based on her entitlement to SSI. The SSI query in the claim file demonstrates that Ms. W~ has been entitled to SSI as an aged individual since August 1992, when she attained age 65. (Her application for SSI in July 1992 was likely the catalyst for her first spousal application.) Normally, an SSI application can serve as an application for benefits under title II. See POMS GN 00204.020. Such an open application can be "closed out" by an adjudication of the title II application. See POMS GN 00204.027. Here, in July 1992, Ms. W~ applied concurrently for SSI and title II wife's benefits, and her wife's benefits application was denied by ALJ decision dated May 16, 1994. That ALJ decision covers Ms. W~'s entitlement to spousal benefits through that date and closes out any implied application based on the 1992 SSI filing.

However, an SSI redetermination may also be construed as a protective filing for title II benefits. See POMS GN 00204.010(A)(4); GN 00204.015. According to the POMS, a redetermination should be used to infer intent to file for title II benefits when a signed redetermination form is obtained. See POMS GN 00204.015. The dates on an SSI computer printout can be used to establish our receipt of a signed redetermination form. See POMS GN 00204.015(B)(3). The claims file includes an SSID dated May 6, 1997. That SSID indicates that Ms. W~ had redeterminations in November 1993, July 1994, and February 1995. We believe that the July 1994 redetermination is the only one that suffices as a written intent to file for this claim.

The November 1993 redetermination should not be considered a written intent to file because the July 1992 wife's benefits claim was still pending at that point. The ALJ issued a decision in May 1994, and his decision covers Ms. W~'s entitlement through that date. 42 U.S.C. § 416(i)(2)(G). Because the ALJ's decision adjudicates Ms. W~'s eligibility through May 1994, any potential eligibility based on the November 1993 redetermination form can be considered adjudicated.

The July 1994 redetermination occurred after the ALJ had issued his decision, although before the Appeals Council had denied review. Under the regulations, however, when the Appeals Council denied review, the Council did not adjudicate the merits of Ms. W~'s application. 20 C.F.R. §§ 404.955(a), 404.981. Instead, the Council's action left the ALJ's adverse decision as the final agency decision on the claim. 20 C.F.R. § 404.981. Therefore, because the July 1994 redetermination can be presumed to be a written intent to file for title H benefits, and because there was no subsequent adjudication of entitlement to title II benefits, that date is the earliest that can be used as a protective filing date for Ms. W~'s claim for spousal benefits.2_/

5. An award of benefits to Irma W~ does not affect the entitlement of Virginia W~.

Irma W~'s current application should be considered as filed in July 1994. At that point, by virtue of the September 1996 state court decision she was the wife of Donald W~. Assuming that she satisfies the other elements of entitlement, her claim as a wife and, effective September 1996 as a divorced wife, can be awarded. This award should have no impact on Virginia W~'s entitlement as a deemed wife.

Virginia W~ is entitled to benefits as the wife of Donald W~. The determination of entitlement was made effective in December 1989, and that determination is subject to administrative finality. Even if it were subject to revision, Virginia would be a "deemed spouse."

The Social Security Act, as amended, allows a "deemed spouse" to be entitled to benefits. 42 U.S.C. § 416(h)(1); see also 20 C.F.R. §§ 404.331, 404.346. A deemed spouse is one who in good faith went through a marriage ceremony with the insured that would have resulted in a valid marriage except for a legal impediment which results because a prior marriage had not yet ended. 20 C.F.R. § 404.346. Here, the record indicates that Virginia and Donald W~ went through a marriage ceremony in 1964. It appears, by virtue of the 1996 state court order, that this marriage was invalid because of a legal impediment - Mr. W~ was still part of a common-law marriage to Irma W~. Nonetheless, we see nothing in the record that Virginia and Donald W~'s marriage ceremony was in anything other than good faith, and, as of the most recent printout in the file, they continue to be living at the same address. Therefore, Virginia W~ is qualified for benefits as the "deemed spouse" of Donald W~.

Virginia W~, a deemed spouse, is entitled to benefits, and with respect to monthly benefits payable after December 1990, her entitlement continues even after a legal spouse becomes entitled to benefits on the earnings record. 42 U.S.C. 416(h)(2); POMS GN 00305.055. The regulations concerning the family maximum computation establish that Virginia and Donald's benefits are calculated without considering the entitlement of Irma, the legal spouse. The relevant regulation provides as follows:

In any case where more than one individual is entitled to benefits as the spouse... of a worker for the same month, and at least one of those individuals is entitled based on a marriage not valid under State law..., the benefits of the individual whose entitlement is based on a valid marriage under State law will not be reduced pursuant to this section. The benefits of all other individuals entitled on the same record... will be determined under this section as if such validly married individual were not entitled to benefits.

20 C.F.R. § 404.403(a)(4). Because only Virginia, Donald, and Irma are entitled on Donald's earnings record, and because the regulation provides that Irma's entitlement is not counted toward the family maximum, there should be no impact on Virginia's benefits.

CONCLUSION

For the foregoing reasons, we believe that Irma W~ should be found entitled to wife's benefits based on an application date of July 1994, and to divorced wife's benefits beginning in September 1996, when the state court declared her and Donald divorced. This decision should have no impact on the entitlement or benefit amount of Virginia W~, who is technically a "deemed" wife of Donald.

1_/ The Agency's regulations concerning res judicata provide that an Administrative Law Judge may dismiss a request for hearing because "[t]he doctrine of res judicata applies in that we have made a previous determination or decision under this subpart about your rights on the same facts and on the same issue or issues, and this previous determination or decision has become final by either administrative or judicial action." 20 C.F.R. § 404.957(c)(1).

2_/ We have discussed this matter with the Office of Program Benefits Policy in Baltimore. They agree that this redetermination can be used as a written intent to file for benefits.

MARRIAGE — COMMON-LAW MARRIAGE — OHIO

The principle in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973) that the Secretary is not free to ignore a ruling of a State Court of Competent Jurisdiction in resolving certain issues relative to relationships and inheritance rights where certain criteria are met applies to a decision of the Court rendered after an initial determination of an issue by the Secretary, if the Court decision was submitted within the time limit for reopening the determination by the Secretary, on the basis that the Court decision constitutes "new and material evidence." (D~, James L. , ~ — RAV(W~), to ARC 04/05/85.)

On January 11, 1985, you referred to us a request for a legal opinion from the Director, GLPSC. In this particular case, SSA determined that a valid common law marriage existed between the deceased wage earner (DWE), James L.~ D~ and claimant Flora D~. On the basis of that determination, SSA awarded survivor's benefits to claimant and her children, and accordingly reduced similar benefits to a prior claimant, the DWE's ex-wife, Carolyn D~, and their son.

After the time for reconsideration and appeal, and for reopening as of right, had expired, Carolyn D~ submitted a state probate court ruling that there was no valid common law marriage between the DWE and Flora. She asked that SSA rescind the award to Flora and restore full benefits to her and her son.

You raise two issues. First, you ask whether SSA must accept the state court determination under the decision in Gray v. Richardson, adopted as SSR 83-37c (C.B. 1983). The state court decision here meets all of the Gray criteria except that of having been decided prior to the initial determination made by SSA. SSA has recently adopted a policy that Gray v. Richardson should be applied where a state court decision is rendered after SSA's determination becomes administratively final, if the state court decision is submitted within the four year period allied for reopening. 20 C.F.R. 404.988. SSA has adopted this position on the basis that a state court decision that satisfies Gray is "new and material evidence." See 20 C.F.R. 404.989. This policy disposes of your first question and your second, which asks whether the state court decision in this case is "new and material evidence" if Gray were to not apply.

We explain below the basis for our opinion and why we agree that the state court ruling meets the other Gray v. Richardson criteria.

Background Facts

After the DWE's death in March 18, 1982, Carolyn D~ and her son, James D~, were awarded mother's and child's insurance benefits. Later, Flora D~ also applied for benefits, claiming that she was the common law wife of the DWE, and SSA agreed. SSA also awarded benefits to Derell D~, Flora's son whose May, 1982 birth certificate had been signed by the DWE as his father, and to Steven D~, Flora's son by her former husband. Steven's entitlement was as the DWE's stepchild. SSA based its determination about Steven on the determination of a common law marriage and the child's residence with Flora and the DWE; support of Steven by the DWE was deemed on that basis. 1/

Flora dates her "marriage" to the DWE as July, 1980, "after my divorce." Her divorce and that of the DWE are documented, so both were at that time competent to marry. Per POMS GN 00305.245, SSA repeatedly sought statements about the marriage from the DWE's relatives, who refused to cooperate. One relative, his sister, is recorded as "upset" when she refused to give a statement about

SSA decided that a common law marriage existed based on documents and corroborating statements. Flora and the DWE signed a July, 1980 rental application and agreement as husband and wife. 2/ A March, 1983 letter to Flora from the DWE's employer refers to the DWE—as her husband, and offers condolences on his death and information about life insurance benefits. A neighbor, Karen A~ gave a statement covering the period from December, 1981 until the DWE's death, which supports that the couple cohabited and held themselves out as husband and wife. A second statement from Flora's sister provides similar support with regard to an unspecified six month period when the couple lived with her in Mobile, Alabama. 3/

The award on Flora's claim was made on August 11, 1983. As a result of the award to Flora and to Steven D~, the amount of benefits received by Carolyn and James Jr. was reduced, effective April and May, 1983 respectively 4—/. 42 U.S.C. 4(13(a). In April and May, 1983, Carolyn and James Jr. had received notice of the impending change and were given an opportunity to file a protest. They did not. On August 25, 1984, they were notified of the initial determination in Flora's favor, and advised of their right to appeal within 60 days. Although Carolyn D~ acted on another matter addressed in the August notice, by requesting a waiver of the overpayment which resulted from the retroactive reduction, she did not timely appeal the determination of a common law marriage.

Over a year later, on October 2, lg84, Carolyn submitted a September 26, 1984 state probate court ruling 5/ that Flora was not the DWE's common law wife. She requested that her benefits and those to James Jr. therefore be increased. The court ruled in a case brought by Flora to declare her an heir of the DWE on the basis that she was his common law wife. 6/ As summarized in the court's findings, the evidence in that case presents—a different picture than that before SSA.

According to the judgment, Flora testified in support of her claim, and we assume she repeated at least the same statements she gave to SSA. The judgment cites one item of evidence from Flora's side, the testimony of Karen A~, the neighbor on whose statement SSA relied. She is quoted, however, only as saying that in late lg82 the DWE told her of his intent to pick out an engagement ring, and that he and Flora would be married. 7/ The judgment, moreover, mentions that there were other witnesses on Flora's behalf who "failed to testify as to the reputation in the community .... [or] lived in the community." The judgment makes no express mention of the rental application and agreement, the condolence letter from the DWE's employer, the birth certificate signed by the DWE or Flora's sister.

Against a common law marriage, the judgment cites documents not available to SSA: a legal welfare application by Flora in which she gave her last name as D~ and her marital status as single, and the 1980-1982 tax returns of the DWE in which he gave his status as single or as a head of household but with only one dependent, his son James Jr. 8/ Flora testified that she did not file her own returns in those years but—also that she did not sign joint returns with the DWE.

The court determined that Flora had established none of the elements of a common law marriage. Due to the divergence of the court ruling from the evidence before SSA, we contacted the attorney for Flora, Sheldon ~ He advised us that Flora's case included eight witnesses, that Karen A~ gave the same testimony that she gave to SSA and that her testimony about the DWE's plans to marry was merely that the couple planned "to make it formal," and that the court did consider the rental agreement evidence. He also reported that the testimony against Flora's case consisted of two witnesses, one of which was the DWE's father who both gave testimony against a common law marriage and "refused to acknowledge his own grandson" (D~).

With regard to Flora's welfare application, the attorney did not attempt to explain Flora's conduct. He reacted to the tax returns by saying that the DWE was a strange man, adding that he sometimes went to stay with his parents for extended periods. He also reported that an insurance company had paid life insurance proceeds to Flora, which suggests that the DWE designated her as the beneficiary; whether the designation specifically used the term "wife" is not known.

The lawyer also stated that he felt the court's ruling was incorrect and ignored substantial holding out and reputation evidence supporting the common law marriage. He reported that he had strongly recommended to Flora that she appeal the ruling but that she did not, giving an inability to pay legal fees as the reason.

Discussion

In Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973) the Court of Appeals for the Sixth Circuit held that although the Secretary is not bound by a state trial court decision in a proceeding to which she was not a party, she is not free to ignore it in making Social Security determinations if four requirements are met: 1) an issue involved in a claim for social security benefits has been previously determined by a court of competent jurisdiction; 2) the issue was genuinely contested before the court by parties with opposing interests; 3) the issue falls within the category of domestic relations law; and 4) the state court ruling is consistent with the law as enunciated by the state's highest court. SSR 83-37c; Tony M~, ~ RAV (Weinstein/Gilbert) to ARC-Programs (Washington) SSA V (12/12/83), and prior opinions cited therein.

Although the trial court decision in this matter was not one "previously determined," SSA has recently as a matter of policy chosen to apply Gray v. Richardson to final SSA determinations if the state court decision is submitted within four years of the initial determination. Director, OPSC (Overs) to Director, Mid-America PSC (Mings), "When the Social Security Administration (SSA) in Bound by a State Court Decision," (9/17/84) (copy attached). SSA based this choice on the principle that a state court decision meets the definition of "new and material evidence." See 20 C.F.R. 404.988(b), 4(14.989(a)(1). Accord, SSR 67-22 (C.B. 1967) (where SSA rejected claim for child's benefits because presumption of legitimacy had not been rebutted, the child having been born while the mother was married to a man other than the DWE, submission within four years of state court ruling that presumption was rebutted, after SSA's denial was upheld by federal district court, required reopening as new and material evidence because the decree,) "materially affected the status of the child for social security purposes. ; Merle J. D~, ~, Oswald C~, ~, OGC (Altman) to Division of Claims Policy, BOASI (6/25/59)) (where widow's benefits were terminated because of remarriage, state court annulment ab initio (from the beginning) of remarriage was new and material evidence submitted within four years that permitted reopening).

The decree in this matter is within these precedents, and therefore need not meet the "previously determined" criterion of Gray. 9/ We concur with your view that the decree otherwise meets the requirements of Gray, and thus "would permit entitlement if a new claim were filed." 9/17/85 OPSC memorandum, ~er~w. The issue of whether a common law marriage existed between Flora and E falls within the general category of domestic relations law, it was decided by a state court of competent jurisdiction, and the matter was genuinely contested by parties with opposing interests: Flora, seeking to be declared an heir of the F)WE, was plaintiff; James )l~, the DWE's son by Carolyn, was a defendant and was declared the DWE's sole heir.

Finally, the resolution by the state trial court is consistent with the law enunciated by the highest court in the State. We have previously addressed the requirements under Ohio law to establish a common law marriage. 10/ The Ohio Supreme Court recently reaffirmed these principles but also reaffirmed that common law marriages are not favored by public policy. Nestor v. Nestor, 472 N.E.2d 1091 (1984). The elements that must be shown are an agreement of marriage per verba de praesenti, which is a mutual contract to then take each other as man and wife, made by parties competent to marry, followed by cohabitation, a holding out as husband and wife, and a reputation in the community as being husband and wife. Each element must be established by "clear and convincing evidence." Id.; Roland I~, ~, RA V (Cordek) to Reg. Rep. BSRI, GLPSC (Berman)(1/20/76). The State trial court expressly applied these requirements.

"Under Ohio law, "clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal." Cross v. Ledford, 161 Ohio St. 469, 477 (S.Ct. 1~59). In our opinion, the trial court's determination that Flora had not shown the elements of a common law marriage by clear and convincing evidence is legally supportable.

The critical element is an agreement de verba de praesenti (in the present) by the parties that they will be henceforth married. This element, however, need not be proven by direct evidence. That is, it may be inferred from the conduct and statements of the parties, including their cohabitation and holding out. Nestor v. Nestor, supra, 472 N.E.2d at 1094.

SSA's initial determination was not inconsistent with Ohio law. Flora alleged the couple's agreement to marry, by virtue of their respective divorces the two were competent to marry, and the rental agreement, employer's condolence letter, and the statements of the neighbor and the sister establish both that the couple cohabited and held themselves out and had a reputation as husband and wife. The July 1980 rental application and agreement are probative as well of an agreement to marry since the couple appears to have signed them as husband and wife contemporaneously with the alleged agreement to marry and live together as husband and wife.

However, the principle that an agreement to marry may be inferred from the conduct of the parties has an obvious corollary: the element may also fail to be satisfactorily proved because of other conduct by the parties. If conduct inconsistent with the proposition that the couple considered themselves to be married is sufficient to prevent the trier of fact from having a "firm belief or conviction" that there was an agreement to marry, or that another element such as holding out is met, then a common law marriage is not established. We think the trial court could reasonably conclude that it lacked a firm belief or conviction that Flora and the DWE had entered into a common law marriage.

The welfare application and tax returns cited by the court are consistent with the inference that the parties did not consider themselves married, and, thus, that there had been no agreement to marry. This evidence also weighs against the conclusion that they were cohabiting or that they held themselves out and had a reputation as married. The parties held themselves out in these documents as single; in addition, the tax returns are inconsistent with cohabitation, since the DWE failed to claim as a dependent not only Flora, but her son Steven and their son Derell, who were supposedly living with him, while claiming James Jr., who was not. As a general matter, it would likely have been to the DWE's financial advantage to list additional dependents.

The court also emphasized the testimony that the DWE in late 1982 discussed plans to buy an engagement ring and marry Flora. This evidence of a future intent to marry is inconsistent with a past agreement to marry in praesenti in 1980. Although there might have been testimony explaining-this as simply a plan to make the marriage formal, 11/ the trial court might well have found the DWE's contemporaneous conduct of filing his 1982 tax return as single or without listing Flora as a more reliable guide to whether the DWE's plan was to reaffirm a past agreement or to marry Flora for the first time.12/

The conclusion that the plan represented a future intent to marry is also supported by Flora's 1981 welfare application and the DWE's earlier tax returns.

Under Nestor v. Nestor, supra, the inference from conduct in which a couple acts as married to the existence of prior agreement to marry in praesenti is. stronger if the length of time the couple were together—is substantial Id. In Nestor, the Court found a common law marriage with regard to a couple who had lived and acted as married, even if not always consistently, for twelve and one-half years. There was an unchallenged finding of direct evidence to prove an agreement in praesenti. In such cases, the Court held, the direct evidence of an agreement in praesenti itself lends greater weight to the evidence of cohabitation and reputation to support the overall inference of marriage.

The Nestor Court found a common law marriage by clear and convincing evidence despite evidence that both parties had prepared documents in which each's marital status had been listed as single. 472 N.E.2d at 1097 (dissenting opinion). We believe that the Court reached the conclusion because the weight of the evidence of holding out and other elements was reinforced by the directly proved agreement to marry. The Court's ruling, moreover, is also consistent with the principle that once a common law marriage has been established by an agreement and conduct, it cannot be terminated by later conduct inconsistent with a marriage, but only by formal divorce. See Dibble v. Dibble, 100 N.E.2d 457, 461 (Ct. App. 1950); Jolley v. Jolley, 46 Ohio Misc. 2d 40, 347 N.E.2d 557, 560 (Ct. Com. P1. 1975). 13/

Flora and the DWE were together at most a bit over two and one-half years. The inference from the evidence that supports cohabitation and holding out to an agreement in 1980 to take each other as man and wife is of minimal strength. Flora's direct proof of the 1980 agreement consists solely of her self-serving statements, which are insufficient as clear and convincing evidence. There is not, as in other cases, direct proof of the agreement in praesenti, such as by testimony of witnesses who observed the couple announce their "marriage" and display a "wedding ring." E.g. In re Estate of Soeder, 7 Ohio Appo2d 271, 22(1 N.E.2d 54, 555-557 (1966. See Etter v. Yon Aschen, 163 N.E.2d 197, 199 (Prob. Ct. 1959).

Thus, under Nestor, the case for a common law marriage is limited at best, since there is no direct evidence of an agreement in praesenti, and the couple's life together was brief. The trial court's conclusion that the welfare application and tax returns precluded finding a common law marriage by clear and convincing evidence is consistent with other cases decided under Ohio law.

In Estate of Soeder, supra, there was an undisturbed finding of an agreement in praesenti, and evidence of cohabitation, holding out and reputation. 220 N.E.2d at 554-556, 556, 563, 574, 576-578, 581. But the court ruled that the evidence did not establish a common law marriage. It reached this conclusion on a record which established that the "husband" was recorded as stating that he was single in hospital records and on his tax returns, id. at 55'1, and after it ruled that the trial court improperly excluded' two items of evidence: during their time together, the woman listed her status as single to a priest for a church registration form, and the deceased man had told his priest that he had been single all his life. Id. at 567, 572, 574.

In Jolley v. Jolley, supra, the court concluded that there was no common law marriage because there was no evidence to support an agreement in praesenti. Among the evidence cited in the opinion is the fact that the man, who denied the marriage in this divorce proceeding, had often filed separate tax returns listing his status as single.

Messenger v. Finch, CA 69-23 (N.D. Ohio, December 17, 1969), where the federal district court upheld the Secretary's determination of no common law marriage, is similar. The "wife" had used her maiden name and represented herself as unmarried in her personal affairs, including those that involved the DWE. He listed her on a beneficiary form as "friend," and treated her inconsistently on his tax returns, one year filing as unmarried, listing no dependents, another year listing her as a dependent by her maiden name but not as his wife, and still another year listing her as his wife. This evidence was sufficient to support the Secretary's finding, despite the couple's decade together which produced documents (bills, letters) showing them as holding out and regarded as husband and wife, along with supporting testimony from friends and relatives. The evidence of an agreement in praesenti was described as inconsistent in details.

We have found no authority which would lead us to question the weight the trial court gave to the welfare application and tax returns in the D~ case. The wife in Estate of McLaughlin, supra, had filed tax returns in her maiden name. But the court nonetheless found the evidence of cohabitation and holding out over twelve years sufficient, although not undisputed, and it emphasized the wife's credibility and reputation as a deciding factor.

In Spirous v. Gardner, Civ. No. 67-244 (N.D. Ohio, July 19, 1968), another federal district court reversed the Secretary's determination that there was no common law marriage. The "husband" had once applied for welfare and listed himself as single. The court dismissed the significance of this evidence:

To relate back this single instance as substantial evidence of an intention not to marry in prasenti... years before, flies in the face of human experience, the conduct of the parties over a period of years and the applicable law .... [S]ome persons, especially laymen, who have entered into valid common law marriages will have doubts as to how the relationship may be regarded by government tribunals and officials ....

Such persons may regard themselves as married in fact, but nonetheless may be quite fearful of so stating on official government forms in the event they have misunderstood the law.

Spirous v. Gardner (Civ. No. 67-244), Court Opinion p. 9-10.

The court also dismissed the significance of evidence that the wife had used her maiden name to apply for welfare, to register to vote and to apply for a social security number. It emphasized that she had not stated that she was single, and her conduct was explained in part by her uncertainty about whether the common law marriage became valid only after a period of time, and by the difficulty she found in having government officers let her use her married name. This couple, moreover, had lived together for seventeen years, and the record contained much evidence of cohabitation and holding out.

We followed Spirous v. Gardner in Frank D~ (Epstein) to Director, Mid Atlantic PSC, BSRI (Sabatini) (8/6/79). There the couple had treated themselves as married on tax returns, insurance papers and similar documents, and there was evidence to support all elements. The one discrepancy was the wife's statement on an SSA claim form while the husband was alive that she was not married. As with the wife in Spirous, she had the mistaken notion that a certain period of time had to pass before the marriage became valid. We concluded that there was a common law marriage because awareness of whether the marriage is valid is not a required element, and because the one single denial did not, in light of the explanation and the Spirous court's view of statements on government forms, have much significance, and therefore could not disprove the original agreement in praesenti of several years before.

Both of these cases are unlike the situation in the present matter in which the statements of single status are more substantial and the evidence for a common law marriage far less weighty. The 1981 welfare application, .1980-1982 tax returns, and the 1982 plan to marry present more than isolated conduct. They cover the entire period of "marriage." There is no suggestion of a mistaken impression on Flora's part or that of the DWE to explain away their behavior.

A mistaken impression might not in any event explain the DWE's failure to claim exemptions for dependents to which he was entitled if he in fact supported Flora, Steven or Derell. Moreover, the trial court in this matter stated that there was no testimony as to reputation in the community and that none of Flora's witnesses were from the community. By itself, the lack of reputation testimony precludes finding a common law marriage. Although it is not required that the community be universally aware of the couple's marital status, or that the couple must hold themselves out to all with whom they normally come into contact, there must be a showing of both reputation and holding out with regard to some of those with whom the couple normally comes into contact. Nestor v. Nestor, supra, 472 N.E.2d at 1095.

The court's finding on reputation might seem doubtful given the representation by Flora's attorney that he presented eight witnesses and that Karen A~ testified consistent with her statements to SSA. Absent a transcript of the proceeding, however, the court's finding must be accepted. Even were a transcript to show reputation testimony, or to suggest that the testimony and evidence before the court of a common law marriage was arguably sufficient, the trial court decision must still be followed. The court might not have found these witnesses credible, and judgments based on credibility and witness demeanor will rarely be disturbed by a reviewing court. Shear v. West American Ins. Co., 11 Ohio St.3d 162, 464 N.E.2d 545 (1984); C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279 (1978).

A higher court would not overturn the trial court's ruling with regard to either the credibility of the witnesses or the controlling weight it gave to the welfare application, tax returns and the DWE's plan to ceremonially marry Flora unless it was against the manifest weight of the evidence. Id.; Jones v. VIP Development Co., 15 Ohio St.3d 90, 472 N.E.2d 1046 (1984). "For the reasons given in our discussion above, a higher court would not overturn the trial court on this basis. Therefore, the Gray criteria that the ruling be consistent with the law enunciated by the State's highest court is met. The trial court also held that ,)ames D~ and; was son and sole next of kin of the DWE. This ruling implies that Derell D~ is not the son and intestate heir of the DWE. SSA awarded Derell benefits on the basis that he was the DWE's legitimate son. The court's finding that there was no common law marriage makes Derell illegitimate. In our opinion, however, the trial court ruling does not affect the benefits to Derell. 14/

The ruling does not satisfy Gray v. Richardson with regard to the paternity and intestate heir status of Derell and the DWE for two reasons. First, it does not appear from the court ruling that the. issue of whether Derell is the DWE's son and intestate heir was before the court to be decided. All of the evidence and law discussed is confined to the existence of a common law marriage. Flora is the sole plaintiff listed. Had the proceeding also included a claim that Derell was the DWE's heir, Derell too would more than likely be a named plaintiff. Thus, it does not appear that an issue in a claim for social security benefits — here, paternity — has been determined by a state court.

Second, the implied ruling that Derell is not the DWE's son and heir is not consistent with Ohio law. The DWE signed Derell's birth certificate. Derell is therefore presumed to be the DWE's son. POMS GN 00306.135; Tony M~ RA V (Gilbert) to ARC Programs V (Washington) (12/12/83); RA V (Gilbert) to ARC Programs V (Washington), "Ohio Entry in...POMS GN 00306.135 ....

" (11/8/83). Under Ohio law, the effect of the presumption is to make Derell the legitimate son and intestate heir of the DWE. The presumption invoked by the birth certificate can be rebutted only by clear and convincing evidence. Id.

The appellate courts of Ohio would give reasonable effect to the provisions of Ohio law that confer legitimacy. Unlike common law marriages, the law favors the legitimacy of children. The only relevant evidence discussed by the court is the 1982 tax return, which does not claim Derell as a dependent. This single item is insufficient to rebut the presumption by clear and convincing evidence. It might simply mean that Derell was not a dependent, or that the DWE did not want to risk welfare benefits that Flora was receiving for Derell.

Finally, even were the court ruling to mean that Derell is not the DWE's intestate heir for purposes of 42 U.S.C. 416(h)(2)(A), Derell is still entitled to benefits under the alternative federal tests of 42 U.S.C. 416(h)(3)(C). By signing the birth certificate, the DWE acknowledged Derell as his son in writing before his death. POMS GN 00306.175.

1/ We could find no evidence in the file apart from Flora's claims that Steven lived with the DWE. A July, 1980 rental application indicates no children living with the couple at that time.

2/ That is, the forms call for signatures b either "husband and wife" or "co-tenants." They were signed "James D~ and "Flora D~ "SSA also cited a similarly signed December, 1981 rental agreement. However, the file contains no such document. A statement from the landlord indicates that this lease was destroyed to convert to a month to month tenancy, and that the tenants were simply "James and Flora D~."

3/ The sister's statement is ambiguous as to whether it gives support for a longer period. In it, she says she knew the DWE for two years and that the couple lived together from December, 1981 until the DWE's death.

4/ A resulting overpayment was waived.

5/ The ruling adopted a May 1984 report of a court referee. Although the findings and analysis discussed appear only in the referee's report, we refer to them as if in the court judgment.

6/ Whether the court was also ruling on whether Derell D~ was the DWE's—heir is not self-evident from the documents. The court judgment states, however, that James Jr. is the son and "sole next of kin" of the DWE. We discuss the possible significance of this question later.

7/ Flora also told SSA that the couple planned to have a ceremonial marriage.

8_/ According to both Flora's and Carolyn's applications in the file, it appears that during these years James Jr. lived with Carolyn and never with the DWE.

9/ Moreover, in our opinion the new evidence represented by the decree the 1~81 welfare application and the 19~D-1982 tax returns — are themselves "material" and would justify reopening.

10/ See RA VIII (Bartman) to ARC Programs, SSA-V "Common Law Marriage - Removal of Impediment - Ohio" (12/26/84); Frank D~, ~, RA V RA V (Epstein) to Director, Mid-Atlantic Program Service Center (8/6/79)). Both ). Both opinions cite Ohio case law and prior RA V opinions.

11/ Flora herself mentioned this plan to SSA.

12/ By itself, the 1980 tax return would not weigh against the common law marriage since federal tax laws permit filing the return for the year in which marriage occurs as if the single status continued for entire tax year. Here, however, it appears as part of pattern of conduct.

13/ The Nestor Court also found no problem in the wife's use of her maiden name for business purposes during the marriage. 472 N.E.2d at 1096. Accord, Sirbello v. McDonald, Case No. 25946 (Ct. App.) cited in In re Estate of Soeder, 7 Ohio App.2d 271, 220 N.E.2d 547, 580 (1966) (dissenting opinion); In re McLaughlin's Estate, 197 N.E.2d 578 (Prob. Ct. 1963), cited as affirmed by Court of Appeals in Estate of Soeder, supra, 220 N.E.2d at 581. 14/ The award of benefits to Derell has not been challenged. Carolyn submitted the state court ruling solely to challenge Flora's entitlement on the basis of a common law marriage. There has been no request to reopen SSA's determination with regard to Derell.