TN 8 (10-16)

PR 06205.028 Missouri

A. PR 16-157 Effective Date of Divorce Under Missouri Law

Date: July 5, 2016

1. Syllabus

Pursuant to the Missouri law in effect at the time of the claimant’s divorce, a decree of dissolution of marriage is final when entered, subject to the right to appeal. The claimant was married to the number holder (NH) from March 1988 until December 1997 when a “Decree of Dissolution of Divorce” was entered. Neither party appealed the decree of dissolution or challenged the finding that the marriage was irretrievably broken. The divorce was final when entered in December 1997. Based on the evidence provided, the claimant is not entitled to surviving divorced widow’s insurance benefits on the record of the NH because her marriage did not meet the 10-year durational requirement.

2. Opinion

Issues Presented

You asked for advice as to the effective date of a divorce for purposes of surviving divorced widow’s insurance benefits. Specifically, you asked for guidance regarding the applicant’s contention that her divorce decree, which was issued by a family court commissioner rather than by a judge, was not final until the Missouri Supreme Court issued an opinion on the validity of such decrees.

For the reasons discussed below, we believe that the applicant’s divorce was final and effective on the date that the decree was entered.

Factual Background

The materials that you provided with your request indicate that P~ applied for benefits as the surviving divorced wife on the record of her deceased ex-husband, D~. P~ and D~ were married on March XX, 1988. Their marriage ended in a “Decree of Dissolution of Divorce” on December XX, 1997. P~ contends that by operation of law, her divorce was not final until March XX, 1998, and therefore lasted beyond the 10 years’ duration required for entitlement to benefits as a surviving divorced wife.

Analysis

Under the Social Security Act, the surviving divorced wife of an insured individual entitled to old-age or disability benefits is entitled to spousal benefits when, as relevant here, she has filed for benefits has attained age 62, is not married, and is not entitled to old-age or disability insurance benefits or is entitled to old-age or disability insurance benefits based on a primary insurance amount which is less than one-half of the primary insurance amount of such individual. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.336 (2015). A “surviving divorced wife” is a person divorced from an individual who has died, but only if the person had been married to the individual for a period of 10 years immediately before the date the divorce became final. See 42 U.S.C. § 416(d)(2).

Pursuant to Missouri law in effect at the time of P~’s divorce:

A decree of dissolution of marriage . . . is final when entered, subject to the right of appeal. An appeal from a decree of dissolution that does not challenge the finding that the marriage is irretrievably broken does not delay the finality of that provision of the decree which dissolves the marriage beyond the time for appealing from that provision, so that either of the parties may remarry pending appeal.

See Mo. Rev. Stat. § 452.360 (1974).1 P~ was married to D~ from March XX, 1988, until December XX, 1997, when a “Decree of Dissolution of Divorce” was entered. Thus, by statute, if neither party appealed the decree of dissolution and challenged the finding that the marriage was irretrievably broken, the divorce was final when entered on December XX, 1997. See Program Operations Manual System (POMS) PR 06205.028. Because her marriage to D~ lasted less than 10 years, P~ is not eligible to receive benefits as a surviving divorced wife.

However, P~ contends that by operation of law, her divorce was not final until March XX, 1998, and therefore lasted beyond the 10 years’ duration required for entitlement to benefits as a surviving divorced wife. Central to P~’s position is the fact that her divorce decree was signed by a commissioner, rather than a judge. She contends that the legal status of her divorce was unclear until March XX, 1998, when the Missouri Supreme Court issued its decision in Slay v. Slay, 965 S.W.2d 845 (Mo. 1998).

In Slay, the Missouri Supreme Court considered the legal effect of a divorce decree titled “judgment” that was signed by a family court commissioner, rather than by a judge. See 965 S.W.2d at 845. Noting that the Missouri Constitution vested judicial power in judges, the court held that the documents had not been signed by a person authorized to exercise judicial power by article V of the state constitution and that, accordingly, no final appealable judgment had been entered. See id; Mo. Const. art. V, § 1 (“The judicial power of the state shall be vested in a supreme court, a court of appeals consisting of districts as prescribed by law, and circuit courts.”).

This did not mean that P~ and D~ were not bound by the divorce decree, however. In State ex rel. York v. Daugherty, the Missouri Supreme Court clarified that a party’s failure to appeal or otherwise challenge a commissioner’s determination waives any objection to the commissioner’s authority, findings, or legal conclusions. See 969 S.W.2d 223, 225 (Mo. banc 1998). Moreover, any party who assumes the benefits or burdens of the commissioner’s judgment is estopped from attacking it, and “the commissioner’s findings and recommendations are as conclusive as if entered as the judgment of an article V judge.” See id. at 225. Thus, the court held that “the rights of the parties were concluded” when the commissioner issued his judgment. See id. at 224.

Since the decisions in Slay and York, Missouri courts have consistently held that a party to a divorce decree issued by a commissioner was bound by its terms when the decree was issued if the party did not appeal. See, e.g., Fowler v. Fowler, 984 S.W.2d 508, 511-12 (Mo. banc 1999) (“[A]ny party who fails to challenge the commissioner’s ‘judgment’ waives the right to object to that ‘judgment’ and any party who assumes the benefits or burdens of the ‘judgment’ is estopped from attacking it. . . . Therefore, as to any such party ‘the commissioner’s findings and recommendations are as conclusive as if entered as the judgment of an article V judge.’”) (quoting York); In re Marriage of Roemer, 999 S.W.2d 754, 755 n.4 (Mo. Ct. App. 1999) (“The holding of York, as this court comprehends it, is that if, prior to Slay, (a) no party challenged the validity of a commissioner’s purported judgment on constitutional grounds . . . , and (b) all parties assumed the benefits and burdens of the purported judgment, all parties are estopped from thereafter challenging its validity.”); In re Burnes, 975 S.W.2d 266, 267 (Mo. Ct. App. 1998) (same). So, too, has a federal court held in an analogous situation. See In re Hanes, 248 B.R. 136, 139 (Bankr. W.D. Mo. 2000) (citing Slay and York and holding that party was bound by effective date of judicial decision by failing to appeal or challenge underlying administrative order).

Our research of the appropriate dockets indicates that P~ did not appeal or otherwise challenge the commissioner’s Decree of Dissolution of Divorce. Thus, her rights, and those of D~, were concluded when the commissioner issued that decree, and her divorce was final on that day. See POMS PR 06205.028.

Conclusion

Based on the evidence you provided, P~ is not entitled to surviving divorced widow’s insurance benefits on the record of her ex-husband, D~, because her marriage did not meet the 10-year durational requirement.

Rhonda J. Wheeler

Deputy Chief Counsel, Region VII

By: /s/ Matthew C. Miller

Assistant Regional Counsel

B. PR 02-035 Effective Date of Divorce Under Missouri Law

DATE: February 1, 2002

1. SYLLABUS

Under Missouri law, a divorce decree is final when entered, subject to appeal. This opinion supersedes PR 01-125 (2/20/01) and PR 01-045 (2/26/97).

2. OPINION

This memorandum is in response to your request for our legal opinion regarding the effective date of a divorce decree and whether Missouri law provides for a 30 day interlocutory period before a divorce decree becomes final. After reviewing our prior opinions and the current relevant law, we conclude that under Missouri law, a divorce decree is final when entered subject to appeal. This supersedes our advice given on February 20, 2001, and February 26, 1997.

Factual Background

The information you provided indicates that Irl G~ applied for benefits for dependents of veterans with 30 percent or greater disability ratings on behalf of his purported wife, Linda G~. In order for Linda G~ to receive benefits, their marriage must be valid under Missouri law.

The court records indicate that the dissolution of the marriage of Irl G~ and K~-S~ T. G~ was entered on the morning of November 22, 1996. Rev. Paul E. S~, Pastor of the King of Kings Lutheran Church stated that he performed the wedding of Irl G~ and Linda M~ at 2:00 p.m. on November 22, 1996. Neither party contested the divorce proceedings.

Analysis

Missouri statutes provide in relevant part:

1. A judgment or dissolution of marriage or of legal separation is final when entered, subject to the right of appeal. An appeal from a dissolution that does not challenge the finding that the marriage is irretrievably broken does not delay the finality of that provision of the judgment which dissolves the marriage beyond the time for appealing from that provision, so that either of the parties may remarry pending appeal.

See Mo. Ann. Stat. § 452.360.1. Thus, if neither party appeals the finding that the marriage was "irretrievably broken", the divorce is final when entered and both parties are free to marry.

There has previously been some question as to whether judgments dissolving marriages are final when entered or become final 30 days later when the trial court loses its authority to modify the judgment. Under Missouri Rules of Civil Procedure, a judgment does not become final until 30 days after its entry. Rule 75.01 of the Missouri Rules of Civil Procedure states:

The trial court retains control over judgments during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time. Not later than thirty days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might be granted a new trial on a motion of a party and every order granting a new trial shall specify the grounds therefore . . . .

In Lacher v. Lacher, 785 S.W.2d 78 (Mo. en banc 1990), the Court held that a decree of dissolution becomes final, for purposes of modification, 30 days after its entry. Unlike the present fact situation, in Lacher, the trial court was trying to extend its authority to modify a judgment beyond 30 days. See Lacher at 78-79. In Lacher, the Court simply held that, pursuant to Rule 75.01, the trial court only retains jurisdiction to modify a dissolution of marriage for 30 days following its entry. The Court did not address the present fact situation where the dissolution was not contested and one of the parties married prior to the expiration of the 30-day period.

If a trial court exercises its authority under Rule 75.01 within the 30 days following entry of judgment, this could change the finality of the divorce and we suggest that under those circumstances you submit the case for legal review. You should also seek legal review if one of the parties appeals the decision that the marriage is irretrievably broken.

In James v. James, 45 S.W.3d 458, 460 (Mo. App. S.D. 2001)(citing Dunafon v. Dunafon, 800 S.W.2d 483, 484 (Mo. App. W.D. 1990), the court held that a judgment granting a dissolution of marriage was final when entered. In Stamatiou v. El Greco Studios, Inc., 898 S.W.2d 571, 575 (Mo. App. W.D. 1995), the court stated: "In enacting § 452.360.1 the legislature intended that the part of the decree dissolving the marriage would become final by operation of law if it were not appealed, thereby allowing the parties to remarry even if other matters in the dissolution were appealed." See also Stratman v. Stratman, 948 S.W.2d 230, 234 (Mo. App. W.D. 1997); Fischer v. Seibel, 733 S.W.2d 469, 472 (Mo. App. W.D. 1987). From this case law, it is clear that Missouri courts have interpreted the statute to allow an individual to remarry when neither party has contested the finding that the marriage is irretrievably broken.

Our interpretation is supported by other Missouri law, which states that a second marriage is presumed to be valid. See Estate of Lucas v. Lucas, 909 S.W.2d 365, 369 (Mo. App. S.D. 1995); Carr v. Carr, 232 S.W.2d 488, 489 (Mo. 1950). A second or subsequent marriage will not be declared invalid except upon clear, cogent and convincing evidence. See Chervitz v. Bi-State Development Agency, et al., 11 S.W.3d 714, 717 (Mo. App. E.D. 2000); Enlow v. Fire Protection Systems, Inc., 803 S.W.2d 148, 150 (Mo. App. E.D. 1991). See also In re Marriage of Sumners, 645 S.W.2d 205, 208 (Mo. App. 1983)(quoting Carr, 232 at 489). Generally, the presumption of the validity of a marriage is not overcome by proof that the prior spouse is alive at the time of the second marriage and that one party to the first marriage did not obtain a divorce from the other. See State v. Byrd, 676 S.W.2d 494, 501 (Mo. 1984)(citing Maier v. Brock, 120 S.W. 1167, 1170 (Mo. 1909)).

In addition, there is a strong presumption against bigamy in Missouri. See State v. Hansbrough, 80 S.W. 900, 901-02 (Mo. 1904). See also Waddingham v. Waddingham, 21 Mo. App. 609, 188 WL 5081, *11-12 (Mo. App. 1886)(Where a married man is shown to have been married to a former wife, and no divorce is shown, the presumption that he is innocent of the crime of bigamy will rebut the presumption that the former marriage relation still exists).

Conclusion

In this case, it is clear that the judgment and decree of dissolution were entered by the judge on November 22, 1996. Neither of the parties appealed the finding that the marriage was irretrievably broken. In addition, there are strong presumptions in favor of the validity of a second marriage and against bigamy.

On the facts presented, it is reasonable to conclude that the dissolution became final on November 22, 1996. Therefore, the marriage of Irl G~ and Linda G~ would be found valid under Missouri law.

C. PR 01-125 Effective Date of Divorce Under Missouri Law -

DATE: February 20, 2001

1. SYLLABUS

Under Missouri law, a divorce does not become final until 30 days after its entry.

2. OPINION

This memorandum is in response to your request for our legal opinion regarding the effective date of a divorce decree and whether Missouri law provides for a 30 day interlocutory period before a divorce decree becomes final. After reviewing our prior opinion and the current relevant law, we conclude that under Missouri law, a divorce does not become final until 30 days after its entry.

The information you provided shows that Teea M. M~ is the step-child of Alan L. H~. Teea has been entitled to benefits as a step-child on Mr. H~'s record. On January XX, 2001, Judge Stephen S~ entered his Judgment and Decree of Dissolution of Marriage between Mr. H~ and Teea's mother, Alma J. H~.

As stated in our previous opinion, when enacted in March 1996, Pub. L. No. 104-121 terminated the benefits to a step-child when the child's natural parent and step-parent divorce. Such benefits cease in the month after the month in which the divorce becomes final. See 42 U.S.C. § 402(d)(1)(H).

Under the Missouri Rules of Civil Procedure, a judgment does not become final until 30 days after its entry. Rule 75.01 of the Missouri Rules of Civil Procedure states:

The trial court retains control over judgments during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time. Not later than thirty days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and every order granting a new trial shall specify the grounds therefor. . . .

This rule, which states that a judgment does not become final until 30 days after its entry, applies to divorces. See Weaver v. Prewitt, 937 S.W.2d 412 (Mo. App. E.D. 1997); Lacher v. Lacher, 785 S.W.2d 78 (Mo. en banc 1990)(decree of dissolution becomes final 30 days after its entry). Additionally, Missouri Rule of Civil Procedure 74.01(a) has been updated and provides that:

"Judgment" as used in these rules includes a decree and any order from which an appeal lies. A judgment is rendered when entered. A judgment is entered when a writing signed by the judge and denominated "judgment" or "decree" is filed. The judgment may be a separate document entry on the docket sheet of the case. A docket sheet entry complying with these requirements is a judgment unless the docket sheet entry indicates that the court will enter the judgment in a separate document. The separate document shall be the judgment when entered.

In this case, it is clear that the judgment and decree of dissolution were entered by the Judge on January 17, 2001. Therefore, the divorce became final 30 days later on February 16, 2001. Teea's benefits as the step-child of Alan H~ should be terminated in March 2001. See 42 U.S.C. § 402(d)(1)(H).

We believe that you may use this opinion as guidance in other cases where the date of a final divorce is material.

D. PR 01-045 Effective Date of Divorce Under Missouri Law

DATE: February 26, 1997

1. SYLLABUS

A judgment or decree of dissolution of marriage does not become final until 30 days after its entry.

2. OPINION

This memorandum is in response to your request for our legal opinion regarding the effective date of a divorce decree between John C. H~ and Phyllis J. H~ and whether Missouri law provides for a 30 day interlocutory period before a divorce decree becomes final. After reviewing both the facts and relevant law, we conclude that under Missouri law, a divorce does not become final until 30 days after its entry, and thus, the H~s' divorce became final in July 1996.

The information you provided shows that Christopher K. T~ is the step-child of John H~. Since February 1994, Christopher has been entitled to benefits as a step-child on Mr. H~'s record. Mr. H~ is questioning the continued entitlement of Christopher on his record based on his divorce from Christopher's mother, and the recently enacted Pub. L. 104-121.

On March 29, 1996, Pub. L. 104-121 was enacted which terminates the benefits to a step-child when the child's natural parent and step-parent divorce. Such benefits would cease in the month after the month in which the divorce becomes final. 42 U.S.C. § 402(d)(1)(H). This law applies to final divorces which occur after the third month following the month of enactment. Pub. L. 104-121 § 104(b)(3). Therefore, this law would be effective as to divorces which became final in July 1996.

Under the Missouri Rules of Civil Procedure, a judgment does not become final until 30 days after its entry. Rule 75.01 of the Missouri Rules of Civil Procedure states:

The trial court retains control over judgements during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time. Not later than thirty days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and every order granting a new trial shall specify the grounds therefor.

This rule which states that a judgment does not become final until 30 days after its entry applies to divorces. See Weaver v. Prewitt, 1997 WL 18992 (Mo. App. Jan. 21, 1997); Lacher v. Lacher, 785 S.W.2d 78 (Mo. en banc 1990)(decree of dissolution becomes final 30 days after its entry). Additionally, Missouri Rule of Civil Procedure 74.01(a) provides that:

"Judgment" as used in these ru