PR 06205.036 North Carolina

A. PR 07-052 Effective Date of Divorce Decree Issued Nunc Pro Tunc- Georgia Number Holder - Timothy H~, SSN ~ Claimant - Mary K~

DATE: January 16, 2007

1. SYLLABUS

[North Carolina courts would recognize a Georgia Superior Court's nunc pro tunc judgment of dissolution of the NH's former marriage since it was valid under Georgia's laws. The court demonstrated a clear intention that the effective date of the divorce was to coincide with the date of the final hearing before the court.

2. OPINION

QUESTION

You asked for the effective date of a Georgia divorce decree, where the final judgment and decree of divorce was signed by the Superior Court Judge on September 7, 2004, entered by the Clerk of the Court on September 14, 2004, and granted by the judge "Nunc Pro Tunc" August 27, 2004.

ANSWER

For the reasons stated below, we believe the effective date of the final judgment and decree of divorce was August 27, 2004.

BACKGROUND

Mary K~ (Claimant) filed for spouse's benefits on the record of Timothy H~, the number holder (NH). Claimant and NH were married in Macon County, North Carolina on September 1, 2004. NH and Claimant currently reside at separate addresses in North Carolina.

Prior to his marriage to Claimant, NH was married to Vicki L. H~ (former wife). They married on August 27, 1998, and separated on September 24, 2003. NH filed a divorce action against his former wife in the Superior Court of Towns County, Georgia. Superior Court Judge David B~ conducted the final divorce hearing on August 27, 2004, five days before NH married Claimant. NH and his former wife attended the hearing, and the judge received evidence and made findings of fact.

NH's marriage to his former wife was dissolved in a final judgment and decree of divorce issued by the Towns County, Georgia Superior Court. The divorce decree was signed by the judge on September 7, 2004, filed by the clerk on September 14, 2004, and granted by the court "Nunc Pro Tunc" August 27, 2004, the date of the final divorce hearing. Both the date of the judge's signature and the filing of the decree by the clerk post-date NH's marriage to Claimant. The nunc pro tunc date of August 27, 2004, which accompanies the judge's signature, pre-dates NH's and Claimant's marriage.

DISCUSSION

To be entitled to spouse benefits, the claimant must be the legal spouse of the number holder. Social Security Act ' 216(h)(1)(B), 42 U.S.C. 416(h)(1)B); 20 C.F.R. ' 404.330 (2006); POMS RS 00202.001(C). A legal spouse must be validly married to the number holder under the laws of the State of the number holder's domicile at the time of the application or during the life of the application. Social Security Act ' 216(h)(1)(B); 20 C.F.R. ' 404.345; POMS RS 00202.001(A)(1). Here, NH is domiciled in North Carolina, and he and Claimant were married in North Carolina on September 1, 2004. To determine whether Claimant is the legal spouse of NH, one must look to North Carolina's laws to determine whether North Carolina would give full faith and credit to the Georgia decree of divorce, terminating the marriage of NH and his former wife. North Carolina law generally recognizes that the full faith and credit clause of the United States Constitution requires that the judgment of the court of one state must be given the same effect in a sister state that it has in the state where it was rendered. Fleming v. Fleming, 271 S.E.2d 584, 587 (N.C. App. 1980); Williams v. State of North Carolina, 317 U.S. 287 (1942). Thus, North Carolina will give effect to a Georgia divorce decree, as long as it was valid under Georgia's laws.

NH's and Claimant's marriage in North Carolina took place six days before the Georgia Superior Court judge signed the final decree of divorce between NH and his former wife and thirteen days before that final decree of divorce was filed by the Superior Court Clerk. However, the date of NH's marriage to Claimant was five days after the nunc pro tunc date of August 27, 2004, accompanying the judge's signature on the final divorce decree. Generally, a judgment is not effective until it is filed by the clerk of the court. Ga. Code Ann. ' 9-11-58(b) (2006). However, this Georgia Code section recognizes the inherent power of the court to "direct otherwise." Id. Georgia law expressly authorizes a court "[t]o amend and control its processes and orders, so as to make them conformable to law and justice, and to amend its own records, so as to make them conform to the truth." Ga. Code Ann. ' 15-1-3(6) (2006). In the present case, the clerk filed the final divorce decree on September 14, 2004. The judge signed the decree a week earlier on September 7, 2004, but in signing the decree, the judge specifically indicated that it was "nunc pro tunc" August 27, 2004, the date of the final hearing in the case.

"A nunc pro tunc judgment 'is an entry made now of something that was actually previously done to have the effect of former date; . . . not to supply omitted actions but to supply omission in the record of action really had but omitted through inadvertence or mistake.'" Coleman v. Fortner 579 S.E.2d 792, 795 (Ga.App 2003) (quoting In the Interest of H.L.W., 535 S.E. 834, 835-36 (Ga.App. 2000)). The entry of a nunc pro tunc divorce order is appropriate where it is based solely on the record and without the need for introduction of extrinsic evidence. See Moore v. Moore, 193 S.E.2d 608, 609 (Ga. 1972). In such a case, the court may on its own motion and without notice to either party enter judgment nunc pro tunc at a later date. Id. Such an entry simply perfects the record, and as between the parties, it relates back to the time when it should have been entered. Id.

Here, the final judgment and decree of divorce reflects that a final hearing was held before the Towns County Superior Court on August 27, 2004. Both NH and his former wife were present, evidence was submitted, and upon consideration of this evidence, the court entered findings of fact. The Superior Court judge signed the divorce decree on September 7, 2004, nunc pro tunc August 27, 2004. In doing so, the court demonstrated a clear intention that the effective date of the divorce was to coincide with the date of the final hearing before the court. As this was based entirely on the record and without the need for additional evidence, it was well within the court's inherent power to "make the record speak the truth." Maloy v. Planter's Warehouse and Lumber Company, 234 S.E. 807, 812 (Ga.App. 1977); see McCauley v. McCauley, 377 S.E.2d 676, 677 (Ga. 1989). In sum, the Superior Court judge clearly indicated his intention that the effective date of the divorce was August 27, 2004, by signing the decree nunc pro tunc to that date. This action was entirely within the judge's discretion, and was an appropriate exercise of the court's inherent power. It is further noted that, as this satisfied Georgia law, we conclude that North Carolina would give effect to the Georgia court's intention of terminating the marriage of NH and his former wife as of August 27, 2004, and that NH's former married status would not serve as an impediment to his marriage to Claimant under North Carolina law. See Fleming, 271 S.E.2d at 587.

CONCLUSION

For the foregoing reasons, we believe the effective date of the final decree of divorce was August 27, 2004. Thus, we would conclude NH's marriage to his former wife was dissolved prior to his marriage to Claimant on September 1, 2004.

Sincerely
Mary Ann S~
Regional Chief Counsel
By: ______________
Richard V. B~
Assistant Regional Counsel

B. PR 88-020 Determination of Appropriate Wage Record for Payment of Widow's Benefits - South Carolina Annulment Decree

DATE: August 31, 1988

1. SYLLABUS

ANNULMENT OF MARRIAGE ON TERMINATION OF WIDOW'S BENEFITS -- N.C.

Where a claimant for widow's benefits had two marriages, and the first marriage was annulled and found to be void ab initio by the courts c South Carolina, we found that the claimant could be found to be the legal widow of the second spouse even though the annulment was obtained thirty (30) years after the first marriage ceremony and two (2) years after the second spouse died.

[A~] - to ARC, Progs., Atl., 08/31/88)

2. OPINION

Your office has referred the following factual situation for our opinion as to whether Maggie M. B~ is the legal widow of Roosevelt B~ or Jeff S~.

Maggie G~ married Herman D. D~ on January 14, 1942, in Berkeley County, South Carolina. However, Maggie has submitted a marriage certificate showing that Herman D~ married Bessie M. T~ on March 28, 1938, in Sharkey County, Mississippi. Herman D~ has also signed a statement saying his marriage to Maggie G~ was not a valid marriage because he was married to Bessie M. T~. He also said he never divorced Bessie or Maggie. Based on this evidence, you have concluded that Herman did not have a valid marriage.

Maggie G~ D~ married Jeff S~ on May 15, 1949, in Charleston, South Carolina. Jeff S~ died March 20, 1987, domiciled in North Carolina. A document has been included in the file showing that the marriage between Maggie G~ D~ and Jeff S~ was annulled on February 18, 1977, in Charleston, South Carolina. The decree states: "Ordered, adjudged and decreed that the marriage between the plaintiff (Maggie M. D~ S~) and defendant (Jeff S~) be and the same is hereby declared to be wholly null and void from the beginning and of no binding effect upon either of the parties hereto." The decree cited Maggie's previous undissolved marriage to Herman D~ as the basis for the annulment.

Roosevelt B~ married Maggie G~ D~ S~ on March 16, 1964, in Moncks Corner, South Carolina. Roosevelt and Maggie lived together until his death in 1975. Roosevelt had one prior marriage to Elise B~. According to a statement from the daughter of Elise and Roosevelt, Elise died between 1954 and 1956 in New York, New York.

Roosevelt B~ died May 18, 1975, domiciled South Carolina.

Maggie M. B~ filed for widow's benefits on the account of Roosevelt B~ (A/N ~) on August 20, 1986, based on her ceremonial marriage to him in 1964. She was denied benefits on Mr. B~ account as she was unable to present evidence of the dissolution of her 1949 marriage to Jeff S~ although she then alleged a divorce from him in Durham, North Carolina, at an unknown date. Following the death of Jeff S~ , Maggie M. B~ filed a claim for widow's benefits on his account (~ ) on July 23, 1987, alleging at that time that their 1949 marriage had continued until his death on March 20, 1987, although they had separated in 1950. During the course of adjudication of this claim, the Charleston County, South Carolina, Family Court decree of February 18, 1977, was obtained. Based on this document, Maggie M. B~ claim for widow's benefits on the account of Jeff S~ was denied. Currently, haggle B~ is drawing only retirement benefits on her own account (~) but could receive additional benefits as either the widow of Roosevelt B~ or Jeff S~ if the denial of her claims were reopened.

Discussion

We agree with your conclusion that the marriage between the claimant and Herman D~ in 1942 was not valid under South Carolina law. There is ample reliable evidence that Herman D~ lacked the capacity to enter into a marital relationship with the claimant due to a previous undissolved marriage. Section 93-7-1 of the Mouth Carolina Code provides as pertinent herein that:

Section 93-7-1. Annulment of void marriages. All bigamous or incestuous marriages are void, and a declaration of nullity may be obtained at the suit of either party.

Therefore, the marriage between the claimant and Herman D~ was void pursuant to the laws of South Carolina.

Since the 1942 marriage between the claimant and Herman D~ was void, the 1949 marriage between the claimant and Jeff S~ was a valid marriage. Nonetheless, the claimant obtained an annulment of this marriage in February 1977 in South Carolina, almost thirty (30) years after the ceremony and thirteen (13) years after another marriage which will be discussed later. This annulment was obtained pursuant to Section 93-7-1, supra, and ostensibly based upon the claimant's previous marriage to Herman D~. The file does not contain the annulment petition; however, the final decree reveals that the claimant relied on her prior marriage to Herman D~ as a basis for seeking the annulment decree. Apparently, the court was not presented with evidence of the invalidity of the marriage between the claimant and Herman D~ and erroneously relied on this marriage to support the annulment decree.

Nonetheless, we are unable to find any legal basis upon which to ignore the decree of annulment.

Even though we now have evidence that the marriage between the claimant and Herman D~ was void, there is no indication in the file that the claimant knew the marriage was invalid when she sou9ht the annulment decree. Our information was obtained from an October 1986 statement signed by Mr. D~. Therefore, we cannot find any evidence of fraud in the securing of the annulment.

We do, however, have some concern about the claimant's obvious failure to mention that she had another marriage