PR 06210.039 Ohio

A. PR 97-001 Request to Review the Validity of an Ohio Declaratory Judgment that Validated a Divorce Granted in a Foreign Country -- James B. D~

DATE: January 22, 1997

1. SYLLABUS

The Ohio courts would not recognize the validity of a divorce granted by a foreign country in which neither of the parties was domiciled. The divorce is void from its inception. The parties to the foreign divorce cannot, by their consent, give jurisdiction to a foreign court that would not otherwise have jurisdiction. Nor can a party "validate" a void foreign divorce by obtaining a judgment declaring that the foreign divorce was valid.

2. OPINION

FACTS

James and Mary D~ were married in Nashville Tennessee in 1962. On May 25, 1975, they separated and executed a property and settlement agreement. Both parties signed this agreement. On June 3, 1977, Mr. D~, while visiting the Dominican Republic as a tourist, obtained a divorce there. Both James and Mary D~ acknowledge that they were domiciled in Ohio at the time Mr. D~ obtained the foreign divorce.

On July 30, 1993, Mary F. D~ applied for divorced wife's insurance benefits based on James B. D~'s account. The Social Security Administration (SSA) determined that Mary D~ was entitled to benefits as the wife of James B. D~, not as his divorced spouse because the foreign divorce decree was not valid under Ohio law. On April 18, 1996, the D~s obtained a declaratory judgment in the Court of Common Pleas, Franklin' County Ohio, Division of Domestic Relations which "declared" that the divorce granted to the parties in the Dominican Republic was valid.

As you noted, the Ohio declaratory judgment conflicts with an opinion submitted by an attorney at the Office of the General Counsel Region V in 1986. You have asked us to review the validity of the declaratory judgment in this case.

OPINION

The question of the validity of a divorce obtained in the Dominican Republic in Ohio courts has been addressed previously by this office and by the Ohio courts. In Joseph M. H~

, ~~~ OGC-V (K~)to ARC Programs (W~) (5/23/86), we advised that Ohio courts would not recognize the validity of a divorce granted by a foreign country in which neither of the parties was domiciled. In H~ , there was no question that neither husband nor wife were domiciled in the Dominican Republic at the time that the divorce was obtained. In this matter too, neither party was domiciled in the Dominican Republic.

Since we issued the H~ opinion, the Ohio courts have revisited the question of the validity of a foreign divorce. In In re Estate of Newton, 583 N.E.2d 1026 (Ohio Ct. App. 1989), an Ohio court upheld the proposition that Ohio does not give comity1 to a divorce decree of a foreign jurisdiction when the party seeking the divorce in that jurisdiction never acquired a bona fide residence there. The rationale behind this holding is rather straightforward. In order for a foreign court to acquire subject matter jurisdiction in a divorce proceeding, either or both parties must have a bona fide domiciliary residence there. Neal v. Neal, 85 N.E.2d 147 (Ohio Com. P1. 1949). Subject matter jurisdiction cannot be obtained by consent of the parties, by waiver or by estoppel. Bobala v. Bobala, 33 N.E.2d 845 (Ohio Ct. App. 1940).

In Bobala the court reasoned that if the parties never acquired a bona fide residence in Mexico, the Mexican court never obtained jurisdiction over the parties to the divorce. Thus, the divorce granted by a court that never had jurisdiction would be void ab initio (from the beginning). The Bobala court was not impressed by the parties' actions in appearing in the Mexican court, noting that "[i]t is a universal rule of law that parties cannot by consent give a court jurisdiction of a subject matter of which it would otherwise not have jurisdiction." Bobala, 33 N.E.2d at 849. The court observed that jurisdiction cannot be increased by consent of the parties, and that a judgment entered by a court without jurisdiction is void. The Ohio court found that if a foreign court has no jurisdiction due to non-residence of either party, a decree from that court cannot affect the marriage status of parties in Ohio.

Bobala is relevant to the D~ case for the principle that if there is no jurisdiction in the foreign court its order is void from the date of issue. As such, the Court of Common Pleas had no order to validate when acting upon the D~'s request, because the order it allegedly "validated" was void. Furthermore, any consent given by the D~s to the court in the Dominican Republic was irrelevant because their consent could not grant that court jurisdiction.

The more recent Newton case also expressed principles that are relevant to the declaratory judgment in D~. In Newton, the party urging that the foreign decree be held valid, argued that the husband and wife seeking the foreign divorce not only signed a written separation agreement, but that the party challenging the validity of the foreign divorce should be estopped from making that challenge because after the granting of the foreign divorce, the parties lived separate and apart from each other for twenty five years. Yet, in Newton the court held that the foreign divorce decree was void and could not be validated by the subsequent actions of the parties. Although the D~s aver that they abided by the terms set forth in the Dominican Republic divorce decree, under Newton, that action has no bearing on the validity of the decree.

Thus, under the rationale of Newton and Bobala, the divorce decree that Mr. D~ obtained in the Dominican Republic, was void from the time of its inception (as both parties acknowledge that they were never domiciled there). We, therefore, believe that the advice given by the Regional Office in 1986 is still correct, i.e., that Ohio Courts would not recognize the validity of a divorce granted in a foreign country where neither of the parties is domiciled.

The Declaratory Judgment

This case differs from the cases discussed above because, here, in an attempt to validate the foreign court judgment, the parties obtained the declaratory judgment from the Ohio Court of Common Pleas. In its Declaratory Judgment, the Ohio Court of Common Pleas cited only two provisions of Ohio law, Ohio Rule of Civil Procedure 57 and Ohio Revised Code Section 2721.02.

The court stated that both provisions provided for Declaratory Judgments. Rule 57 merely states that the procedure for obtaining declaratory judgments is pursuant to sections 2721.01- 2721.15 of the Ohio Revised Code. and that the existence of another remedy does not preclude a judgment for declaratory relief where appropriate. Section 2721.02 of the Ohio Revised Code states that courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed. This section also states that such declarations have the effect of a final judgment or decree.

It has been recognized, in Smerda v. Smerda, 74 N.E.2d 751 (Ohio Com. 71. 1947) that an action for declaratory judgment can be maintained to determine marital status. Smerda, however, also stands for the proposition that a divorce granted in another state (Nevada) is not entitled to recognition in Ohio because both parties remained domiciled (as did Mr. and Mrs. D~ ) in Ohio. The rationale in Smerda was very similar to the rationale previously expressed in Bobala and recently expressed in Newton. That is, if a husband or wife leaves the domiciliary state of both and takes up temporary residence in another state, the courts of that state are without power to dissolve the marital status which still remains subject to the jurisdiction of the state of domicile. Smerda at 759. Applying this rationale to the D~ case further supports the opinion presented above. Both James and May D~ were domiciled in Ohio at the time that James obtained the divorce in the Dominican Republic. He did not even take up temporary residence there. Indeed, he acknowledges that he was there as a tourist. Thus, the Dominican Republic was without power to dissolve the marital status of James and Mary D~.

The D~s, therefore, have seemingly tried to get around the process by which Ohio retains control of the marital status of its citizens by obtaining the declaratory judgment that purportedly validated their foreign divorce. They cannot do this. The State of Ohio sees itself as an interested, but unnamed party to divorce proceedings. As the state court noted in Smerda, a state has a concern regarding the familiar status of its permanent inhabitants. The court reasoned that "[t]he parties to a marriage constitute a basic unit of society of the state where they have their permanent place of abode." As such "It]heir rights duties and obligations, as well as the grounds upon which the relationship may be terminated are defined by the social policy of the state." Smerda at 759. As such, instead of going into the Court of Common Pleas and asking for a declaratory judgment that would allegedly validate a void decree, the D~ s should have filed for a divorce in Ohio and followed the procedures set out in Chapter 3105 of the Ohio Revised Code because that part of the code contains the provisions necessary for granting divorces to persons domiciled in Ohio. Had the D~ s sought an Ohio divorce, instead of attempting to validate the foreign divorce, they would have submitted themselves to the social policy of the state, and, as such, might have attained their objective. In sum, until the D~s submit to the jurisdiction of the Ohio divorce courts, plead for a divorce in accordance with the Ohio rules of Civil Procedure regarding divorces, and have that divorce granted by an Ohio domestic relations court, they will still be considered as married, notwithstanding the Dominican Republic divorce and the subsequent declaratory judgment.

Effect of the Declaratory Judgment to Mrs. D~'s Application

Thus we advise that the Commissioner is not bound by the declaratory judgment. Whether the Commissioner is bound by this order is governed by Social Security Ruling (SSR) 83-37c, which adopted Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). SSR 83-37c establishes that, although the Commissioner is not bound by the decision of a state court where she is not a party, she is not free to ignore an adjudication of a state court where: (1) an issue for a claim for Social Security benefits has been previously determined by a State court of competent jurisdiction; (2) this issue was genuinely contested before the state court by parties with opposing interests; (3) the issue falls within the general category of domestic relations; and the resolution of the state court is consistent with the law enunciated by the highest court in the State. At least two these criteria were not met in the D~ declaratory judgment. Both James and Mary D~ requested the declaratory judgment. Thus, the issue that came before the state court certainly was not contested by parties with opposing interests. In addition, with respect to the decisions in Bobala and Newton, the declaratory judgment issued by the court of common pleas was not consistent with law enunciated by the highest court in the state.

We advise, as we did in 1986, that the courts of Ohio should not recognize as valid divorces obtained in foreign countries where neither party to the divorce had established domicile. Nor can a party "validate" a void foreign divorce by obtaining a judgment declaring that the foreign judgment was valid. We believe that SSA properly classified Mary F. D~ as the spouse of James B. D~, that the Commissioner is not bound by the declaratory judgment, and should not re-classify Mary F. D~ as the divorced spouse of James B. D~ based on the declaratory judgment.

1 Judicial comity is a principle under which under which courts in one state or jurisdiction will give effect to the laws of judicial decisions of another not as a matter of obligation, but out of deference and respect.

2 In very limited circumstances, Ohio courts will recognize a foreign divorce obtained without jurisdiction of the parties. The recognition occurs only when it affects the legitimacy of the children or where the parties have subsequently remarried. See Davis v. Davis, 156 N.E.2d 494 (Ohio Com. 71. 1959). In the Action for Declaratory Judgment that the D~ s filed seeking recognition of their foreign decree, neither indicated that they had remarried, nor did they indicate that legitimacy of their children was at issue.

B. PR 86-024 Validity of Dominican Republic Divorce and Marriage Under Ohio Law Joseph M. H~ A/N ~

DATE: May 23, 1986

1. SYLLABUS

DIVORCE -- VALIDITY OF DIVORCE OBTAINED OUTSIDE OF STATE -- OUTSIDE UNITED STATES -- OHIO

Ohio Courts would not recognize the validity of a divorce granted in a foreign country where neither of the parties is domiciled. A subsequent marriage in the same foreign country by one of the parties would be considered bigamous and void ab inito. Even if the person marrying one of the parties to the foreign divorce did so in good faith, Ohio Courts would not find that such a person would be entitled to inherit the intestate personal property of her purported spouse. (H~ Joseph M., ~ -- RAY (K~) , to ARC, Programs 05/23/86.)

2. OPINION

This is with reference to your inquiry concerning whether Ohio would recognize a Dominican Republic divorce where neither party was domiciled in the Dominican Republic and whether Ohio would recognize a subsequent remarriage by the wage earner.

The wage earner submitted a statement on October 1, 1985 advising of the following facts. He obtained a second divorce from his first wife, Gilda, in the Dominican Republic on February 9, 1981. He was domiciled in Ohio, had been working in Venezuela, and went to the Dominican Republic a month prior to the divorce. The wage earner stated that he went to the Dominican Republic solely for the purpose of obtaining the divorce since Gilda said she would contest an Ohio divorce complaint. He appeared at the divorce proceedings, but Gilda did not appear. After the divorce, the Wage earner returned to Venezuela. In April 1981 he returned to the Dominican Republic "for another vacation period" and there married the claimant, Kathy. Gilda has not filed an application for wife's benefits. You have inquired whether Kathy is validly married to the wage earner for the purpose of receiving wife's insurance benefits.

The relevant statutory provision governing whether Kathy L. H~ is validly married to the wage earner for the purpose of receiving wife's insurance benefits is section 216(h)(1) of the Social Security Act. That Section provides, as relevant:

(h)(1)(A) An applicant is the wife * * * of a fully or currently insured individual for purposes of this title 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 such application * * *. If such courts would not find that such applicant and such insured individual 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 the intestate personal property, having the same status with respect to the taking of such property as a wife * * * of such insured individual.

(h)(1)(B) In any case where under subparagraph (A) an applicant is not (and is not deemed to be) the wife * * * of a fully or currently insured individual, or where under subsection . . . (b) * * * such applicant is not the wife * * * of such individual, but it is established to the satisfaction of the Secretary that such applicant in good faith went through a marriage ceremony with such individual resulting in a purported marriage between them which, but for a legal impediment now known to the applicant at the time of such ceremony, would have been a valid marriage, and such applicant and the insured individual were living in the same household at the time * * * such applicant files the application, then, for purposes of subparagraph (A) and subsection (b) * * * such purported marriage shall be deemed to be a valid marriage. The provisions of the preceding sentence shall not apply (1) if another person is or has been entitled to a benefit under subsection (b) * * * of section 202 on the basis of the wages and self-employment income of such insured individual and such other person is * * * a wife * * * of such insured individual under subparagraph (A) at the time such applicant files the application, or (11) if the Secretary determines, on the basis of information brought to his attention that such applicant entered into such purported marriage with such insured individual with knowledge that it would not be a valid marriage.

In our opinion, Kathy would not have the status of the wage earner's wife under section 216(h)(1)(A), but would be entitled to wife's benefits under section 216(h)(2)(B).

Status under Section 216(h)(1)(A)

It appears that Ohio Courts would find that Gilda is validly married to the wage earner. Ohio courts will not recognize the validity of a divorce granted by a foreign country in which neither of the parties was domiciled. Joseph F. G~, D-2587 RA V (T~) to DM, Youngstown, Ohio 10/27/55; Dennis J. J~ , ~ , NCIF RA V (C~ ) to Reg. Rep., Cleveland, 9/9/58; Maximino R~ , ~ , D-9378 RA V (F~) to DM, Lorain, Ohio, 2/12/64; Neal v. Neal, 85 N.E. 2d 147, 149 (Ohio 1949); Linck v. Linck, 31 Ohio Misc. 224, 288 N.E. 2d 347, 348-49 (1972). There is no question based on the wage earner's October 1, 1985 statement that neither he nor Gilda were domiciled in the Dominican Republic on February 9, 1981. Therefore, Ohio courts would not recognize the 1981 divorce.

Conversely, as to Kathy, we do not believe that Ohio courts would find that she was validly married to the wage earner at the time she filed her application for benefits. Ohio courts would consider her marriage to the wage earner to be bigamous and therefore void. See Thomas A. W~, ~, D-6761 GC (P~) to PC Chicago, 11/28/61, and Ohio court cases and opinions cited therein (copy attached); Darling v. Darling, 44 Ohio App. 2d 5, 335 N.E. 2d 708 (1975). Moreover, even assuming Kathy acted in good faith in marrying the wage earner, Ohio courts would not permit Kathy to share in the wage earner's intestate personal property upon his death. Thomas A. W~ , supra.

Since it does not appear that Ohio courts would find that Kathy was validly married to the wage earner at the time she filed an application for wife's insurance benefits, or would not be entitled to a widow's share of his intestate personal property upon his death, she does not have the status of his wife under section 216(h)(1)(A) of the Act.

Status Under Section 216(h)(1)(b)

We are of the opinion that Kathy has the status of a wife under section 216(h)(1)(B). We are assuming that Kathy believed there was no legal impediment to her April 28, 1981 marriage to the wage earner in the Dominican Republic. The Wage earner's adoption of one of Kathy's children tends to support this assumption. In addition, the wage earner and Kathy were living in the same household at the time of the filing of the application. Cf. Social Security Ruling 68-63.

However, the question remains as to whether there is another person who meets the requirements of section 216(h)(1)(A) and is or has been entitled to wife's benefits on the wage earner's account under section 202(b) of the Act. There is no question that Gilda meets the requirements of section 216(h)(1)(A). But in order for Gilda to be entitled to benefits under section 202(b) of the Act, she would have to file an application. As the Supreme Court held in Schweiker v. Hansen, 450 U.S. 785,790, 91 S.Ct. 1448, 1472 (1981), an application is precondition of entitlement. Since Gilda has not filed an application for wife's benefits, there is no other person who at this point is or has been entitled to benefits as a wife of the wage earner under section 202(b) of the Act. Accordingly, the marriage between the wage earner and Kathy is deemed a valid marriage pursuant to section 216(h)(1)(b) of the Act and therefore Kathy is the wage earner's wife for purposes of entitlement to benefits.

Assuming Gilda is still alive, subsequently files an application for wife's benefits, and meets the other requirements for entitlement, by express terms of section 216(h)(1)(B) of the Act Kathy's entitlement would terminate with the month preceding the month in which Gilda is certified as entitled to wife's benefits on the wage earner's record.

C. PR 82-061 Validity of Mexican Divorce between Ohio residents- James W. R~ Wage Earner, A/N ~

DATE: December 21, 1982

1. SYLLABUS

The Ohio courts would not recognize the validity of a divorce decree granted by a foreign country (in this case Mexico) in which neither of the parties was domiciled. The parties to the invalid divorce would not be estopped from denying the validity of the decree.

2. OPINION

This is in response to your request for our assistance in determining whether the Mexican divorce between the wage earner, James W. R~ , and his first wife, Helen R ~ L ~ ("Helen") was valid. We conclude, for the reasons set forth below, that Ohio would not consider the Mexican divorce decree valid.

Our review of the documents contained in the claims folder discloses the following facts. Helen G. B ~ married James W. R ~ on May 25, 1946 in Parkersburg, West Virginia. On April 17, 1970, James W. R ~ , obtained a divorce in Juarez, Mexico from Helen. The decree itself stated that both parties had submitted to the jurisdiction of the court, implying that neither party was domiciled in Mexico at the time of the divorce. James R ~ in a written report conceded that neither Helen nor he were domiciled in Mexico, but stated that he believed Helen had submitted a written statement to the court. He claimed, however, that the divorce was valid because the Mexican attorney handling the case had so advised him. Helen, in a June 30, 1980 statement, indicated that she knew nothing about the Mexican court action until after it took place, and that she considered the decree invalid when she learned of it because she was not a participant and it took place in Mexico. Moreover, she denied submitting a written statement to the court.

In further support of her position, Helen stated that an Ohio court subsequently declined to license her to remarry. 1/ Nonetheless, Helen did remarry; she married James D. L ~ on September 28, 1972 in Parkersburg, West Virginia. James L~ and Helen resided in Ohio during their "marriage" which was ended by James L ~ death on November 29, 1978. Helen applied for wife's insurance benefits on James L ~ account on April 30, 1976, in that application, Helen stated that she was divorced from James R~ .

James R ~ also remarried after the 1970 Mexican divorce. Immediately following his divorce, James R ~ married Ethel R ~ ("Ethel") on June 15, 1970 in Parkersburg, West Virginia. 2/ Ethel was divorced from James R ~ in Athens, Ohio on June 10, 1975. Shortly thereafter, on June 16, 1975 James R ~ married Lena S ~ in St. Mary, West Virginia.3/ The marriage application indicates that James R ~ acknowledged his two previous marriages which he stated were ended in divorce.

James R ~ died on July 19, 1980 4/ in Parkersburg, West Virginia although he was still domiciled in Ohio. On August 15, 1980, Helen filed an application for widow's benefits on James R ~ account.5/ In this application Helen describes her marriage to James D. L ~ as her last marriage which ended by his death. She describes her marriage to James R ~ , although occurring prior to the James L ~ marriage, as a current marriage. She also lists James R ~ subsequent marriages on her application. Helen died on March 31, 1981. Thus, even if she was James R ~ widow, her benefits on his account would have ceased at her death. Accordingly, at issue is only a Mexican divorce, we would have requested a determination by your office if there would have been any difference in the amount of her benefits as a widow or a surviving divorced wife. 20 C.F.R. SS404.335, 404.336. However, in this case, although you only question the validity of the Mexican divorces second and third "wives" who will be significantly impacted by our determination concerning the validity of the Mexican divorce.6/ Specifically, both Ethel and Lena also filed for benefits on James R ~ account.

The precise issue presented to us concerns whether Helen would have been considered the surviving divorced wife or the widow of James R ~ . Under Section 216 (h)(A) of the Social Security Act, it is necessary to determine whether Ohio, as the domicile of the wage earner at the time of his death, would recognize the validity of the Mexican divorce in question. As both Helen and James R ~ were domiciled in Ohio 7/ at the time of the Mexican divorce, Ohio would determine the validity of the divorce under Ohio law.

The Mexican divorce decree states that jurisdiction was obtained over the matter because of James R ~ personal appearance and Helen's appearance through an attorney. As noted previously, Helen denies that she ever received notice of the proceedings or retained an attorney to appear on her behalf.8/ Nonetheless, there is no question that neither party was domiciled in Mexico at the time of the divorce. Indeed, James R ~ so admits in one of his statements.

We believe that Mexican divorce decree invalid under Ohio law. The courts of Ohio will not recognize the validity of a divorce decree granted by a foreign country in which neither of the parties was domiciled. Linck v. Linck, 288 N.E.2d 347 (Common Pleas 1972); W , Elizabeth, , RA V (A~) to Req. Rep. Great Lakes Program Service Center, 10/20/81. As noted above, both parties agree that neither was domiciled in Mexico at the time of the divorce. The decree does state that both parties appeared, James R ~ personally and Helen by counsel. Even assuming this to be true, we do no believe that Ohio would accept the validity of such a bilateral divorce given the lack of domicile of either party in Mexico. See Bobala v. Bobala, 33 N.E.2d 845 (Ohio App. 1940). More important, the record fails to support the factual recitals of the decree regarding Helen's appearance. There is no evidence of Helen having received notice of the proceedings or having granted a power of attorney.9/ In Yoder v. Yoder, 263 N.E.2d 913 (Ohio App. 1970), the Mexican divorce decree under challenge stated that the defendant agreed to the divorce. There was no evidence to this effect, however. The court held that where evidence renders important factual recitals of a foreign divorce decree inaccurate, the decree is not entitled to recognition. Accordingly, we believe the divorce to be invalid under Ohio law.

Not withstanding the invalidity of the divorce, we must consider what impact James R ~ subsequent marriages may have had on Helen's marital status. Under Ohio law, where there are two competing marriages, the first is presumed to continue in the absence of evidence of its dissolution by death or divorce. Domany v. Otis Elevator Company, 369 F.2d 604, 610-612 (6th Cir. 1968). However, once there is evidence of dissolution of the first marriage by divorce, the divorce is presumed valid in the absence of proof of its invalidity. Linck v. Linck, supra; S , John, D-16227 , RA V (K~) to Reg. Rep., BRSI, Mid- Atlantic Program Service Center, Philadelphia, 12/12/75. For the reasons discussed above, such proof as to its invalidity does exist.

However, it must further be determined whether, despite the invalidity of the divorce under Ohio Law, the divorce would nonetheless be immune from attack in the Ohio Courts. If the decree would be immune from attack, then Helen would have been considered a surviving divorced spouse. In our opinion, Helen would not have been estopped from denying the validity of the decree. In Ohio, equitable estoppel may be invoked as a defense only when each of five specific elements is present. These elements as noted by the United States District Court for the Northern District of Ohio, while applying Ohio Law, are:

1. False representation or concealment of material fact by words, acts, conduct or silence, where there is a duty to speak,

2. By a person with knowledge, actual or constructive, of the true facts,

3. To a person without as great or sufficient knowledge,

4. With the intention that the misrepresentation or concealment shall be acted on by the latter person,

5. Who must so rely and act thereon, or omit to do some act, to his injury or prejudice. A change of position which will fulfill this element of estoppel must be actual, substantial and justified. (citations omitted)

New York Central Railroad Co. v. General Motors Corp., 182 F. Supp. 273 at 288 (N.D.O., 1960). The court in that case further stated:

Equitable estoppel precludes a party from asserting certain facts where the party, by his conduct, has induced another to change his position in good faith reliance upon that conduct. See London: Lancashire Indenin. Co. v. Fairbanks Steam Shovel Co. (1925), 122 Ohio St. 136, 152, 147 N.E. 329. . . . Because no detrimental reliance is shown upon the record, the court of Appeals erred in estopping appellants from asserting the personal nature of a special use permit.

The State ex rel. Cities Service Oil Company v. Orteca, 409 N.E.2d 1018 at 1020 (Ohio 1980. See, Van DeRyt, 215 N.E.2d 698 (Ohio 1966).

There is no evidence in the record to indicate that James R ~ three wives knew each other or that Lenna or Ethel knew of Helen's remarriage after the Mexican divorce. However, assuming that they did know each other, the only evidence in the record which might suggest an implicit misrepresentation by Helen to Ethel or Lena concerning the validity of the Mexican divorce is her remarriage after the Mexican divorce. As discussed below, we do not believe this is sufficient to estop Helen from denying the validity of the Mexican divorce. Furthermore, there is no evidence to suggest that Helen's actions were intended to influence either Ethel or Lena or that they so relied upon Helen's remarriage. Thus, as least elements four and five discussed above are not present in this case.

Moreover, regarding James R ~ second marriage, to Ethel, there is no evidence of any hardship resulting from the delay of Helen in challenging the divorce. Since Ethel and James R ~ were married immediately after the Mexican divorce and since Ethel accompanied James R ~ were married immediately after the Mexican divorce and since Ethel accompanied James R ~ to Mexico when he obtained the divorce, we do not believe that it could reasonably be argued that Helen's failure to challenge the divorce prejudiced Ethel, See Van DeRyt v. Van DeRyt, supra at 705.

With respect to James R ~ third marriage, to Lena, the question of prejudice to Lena is a closer question because James R ~ did not marry her until 1975, five year after the Mexican divorce. However, in our opinion Helen would still not have been estopped from denying the invalidity of the Mexican divorce. At the time of her marriage to James R ~ Lena knew not only of James R ~

previous marriages, but also knew that he obtained a Mexican divorce from Helen, 10/ Furthermore, the evidence in the record indicates that it is very unlikely that Helen could have known in advance about James R ~ marriage to Lena because Lena indicated that they went to West Virginia to get married; they did not want an announcement of the marriage in the newspapers as James R ~

has just received his divorce from Ethel.11/

Thus, it is unlikely that Helen could have warned Lena. But, more importantly, Lena conceded that she was aware of James R ~

Mexican divorce. Any ignorance that existed on the part of Lena was with respect to law and not with regard to any essential fact. Smith v. Smith, 50 N.E.2d 889 (Ohio App. 1943) involved a challenge by a husband to the validity of his marriage. His wife has obtained a Mexican divorce and than married her second husband, the plaintiff in this case. We knew that she had obtained a Mexican divorce from her first husband. In rejecting the wife's claim that her second husband was estopped from challenging the validity of the Mexican divorce, the court held:

Both parties knew the essential facts - the defendant perhaps more of the details than the plaintiff, but so far as the doctrine of estoppel is concerned, there is no distinction. Whatever ignorance existed was as to the law.

Id, at 894. Accordingly, we do not believe Helen would have been estopped from denying the validity of the Mexican divorce.

Finally, we wish to address the issue of Helen's April 4, 1976 application for wife's benefits on the account of her second "husband," James L ~ Helen was awarded benefits effective January, 1976. In giving information concerning her claim for benefits on James R ~ account, Helen indicated that she knew of a legal impediment of her marriage to James L ~ and believed that she was committing bigamy by him. 12/ See discussion supra at p. 1. However, in her application for wife's benefits on James L 's account, she stated that her marriage to James R ~

had ended in divorce. As Helen apparently knew this statement was false, we recommend that your office conduct a fraud investigation. We further recommend that any benefits which Helen's estate may be entitled to for the period during which Helen survived James R ~ as his widow be offset against benefits received as James L ~ wife on his account.

1/ While under some circumstances we might consider an Ohio court's opinion binding, we are unable to do so in this case for two reasons: 1) it is unclear whether a court order was actually issued, and 2) we do not know the facts which were presented to the court or the exact basis for the decision, if there was one.

2/ In a statement, Ethel claimed that she accompanied James R ~ to Mexico at the time of his divorce from Helen.

3/ Both Ethel and Lena had been married previously and divorced. There is evidence in the record to suggest that either prior divorce was invalid.

4/ James R ~ had applied for disability benefits on May 19, 1980, but died before a determination had been made on his application.

5/ She also filed mother's benefits for her children, but that application is not disputed.

6/ As noted in September 17, 1980 report of contact by a claim representative, "Since entitlement of Ethel A. R ~ would be precluded should W/E's first divorce be determined invalid, and since Lena S. P~ R ~ entitlement as a deemed widowed mother on this account could be precluded should Helen G. B

L ~ be entitled as a legal widow on this account . . .," the validity of the Mexican divorce affects several other determinations.

7/ Helen, in a statement by claimant, said that she was domiciled in Ohio on April 17, 1970, the time of the divorce. James R ~ in a marriage license stated that he was domiciled in Ohio. This marriage took place only a few days after the Mexican divorce from Helen.

8/ The attorney allegedly representing Helen confessed to all allegations made by James R ~ against Helen including threats, cruelty, and ill-treatment of their children. It seems unlikely that an attorney representing Helen would concede to those types of allegations.

9/ See discussion, Supra at 2-3. However, it is unclear from the record the date or the manner in which she heard about the divorce. Apparently, she did know about it at the time of her second marriage to James L ~ in 1972

10/ James R ~ , in a June 28, 1980 statement, indicates that he believed he informed Lena of his Mexican divorce from Helen, but was not sure. However, in Lena's June 26, 1980 statement and a report of contact, Lena acknowledged that she knew of James R ~

Mexican divorce prior to their marriage. Lena further states that she believed the divorce was valid because Mexico "is right next to the United States."

11/ There is no question that James R ~ divorce from Ethel in Ohio where both were domiciled was valid.

12/ In a September 17, 1980 statement, Helen claimed that "I do not wish to apply for benefits as the surviving disabled widow of James D. L ~ " Helen's apparent failure to apply for widow's benefits on James L ~ account does not erase her previous false statements or the benefits she received as his wife.

D. PR 81-011 Sheldon P. W~, D/W/E, ~; Elizabeth W~, Claimant for Widow's Benefits

DATE: October 20, 1981

1. SYLLABUS

VALIDITY OF DIVORCE-OHIO

In Ohio, a divorce obtained in a jurisdiction where neither of the parties is domiciled is invalid unless the legitimacy of children would be affected or either party has subsequently remarried.

2. OPINION

This is in response to your request for our assistance in determining whether the claimant, Elizabeth W~ ("Elizabeth") is entitled to mother's Social Security benefits as a widow or as a surviving divorced wife. See 20 C.F.R. §§404.339, 404.340(1980). However, on September 28, 1981, we contacted the Cleveland, Ohio Social Security Administration ("SSA") Office 1/ for clarification of some facts relevant to this issue. We were advised that the SSA office bad already made a determination, without a legal opinion, that Elizabeth was to be considered a surviving divorced wife. This decision was made apparently because designation as either a widow or surviving divorced wife entitled Elizabeth to the sane amount of mother's benefits for the period September, 1978 through April, 1979. According to the claims officer, this designation was limited to the pending application for mother's benefits and not necessarily applicable if Elizabeth applies for widow's benefits when she attains the age of sixty. See 20 C.F.R. §§404.336, 404.337. Her classification as Sheldon's legal widow his surviving divorced wife may affect the amount of benefits to which she may be entitled.

Based upon this potential entitlement, 2/ you requested that we consider the validity of Elizabeth's foreign divorce decree under Ohio law, the state in which the wage earner was domiciled at the time of his death. See 40 U.S.C. §416 (h) (1) (A); 20 C.F.R. §404.345 (1980). If the divorce were in- valid, Elizabeth would be considered the legal widow of Sheldon, and not his surviving divorced wife.

Our review of the claims folder discloses that Sheldon and Elizabeth were married on September 18, 1964. 3/ They lived together as man and wife in Ohio until their separation in ]7976. On April 29, 1976, they executed and signed a property and settlement agreement pursuant to their legal separation. One week later, on May 5, 1976, Elizabeth obtained a divorce decree from the Dominican Republic. She was traveling in the Dominican Republic at the time of the divorce, and was listed on the decree as a tourist; Sheldon was represented by proxy. The domicile of both parties was Ohio.

The wage earner died September 9, 1979 in Champaign, Illinois of injuries he received in an airplane crash. Elizabeth applied for mother's benefits on March 5, 1979. Her application indicated that she had been divorced from the decedent since May, 1976 although her address was the sane as that listed on Sheldon's death certificate. 4_/

There is no question that Elizabeth was eligible to receive mother's benefits on Sheldon's account, either as a surviving divorced mother or as a mother. See 20 C.F.R. §§404.339, 404.340(1980). As noted previously, your office indicated that either status entitled Elizabeth to the sane amount of benefits. However, the issue of Elizabeth's marital status at the time of Sheldon's death may still be important because it my affect the amount of her potential future entitlement to widow's benefits.

Under Section 216(h)(1)(A) of the Social Security Act, 42 U.S.C. §416(h)(1)(A), it is necessary to determine whether Ohio, as the domicile of the wage earner at the time of his death, would recognize the validity of the Dominican Re- public divorce. See 20 C.F.R. 404.345(1980). The Ohio courts will not generally recognize as valid any foreign divorce decree granted in a country or state in which neither party was domiciled. 5_/ See e.g., Neal v, Neal, 85 N.E.2d 147 (Ohio Com. P1. 1949); A~ Shapless, ~ , RA V (D~) to Reg. Comm., ARC-RSI (W~) 5/2/79; S~ , John, ~, RA V (K~), to Rag. BRSI Mid-Atlantic Program Center, 12/12/75. 6_/

In order for a foreign court to acquire subject matter jurisdiction in a divorce proceeding, either or both parties must have a bona fide domiciliary residence in that foreign state or country. Neal, supra. Subject matter jurisdiction cannot be obtained by consent of the parties, by waiver, or by estoppel. Bobala v. Bobala, 33 N.E.2d 845 (Ohio Ct. App. 1940). A foreign divorce obtained without jurisdiction of the parties will be re- cognized only when it affects the legitimacy of children or where the parties have subsequently remarried. In re Sayles Estate, 80 N.E.2d 229 (Ohio Prob. Ct. 1947).' See Davis v. Davis l56 N.E. 2d 494 (Ohio Com. P1. 1959). In this case, there are no extenuating circumstances under which the Ohio courts would uphold Elizabeth's otherwise invalid foreign divorce. There is no evidence to indicate that either party remarried, and the legitimacy of their children is not in question.

Therefore, in order for the divorce to be valid, one of the parties must have established a domicile in the Dominican Republic. 7/ Not only has such domicile not been alleged, but the divorce decree specifically refutes such a claim by indicating that Elizabeth was a tourist. The parties consent to the jurisdiction of the Dominican Republic Court is irrelevant, and cannot serve to establish the validity of the divorce decree. The last valid legal document affecting Elizabeth's and Sheldon's marital rights was the April 29, 1976 property and settlement agreement. At the time of his death, Elizabeth was only legally separated from Sheldon, and thus still his legal spouse. Since the divorce she obtained would not be recognized by the Ohio courts, this was her status at the time of Sheldon's death.

However, notwithstanding the invalidity of the divorce, under the doctrine of estoppel, Elizabeth may still be considered the surviving divorced wife of Sheldon if a determination that the divorce is invalid would cause pre- judice to another third person who relied upon the divorce. 'Smith v. Smith, 50 N.E.2d 889 (Ohio Ct. App. 1943). See Claims Manual §§2490,2491.2. Although there is no evidence presently of any injured third party, we note that if Elizabeth applies for widow's benefits in the future, there is always the possibility that estoppel may be a relevant issue in determining her entitlement to such benefits at that tune.

In conclusion, we believe that the courts of Ohio will not recognize as valid the divorce obtained by Elizabeth in the Dominican Republic. Accordingly, except for the possibility of estoppel as noted above, she should be classified as the widow of Sheldon W~, the deceased wage earner, and not as his surviving divorced wife.

1_/ We contacted Ms. C. S~ of the Cleveland, Ohio office who had handled this claim.

2_/ Ordinarily, we do not address issues which are not ripe or actually pending. However, in this case, we agreed to make an exception because of your re- quest for an analysis of the validity of a divorce granted by the Dominican Republic under Ohio law. We arc only addressing the validity of such a foreign divorce where neither party was domiciled in the country granting the divorce.

3_/ Both Elizabeth and Sheldon were married previously. Elizabeth was married to William A~ from May, 1955 to 1958 and John S~~ from September, 1960 to 1962. She bad two children from these marriages, Mitchell and Jane Elizabeth. Jane is still living while Mitchell, ac- cording to Ms. S~ was killed in the same plane crash that killed Sheldon. Jane and Mitchell were adopted by Sheldon W~ after he married their mother, Elizabeth. Sheldon was previously married to Barbara N~ from 1956 through 1963. They had two children, Michael and JoAnn; both children are still living.

4_/ According to Ms. S~ , Sheldon W~ still maintained this address for business purposes although he apparently lived elsewhere.

5_/ The domicile of a person is "his true, fixed permanent home, a principal place of establishment, and to which, whenever he is absent, he has the intention of returning." Neal v. Neal, 85 N.E.2d 147, 151 (Ohio Com. P1.1949).

6_/ As the parties were domiciled in Ohio at the time of the "divorce," we have not addressed the issue of which law Ohio might apply if the domicile at death was not the same as the domicile at the time of the divorce.

7_/ However, we note that §2490(b) of the Claims Manual states that there are no absolute divorces in the Dominican Republic in cases of Catholic ceremonies performed after August 5, 195