PR 06305.020 Kentucky

A. PR 86-015 Validity of Annulment, Status of Marriage of Sherman C~ and Mary S~

DATE: May 15, 1986

1. SYLLABUS

ANNULMENT OF MARRIAGE (INCLUDES ANNULMENT PROVISIONS UNDER STATE LAW) -- KENTUCKY

MARRIAGE -- PRESUMPTIONS OF VALIDITY OF SECOND OR LAST MARRIAGE (INCLUDES PRESUMPTIONS OF DEATH OR DIVORCE) -- KENTUCKY

The declaration of validity of the marriage order in this case is not binding upon the Secretary in that it does not comply with standards as delineated in Social Security Ruling (SSR) 83-37(c). Gray V. Richardson, 474 F.2d 1370 (6th Cir. 1973). The annulment was not genuinely contested before the state court by parties with opposing interest, and the decree was not issued in accordance with state law.

(Sherman C~- SSN ~- RAIV [J~] - to ARC, Progs., Atl., 05/15/86)

2. OPINION

In your memorandum you wanted to know the following: What is Mary's relationship to Sherman under the law of Kentucky; whether the dissolution was a divorce or annulment; what is the effective date of the dissolution; whether Mary meets the requirements for entitlement to either wife's or divorced wife's benefits; and, whether Sherman's marriages following the dissolution of his marriage to Mary were valid.

The claims file indicates that Mary S~ filed an application for wife's insurance benefits on Sherman C~ account on November 26, 1984. The application showed that Mary was a resident of Butler County Care Facility, 1800 Princeton Park, Hamilton, Ohio, when she filed the application. Ms. S~ stated in the application that she was the lawful wife of Sherman C~ and that she had never filed for a divorce and had never been notified that Sherman had filed for a divorce against her.

Notwithstanding Ms. S~ contention, Sherman, on November 5, 1984, in a form captioned, Statement of Claimant or Other Person, stated Mary had told him three or four years after their marriage that she had annulled their marriage. Sherman further stated that he never filed for divorce and never checked to see whether Mary had. According to Sherman, they had only lived together for a month. Sherman also stated that Mary's sister, who lived in Hamilton, Ohio, told him Mary had been married once before and that she had that marriage annulled as well. With regard to Sherman's other marriages, he stated the following: (1) he had married Eva G~ in August or September 1931 in Hamilton, Ohio, and divorced her in Terre Haute, Indiana, in 1941 or 1942; (2) he married Hazel M~ in Detroit, Michigan, on December 31, 1941, and divorced her in Hamilton, Ohio, on October 22, 1951; (3) he married Mary S~ (the applicant) on October 22, 1951, in Lawrenceburg, Indiana, and divorced her November 11, 1951, in Hamilton, Ohio; (4) he married Frances M~ (T~) on December 10, 1970, in Tampa, Florida, and lived with her until her death on December 9, 1974, in Rockcastle County, Kentucky; and, (5) he married Josie A~ in Richmond, Kentucky, on May 1, 1975. The last marriage is still in existence.

The file indicates that Mary had married a Bill D~ on December 18, 1937, in Hamilton, Ohio, and divorced him on April 26, 1944, in Butler County, Ohio. A search of the records showed no other marriages or divorces for Mary. However, the file does show that Sherman filed a two-count petition for dissolution of his marriage from Mary on February 19, 1985, in the Madison, Kentucky, Circuit Court.

In count one, Sherman charged Mary with misrepresentation and fraud in that she had a living spouse when she married him on October 22, 1951. Sherman further stated that 90 days had not expired since he had learned of Mary's prior marriage. In count two, Sherman charged he and Mary had not lived together since August 1955 and that the marriage was unretrievably broken. Sherman also alleged that Mary's last known residence address was 477 West Alexander, Detroit, Michigan, and that she had been married twice before.

The Madison Circuit Court of Kentucky issued a declaration of invalidity of marriage on May 10, 1985, declaring the marriage to be invalid as of October 22, 1951, the date of marriage.

In addition to the foregoing, the file indicates that Frances C~ drew wife's benefits on Sherman's record from December 1970 until her death in December 1974. W/E file further indicates that Josie, Sherman's present wife, drew wife's benefits from May 1976 until January 1982 when Josie began drawing benefits on her own record. The file also indicates that two children, Julie L. C~ and Antoinette M~, also had been receiving benefits on Sherman's account. On November 16, 1984, the Administration advised Sherman and Imogene D~, Antoinette's representative payee, that their benefits were being reduced due to an award of benefits to Mary

For reasons hereinafter stated, it is the office's opinion that the declaration of invalidity of marriage is not binding on the Secretary and, for purposes of Social Security, Mary is the wife of Sherman C~.

It is well settled law that the Secretary will be bound by state trial court decisions only where the following prerequisites are found: (1) An issue in a claim for Social Security benefits previously has been determined by a state court of competent jurisdiction; (2) 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 law; and, (4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. SSR 83-37(c). Gray v. Richardson, 474 F.2d 1370 (6th Cir~ 1973). See, also, Cain,~ v. Secretary of Health, Education ,and Welfare, 377 F.2d '55 (4th cir, 1967).

First, the annulment was not genuinely contested before the state court by parties with opposing interests and, thus, the decree is not binding on the Secretary. Mary was not properly served and, therefore, she did not appear in the proceeding. Sherman, in his petition, declared Mary was a non-resident of the State of Kentucky and that her last known address was 477 West Alexander, Detroit, Michigan. The file indicates that Mary was served by publication. Notwithstanding Sherman's contention of not knowing Mary's whereabouts, the file evidence indicates that Sherman knew of Mary's whereabouts or at least could have obtained them. As noted, Sherman had prior to filing the dissolution action, advised the Administration that it could obtain additional information from one of Mary's sisters who lived in Hamilton, Ohio. Thus, Sherman could have contacted the sister as well. Additionally, it is noted that at the time of the annulment proceeding and when Mary filed her application, she was a resident of Hamilton, Ohio. It is this office's opinion that Sherman deliberately withheld Mary's whereabouts from the state trial court in the hopes that she would not contest the annulment proceeding. Thus, the declaration of invalidity of marriage is not binding on the Secretary.

Second, the declaration of invalidity of marriage is not binding in that it was not issued in accordance with the law of the State of Kentucky. Sherman did not commence the action until 30 years after he had obtained knowledge about Mary's prior marriage. An action seeking declaration of invalidity of marriage based upon bigamy must be commenced within one year after the petitioner obtained knowledge of the described condition. Kentucky Revised Statute (KRS) 403.120 provides in pertinent part as follows:

(1) The circuit court shall enter its decree declaring the invalidity of a marriage entered into under the following circumstances.

(c) The marriage is prohibited.

(b) For the reason set forth in paragraph (c) of subsection (1), by either party no later than one year after the petitioner obtained knowledge of the described condition.

Sherman declared in count one of his petition that he had obtained knowledge of Mary's prior marriage within 90 days of filing the petition; yet, the file indicates that Sherman knew of Mary's prior marriage as early as 1955. As previously noted, Sherman stated on November 11, 1984, that Mary had told him three years after their alleged divorced that she had married Bill D~ and that she had divorced him. Thus, it is clear Sherman knew of the prior marriage long before the period alleged in the petition.

Since Mary's marriage to Bill D~ is the only other marriage of record, besides Mary's marriage to Sherman, it is clear that Sherman knew of this marriage long beyond the one-year period. Furthermore, Sherman implicitly indicated this when he styled his petition against Mary D~ C~. Sherman failed to comply with the law and, thus, the Secretary is not bound by the state court decree.

Based on the foregoing discussion, your office would be warranted in finding that Mary is the wife of Sherman for the purpose of Social Security and, as such, is entitled to Social Security benefits. With regard to your other questions, there is no need to answer them in light of the foregoing discussion especially in light of the fact that you informed our office that you would not seek to recovery any overpayment made to Frances and Josie C~.


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PR 06305.020 - Kentucky - 09/09/2008
Batch run: 01/27/2009
Rev:09/09/2008