PR 06305.027 Mississippi

A. PR 82-050 Horace W~, Deceased Number Holder, Annulment, MS

DATE: October 27, 1982

1. SYLLABUS

DIVORCE -- ANNULMENT -- MARRIAGE ANNULMENT -- STATE LAW - Mississippi

The claimant's action to have her marriage annulled was not instituted within the statutory time limit and, therefore, was barred by §93-7-3 of the Mississippi Code Ann. It is proper for the Secretary to make this determination of Mississippi law notwithstanding the Final Decree of Annulment granted by the Chancery Court. Cain v. Secretary of Health, Education, and Welfare, 377 F.2d 55 (4th Cir. 1967).

2. OPINION

You have requested our opinion as to whether Jacqueline W~ meets the definition of an unmarried child. The question arises because the Chancery Court apparently did not follow Mississippi law in granting her an annulment. The bill of complaint for annulment was filed eleven months after the date of the marriage and not within the six-month period prescribed by Mississippi law.

The facts indicate that the number holder died on February 3, 1968, and that Jacqueline became entitled to benefits in the same month as a surviving natural child. She was married on January 16, 1980, in Mississippi, and her benefits were terminated January 1980.

On December 24, 1980, Jacqueline filed an original bill of complaint for annulment in Lauderdale County, Mississippi. On February 26, 1981, the Chancery Court of said county granted Jacqueline a Final Decree of Annulment. The court found, in pertinent part, that,

"The complainant (Jacqueline) and defendant have been ceremonially married but have not lived or cohabited together and their marriage was never ratified because the defendant, due to physical causes, was incapable of entering into a marriage state and, therefore, the complainant is entitled to have the marriage annulled .... "

On February 26, 1981, Jacqueline's mother filed. a new claim on Jacqueline's behalf for child's benefits to be resumed February 1981, the month of the annulment.

Jacqueline W~ was granted an annulment pursuant to $93-7-3 of the Mississippi Code Ann. (1972) which provides, in pertinent part, that

"A marriage may be annulled for any one of the following causes existing at the time of the marriage ceremony, to wit: (a) Incurable impotency-.... (d) When (in the absence of ratification) either of the parties to a marriage ... shall be incapable from physical causes of entering into the marriage state ... the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction. ... Suits for annulment under subsections (d) and (e) shall be brought within six months after the ground therefore is or should be discovered, and not thereafter."

It is apparent from the language of the court decree that the ground for Jacqueline's action for annulment was §93-7-3(d). The statutory time limit imposed by ~93-7-3 was considered in the Mississippi case of Haralson v. Haralson, 362 So.2d 191 (1978), wherein the court wrote that, "the statute (93-7-3) is plain and unambiguous. It provides a specific time limit for bringing actions for annulment for the causes set forth in subsections (b), (d) and (e)." That court held that inasmuch as an action to have a marriage annulled for lack of mental capacity was not instituted within six months after the marriage, it was barred by Section 93-7-3.

We reach a similar conclusion in this claim. Jacqueline's action to have her marriage annulled was not instituted within the statutory time limit and it therefore was barred by Section 93-7-3.

It is proper for the Secretary to make this determination of Mississippi law notwithstanding the Final Decree of Annulment granted by the Chancery Court of Lauderdale County, Mississippi. As stated in Cain v. Secretary of Health, Education, and Welfare, 377 F.2d 55 (4th Cir. 1967), where,

"the Supreme Court (of the State) has not had .- occasion to declare the law, the Secretary may follow the opinion of a nisi prius court; but if he believes its decision to be in conflict with what the Supreme Court 'would find' were the point presented to it, he may disregard that lower court's decision. Indeed, it is well settled that the Secretary is not bound by ex parte decisions made in State courts. Roche v. Celebrezze, 358 F.2d 119 (2nd Cir. 1966); Pitts v. Hamrick, 228 F.2d 486 (4th Cir. 1955); Ramsey v. United States, 61 F.2d 444 (5th Cir. 1932)."

Thus, it is our opinion that the annulment granted to Jacqueline is not a valid termination of her marriage. Jacqueline W~ filed suit eleven months after the date of marriage and therefore the action to have her marriage annulled was barred by §93-7-3 of the Mississippi Code Ann. (1972).