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
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
"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).