This is in regard to your memorandum of August 10, 1978, posing the question whether
Ann E. L~ is the legal widow of Charles F. L~, the wage earner, or whether, under
Wyoming law, she is estopped to deny the finality of a California interlocutory judgment
of divorce. We have reviewed the claims folder which we return with the following
STATEMENT OF THE FACTS
Charles F. L~ the wage earner, was legally married to Ann H~ on March 19, 1962, in
Porterville, California. There was one child from the marriage. Subsequently, they
separated. Charles obtained an interlocutory judgment of divorce on September 12,
1963, in Tulare County, California. 1/ Ann received custody of the child, support
and maintenance. Your investigations show that no final decree of divorce was ever
entered in California.
On December l4, 1964, Ann formally married one L~ in Lompoc, California, from whom
she separated at some point in 1974. On April 8, 1975, when Ann applied for surviving
child's insurance benefits, she stated that she was "not filing for mother's benefits
because I remarried 12/14/64. I am currently married and will advise SSA if this changes."
In her statement of claim for benefits, dated September l, 1977, she said that she
did not formally divorce L~ because she did not think she was legally married to him--the
result of no final judgment ever having been entered in the divorce proceedings concerning
her marriage to Charles. However, in her statement of claim for widow's benefits,
dated April 18, 1978, she certified that "since he (Charles) had remarried, that I
was free to marry, (sic) I didn't know whether or not Charles had filed the final
decree. I didn't know the final decree was necessary. I though the interlocutory was
Charles married Joyce B~ on May 1, 1965, in Las Vegas, Nevada. No copy of the license
itself is in the file; however, there is certification of the document's contents.
There were three children from this marriage. Charles and Joyce separated sometime
in 1968, but your investigation showed no evidence of any divorce or formal separation
On August 12, 1969, Charles married Susan T~ in Nevada. They were divorced on November
10, 1971, in Idaho.
On November 24, 1972, Charles married Rebecca B~ in Nevada. There was one child from
Charles died on February 22, 1975, domiciled in Wyoming. Rebecca filed applications
for child insurance benefits and mother's insurance benefits on February 26, 1975,
and she was determined to be the eligible widow pursuant to section 216 (h) (1) (A)
of the Social Security Act, 2/ hereinafter referred to as the Act). Joyce filed an
application for benefits on May 5, 1976, and was declared to be the widow, thus eliminating
Rebecca. On September l, 1977, Ann filed an application for mother's benefits She
was determined to be the eligible widow on the ground that her marriage to Charles
had not been terminated by the interlocutory divorce decree, thus sufficiently rebutting
the validity of Charles' subsequent marriages You have asked us for an opinion as
to whether under Wyoming law, Ann would be estopped to deny the finality of the California
interlocutory divorce decree in light of her subsequent actions and beliefs.
Section 216 (h) (1) (A) states in pertinent part that: (a)n applicant is the . . .
widow . . . of a fully or currently insured individual for purposes of this title
. . . if such insured individual, is dead, the courts of the State in which he was
domiciled at the time of death, . . . would find that such applicant and such insured
individual were validly married . . . at the time he died. 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 widow . . . of such
insured individual if such applicant would, under the laws' applied by such courts
in determining .the devolution of intestate personal property, have the same status
with respect to the taking of such, property as a.... widow .... of such individual.
(Emphasis added). See also, 20 C.F.R. § 404.1101. Under this section then, the law of Wyoming (Charles's domicile
at the time of his death) is initially determinative of the validity or nonvalidity
of Ann's marriage to the WE. See! e.g., Mort v. Secretary of HEW, 407 F .2d 59 (3rd Cir. 1969) McGuire v. Califano, 440 F. Supp. 1031 (D. Neb. 1977). Wyoming law recognizes the validity of a foreign
marriage if it was, or is, valid in the State in which it was performed. Wyo. Stat.
§ 20-1-111 (1977), see also.. Hoagland v. Hoagland, 27 Wyo. 178, VIII (B~) to PC:KC 3/27/64. Therefore, We must look at California law
to establish whether Ann's marriage to Charles is still valid, or alternatively whether
Ann is married to her second husband. 3/ Once Ann's status is determined under California
law, we must go back to the Wyoming law of estoppel to determine if Ann is Charles
When Ann and Charles obtained their interlocutory divorce decree in 1963, the relevant
California law, section 132 of the Civil Code, read:
When an interlocutory judgment has been entered pursuant to Sec. 131 and one year
has expired from the date of service of copy of summons and complaint upon the defendant's
spouse, the court on motion of either party, or upon its own motion, may enter a final
judgment granting the divorce, and such final judgment shall restore them to the status
of single persons, and permit either to marry after entry thereof; and such other
and further relief as may be necessary to complete disposition of the action, but
if any appeal is taken from the interlocutory judgment or motion for a new trial is
made, final judgment shall not be entered until such motion or appeal has been finally
disposed of, nor then, if the motion is granted or judgment reversed. The death of
either party after the entry of the interlocutory judgment does not impair the power
of the court to enter final judgment herein before provided; but such entries shall
not validate any marriage contracted by either party before entry of such final judgment
but will constitute any defense of any criminal prosecution made against either.
(Emphasis supplied). 4/ Under the law, then, it seems at first glance that neither
Charles' or Ann's marriages subsequent to the entry of the interlocutory decree would
be valid. Seer. e.g.. Sullivan v. Sullivan, 219 Cal. 734, 28 P. 2d 914 (1934). This" is so, because, while "the interlocutory
does not forbid a remarriage, it simply refrains from dissolving the old one." Hirschfeld v. Hirschfeld, 165 Cal. App. 2d 474 332 P. 2d 397, 298 -(i959).
However, it seems clear that even though the California courts would not validate
Ann's subsequent marriage, they would hold and that she is estopped to question the
validity of either her "divorce" from Charles or her subsequent marriage. Spellens v. Spellens ,305 P .2d 628 (Cal.App. 1956), rev'd, 49 Cal.2d 210, 317 P.2d 613 (1957); Smith v. Smith, 157 Cal. App.2d 46, 320 P.2d 100 (1958); GC Opinion, In re ..Ellis H. Ackerman, RA IX (Manual) to RRep, D-3730, 4/9/58.
In Spellens the California Supreme Court faced a plaintiff's action for declaration of legal marriage.
The defendant claimed that his marriage to plaintiff was invalid because she had married
him in Mexico while she had only a California interlocutory divorce decree from her
prior husband. The court held that the defendant was estopped to deny the validity
of his marriage or the interlocutory decree, when he had helped plaintiff procure
the decree and married plaintiff four days later, representing that she was free to
marry him. The court cited Rediker v. Rediker, 35 Cal.2d 796, 221 P.2d I (1950), for the proposition that:
The validity of a divorce decree cannot be contested by a party who has procured the
decree or a party who has remarried in reliance thereon, or by one who has aided another
to procure the decree so that the latter will be free to marry.
49 Cal. 2d at ....... , 317 P.2d at 617. (Emphasis added).
The Spellens court clarified language in Reddiker which presupposed an entry of a final decree 5/. The court held that:
An interlocutory decree of divorce at least gives color as a judicial determination
of divorce especially when we consider that the final decree ordinarily follows at
the end of the year as a matter of course.
49 Cal. 2d at ......,317 P.2d at 620. (Footnote omitted.) The court then pointed out
that unlike other interlocutory judgments, the statutory interlocutory decree of divorce
is a final, appealable judgment, which adjudicates all matters except the final ministerial
severing of a marital relationship of the parties. "After the time to appeal or move
to vacate the decree has expired, the trial court is wholly without jurisdiction to
alter or set aside the interlocutory judgment." 6/ Id. n.3.
In filing her application, Ann admitted that she remarried in reliance upon the interlocutory
decree. (Under California law at that time, Civil Code § 133, she could have obtained
the final decree any time after a year had passed after the entry of the interlocutory
decree.) Thus, by her conduct, under the language of Rediker and Spellens, she is estopped to contest the validity of her second marriage or the lack of finality
of her divorce from the wage earner.
Under California law, the public policy of that State requires the recognition of
Ann's marriage to her second husband rather than her "dubious attempt to resurrect"
her original marriage to the wage earner. Spellens, 317 P.2d at 618. "The theory is that the marriage (Ann to second husband) is not
made valid by reason of estoppel but the estopped person (Ann) may not take a position
that the divorce (Ann to WE) or later marriage was invalid.", Id., or not complete.
In Wyoming, Ann would have to overcome the presumption that the wage earner and Rebecca
were validly married. Under Wyoming law,
Where it appears that the parties to a prior marriage were living at the time of a
subsequent marriage of one of the parties to a third person, it will be presumed that
the disability of the prior marriage had been removed by divorce before the time of
the second marriage in the absence of any countervailing evidence or corroborating
In re St. Clair's Estate, 46 Wyo. 446, 28 P .2d 894, 896-897 (1934).
It seems most reasonable to conclude that under Wyoming law, Ann would be estopped
to deny the finality of her divorce from the wage earner even though she can show
that no final divorce decree had entered. First, the fact that Ann and the wage earner
had obtained only an interlocutory decree is probably irrelevant. In Salmeri v. Salmeri supra the court observed that:
It has also been said that although a State may not be constitutionally bound to enforce
a sister State modifiable judgment, neither is it bound not to enforce it. Worthlely v. Worthley, 44 Cal. 2d 465, 283 P.2n 19,22 (1955)
554 P .2d at 1250. Second, the Wyoming case law of equitable or judicial estoppel
would seem to preclude Ann from claiming that her subsequent marriage was invalid.
Judicial estoppel is "a doctrine which estops a party to play fast and loose with
the courts . . an expression of the maxim that one cannot blow hot and cold in the
same breath." Allen v. Allen, 550 P.2d 1137, ll42 (Wyo. 1976). Ann's statement concerning her subsequent marriage
would appear to fall within the statement by the Allen court that "Defendant's statements
in the previous action are the very highest order of evidence against him and are
entitled to judicial sanctity, he cannot play hanky-panky with the courts of the State
and thus interfere with the integrity of the judicial system." Id.
Third, the general conflict of laws principles that Wyoming courts would undoubted
look to state that "A spouse who has accepted benefits under the divorce will usually
be held estopped to attack it." Restatement 2d, Conflicts § 74 Compare GC Opinion,
In re Durham supra, (Wyoming law would hold first wife not estopped to assert invalidity of Mexican
divorce because she never accepted or retained any fruits of the divorce.)
Accordingly, it appears that Wyoming courts would hold Ann estopped to deny the finality
of the California interlocutory judgment of divorce from the wage earner.
1_/Both parties were domiciled in California; Ann was served but did not appear, either
personally or by counsel.
2_/42 U.S.C. §416(h)(1)(A).
3_/ Wyoming gives full faith and credit to valid divorce decrees from other States.
See, Salmeri v. Salmeri, 554 P .2d 1244 (Wyo. 1977); See also, Barber v. Barber, 323 U.S. 77, 65 S. Ct. 137, 89 L.Ed.2d 82 (1944).
4_/ Cal. Civ. Code Section 4514 (West 1970).
5_/35 Cal. 2d at 808, 221 P .2d at 8.
6_/We note that under California law, even now, any, person may move for the entry
of a final decree of divorce in Lucre v. Luce, nunc pro tunc to the earliest date that either Ann or the WE could have obtained
one, i.e.. September 12, 1964. See Hurst v. Hurst, 227 Cal. App. 2d 859, 39 Cal. Rptr., 19 ALF 2d 635, 643 (1964) and cases cited therein.