PR 06405.049 Utah

A. PR 79-001 Estoppel to Deny Finality of Divorce Under Utah Law -Harris B. C~

DATE: January 2, 1979


Under Utah law, the applicant for wife's benefits would not be estopped to deny the validity of a divorce from the wage earner where, at the time of filing her application, there had only been an interlocutory divorce decree granted and both she and the wage earner subsequently had purportedly remarried others, as both the applicant and wage earner, in good faith, believed they were validly divorced and the applicant had not gained an advantage with respect to the wage earner and was not at fault or negligent, as between herself and the wage earner. (C~, Harris B. -~-RA VIII (N~ to WPSC 1/2/79)


1. The information which you have provided us is that the wage earner married Rose November 7, 1936 in California. Rose obtained an interlocutory decree of divorce in California August 11, 1960. Both parties apparently believed the divorce was final, however, no final decree was entered until June 15, 1977.

There is no indication that the final decree was entered nunc pro tunc or made effective as of an earlier date. The wage earner married Marie, October 4, 1961, at Reno, Nevada, and Rose married Donald A~ , July 15, 1962, whom she divorced in March 20, 1969, in California. The wage earner was domiciled in Utah when he became entitled to retirement insurance benefits in March 1973 and when Rose applied for wife's benefits. Rose applied for wife benefits, December 19, 1973 and received wife's benefits effective, March 1973. Marie filed an application for wife's benefits, January 21, 1977 and she was determined to be entitled to benefits effective June 1977, as a putative spouse, when the divorce between the wage earner and Rose became final, and it was determined that Rose became entitled to divorced wife's benefits at the same time, in June 1977. You have determined that the presumption of the validity of the second marriage of the wage earner to Marie has been rebutted.

2. You have asked to our opinion as to whether Rose, the first wife, was estopped to deny the lack of finality of the interlocutory decree, under the laws of Utah, when she filed her application in December 1973 or whether, under the laws of Utah, she was entitled to be regarded as a spouse or otherwise be treated as a spouse at that time.

3. 216(h)(1)(A) of the Social Security Act, 42 U.S.C.A. 416(h)(1)(A) provides that:

"An applicant is the wife . . . of a fully and currently insured individual for the purposes of this subchapter if the courts of the State in which such 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 filed such application. . . If such courts would not find that such applicant and such insured individual were validly married, at such time, such applicant should nevertheless be deemed to be the wife of 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 wife . . ."

4. The Utah statutes provide that marriages are prohibited and void:

"When there is a husband or wife living from whom the person marrying has not been divorced."

"Between a divorced person and any person other than the one of whom the divorce was secured until the divorce decree becomes absolute . . ." 30-1-2 Utah Code Annotated 1953.

The Utah law further provides that:

"It shall be unlawful for either party to a divorce proceedings whose marriage is dissolved by a decree to marry any person other than the husband or wife from whom the divorce was granted until it becomes absolute . . ." 30-1-8 Utah Code Annotated 1953.

5. California law requires actual entry of a final decree of divorce in the judgment book to dissolve a marriage (B~ , Casimir) -RA V (V~ to R. Rep. (10/31/66) OD-0520 California.

6. It is our opinion that the Utah courts would hold Rose's first marriage valid and continuing at the time she filed her application and would not recognize the doctrine of estoppel by a second "marriage" in this situation to prevent Rose from asserting the invalidity of the divorce.

In Sanders v. Industrial Commission 64 Utah 372, 230D, 1026 (1925), plaintiff claimed to be decedent's widow and, thus, entitled to compensation from the State Industrial Commission. She had received an interlocutory decree from her previous husband which had not become final when she entered into the "marriage" with decedent, who, thereafter, lived with her and held her out as his wife. In upholding the denial of the benefits the court declared as to the second "marriage":

"The marriage was a nullity from its inception, was void ab initio, and that was simply a fact which had been presented to the Industrial Commission, which could not possibly validate the marriage or in any way affect it. No other decree of court nor finding of any other body was needed to determine that the Wyoming marriage ceremony was a nullity and could not be recognized as having any legal status in Utah, as claimed by plaintiff. Holding each other out as husband and wife, believing in good faith that they were legally married--all these things are of no avail in this state, where common-law marriages are not valid, and where marriages to be valid must be solemnized as by statute provided. (Emphasis supplied.)

In Jenkins v. Jenkins 107 Utah 239, 153 P2d 262 (1944), plaintiff filed for divorce. The trial court, however, learned that at the time plaintiff and defendant were "married", plaintiff had only an interlocutory decree of divorce from her prior husband, which had not become final. The Utah Supreme Court held:

"In view of the fact that plaintiff had only an interlocutory decree of divorce from her prior marriage and said decree had not become final, she was still married at the time of her purported marriage to defendant and the trial court correctly held that the purported marriage was void ab initio."

The court went on to assert that it was not possible to validate the second marriage and, thus, there was "no grounds or no necessity for a divorce."

In Henrich v. Anderson 191F.2d 242 (10th Cir. 1951) the United States Court of Appeals reviewed a decision by the District Court for Utah under Utah law. The issue was whether A whom M~ "married" during the period of this interlocutory decree of divorce (before a final divorce decree), could claim M~ government insurance benefits as his widow. The appeals court held that the decision of the District Court finding A~ entitled to be considered M~'s widow, apparently upon equitable grounds, must be reversed because under Utah law:

"a relationship meretricious in its inception is presumed to continues so . . ."

The Court reached the conclusion that A~ was not M~'s wife even though A~ had acted in good faith, the divorce decree became final within only a few days after M ~'s "marriage" to A~ , and they lived together as man and wife for approximately one year until he was inducted into the Army and apparently continued to consider themselves as man and wife until his death while in the service, two years later.

7. In the instant case, had the final judgment of dissolution, dated June 15, 1977, been entered nunc pro tunc prior to October 1962 (the date the wage earner married Marie) it appears that the courts of Utah would have recognized that final decree as nunc pro tunc dissolving the marriage in California and validating the Nevada marriage between the wage earner and Marie. 1_/ However, after as this was not done in the instant matter, we need not address the question of how 216(h)(1)(A) of the Social Security Act; supra, would be applied if a nunc pro tunc decree had been entered when Rose filed her application.

8. A recent Utah case which, although not pertaining to a marriage relationship, states the applicable law insofar as estoppel is concerned.

"Estoppel is a doctrine of equity purposed to rescue from loss a party who has, without fault, been deluded into a course of action by the wrong or neglect of another. The measure we apply to plaintiffs' claim of estoppel is an adaptation to this case of the standard heretofore approved by this court: Estoppel arises when a party . . . by his acts, representations, or admissions, or by his silence when he ought to speak, intentionally or through culpable negligence, induces another . . . to believe certain facts to exist and that other . . . acting with reasonable prudence and diligence, relies and acts thereon so that he will suffer an injustice if the former . . . is permitted to deny the existence of such facts". (Emphasis supplied, footnote omitted). Morgan v. Board of State Land Commissioners 549 P.2d 695 Utah , (1976), see also, 28 American Jurisprudence 2d Estoppel and Waiver 5 27 (1966).

9. These authorities require an element of knowledge, deceit, culpable negligence or willfulness on the part of the party who is held to be estopped. In the instant case, we do not find these elements from the facts submitted. 2_/ Both parties (Rose and the wage earner) evidenced their belief that the divorce was final by becoming remarried." 3_/

10. In reaching our conclusion, we have also taken into consideration that there appears to be no contention that the wage earner was not properly notified of the institution of the divorce action. In fact, both the final divorce decree and the interlocutory divorce decree indicate that the wage earner not only appeared in that action, but that he also filed a cross complaint seeking the divorce. Upon being notified of the divorce action, appearing therein and also requesting the entry of a divorce decree he was charged with the same knowledge and responsibility with respect to that matter as was Rose. It therefore cannot be concluded that Rose, rather than the wage earner, had a greater responsibility to assure the entry of a proper final decree of divorce. The file contains no information indicating that either party relied upon the other with respect to obtaining a final decree but, to the contrary, indicates that both in good faith believed there was a final decree. 4_/ 5_/

11. In considering whether estoppel exists the receipt of inconsistent benefits may be a factor but, as noted above, ordinarily this requires knowledge of the true facts, 28 American Jurisprudence 2d Estoppel and Waiver 5 59 (1966), and a detrimental result to the party who, without such knowledge, gave or parted with those benefits, if estoppel is not applied. In the instant case, not only was there no such knowledge, or negligence, by Rose it is significant that there is no evidence that the wage earner changed his position to his detriment in reliance upon an act by Rose nor that the alimony and division of property which occurred in any way benefited Rose (i.e. the wage earner not prejudiced). As a matter of fact, the wage earner might well have been the party who benefited, including the fact that the property should have been divided on an equitable basis according to what each contributed to its acquisition and retention and that the alimony received by Rose, which probably ceased when she "remarried", was presumably not more than the wage earner would have expended for her support if they had continued to live as man and wife. Regardless, we do not believe it necessary under the facts of this case, to become involved in attempting to make such a comparative judgment even if it would be necessary in similar cases. 6_/

13. In view of our conclusion with respect to the question of the applicability of estoppel which you raised, it is unnecessary to respond to your questions concerning the law if there was an estoppel.

1_/ The Utah court in the case of Cahoon v. Pelton, 342 P.2d 94, 06, 9 Utah 2d 224 (1959) stated, referring to the California statute:

". . . The court may cause such final judgment to be signed, dated, filed and entered nunc pro tunc as aforesaid, even though a final judgment may have been previously entered whereby mistake, negligence or inadvertence the same has not been signed, filed or entered as soon as it could have been entered under the law if applied for. Upon the filing of such final judgment the parties to such action shall be deemed to have been restored to the status of single persons as of the date affixed to such judgment, and any marriage of either of such parties subsequent to one year after the granting of the interlocutory judgment as shown by the minutes of the court, and after the final judgment could have been entered under the law if applied for, shall be valid for all purposes as of the date affixed to such final judgment, upon the filing thereof. (Emphasis added.)

"Without exception, since that enactment, California has recognized the validity of the remarriage of a party to a divorce decree although the final decree was actually entered after the remarriage where the remarriage occurred after the nunc pro tunc date of the final decree. California expressly recognizes under such nunc pro tunc decision that the parties hereto were restored to their status of single persons on the nunc pro tunc date of the final decree and thereupon became eligible for marriage to a third person."

"The validity of a second marriage in another State after a California nunc pro tunc final divorce decree under facts similar to these has been recognized a number of times. We have found no contrary decision. . . . All these cases hold that the nunc pro tunc decree adjudicated that the parties were restored to their status as single persons upon the nunc pro tunc date of the final decree and were capable of contracting a valid marriage thereafter. Such is our holding in this case.

2_/ We have found a single Utah case which refers to estoppel with respect to a divorce. Caffel v. Caffel 5 Utah 407 303 P.2d 286 (1956). This case is distinguishable, however, because even though "estoppel" is referred to, it, essentially, turns upon a fraud perpetrated on the court by a party who participate in a divorce action knowing that the marriage itself was invalid. If, however, this case was deemed to enunciate the general principle of estoppel to deny a divorce, it is clear that the party's knowledge of the true facts at the time of the subsequent divorce action was the deciding factor in applying it.

3_/ In a situation where there was, in effect, an interlocutory decree of divorce entered by another State at the instigation of the wage earner's spouse and she knew that the court had imposed pre-conditions which had not been satisfied, we ruled that the wage earner's spouse, nevertheless was not estopped to deny the invalidity of the divorce, pointing out that the spouse had not received an advantage over the wage earner as a result. There, the spouse had not remarried. Here, both parties relied on the divorce decree and remarried. We discern no difference. (Our memorandum re Herman C. T~ to Regional Rep. Payment Center, K.C. Mo., 4-2-71-OD 555 Colo.)

4_/ Social Security Ruling 64-41 has been noted. There the determination was that Pennsylvania would not deem decedent's wife estopped with respect to her marital status, as opposed to the assertion of property rights, even though she apparently obtained a divorce decree which was void ab initio and may have had, or been charged with, such knowledge (the ruling is ambiguous in this respect).

5_/ Estoppel cannot be asserted by or used against, those who were not parties to the transaction in question. 28 American Jurisprudence 2d Estoppel and Waiver ยง 114 et. seq. (1966). Thus, if there was an estoppel in favor of Marie as against the wage earner, it would not run against Rose here nor would an estoppel favor of Rose's second husband run against Rose with respect to her transaction (divorced proceeding) with the wage earner.

6_/ We do not rule out the possibility with respect to inheritance of personal property, that a Utah Court might not have attempted to take previous division of property into consideration but even if so, it would not be inconsistent with our conclusion concerning the estoppel issue.

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PR 06405.049 - Utah - 06/14/2002
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