DIVORCE -RIGHTS OF PRIOR SPOUSE ESTOPPED TO ASSERT INVALIDITY OF MEXICAN DIVORCE -HAWAII

HAWAII -EFFECT OF MEXICAN DIVORCE

Although a Mexican divorce is found 'to be invalid, a claimant who is aware of and acquiesced in the divorce, is estopped from contesting the validity of the divorce decree. (M~, Edgar H., ~ RAIX [M~] to ARC, Progs. 04/11/88)

Edgar H. M~ and Mary C. H~ were married in Australia on April 7, 1943. On December 17, 1968 Edgar obtained a Mexican divorce. SSA previously determined that the divorce was invalid because neither party was a resident of Mexico. Edgar married Elizabeth A. T~ in California on December 30, 1968.

Edgar became entitled to receive social security retirement insurance benefits effective November 1981. Mary applied for spouse's benefits on September 22, 1982. She originally was awarded benefits as Edgar's divorced wife. Subsequently, a claims authorizer decided that because the Mexican divorce was invalid, Mary instead should be entitled to wife's benefits.

Following Edgar's death on May 8, 1987, Elizabeth filed a claim for the lump-sum death benefit as his surviving spouse. You asked whether Mary is estopped from denying the validity of the Mexican divorce and, if so, whether she can be considered Edgar's divorced spouse and Elizabeth recognized as his widow for purposes of determining entitlement to the death benefit.

Edgar was domiciled in Hawaii when he died, therefore, the effect of the Mexican divorce is governed by Hawaii law. Section 216(h) (1)(A) of the Social Security Act. Under the law of Hawaii, since Mary was aware of and acquiesced in the divorce, she is estopped from contesting the validity of the decree. See GC opinions re, Samuel D~, September 18, 1986 and Stanley June 16, 1986. Because the divorce is not subject to challenge by either party, Mary should be treated as Edgar's divorced widow for social security benefit purposes. See, e.g., GC opinion re Jack M~, January 4, 1987.

Elizabeth is entitled to receive the lump-sum death benefit because she qualifies as Edgar's deemed widow and was living in the same household at the time of his death. 20 C.F.R. § 404.346. Mary's corrected status as Edgar's surviving divorced spouse, rather than his widow, is not an impediment to Elizabeth's entitlement. 20 C.F.R. § 404.346(b).

DIVORCE - RIGHTS OF PRIOR SPOUSE TERMINATED BY ESTOPPEL TO ASSERT INVALIDITY OF DIVORCE -HAWAII

The use of an incorrect name in a notice of libel for divorce published in a newspaper whether by design of the libelor or an error on the part of his attorney is not sufficient to constitute service by publication. Such a defect in the service process deprives the court of jurisdiction and renders its action decreeing a divorce void. (N~, Amando, ~ -RA IX (P~) to RC 10/29/82).

The wage earner, Amando N~ and the claimant, Natalia N~, were married on June 16, 1929, in the Philippines. They appear to have been residents of the Philippines before and at the time of their marriage, and they continued to reside in the Philippines for a short time after their marriage. They had one son born (prior to their marriage) in February 1929. Statements by the wage earner and the claimant indicate that the wage earner left the Philippines in 1930 and moved to Hawaii. It appears that the wage earner has continuously resided in Hawaii since that time, .and that the claimant has continuously resided in the Philippines.

On December 2, 1942, the wage earner filed a libel for divorce from "Juliana N~" in the First Circuit Court for the Territory of Hawaii. The wage earner (the "libelant") claimed in the .libel that he had married Juliana N~ (the "libelee") on or about February 27, 1926 in the Philippines, and that the libelee had deserted him more than six months previous to the filing of his libel. The wage earner further alleged that he had not been able to ascertain the address or residence of his wife "after reasonable and due inquiry and search for more than fifteen days" before the filing of the libel. He therefore requested that service of the libel upon his wife be permitted by publication, as provided by law. The same day, the court ordered that notice of the time and place of hearing the libel for divorce be given the libelee by means of publication in a Honolulu newspaper for three consecutive weeks, as provided by law. The court clerk thereupon issued a divorce summons commanding the Hawaii sheriff or police to summon Juliana N~ to appear in court thirty days after service of the summons. On the same day, the sheriff returned the libel for divorce and summons, stating that after "due and diligent search," the libelee could not be found within the jurisdiction of the court. The notice of the libel and the date of the hearing thereon (January 19, 1943) were published in The Honolulu Advertiser for three consecutive weeks in December 1942. The notice also listed the libelee as Juliana N~. On January 22,'1943, the court entered a final decree of divorce between Amando N~ and Juliana N~ on the ground of (the alleged) desertion by Juliana.

Natalia N~ filed an application with the veteran's Administration for wife's insurance benefits on the wage earner's account. In the application, she indicated that she married the wage earner on June 16, 1929, in .the Philippines, that the marriage ended in divorce in Honolulu, and that she did not recall the date of the divorce. On a separate statement filed with her application, the claimant stated. that she and the wage earner had not been divorced "but [she] heard that he divorced [her]." She. further stated that she never received any notice from a court concerning a divorce proceeding and that she was never notified in any other way that her husband had tried to secure a divorce. It appears that the claimant first learned of the fact that her husband had purportedly divorced her when she filed the claim with the Veteran's Administration: in a February 3, 1976, letter to that agency, the claimant said that she first learned of the divorce from a V.A. representative.

The claimant's December 13, 1976, application for wife's insurance benefits was disallowed by SSA because she did not meet the Social Security Act's twenty-year duration of marriage requirement for divorced wife's benefits. On March 5, 1980, claimant filed a second application for wife's insurance benefits. Benefits were granted effective March 1979, because of the amendment to section 202(b) (1) of the Act, extending divorced wife's benefits to women whose marriage lasted at least ten years. You sought our advice as to: whether the wage earner and the claimant were, in fact, divorced in 1943 or whether that Hawaii divorce decree was invalid; if it was invalid, whether SSA may collaterally attack it;. and whether a nunc pro tunc decree could remedy the defect.

Before answering the questions you posed, we will address two other aspects of the divorce court's authority in this matter. As late as 1927, statutory law in the Territory of Hawaii required that a divorce action be filed in the judicial circuit wherein the parties to the marriage last lived together as husband and wife. Thus, at least until 1927, a divorce action filed in a Hawaii court wherein the parties had not resided as husband and wife had to be dismissed by the court for lack of jurisdiction. See Ogata v. Ogata, 30 Hawaii 620 (1928). This "living together" requirement of Hawaii law apparently had been abolished by 1940, however. See West v. West, 35 Hawaii 461 (1940). The fact that the wage earner and the claimant herein never lived together in Hawaii prior to the filing of the 1942 libel for divorce therefore did not deprive the Hawaii court of jurisdiction. Hawaii law from 1900 through 1967 required that the party filing for a divorce must have resided (i.e., been domiciled) in Hawaii for two years prior to his or her application for divorce. Whitehead v. Whitehead, 53 Hawaii 302, 492 P.2d 939 (1972).1/ The wage earner had met the residency requirement.

Current Hawaii law clearly permits service of a divorce libel by publication: "[i]f it appears . ú that plaintiff does not know the address or residence of the defendant and has not been able to ascertain the same after reasonable and due inquiry and search for at least fifteen. days either before or after the filing of the complaint .... "Haw. Rev. Stat. §580 3(d). Service by publication on the basis of this same showing has been authorized under Hawaii law since 1941. 1941 Haw. Sess. Laws (effective May 13, 1941), amending section. 4463 of the Revised Laws of Hawaii 1935. The libel and affidavit submitted by the wage earner to the Hawaii court on December 2, 1942, contained the allegations necessary for the court to permit service by publication.2/

The only remaining issue is the one you raised: whether the improper designation of the libelee in the decree, the libel, and all documents involved in the divorce proceedings invalidates the divorce and therefore subjects the decree to collateral attack by SSA. Hawaii law is relatively straightforward in this area. The Supreme Court of Hawaii has long held that a divorce decree rendered by a court without acquiring jurisdiction of the person of the libelee is "absolutely void." Aki v. Aki, 20 Hawaii 623 (1911). This is in conformity with the generally accepted rule that a divorce decree is void if the court rendering the decree lacked jurisdiction, and that such a decree is subject to collateral attack. Williams v. North Carolina, 325 U.S. 226 (1945); see generally 24 Am. Jur. 2d, Divorce and Separation §954 (1966). Substantial compliance with the laws on service of process being jurisdictional, if the plaintiff or the official charged with securing service of process fails to comply with the pertinent statute(s), the decree is void and may be collaterally attacked (even in another jurisdiction). Cheely v. C~, 110 U.S. 701 (1884); see 24 Am. Jur. 2d, 'Divorce and Separation, §956 (1966) and cases cited therein.

It is clear that if service of process upon the claimant in the 1942 divorce action at issue herein was not in substantial compliance with Hawaii law on service by publication, then the Hawaii court had no jurisdiction, and its decree is void. As the Hawaii Supreme Court stated in Aki v. Aki, cited previously,

A court may, at any time, vacate or set aside a judgment which is void as, for example, a judgment rendered where there was a lack of the necessary jurisdiction, whether through omission or defect of service, or otherwise.

20 Hawaii at 626 (emphasis added). There can be no doubt that the service of process by publication was defective with respect to the claimant. Even if the claimant might have seen a Honolulu newspaper (despite the fact that she evidently had never set foot in Hawaii), the fact that the name used in the published notice bore little resemblance to her own made it a virtual certainty that the claimant would have no knowledge of the pending divorce proceeding against her. Whether the defective notice occurred by the wage earner's design or by his attorney's error, as the wage earner contends, the result is the same. The constructive notice sought to be provided by the Hawaii law permitting service by publication obviously was thwarted. Consequently, we conclude that under Hawaii law, and consistent with generally accepted principles of law, the divorce decree obtained by the wage earner was invalid. It therefore is not binding on SSA. See, e.g., GC opinions re John B. D~, September 24, 1982, and Adjudications of Trial Courts as Binding on the Social Security Board," C-2101, September 8, 1943.

Finally, you asked what effect a nunc pro tunc order correcting the misnomer in the divorce decree, would have in determining the claimant's marital status. Usually, we do not address issues such as this, where no actual order has been entered, The possible means whereby such an order might be entered in the future are purely speculative, rendering a response difficult to frame. In this instance, however, we can respond, based upon the basic principles of law involved.

The function of entry of a decree nunc pro tunc is the correction of judicial records which fail to record, or improperly record, a court's actual judgment. Its purpose is not to correct an error. in the judgment itself. This Hawaii law is in accord with generally accepted legal principles throughout the United States with respect to nunc pro tunc judgments. See 24 Am. Jur. 2d, Divorce and Separation §422 (1966). DuPonte v. DuPonte, 53 Hawaii 123, 488 P.2d 537 (1971).

The divorce decree rendered here did not grant to the wage earner a divorce from the claimant but it did purport to grant him a "divorce" from the party he named (libelled) and upon whom he attempted to serve process by publication. The court's decree therefore properly recorded the only judgment it could have rendered on the basis of the wage earner's pleadings. Thus, a court could not enter a nunc pro tunc decree of divorce between the wage earner and the claimant (even if it obtained jurisdiction over both parties beforehand), because it could not have entered such a decree in 1943. An entirely new action would have to be filed to attain that result.

For the aforementioned reasons, we conclude that the claimant and the wage earner were not divorced in 1943, and that the claimant was married to the wage earner when she applied for wife' s insurance benefits in December 1976. She therefore would have been entitled to receive benefits on the basis of that application, assuming she met all other conditions of entitlement.

1_/ The Hawaii legislature reduced the residency requirement to one year in 1967.

2_/ We have some doubt as to the veracity of those allegations, and it appears that the court did virtually nothing to assess the truthfulness of the wage earner's allegations before approving the request for service by publication on the same day the request was made. Nevertheless, the claims file-contains no evidence (from the divorce proceedings or other sources)-upon which we could conclusively determine that the wage earner lied to the court when he swore that he had been unable to locate his wife after making reasonable efforts. Compare Murphy v. Murphy, 55 Hawaii 34, 514 P.2d 865 (1973), wherein the spouse seeking the divorce alleged that she did not know her husband's whereabouts despite the fact that she had been in touch with her husband's attorney shortly before she made that allegation. Had the evidence in the divorce proceedings shown beyond question that the wage earner's allegations were false, collateral attack by SSA might be warranted, but that is not the situation here. See GC opinion re Manning P. L~, January 13, 1975.