DIVORCE--Annulment -Marriage Annulment --

Where the spouse of a claimant had obtained a divorce from him and claimant petitioned the Court to have the decree set aside and the marriage annulled due to lack of mental capacity - we held that the Court's order setting aside the divorce decree and granting the annulment was valid under Tennessee law. The claimant's benefits which had been terminated upon his marriage could therefore be reinstated.

(M~, Leslie G., ~, RA IV, (A~) to IPB, 7/6/82)

You have requested our advice concerning a decree annulling both a marriage and a divorce with respect to the same marriage. Leslie G. M~ was entitled to disabled adult child's benefits beginning August, 1961. These benefits were terminated effective January, 1978, because of his marriage. Leslie G. M~ and his spouse were divorced in Hawkins County, Tennessee on July 31, 1980. Subsequently, Leslie G. M~, by next friend Rosemary L~, filed petition for annulment of the marriage. An annulment was granted in Hawkins County, Tennessee, on September 11, 1981. The annulment decree states that the "...divorce between Leslie G. M~ and Ruby C. T~ (M~) be, and hereby is set aside and rendered null and void and for nothing held."

You note that Claims Manual 320(b) states that a child who has been previously entitled on an earnings record and whose entitlement was terminated by reason of marriage will not be considered unmarried for reentitlement purposes on that same earnings record unless the marriage is void or is annulled.

Your specific question is whether the marriage of Leslie M~ ended by divorce or annulment and whether he can be reentitled to benefits effective September, 1981.

An annulment proceeding differs from a divorce proceeding in that the latter is instituted to sever a marriage relation admitted to exist. Whereas, an annulment proceeding is for the purpose of declaring judicially that because of some defect or disability which existed at the time of the marriage ceremony, no valid marriage relation ever existed between the parties. See, 4 Am. Jur. 2d §1, Annulment of Marriage. Therefore, where as here, the annulment decree set aside a previous divorce decree and found that the marriage was void ab initio, we are of the opinion that the claimant's benefits may be reinstated prospectively only beginning with the date of the annulment if the action setting aside the divorce decree was proper. (See, P~, Sonnie -- included in your opinion request.)

We initially note that the same court that issued the divorce decree also set it aside and issued the annulment using the same case number for both proceedings. Section 27-7-101 of the TENN. CODE ANN. provides that:

"Any person aggrieved by the judgment of any court in a civil case which is not governed by the Tennessee Rules of Civil Procedure by reason of a material error in fact may reverse the judgment upon writ of error coram nobis as provided in this chapter."

Under Tennessee law the writ of coram nobis can be used to vacate a divorce decree. See eg., Moore v. Moore, 431 S.W. 2d 754 (1968).

Moreover, section 17-7-102 provides in pertinent part that:

"The relief embraced in this chapter is confined to errors of fact occurring in proceedings of which the person seeking relief has had no notice, or which he was prevented by disability from showing or correcting .... Thus, infancy at the rendition of the judgment, not appearing on the record sought to be corrected, or a real defense to an action by motion, of which the party aggrieved had no notice, and so of like cases, are good grounds for relief under this writ."

The writ of error coram nobis contemplates relief from the results of a given judgment only in the particular court in which the judgment was rendered. Rowan v. Inman, 338 S.W. 2d 578 (1960). Furthermore, the writ may be brought within one (1) year after the judgment as was the case here (see, Section 27-7-103 of the TENN. CODE ANN.) and an incompetent person may sue by his next friend (see, Section 16-15-705 of the TENN. CODE ANN.).

Based on the foregoing statutory provisions and the documents in the file, we are of the opinion that the Hawkins County Circuit Court treated the petition to set the earlier divorce decree aside as a writ of coram nobis under Tennessee law. Although there is no evidence of service on the defendant, the petition required that the defendant be served and we are assuming that proper service was made and the defendant elected not to challenge the action. Therefore, it appears that the subsequent judgment setting aside the divorce decree and granting an annulment was appropriate under Tennessee law and rein- statement of benefits is possible in this case.