A choice of law analysis is required in this case because the NH’s and Claimant’s 1996 marriage and 2007 annulment took place in the Philippines, and the application of the laws of Texas and the Philippines would likely result in differing outcomes. At the time of the 2007 Philippine Annulment, both the NH and Claimant were domiciled in Texas and continued to be domiciled in Texas at the time the Claimant filed his applications for spousal benefits.  Applying the most significant relationship test, supports applying the Texas Law to determine whether the NH and Claimant were validly married.

Applying Texas law to the evidence we received, we believe that a Texas court would conclude that the 1981 Illinois Divorce Decree terminated the 1973 Philippine marriage between the NH and Claimant and that the NH and Claimant validly re-married in June 1996, in the Philippines. The 2007 Annulment did not validly annul the 1996 Philippine re-marriage between the NH and accordingly, a Texas court would likely find that the NH and Claimant are still married for purposes of the Claimant’s entitlement to spousal benefits on the NH’s account.

QUESTIONS PRESENTED

You asked whether M~ (NH), and R~, both of whom reside in Texas, were validly married in the Philippines, and if so, whether the marriage ended by annulment entered in the Philippines and was legally nonexistent from the beginning, or whether the marriage continues, in order to determine R~’s eligibility to receive spousal benefits on the NH’s account. R~ claims that although separated, he is still married to the NH. However, the NH claims that an annulment voided their marriage and that they are not married.^[1]

ANSWER

This matter concerns two Philippine marriages, an Illinois divorce, and a Philippine annulment. In a choice of law analysis as to what law should apply, we believe that Texas would apply its laws in determining the validity of the NH’s and R~’s February 1981, Illinois divorce,^[2] June 1996 Philippine re-marriage, and May 2007 Philippine annulment. We believe that a Texas court would conclude that the May 1973, marriage between the NH and R~ was terminated by divorce in Illinois in February 1981, that the NH and R~ validly re-married on June 1996 in the Philippines, and that the 2007 Philippine annulment did not validly annul the June 1996 re-marriage between the NH and R~. Accordingly, a Texas court would likely find that the NH and R~ are still married and that R~ is entitled to spouse’s benefits on the NH’s account.

BACKGROUND

In January 2013, the NH became entitled to receive Title II retirement benefits. In March 2013, and in July 2013, R~ filed applications for husband’s insurance benefits on the NH’s account claiming that he is legally married to the NH despite separation in 2007.

The NH’s and R~’s 1973 Philippine Marriage and 1981 Illinois Divorce

As we understand the facts,, the NH and R~ married a first time in May 1973, in the Philippines (1973 Philippine marriage). We were provided with a copy of the 1973 Philippine marriage contract, which showed that they were issued a marriage license that day, that they were 23 and 25 years old, that they mutually consented to join together in holy matrimony, and that a city judge solemnized their marriage before two witnesses. They later had one child together. The NH moved to the United States in 1976, but R~ and their son stayed in the Philippines.

In February 1981, an Illinois court granted the NH’s petition for dissolution of marriage and issued a Judgment of Dissolution of Marriage (1981 Illinois Divorce Decree), dissolving the NH’s 1973 Philippine marriage to R~. The 1981 Illinois Divorce Decree notes that R~ was served a copy of the NH’s petition by publication but that he failed to appear, file a pleading, or attend the hearing before the court. It is our understanding that he was living in the Philippines at this time. The 1981 Illinois Divorce Decree states that the Illinois court had jurisdiction over the NH because she was domiciled in Cook County, Illinois at the time she filed the petition to dissolve the marriage and remained domiciled there for more than 90 days preceding the 1981 Illinois Divorce Decree. The 1981 Illinois Divorce Decree states that the NH and R~ were lawfully married in May 1973, and that the marriage was recorded in the Philippines. The Illinois court found that without any fault of the NH, R~ deserted the NH starting in November 1975 and that the desertion continued through the date of the 1981 Illinois Divorce Decree. Accordingly, the Illinois court awarded judgment in the NH’s favor dissolving the NH’s 1973 Philippine marriage to R~.

The NH’s Marriage and 1993 or 1994 Divorce from J~

In a July 2013, SSA Report of Contact, the NH advised the agency that after her Illinois divorce from R~, she later married J~. The NH stated that she and J~ divorced in 1993 or 1994 in Harris County, Texas. In her Form SSA-795, the NH reported that she and J~ divorced around 1994 or 1995. SSA’s records show that when the NH filed for Title II benefits, she reported that she married J~ in February 1981, in Illinois, and that they divorced in March 1995, in Texas. We do not have any documentation of this marriage or divorce.

The NH’s and R~’s 1996 Philippine Second Marriage and 2007 Philippine Annulment

In a July 2013, SSA Report of Contact, the NH advised the agency that in June 1996, the NH and R~ married a second time in the Philippines in a “church blessing marriage.” The Philippine marriage contract dated June 1996 (1996 Philippine marriage contract) identifies the Parish of the Holy Nazarene, Alabang, Muntinlupa City, Philippines as the place of marriage. A parish priest solemnized the June 1996, marriage, and two people witnessed. The 1996 Philippine marriage contract certifies that the NH and R~ mutually consented to lawfully join together in holy matrimony, but listed “N.A.” next to the marriage license number and issue date and indicated that the marriage was a “ratificacion” of their previous May 1973, Philippine marriage. At the time of the 1996 Philippine re-marriage, the NH was living in Houston, Texas, and R~ was living in the Philippines. After their 1996 re-marriage, the NH petitioned for R~ to come to the United States, which he did within a year and resided with the NH in Houston, Texas. R~ advised the agency that he and the NH lived together in Texas almost 10 years until 2007, when they again separated. However, the NH advised the agency that she and R~ only resided together for 7 or 8 years. The NH and R~ still reside in the United States.

The NH stated that she returned to the Philippines in 2007 to file for an annulment of the 1996 Philippine marriage contract. In May 2007, at the NH’s request, the Regional Trial Court sitting in Imus, Cavite, Republic of the Philippines (Philippine Court), declared the NH and R~’s May 1973, marriage null and void from the beginning (2007 Philippine Annulment). The Philippine Court issued an Entry of Final Judgment and Decree of Nullity of Marriage (Entry and Decree) dated July 2007, recognizing that the 2007 Philippine Annulment had become final. The NH advised the agency that in the Philippines, infidelity is a ground for annulment and that this was why the annulment was granted.

In the 2007 Philippine Annulment, the Philippine Court stated that R~ was validly served with summons but failed to file a responsive pleading. Thus, the Philippine court allowed the NH to establish the jurisdictional facts in the case, and trial ensued without R~’s presence. The Philippine court recognized that the NH and R~ married in May 1973, but did not mention the 1981 Illinois divorce or the 1996 Philippine marriage, and did not mention the NH’s marriage and divorce to J~.

The 2007 Philippine Annulment sets forth a summary of the NH’s testimony and the testimony of a psychiatrist. It indicates that the NH alleged that throughout their marriage, R~ had a history of being violent, “drinking, gambling, and womanizing.” A large focus of the NH’s testimony was upon R~’s infidelity during their marriage. Psychiatrist L~ testified that R~ had borderline personality disorder and was emotionally immature and impulsive. L~ opined that there was a strong possibility that R~’s borderline personality disorder was established at the time he married the NH and that R~ was therefore psychologically incapacitated to enter the marriage. The Philippines court concluded that R~’s psychological incapacity was permanent and caused marital dysfunctions and R~’s non-compliance with his marriage commitments. Accordingly, in the 2007 Philippine Annulment, the Philippine Court declared the NH’s and R~’s 1973 Philippine marriage “null and void from the beginning.”

In the Entry and Decree, the Philippine court stated that the parties were served copies of the 2007 Philippine Annulment, that in June 2007 the annulment became final, and instructed that the Decree be registered in the City Civil Registrar of Pasay City and the National Statistics Office. A certification dated July 2007, from the Office of the Civil Register, Municipality of Imus, affirmed that the Philippine court declared the NH’s and R~’s marriage null and void. Finally, the 1973 Philippine marriage contract has a note stating that pursuant to the 2007 Annulment, the marriage between the NH and R~ entered into in May 1973, was “declared null and void.”

The NH’s niece, G~, completed an “Affidavit of Singleness” dated August 2007, which stated that after the 2007 Philippine Annulment, the NH remained single. G~ stated that the NH currently worked in Texas, and also indicated the NH never entered into marriage with another man, either inside or outside the Philippines.

R~ states that although he and the NH separated in 2007, they are still legally married and that he was not notified of the annulment. Conversely, a July 2013, SSA Report of Contact indicates that the NH advised the agency that their marriage ended with an annulment obtained in the Philippines in 2007 on the ground of infidelity.^[3]

ANALYSIS

1. A. 

   Entitlement to Social Security Spousal Benefits under the Social Security Act

   A claimant is entitled to spousal benefits under Title II of the Social Security Act (Act) if, among other things, he is the husband of an insured individual who is entitled to old-age or disability benefits.^[4] See 42 U.S.C. §§ 402(c), 416(a)(1), (f); 20 C.F.R. § 404.330. The claimant bears the burden of proving that he is in a valid marital relationship with the insured and is therefore the insured’s spouse. See 20 C.F.R §§ 404.345, 404.704, 404.723, 404.725. In determining the claimant’s relationship as the insured’s spouse, the agency looks to the law of the state where the insured had a permanent home at the time the claimant applied for benefits. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345; Program Operations Manual System (POMS) RS 00202.001(A); GN 00305.005(B).^[5] Permanent home means the individual insured’s true and fixed home or legal domicile. 20 C.F.R. § 404.303. Because the NH was domiciled in Texas at the time R~ filed both applications, we look to Texas law to determine whether the NH and R~ were validly married.

2. B. 

   Texas Choice of Law Analysis

   Because the NH’s and R~’s 1996 marriage and 2007 annulment took place in the Philippines, and because application of the laws of Texas and the Philippines would likely result in differing outcomes,^[6] a choice of law analysis is required. Thus, the initial question is whether Texas would apply Texas law or Philippine law in determining the validity of the 1981 Illinois Divorce Decree, the 1996 Philippine marriage, and the 2007 Philippine Annulment.^[7]

   Historically, in choice of law decisions, Texas courts applied the law of the place of marriage or divorce to determine its validity (the place of celebration test). See Braddock v. Taylor, 592 S.W.2d 40, 42 (Tex. Civ. App.—Beaumont 1979, writ refused n.r.e.); Portwood v. Portwood, 109 S.W.2d 515 (Tex. Civ. App.—Eastland 1937, writ dismissed). However, the Texas Supreme Court held in Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex. 1984) that Texas should follow the most significant relationship test set out in the Restatement (Second) of Conflicts, section 6(2), in choice of law cases, except where the parties have agreed to a valid choice of law clause. Following Duncan, Texas courts of appeals have applied the most significant relationship test to choice of law questions in the context of out-of-state marriage and divorce. See Seth v. Seth, 694 S.W.2d 459, 462-64 (Tex. App.—Fort Worth 1985, no writ); but see De Leon v. Perry, 975 F.Supp.2d 632, 660-661 (W.D. Tex. 2014) (the validity of a marriage is generally determined by the law of the place where celebrated); Husband v. Pierce, 800 S.W.2d 661, 663 (Tex. App.—Tyler 1990, no writ).

   Before applying section 6(2)’s most significant relationship factors, we also recognize that the Texas Supreme Court has held that in applying the Restatement (Second) of Conflicts, the first question in a choice of law analysis is to look at whether, under section 6(1), Texas has a clear statutory directive regarding choice-of-law in the context of determining the validity of a foreign or out-of-state marriage and divorce. See Citizens Ins. Co. of America v. Daccach, 217 S.W.3d 430, 443 (Tex. 2007). The Texas Family Code provides that “the law of this state applies to persons married elsewhere who are domiciled in this state.” Tex. Fam. Code Ann. § 1.103.^[8] Although some Texas cases have described section 1.103 as a choice of law provision or a specific statutory directive on choice of law, we did not locate any Texas cases interpreting or defining the scope of this provision. See, e.g., Citizens Ins. Co. of America, 217 S.W.3d at 464 (concurrence) (identifying section 1.103 as an “explicit ‘directive . . . on choice of law’”); In re Marriage of J.B. & H.B., 326 S.W.3d at 668-69 (describing section 1.103 as a “general choice-of-law provision”). We were also unable to locate any Texas Supreme Court case specifically addressing whether the significant relationship test applies for choice of law in the specific context of determining the validity of out-of-state marriages or addressed the impact or interplay of section 1.103 of the Texas Family Code on this determination.

   Here, the evidence shows that at the time of the 1996 Philippine marriage, the NH resided in Texas, but R~ resided in the Philippines. At the time of the 2007 Philippine Annulment, both the NH and R~ were domiciled in Texas and continued to be domiciled in Texas at the time R~ filed his applications for spousal benefits. However, because neither the plain language of section 1.103 or any Texas case law explains the scope of section 1.103’s choice of law provision and given the choice of law analysis and holdings in Duncan and Seth (and other cases) applying the most significant relationship test, we consider section 1.103, in conjunction with the most significant relationship factors listed in section 6(2) of the Restatement (Second) of Conflicts in determining whether Philippine law or Texas law applies in this case.

3. C. 

   The Most Significant Relationship Test Supports Applying Texas Law

   Section 6 of the Restatement (Second) of Conflicts sets forth the following choice of law principles:

   1. 1. 

      a court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law;

   2. 2. 

      when there is no such directive, the factors relevant to the choice of the applicable rule of law include:

      1. a. 

         the needs of the interstate and international systems,

      2. b. 

         the relevant policies of the forum (the place of the trial),

      3. c. 

         the relevant policies of other interested states and the relevant interests of those states in the determination of the particular issue,

      4. d. 

         the protection of justified expectations,

      5. e. 

         the basic policies underlying the particular field of law,

      6. f. 

         certainty, predictability, and uniformity of result, and

      7. g. 

         ease in the determination and application of the law to be applied.

   In applying the most significant relationship test, it is not the number of contacts with a particular state or country that determines which law controls; rather it is the qualitative nature of the particular contacts. Duncan, 665 S.W.2d at 421.

   As noted, following Duncan, Texas courts of appeals have applied the most significant relationship test to choice of law questions in the context of marriage and divorce. See Seth, 694 S.W.2d at 462-64. Thus, we must utilize the Restatement factors of the most significant relationship test to determine whether a Texas court would apply Texas or Philippine law in deciding the validity of the NH’s and R~’s divorce, re-marriage, and subsequent annulment.

   The Seth case offers helpful guidance in examining how a Texas court would analyze the present facts under the significant relationship test. Seth, 694 S.W.2d 459. The Seth case addressed the question of whether Islamic or Texas law should apply to divorce proceedings in Texas, where prior marriage and divorce ceremonies all occurred under Islamic law in India and Kuwait.^[9] The Seth court determined that the Restatement factors of the relevant policies of the forum (Texas) and the protection of the parties’ justified expectations, explained in detail below, required application of Texas law to resolve the issues raised by the marriage and divorce ceremonies that occurred in Kuwait and India. Id. at 462-464. As explained below, we find that a majority of the Restatement factors support applying Texas law in deciding the validity of the NH’s and R~’s divorce, re-marriage, and subsequent annulment.

   1. 1. 

      The Relevant Policies of the Forum (Texas)

      We believe that in the present matter, as in Seth, the relevant policy of the forum (Texas) is one of the most critical factors in determining whether to apply Texas or Philippine law. In Seth, the court emphasized that aside from being the forum, or the location of the court where the trial was taking place, Texas had a nexus with the parties to the lawsuit, including that the husband and his second wife had lived in Texas for five years and acquired property together in Texas. Seth, 694 S.W.2d at 463. Thus, in Seth, Texas had a strong interest in resolving the matters of the divorce.

      Similarly, the parties herein also have a strong connection to Texas. The NH resided in Texas at the time she married R~ in the Philippines in June 1996, and sometime in 1997, R~ joined the NH in Texas. The NH and R~ resided together in Texas for a number of years from around 1997 until sometime between 2004 and 2007. Further, although the evidence shows that they ceased living together after the 2007 Philippine Annulment, both the NH and R~ resided in Texas at the time R~ filed his applications. Because the NH and R~ resided together in Texas during the majority of their re-marriage, and because both parties continue to live in Texas, Texas has a strong interest in resolving matters concerning the validity of the parties’ re-marriage and subsequent annulment.

      The Seth court found it to be completely contrary to Texas policy to apply Islamic law to the non-Muslim first wife, who was unaware of the ex-parte talak divorce her Muslim husband obtained. Seth, 694 S.W.2d at 463. The court determined that applying Islamic law would bear a harsh result to the non-Muslim first wife. Id. at 463-464. The court found that allowing a non-Muslim man to convert to Islam and then one year later divorce his wife in an ex parte process of which she was not aware, and in which he merely had to pronounce three times the phrase “I divorce you,” was harsh and ran “so counter to our notions of good morals and natural justice that we hold that Islamic law in this situation need not be applied.” Id. at 463.

      Although not quite as extreme as the result in Seth, applying Philippine law would be contrary to Texas policy, which permits a defendant to collaterally attack a judgment on the basis of lack of due process. See P.N.S. Stores, Inc. v. Rivera, 379 S.W.3d 267, 272-73 (Tex. 2012); see also Peralta v. Heights Medical Ctr., Inc., 485 U.S. 80, 84 (1988) (“Failure to give notice violates ‘the most rudimentary demands of due process of law.’”) (citations omitted). Further, Texas courts may look beyond the recitations in the judgment to determine whether the judgment is void. See P.N.S. Stores, Inc., 379 S.W.3d at 272-73. In contrast, Philippine law would bar R~’s ability to challenge the Philippine court’s jurisdiction to render the 2007 Annulment unless he obtained a Philippine court order invalidating the 2007 Annulment. See January 2014 Report at 4-5; October 2014 Report at 5. Because R~ neither participated in the annulment proceedings in the Philippine court, and he alleged that he did not receive notice of such proceedings until after the Philippine court issued the 2007 Annulment, applying Philippine law would be contrary to Texas’s policies regarding challenging judgments for lack of jurisdiction or due process. Thus we conclude under this Restatement factor that the relevant policies of the forum (Texas) strongly support applying Texas law to determine the validity of the 1996 Philippine marriage and the 2007 Philippine Annulment.

   2. 2. 

      The Protection of Justified Expectations

      We find that the Restatement factor concerning the protection of the parties’ justified expectations does not clearly support application of either Philippine or Texas law in this case. Because the NH and R~ were married in the Philippines, and because the NH returned to the Philippines to have the marriage annulled in 2007, the NH might anticipate that Philippine law governs the validity of her marriage and subsequent annulment. However, because the NH is domiciled in Texas and because both the NH and R~ resided in Texas during their marriage, they might expect that Texas law determines the validity of their marriage and annulment. See 20 C.F.R. § 404.345 (providing that the agency looks to the law of the state where the insured had a permanent home at the time the claimant applied for benefits). Thus, this factor does not clearly weigh in favor of the application of either Philippine law or Texas law.

   3. 3. 

      The Relevant Policies of Other Interested States and the Relevant Interests of Those States in the Determination of the Particular Issue

      The Philippines has a broad interest in regulating its citizens’ marriages within its borders and in upholding marriages and annulments that comply with its relevant laws. However, we find that the Philippine’s interest is weakened in this case because the NH and R~ resided together in the United States for the majority of the time between their 1996 re-marriage and 2007 annulment. Both continued to reside in Texas at the time R~ applied for spousal benefits. Further, the Philippines does not have an interest or stake in whether its citizens who have moved to the United States are able to collect Social Security benefits. Although the Philippines has some interest in the outcome of this case, we find that because Texas’ relevant policies and interests outweigh the Philippines’ interests, Texas law should apply in determining the validity of the 1981 Illinois Divorce Decree, the 1996 Philippine re-marriage, and the 2007 Philippine Annulment.

   4. 4. 

      Certainty, Predictability, and Uniformity of Result

      With respect to the certainty, predictability, and uniformity of result, this Restatement factor supports application of Texas law. As the forum state, a Texas court applying Texas law would produce a more certain, predictable, and uniform result than applying Philippine marriage and annulment law. See, e.g., EA Oil Serv., Inc. v. Mobil Exploration & Producing Turkmenistan, Inc., No. 14-99-00706-CV, 2000 WL 552406, at *3 (Tex. App.—Houston [14th Dist.] May 4, 2000) (unpublished) (indicating that as the forum, the application of Texas law would certainly provide a more certain, predictable, and uniform result than application of Turkmenistan law). Thus, this factor weighs in favor of applying Texas law.

   5. 5. 

      Ease in the Determination and Application of the Law to be Applied

      With respect to the ease in the determination and application of the law to be applied, we find that this Restatement factor does not clearly favor the application of either Texas or Philippine law. Although a Texas court could easily apply Texas law, a Texas court’s application of Philippine law would not create an unduly burdensome task as was present in Seth. In Seth, the evidence presented to the court contained somewhat conflicting evidence regarding whether the talak divorce proceeding that took place was valid under Islamic law under the facts presented. Seth, 694 S.W.2d at 463. Additionally, Seth potentially involved the laws of two countries (India and Kuwait), as well as consideration of Islamic law as it pertained to Muslims (husband and second wife) and non-Muslims (the first wife). In contrast, the facts in this case would only require the application of the Philippine law, rather than multiple countries’ laws. Thus, this factor does not clearly weigh in favor of applying either Texas law or Philippine law. See, e.g., BDO Seidman, LLP v. Bracewell & Patterson, LLP, No. 05-02-00636-CV, 2003 WL 124829, at *5 (Tex. App.—Dallas Jan. 16, 2003, pet. denied) (unpublished) (concluding that the ease in determination and application of the law to applied to did not clearly favor Texas law over Louisiana law, as it was “not so daunting that a Texas court would be unable to correctly apply it”).

   6. 6. 

      The Needs of the Interstate and International Systems

      In terms of the needs of the interstate and international systems involved, as the court observed in Seth, because the facts of this case are unusual and case specific, it does not seem likely that this singular case involving these individuals implicates the broad needs of the international systems. Seth, 694 S.W.2d at 463; see also Seizer v. Sessions, 940 P.2d 261, 265-66 (Wash. 1997) (concluding that the court’s decision in a divorce case did not impact commercial intercourse between the states of Texas and Washington and thus the needs of the interstate and international systems was not relevant in determining which state’s law applied). Thus, this Restatement factor does not provide helpful guidance as to which law to apply.

   7. 7. 

      The Basic Policies Underlying the Particular Field of Law

      Concerning the basic policies underlying family law, there is support for upholding the marriage and re-marriage under both Texas and Philippine law. However, section 216(h)(1)(A) of the Social Security Act defers to state law to determine family status issues. See 42 U.S.C. § 416(h)(1)(A). The issue in this case involves the right to Social Security benefits based on a family law determination. Therefore, the basic policies underlying the issues in this case weigh in favor of applying Texas law.

   Accordingly, weighing all of the Restatement factors of the most significant relationship test, and considering section 1.103’s instruction that Texas law apply to individuals domiciled in Texas but married elsewhere, we believe that a Texas court would apply Texas law in determining the validity of the 1981 Illinois Divorce Decree, 1996 Philippine re-marriage, and 2007 Philippine Annulment.

4. D. 

   D. Application of Texas Law

   1. 1. 

      The 1981 Illinois Divorce Decree Terminated the NH’s and R~’s 1973 Philippine Marriage.

      We first analyze whether a Texas court would conclude that the 1981 Illinois Divorce Decree validly terminated the 1973 Philippine marriage between the NH and R~. See POMS RS 00202.075A2 (proof of a claimant’s divorce from the NH usually constitutes evidence of a claimant’s valid marriage to the NH). Article IV, Section 1 of the United States Constitution (the Full Faith and Credit Clause), provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” U.S. Const. art. 4, § 1. Generally, the Full Faith and Credit Clause requires a state to enforce a sister state’s judgment unless the sister state did not have jurisdiction to render the judgment. See, e.g., Johnson v. Johnson, 37 S.W.3d 523, 526-27 (Tex. App.—El Paso 2001, no pet.).

      Texas courts analyze three jurisdictional elements with regard to a sister state’s judgment: “(1) jurisdiction over the subject matter; (2) jurisdiction over the person or res; and (3) power to render the particular relief awarded.” Id. at 527. A sister state judgment is presumed valid, and this presumption applies even in cases where the judgment was entered by default. See, e.g., First Nat’l Bank of Libby, Montana v. Rector, 710 S.W.2d 100, 103 (Tex. App.—Austin 1986, writ refused n.r.e.). Further, recitals in the judgment are presumed valid and the party challenging the judgment bears the burden of proving that the sister state court lacked jurisdiction. See id.

      We conclude that Texas would probably afford full faith and credit to the 1981 Illinois Divorce Decree. First, Texas would likely find that the Illinois court had subject matter jurisdiction. At the time of the dissolution proceedings in 1981, Illinois law required that one of the parties to a dissolution proceeding be domiciled in the state at the time the petition is filed and that domicile be maintained for 90 days “next preceding the making of the findings.” See, e.g., In re Marriage of Parks, 461 N.E.2d 681, 684 (Ill. App. Ct. 1984) (citing Ill. Rev. Stat. 1981, ch. 40, par. 401). Here, the 1981 Illinois Divorce Decree’s statement that the NH was domiciled in Cook County, Illinois, at the time she filed her petition to dissolve her marriage, and that she maintained this domicile for more than 90 days “next preceding the making of these findings” is consistent with Illinois’s domicile requirement at the time the court dissolved the 1973 Philippine marriage. Id.; See First Nat’l Bank of Libby, Montana, 710 S.W.2d at 103 (providing that recitals in a sister state’s judgment are presumptively valid). As such, a Texas court would probably conclude that the Illinois court had subject matter jurisdiction. See, e.g., In re Marriage of Gryka, 413 N.E.2d 153, 155 (Ill. App. Ct. 1980) (“[D]omicile for the requisite period of time as provided by statute was a fact necessary to confer subject matter jurisdiction on the court issuing the decree of dissolution of marriage.”).

      Texas would also likely find that the Illinois court properly acquired in rem jurisdiction over the marital status of the NH and R~. Illinois law in 1981 permitted service by publication in certain circumstances, such as in the case of a defendant who resided outside the state. See Ill. Rev. Stat. 1981, ch. 110, par. 2-206; State Bank of Lake of Zurich v. Thill, 497 N.E.2d 1156, 1161 (Ill. 1986) (noting that the civil code of procedure authorized service of process by publication). Serving a non-resident defendant by publication satisfies the requirements for obtaining in rem jurisdiction over the marital status. See In re Marriage of Brown, 506 N.E.2d 727, 729 (Ill. App. Ct. 1987); Davis v. Davis, 293 N.E.2d 399, 403 (Ill. App. Ct. 1973). Here, the 1981 Illinois Divorce Decree states that R~ was served a copy of the NH’s petition for dissolution of marriage by publication and R~ does not challenge service. See First Nat’l Bank of Libby, Montana, 710 S.W.2d at 103 (providing that recitals in a sister state’s judgment are presumptively valid and the party challenging a judgment bears the burden of proving lack of jurisdiction). Thus, a Texas court would probably conclude that the Illinois court acquired in rem jurisdiction to dissolve the 1973 Philippine marriage between the NH and R~. See In re Marriage of Brown, 506 N.E.2d at 729.

      And finally, Texas would probably conclude that the Illinois court had the power to enter a judgment dissolving the May 1973, marriage between the NH and R~. Illinois law at the time of the 1981 Illinois Divorce Decree provided that a court could enter a judgment of dissolution of marriage if the respondent wilfully deserted or absented himself from the petitioner for one year without cause or provocation by the petitioner. See Ill. Rev. Stat. 1981, ch. 40, par. 401. The 1981 Divorce Decree states that without any fault of the NH, R~ deserted the NH starting in November 1975 and that the desertion continued through the date of the 1981 Illinois Divorce Decree. R~ does not challenge these facts. See First Nat’l Bank of Libby, Montana, 710 S.W.2d at 103 (providing that recitals in a sister state’s judgment are presumptively valid and the party challenging a judgment bears the burden of proving lack of jurisdiction). Thus, Texas would determine that the Illinois court had the power to render the 1981 Illinois Divorce Decree.

      Because the evidence we received shows that Illinois had subject matter and in rem jurisdiction, as well as the power to dissolve the marriage, we conclude that Texas would likely give full faith and credit to the 1981 Illinois Divorce Decree. Accordingly, a Texas court would find that the 1973 Philippine marriage between the NH and R~ terminated in February 1981, per a valid divorce.^[10]

   2. 2. 

      Under Texas Law, the NH and R~ validly married in June 1996

      We next analyze whether a Texas court applying Texas law would determine that the NH and R~ validly re-married in June 1996, in the Philippines. We conclude that a Texas court would probably conclude that the 1996 Philippine re-marriage between the NH and R~ established a valid ceremonial marriage under Texas law. As noted above, the 1996 Philippine marriage contract showed that they participated in a solemnized ceremony a parish priest conducted and two persons witnessed and that they mutually consented to join together in holy matrimony. While it listed “N.A.” next to the marriage license number and issue date, it stated that it was a “ratificacion” of the prior 1973 Philippine marriage and referred to the marriage license issued with their prior 1973 marriage.

      At the time if June 1996, Philippine re-marriage ceremony, the Texas Family Code provided that, “a man and a woman desiring to enter into a ceremonial marriage shall obtain a marriage license from the county clerk of any county of this state.” Tex. Fam. Code Ann. § 1.01 (1996).^[11] The law also provided that a licensed or ordained Christian minister or priest was authorized to conduct a marriage ceremony upon receipt of an unexpired marriage license. See Tex. Fam. Code Ann. §§ 1.82, 1.83(a)(1) (1996).^[12] Additionally, the individual who conducted a marriage ceremony was required to subscribe the marriage license and return it to the issuing county clerk within 30 days after the ceremony. See Tex. Fam. Code Ann. § 1.84(a) (1996).^[13] Despite these requirements, Texas law did not require the exchange of any specific vows or oaths during the ceremony. See, e.g., Husband v. Pierce, 800 S.W.2d 661, 664 (Tex. App.—Tyler 1990, no pet.) (“[H]istorically, that is, from 1836 to the present date, Texas law has never mandated any particular vows, oaths, or other responses in the marriage ceremony.”). Texas law presumes every marriage entered into in Texas is valid unless expressly made void, or is voidable and judicially annulled pursuant to chapter six of the Texas Family Code. Tex. Fam. Code Ann. § 1.101. In addition, Texas courts have long held that statutory requirements, such as those directing that a marriage license be obtained prior to the ceremony and recorded and returned after the ceremony, are “merely directory,” see Portwood, 109 S.W.2d at 521, and that the failure to comply with such formalities does not render the marriage void unless a statute declares it so. See In re Estate of Loveless, 64 S.W.3d at 576 (citing Williams v. White, 263 S.W.2d 666, 668 (Tex. Civ. App.—Austin 1954, writ refused n.r.e.)).

      In this case, a Texas court applying Texas law would likely conclude that the NH and R~ validly married in June 1996. The 1996 Philippine marriage contract indicates that both the NH and R~ mutually consented to join together in holy matrimony as husband and wife and that a parish priest solemnized this marriage in a ceremony with two witnesses. Further, both the NH’s and R~’s statements affirm that both believed they married in June 1996. Although the 1996 Philippine marriage contract and other evidence indicate that the parties did not obtain or record a marriage license with respect to the June 1996, ceremony, such failure does not render the marriage void unless a statute specifically prescribes so. See Loveless, 64 S.W.3d at 576. We did not locate any Texas statutes declaring a marriage void for failure to obtain and record a marriage license. Further, as noted, Texas law applies a strong presumption in favor of the validity of marriages. See Tex. Fam. Code Ann. § 1.101. The evidence presented shows that after this 1996 Philippine marriage, the NH petitioned to have R~ live with her in the United States, that he began living with the NH in 1997, and that they lived together as husband and wife in the United States until their separation between 2005 or 2007. Thus, a Texas court would likely determine that the NH’s and R~’s June 1996, Philippine marriage ceremony established a valid marriage under Texas law.

   3. 3. 

      3. Under Texas Law, the NH’s and R~’s June 1996, Marriage Was Not Validly Annulled.

      Having determined that the NH and R~ validly married in June 1996, we next turn to whether Texas would find that the NH’s and R~’s marriage was validly annulled in 2007, or whether Texas would find that the NH and R~ remain married. We conclude that a Texas court applying Texas law would probably conclude that the NH’s and R~’s marriage was not validly annulled and that R~ remains married to the NH.

      1. a. 

         The Application of Texas Law to the 2007 Philippine Annulment

         As stated, Texas law affords a strong presumption to the validity of marriages. See Tex. Fam. Code Ann. § 1.101 (“[I]t is the policy of this state to preserve and uphold each marriage against claims of invalidity unless a strong reason exists for holding the marriage void or voidable.”); see also Schacht v. Schacht, 435 S.W.2d 197 (Tex. App.—Dallas 1968, no writ) (“One of the strongest presumptions of law is that a marriage, once being shown, is valid.”). Accordingly, a valid marriage, whether ceremonial or at common law, terminates only by death, divorce, or court-decreed annulment. See Phillips v. The Dow Chem. Co., 186 S.W.3d 121, 127 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see also Claveria’s Estate v. Claveria, 615 S.W.2d 164, 167 (Tex. 1981) (noting that although Texas recognizes common law marriage, it does not recognize common-law divorce). A divorce is proper for postnuptial reasons, whereas an annulment relates to antenuptial causes. See McDade v. McDade, 16 S.W.2d 304, 305 (Tex. Civ. App.—Texarkana 1929, no writ). With annulment, the annulled marriage is declared to have been voidable or void from the beginning and is as though it had never occurred. See Trammell v. Trammell, 290 S.W.2d 324, 326 (Tex. Civ. App.—Waco 1956, writ refused n.r.e.); McDade, 16 S.W.2d at 305. With divorce, the marriage was valid from the beginning and terminated with the divorce. McDade, 16 S.W.2d at 305.

         Here, the Philippine court concluded, based upon testimony from the NH and a psychiatrist, that R~ had a psychological incapacity that caused his marital dysfunctions and resulted in his infidelity during his marriage with the NH. Accordingly, in the 2007 Philippine Annulment, the Philippine Court declared the NH’s and R~’s 1973 marriage “null and void from the beginning.” The NH claims that her marriage ended with this annulment. The NH also advised the agency that her ground for the annulment was R~’s infidelity. R~ claims, however, that he is still married to the NH. We examine the legal bases for annulment under Texas law to determine if Texas would find that the 2007 Philippine Annulment rendered the marriage void and null from the beginning.

         A marriage may only be judicially annulled for one of the statutorily enumerated grounds. See Tex. Fam. Code Ann. § 1.101; Coulter v. Melady, 489 S.W.2d 156, 158 (Tex. Civ. App.—Texarkana 1972, writ refused n.r.e.). Texas law currently recognizes the following grounds for annulment: (1) marriage of person under age 18; (2) a party to marriage was under the influence of alcohol or narcotics at the time of the marriage; (3) a party to the marriage was permanently impotent at the time of the marriage; (4) a party to the marriage used fraud, duress, or force to induce the other party into the marriage; (5) a party to the marriage lacked the mental capacity to consent to the marriage or to understand the nature of the marriage ceremony because of the mental disease or defect; (6) a party to the marriage obtained and concealed a divorce from a third party within 30-days before the marriage ceremony; and (7) the marriage ceremony took place less than 72 hours after issuance of the license. See Tex. Fam. Code Ann. §§ 6.102 – 6.110.

         Here, the 2007 Philippine Annulment and the NH’s statements to the agency establish R~’s infidelity as the basis for the annulment. Although at the time of the annulment in 2007, Texas law recognized adultery as a ground for obtaining a divorce, the Texas Family Code did not recognize adultery as a reason by which a court could annul a marriage. See Tex. Fam. Code Ann. § 6.003 (2007); see also Tex. Fam. Code Ann. § 1.101 (2007) (a court may only judicially annul a marriage according to the statutorily-enumerated grounds). Thus, Texas law does not permit annulment based upon infidelity.

         The 2007 Philippine Annulment also suggests that R~ was “psychologically incapacitated” at the time of his marriage to the NH. As noted, mental incapacity of a party to a marriage is a ground for annulment under Texas law. See Tex. Fam. Code Ann. § 6.108. At the time of the annulment in 2007, the Texas Family Code provided that a court could grant an annulment to one spouse on the basis that the other spouse was mentally incapacitated if: (1) at the time of the marriage the other spouse did not have the mental capacity to consent to the marriage or understand the nature of the marriage ceremony because of a mental disease or defect; (2) at the time of the marriage the petitioner neither knew nor reasonably should have known of the mental disease or defect; and (3) since the petitioner discovered or reasonably should have discovered the mental disease or defect, the petitioner has not voluntarily cohabitated with the other spouse. See Tex. Fam. Code Ann. § 6.108(b) (2007) (emphasis added). As addressed below, we do not believe that the NH met these three criteria for annulment due to R~’s alleged mental incapacity.

         As to section 6.108’s first criteria, Texas courts appear to equate mental incapacity with a complete inability to understand the nature, duties, and consequences of entering a marriage. See, e.g., Smith v. Monroe, 1 S.W.2d 358, 362 (Tex. Civ. App.—El Paso 1927, writ dismissed); see also Kerckhoff v. Kerckhoff, 805 S.W.2d 937, 939-40 (Tex. App.—San Antonio 1991, no writ) (finding sufficient evidence to uphold an annulment based on mental incapacity where the husband suffered from dementia causing severe memory loss and an inability to recall recent events or identify people he recently met and shortly after the marriage referred to his wife as a “good friend” rather than his wife); Christoph v. Sims, 234 S.W.2d 901, 903-04 (Tex. Civ. App.—Dallas 1950, writ refused n.r.e.) (noting that an individual seeking to annul a marriage on the ground that he was without sufficient mental capacity to enter the marriage due to intoxication must show that he was so drunk he did not understand his action or the nature of transacting a marriage). Further, because marriage is associated with sentiment and affection, rather than clear reason and sound judgment, Texas courts have concluded that an individual “may have sufficient mental capacity to contract a valid marriage, although he may not have mental capacity to contract generally.” Christoph, 234 S.W.2d at 904.

         Here, although the 2007 Philippine Annulment declares the NH’s marriage to R~ void due to R~’s psychological incapacity, the court’s rationale appears to be based on R~’s purported infidelity rather than his mental incapacity to enter the marriage, which is not a sufficient reason to annul a marriage under Texas law. See McDade, 16 S.W.2d at 305 (noting that although a divorce is proper for postnuptial reasons, an annulment relates to antenuptial reasons). The 1996 marriage contract shows that R~ consented to marrying the NH, and it does not indicate that R~ was unable to consent or understand his actions. Because the NH has not presented evidence showing that R~ did not have the ability to consent or understand the act of entering a marriage at the time of their June 1996, re-marriage, a Texas court probably would not find that R~ was mentally incapacitated under the first criteria of section 6.108 of the Family Code for purposes of annulling the 1996 Philippine marriage. See Tex. Fam. Code Ann. § 6.108(b)(1) (providing that a court may only grant an annulment to a party to a marriage if at the time of the marriage the other spouse did not have the mental capacity to consent to the marriage or understand the nature of the marriage ceremony because of a mental disease or defect).

         Even if a Texas court concluded that R~ was mentally incapacitated for purposes of section 6.108’s first criteria, we believe the NH has not met section 6.108’s third criteria. See Tex. Fam. Code Ann. § 6.108(b)(3) (since the date the petitioner discovered or reasonably should have discovered the mental disease or defect, the petitioner has not voluntarily cohabited with the other party). The evidence shows that the NH voluntarily cohabitated with R~ after she discovered or should have reasonably discovered R~’s mental incapacity. The 2007 Philippine Annulment states that in 2000, the NH discovered that R~ continued to financially support his mistress. These statements show that the NH either discovered or should have discovered R~’s alleged mental incapacity by at least the year 2000. However, both the NH’s and R~’s statements to the agency indicate that they stopped cohabitating at some point between 2005 and 2007. Thus, because the evidence shows that the NH continued to voluntarily cohabitate with R~ after she discovered or should have reasonably discovered R~’s alleged mental incapacity, a Texas court would likely find that all of the requirements for an annulment on the grounds of mental incapacity were not satisfied. See Tex. Fam. Code Ann. § 6.108(b) (2007).

      2. b. 

         Applying the Principle of Comity to the 2007 Philippine Annulment

         For completeness, we also analyzed whether a Texas court would recognize the 2007 Philippine Annulment pursuant to the principle of comity.^[14] The Full Faith and Credit Clause, which applies to judgments rendered by other states within the United States of America, does not apply to foreign country judgments. See Aetna Life Ins. Co. v. Tremblay, 223 U.S. 185, 190, 32 S.Ct. 309, 56 L.Ed. 398 (1912). However, a state may choose to enforce a foreign country’s judgment under the principle of comity. See Derr v. Swarek, 766 F.3d 430, 436 (5th Cir. 2014). Comity allows a court to “give effect to the laws and judicial decisions of another [country], not as a matter of obligation, but out of deference and respect.” AG Volkswagen v. Valdez, 897 S.W.2d 458, 462 (Tex. App.—Corpus Christi 1995, orig. proceeding) mandamus granted, 909 S.W.2d 900 (Tex. App.—Corpus Christi 1995) (citing Keene Corp v. Caldwell, 840 S.W.2d 715, 720 (Tex. App.—Houston [14th dist.] 1992, orig. proceeding)). “Although comity is not an ‘absolute obligation,’ it is more than ‘mere courtesy and good will.’” Derr, 766 F.3d at 438 (citing Hilton v. Guyot, 159 U.S. 113, 163-64 (1895)).

         In determining whether to recognize the 2007 Annulment under the principle of comity, a Texas court would first consider whether the Philippine Court had jurisdiction based on Texas law. See Banco Minero v. Ross, 172 S.W. 711, 713 (Tex. 1915) (“Jurisdiction is the main essential of every judgment, and a judgment of a foreign court which is without the power to render has no currency anywhere.”). Texas law provides different jurisdictional requirements for divorce proceedings and annulment proceedings. Tex. Fam. Code Ann. § 6.301; Tex. Fam. Code Ann. § 6.306; McDade, 16 S.W.2d at 305 (noting the distinction between the jurisdictional requirements for a divorce proceeding and a proceeding to annul a marriage). A suit to annul a marriage is proper if the parties were married in that state or if either party was domiciled in that state. Tex. Fam. Code Ann. § 6.306(a). Applying Texas’s jurisdictional requirements for an annulment proceeding to the evidence in this case, a Texas court would find that the Philippines court had subject matter jurisdiction over the 2007 annulment proceeding. The evidence shows that both the 1973 marriage and the 1996 marriage between the NH and R~ occurred in the Philippines. Thus, a suit to annul the 1973 Philippine marriage or the 1996 Philippine marriage could be maintained in the Philippines pursuant to Texas’s jurisdictional requirements. See Tex. Fam. Code Ann. § 6.306(a).

         Nevertheless, a Texas court would likely refuse to recognize the 2007 Philippine Annulment based on due process concerns because R~ did not participate in the proceedings and it is questionable whether he had actual notice of the annulment proceeding before the Philippine court. See, e.g., In re E.H., 450 S.W.3d 166, 172 (Tex. App.—Houston [14th Dist.] 2014, pet. filed) (“[D]ue process requires that no other jurisdiction shall give effect, even as a matter of comity, to a judgment elsewhere acquired without due process.”) (citing Griffin v. Griffin, 327 U.S. 220, 228 (1946)); Risch v. Risch, 395 S.W.2d 709, 712 (Tex. Civ. App.—Houston 1965, writ dismissed) (a Mexican divorce obtained by husband without notice of any kind to wife was void); Schacht, 435 S.W.2d at 202 (a Mexican divorce decree was void for lack of jurisdiction where the husband traveled to Mexico for the purpose of obtaining a divorce and resided there less than six months and the wife was not served process, did not consent to a divorce proceeding in Mexico, and made no appearance in the Mexican divorce proceedings); see also Restatement (Third) of Foreign Relations Law § 482(2)(b) (a U.S. court need not recognize a foreign judgment were the “defendant did not receive notice of the proceedings in sufficient time to enable him to defend”).

         Furthermore, the evidence we received strongly suggests that the NH did not provide a full or accurate disclosure of the facts to the Philippine court during the annulment proceeding. See, e.g., Banco Minero, 172 S.W. at 714-15 (“[T]he chief requisite for the recognition of a foreign judgment necessarily is that an opportunity for a full and fair trial was afforded.”). The 2007 Philippine Annulment shows that the NH maintained her marriage to R~ throughout the entire time period from May 1973, up until the annulment proceedings in 2007. However, the NH obtained a divorce from R~ in 1981 in Illinois, married J~, divorced J~, and then re-married R~ in 1996 in the Philippines. The significant discrepancy between the facts before the agency and the facts discussed in support of the 2007 Philippine Annulment strongly suggests that the NH withheld critical information to the Philippine court. This indicates that the proceedings before the Philippine court were not a full and fair trial and that a Texas court would likely not accord comity to the 2007 Philippine Annulment.

         However, even if a Texas court afforded full recognition to the 2007 Philippine Annulment under the principle of comity, we conclude that the court would nevertheless determine that the 2007 Philippine Annulment did not annul the June 1996, marriage between the NH and R~ based on the plain language of the annulment that addressed only their 1973 marriage and declared their 1973 marriage to be null and void. Texas courts apply the same rules of interpretation to the meaning of a court order or judgment that apply to other written instruments. See Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 404–05 (Tex. 1971) (orig. proceeding). When a judgment or decree is unambiguous, Texas courts “declare the effect of the decree in light of the literal meaning of the language used,” and “where the language is plain, it must be enforced as written.” See Treadway v. Shanks, 110 S.W.3d 1, 6 (Tex. App.—Dallas 2000) aff'd, 110 S.W.3d 444 (Tex. 2003) (citing Wilde v. Murchie, 949 S.W.2d 331, 332–33 (Tex. 1997) (per curiam) and Republic Nat'l Life Ins. Co. v. Spillars, 368 S.W.2d 92, 94 (Tex. 1963)). Courts do not consider extrinsic matters to interpret a judgment when the judgment itself is plain and unambiguous. McLeod v. McLeod, 723 S.W.2d 777, 779 (Tex. App.—Dallas 1987, no writ).

         In this case, the 2007 Philippine Annulment unambiguously declared the 1973 Philippine marriage between the NH and R~ null and void from the beginning. However, the 2007 Philippine Annulment makes no reference to the NH’s and R~’s 1996 Philippine re-marriage. Although the evidence presented shows that the NH obtained the 1981 Illinois Divorce Decree terminating her 1973 Philippine marriage to R~, and then subsequently re-married R~ on June 3096, in the Philippines, we believe that a Texas court would not consider such evidence when giving effect to the 2007 Philippine Annulment since the annulment itself is plain and clear. McLeod, 723 S.W.2d at 779 (“When the judgment or order on its face is plain and unambiguous, extrinsic matters may not be considered to give the decree a different effect from that expressed by the literal meaning of the words used therein.”) (citation omitted). Because the plain language of the 2007 Philippine Annulment is only susceptible to one interpretation—that the NH and R~’s 1973 Philippine marriage was null and void from the beginning—a Texas court would likely conclude that the 2007 Philippine Annulment did not annul the 1996 Philippine marriage.

         Accordingly, because a Texas court would likely determine that the 2007 Philippine Annulment did not properly annul the 1996 Philippine marriage, and because we received no other evidence indicating that the NH and R~ terminated their marriage, R~ remains validly married to the NH.

CONCLUSION

We believe that Texas would apply its own laws to determine the validity of the 1981 Illinois Divorce Decree, June 1996 Philippine re-marriage, and 2007 Philippine Annulment. Applying Texas law to the evidence we received, we believe that a Texas court would conclude that the 1981 Illinois Divorce Decree terminated the 1973 Philippine marriage between the NH and R~, that the NH and R~ validly re-married in June 1996 in the Philippines, and that the 2007 Annulment did not validly annul the 1996 Philippine re-marriage between the NH and R~. Accordingly, a Texas court would likely find that the NH and R~ are still married for purposes of R~’s entitlement to spousal benefits on the NH’s account.

Regional Chief Counsel, Region VI

By: Assistant Regional Counsel, Region VI