The State court order declaring the Decree of Divorce null and void and of no effect does not satisfy all the criteria of SSR 83-37c. Where the State Supreme Court has not spoken on the particular area of law at issue, the Commissioner is not required to follow a lower court's decision to which she was not a party, but can disregard the decision if she feels that it is contrary to what the Supreme Court of that State would rule if presented with the question. Therefore, under SSR 83-37c the court order setting aside the Divorce Decree was not binding on the Agency.

QUESTIONS PRESENTED

You have asked us to provide an opinion regarding the following questions:

(1) Whether the district court of Salt Lake County, Utah, had the authority to set aside a final divorce decree; (2) Whether the State court decree setting aside the divorce decree met the criteria of Social Security Ruling (SSR) 83-37c and was binding on the Agency;

(3) Whether the decree setting aside the divorce had the effect of declaring the divorce void or voidable; and

(4) Whether the parties could be considered to have been divorced from July 31, 2001, until December 23, 2002, for purposes of section 202(d)(1)(H) of the Social Security Act (the Act).

SHORT ANSWER

Ultimately the questions posed revolve around the issue of whether the number-holder's step child continued to be eligible for child's benefits on his Social Security account despite a final Decree of Divorce. For the purposes of determining the stepchild's continued eligibility for benefits, we believe the relevant question is whether the State court order setting aside the divorce was consistent with the criteria of SSR 83-37c and binding on the Agency. For the reasons discussed below, we do not believe the order, which declared the Decree of Divorce null and void and of no effect (Order of Consolidation, Setting Aside Decree of Divorce and Dismissal, December 2002, hereafter the Order) satisfies all the criteria of SSR 83-37c. As a result, the order is not binding on the Agency and the Agency may give full effect to the parties' July 31, 2001 Decree of Divorce.

FACTS

Brent D~, the number holder (SSN ~), and Frances D~ were married in 1991. During October 1992, Mrs. D~'s daughter Amanda began receiving benefits on Mr. D~'s Social Security record as his stepchild. On July 31, 2001, Mr. D~ was awarded an absolute and final Decree of Divorce from Mrs. D~. Amanda's benefits were terminated. The Decree of Divorce, which became final on July 31, 2001, _1 dissolved the bonds of matrimony between Mr. D~ and Mrs. D~, but bifurcated the issues of property settlement and valuation for a future trial. _2 A trial to resolve the property settlement was scheduled for August 15, 2001, but continued upon Mr. D~'s request. Mr. D~ died in September 2001, prior to the property settlement trial being held.

On October 5, 2001, Mrs. D~ timely filed a motion, pursuant to Rule 60(b)(1) of the Utah Rules of Civil Procedure, _3 with the district court of Salt Lake County requesting the Decree of Divorce be set aside because of excusable neglect. _4 On October 25, 2001, one of Mr. D~'s biological daughters filed with the Salt Lake County District Court a request for denial of the motion to set aside the Decree of Divorce. On November 22, 2002, a hearing on the motion to set aside the Decree of Divorce was held. On December 23, 2002, the Honorable Robert H~ determined Mrs. D~ had established excusable neglect in that the parties would have expected and believed that they would have had a final distribution of the marital assets after the bifurcation of the matter and in fact did not have a hearing in regard to the final distribution of the marital assets due to the death of Mr. D~ (the Order p.2). The judge also determined that the excusable neglect satisfied the requirements of Rule 60(b) of the Utah Rules of Civil Procedure, and granted Mrs. D~'s motion to set aside the July 31, 2001 Decree of Divorce.

ANALYSIS

Under the Program Operations Manual (POMS), "the effect of a judgment of divorce depends on the State in which it is issued." POMS § GN 00305.145A. The Decree of Divorce provided that the divorce became final and absolute upon signature and entry. In the present case, the divorce decree became final on July 31, 2001. See Utah Code Ann. § 30-3-7 (1953) (regarding finality of divorce decrees). Section 202(d)(1)(H) of the Act provides that a child whose benefits are based on the wages and self-employment income of a stepparent who is subsequently divorced from such child's natural parent, becomes ineligible for benefits the month after the month in which such divorce becomes final. As such, Amanda became ineligible for benefits on Mr. D~'s record in August 2001. See POMS § GN 00306.230. Then, as noted above, Mrs. D~ filed a post-judgment motion to set aside the final Decree of Divorce, which the court granted. However, as discussed below, we believe you would be justified in finding that the December 2002 Order was not binding on the Agency.

In SSR 83-37c, which adopts the Sixth Circuit Court of Appeals decision in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), the Agency explains when it is bound by State court decisions on family law issues. The Agency must not ignore a State court's decision where: (1) an issue in a claim for Social Security benefits has been determined by a State court of competent jurisdiction; (2) the issue was genuinely contested before a State court with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State. The Agency determines questions of family status by applying the law of the State in which the insured was domiciled at the time of his death. 42 U.S.C. § 416(h)(1)(A). Since Mr. D~ was domiciled in Utah when he died, Utah law would control the family status determination.

The Salt Lake County District Court order setting aside the Decree of Divorce determined Mrs. D~'s spousal relationship to Mr. D~, an issue in Amanda's claim for benefits, and the issue was determined by a State court of competent jurisdiction. See Utah Code Ann. § 78-3-4 (1953) (the district court has original jurisdiction in all matters civil and criminal, not excepted in the Utah Constitution). Thus, the first requirement of the Gray analysis was satisfied.

Mrs. D~'s spousal status does appear to have been "genuinely contested" within the meaning of SSR 83-37c. To be genuinely contested, an issue must be disputed by parties with opposing interests. See Gray, 474. F.2d at 1373 (6th Cir. 1973). The court records indicate that on October 19, 2001, Mr. D~'s daughter presented evidence and filed a request with the Salt Lake County District Court to deny Mrs. D~'s motion to set aside the Decree of Divorce. During September 2002, Mr. D~'s biological children and Mrs. D~ attempted to settle the matter without litigation, but were unsuccessful. On November 22, 2002, a hearing was held, at which Mr. D~'s daughters and Mrs. D~'s attorney appeared and presented argument. As such, the second requirement of the Gray analysis was satisfied.

The determination of Mrs. D~'s spousal status falls within the general category of domestic relations law, thereby satisfying the third step of the Gray analysis.

Thus, the matter comes down to whether the district court's ruling was consistent with the law enunciated by the highest court in the State. We are unaware of any reported cases where the Utah Supreme Court has ruled on the propriety of a Rule 60(b) motion with facts similar to those at hand. Where the State Supreme Court has not spoken on the particular area of law at issue, the Commissioner "is not required to follow a lower court's decision to which she was not a party," but can disregard the decision if she feels that it is contrary to what the Supreme Court of that State would rule if presented with the question. See Rogers v. Sullivan, 795 F.Supp. 761, 764-65 (E.D.N.C. 1992) (quoting Cain v. Sec'y of Health, Educ. & Welfare, 377 F.2d 55, 57 (4th Cir. 1967)); Warren v. Sec'y of Health & Human Servs., 868 F.2d 1444, 1447 (5th Cir. 1989) (a lower court decision should be followed if it is fair and logical and no authoritative decision to the contrary exists). Whether or not the District Court would be reversed on appeal for abuse of discretion is not controlling, what is controlling is whether the court order was consistent with the law enunciated by the highest court in the State. See, e.g., Outwater for Mcclinchey v. Sec'y of Health & Human Servs., 894 F. Supp. 1114, 1120 (E.D. Mich. 1995) (Gray requires that the proceeding be consistent with the law enunciated by the highest court of the State, whether or not an order would be reversed for abuse of discretion is not controlling).

The District Court determined that "under Rule 60(b) of the Utah Rules of Civil Procedure, [Mrs. D~] had established excusable neglect in that the parties would have expected and believed that they would have had a final distribution of the marital assets after the bifurcation and did not have a hearing in regard to the same due to the death of [Mr. D~]." Here, however, the court does not explain how Mr. D~'s death prior to a hearing to distribute the marital assets amounts to excusable neglect under Rule 60(b). _5 Based upon the facts, we are of the opinion that the district court's decision setting aside the Divorce Decree would not be consistent with the holding of the Utah Supreme Court if they were to speak on this particular issue, and as such, is not binding on the Agency. See, e.g., Wells Fargo Bank v. Kearns, 2001 WL 327756 (Utah App.) (failure to respond to a complaint did not raise to level of 60(b) excusable neglect); Serrato v. Utah Transit Auth., 13 P.3d 616, 619 (Utah App. 2000) (trial court's inquiry [into excusable neglect] is fundamentally equitable in nature, however, an equitable approach does not signify that any negligence should rise to the level of excusable neglect); Interstate Excavating, Inc. v. Agla Development Corp, 611 P.2d 369, 372 (neglect to be excusable, must occur despite the exercise of due diligence and failure of a party to appear in court does not constitute excusable neglect).

CONCLUSION

For the forgoing reasons, we believe the Divorce Decree was final on July 31, 2001, and as such, Amanda became ineligible for benefits on Mr. D~'s record in August 2001. Furthermore, we believe you would be justified in finding that under SSR 83-37c, the December 2002 Order setting aside the Divorce Decree was not binding on the Agency.

_11 The Decree of Divorce "bec[a]me absolute and final upon signature and entry herein . . ." The judge signed the Decree of Divorce on July 31, 2001. The clerk of the court filed, i.e., entered it, on July 31, 2001.

_22 Trial courts have broad discretion to bifurcate divorce proceedings. The purpose behind bifurcation of divorce proceedings is to allow for the parties to carry on their personal lives and not be held hostage to more complicated and time consuming tasks of determining property divisions. See Parker v. Parker, 996 P.2d 565, 567 (Utah Ct. App. 2000).

_33 A Rule 60(b)(1) motion allows a party relief from a final judgment because of mistake, inadvertence, surprise, or excusable neglect. Utah R. Civ. P., Rule 60 (Michie 2004).

_44 A 60(b)(1) motion has to be brought within three months after the date of the judgment it seeks to set aside. See Breedemann v. Dep't of Workforce Servs., 2003 WL 2175111 (Utah App.).

_55 In her affidavit in support for her motion, Mrs. D~ stated among other things that she never received notice of the hearing regarding the Motion to Bifurcate, and that she was not present at the hearing. However, her attorney was present and the Order on Motion to Bifurcate states that " the parties stipulated on the record that the divorce shall be bifurcated."

A state probate court decree issued upon a ex parte application need not be followed by SSA. The facts in this case do not support a finding that the claimant maybe considered the widow of the deceased wage earner. The secretary is not bound to follow the decree because he was not a party to the probate action. (see SSR 83-37c, Gray v. Richardson. (A~, Gordon L., ~ - RAI (Treloar) to RC, Programs, San Francisco, 1/01/89)

Gordon A~, the deceased wage earner, married Millie H~ on June 17, 1978, in Elko, Nevada. They obtained a divorce decree in Salt Lake County, Utah, on January 23, 1987. Thereafter, they continued to reside together, but they maintained separate checking accounts, paid taxes as single individuals, and rented their apartment in only one of their names. According to a statement in the claims file, Millie and Gordon intended to re-marry in 1989, after her son turned eighteen years of age. The wage earner died on December 14, 1988.

Millie has filed an application for the lump sum death benefit and/or widow's benefits on the deceased wage earner's account. On April 10, 1989, she obtained a decree from the Probate Division of the Third Judicial District Court of Salt Lake County, Utah, declaring that she was the wife of Gordon A~ as of the date of his death. According to court records, that decree was based upon affidavits filed by Millie and certain of Gordon's relatives, all attesting to the fact that Millie and Gordon had continued to live together and hold themselves out as husband and wife from the date of their divorce until the date of Gordon's death. You asked whether Millie should be considered to have been Gordon's wife as of the date of his death.

We 1_/ do not consider the Salt Lake County probate decree to be binding on SSA. A state court decree issued upon an ex parte application need not be followed by the Secretary; he is entitled to make an independent determination on the matters covered therein. Cruz v. Gardner, 375 F.2d 453 (7th Cir. 1967), cert. denied, 389 U.S. 886 (1967); GC Opinion re John B. D~, September 24, 1982. It appears that Millie's petition to be declared Gordon's widow was uncontested; from the documents obtained from the court, it appears that no testimony adverse to her position was offered. Even if the decree was not issued ex parte, however, the Secretary is not bound to follow it because he was not a party to the probate court action. In Gray v. Richardson, 474 F.2d 1370 (1973), the Sixth Circuit laid down a four-part test for determining whether the Secretary is obliged to follow a state court ruling; it need only be accepted if: (1) a state court of competent jurisdiction decided the precise issue presented to SSA; (2) the issue was genuinely contested before the court by parties having adverse interests; (3) the issue relates to domestic relations; and (4) the court's resolution with the issue is consistent with the law of the jurisdiction as enunciated by the state's highest court (or, if that court has not ruled on the precise issue, it is consistent with how the Secretary believes the highest court would rule if presented with the issue). See also Cain v. Secretary of HEW, 377 F.2d 55 (4th Cir. 1967).

In the instant case, it is inconceivable to us that the highest court of Utah would concur in the probate court's ruling if presented with all of the evidence which SSA possesses. Of particular import is the statement by Millie that she and the deceased wage earner had planned to re-marry in 1989, after her son turned eighteen. Clearly, the parties did not consider themselves husband and wife in 1988 if they deliberately divorced the previous year and intended to remain divorced until a specific date in 1989. Moreover, from the affidavits in the claims file, it is apparent that the probate court was presented with only one set of facts — those which favored the petitioner's request — without mentioning all of the other facts (such as filing income tax returns as single individuals)' which directly conflicted with her position of a continuing marriage.

Your opinion request notes that Utah does not recognize common law marriages. According to the OGC attorney in Denver with whom I discussed this case, Utah recently modified its stance on common law marriages. However, on the facts of this case, it is' clear (even if the new law were found applicable to this case) that the parties could not meet one of the requisites for a Common law marriage, anyway: they did not have a present intent to be married. Any current claim to the contrary would be refuted by Millie's (undated) written admission on the "Statement of Marital Relationship" form that they intended to live together but remain divorced until after her son's birthday in 1989.

On the basis of the foregoing, Millie cannot be considered to have been the wife of Gordon A~ as of the date of his death. As a result, she is not entitled as a "wife" to the lump sum death benefit or to widow's benefits on his account.

1_/ In order to expedite issuance of this opinion, I discussed the facts of this case with an attorney in our Denver office (which covers the state of Utah). The legal opinions reflected herein are those of both offices.