Nevada courts would recognize a divorce judgment obtained in other states as long as the court which granted the divorce had jurisdiction. Both the NH and claimant remarried after the interlocutory judgment was entered in California. A subsequent marriage despite the lack of a final judgment of divorce in the prior marriage is a clear indication of mistake, negligence or inadvertence. Because the California court failed to enter the final judgment of divorce and failure was the result of mistake, negligence or inadvertence, the Nevada court had the authority to enter the judgment nunc pro tunc.

You asked whether the April 5, 1973, nunc pro tunc divorce judgment between the number holder, Philip K~, and the claimant, Janice H~, is valid as of that date under California law and would be recognized as a valid termination of marriage by the State of Nevada.

As shown below, a final judgment of dissolution of marriage, or divorce, entered nunc pro tunc is valid under California law and recognized under the law in the State of Nevada. Based on the nunc pro tunc divorce judgment, the claimant is ineligible for divorced spouse benefits because she not married to the NH for the requisite ten-year period.

Factual Background

The number holder (NH) and the claimant were married in San Jose, California on March 9, 1964. In 1972, the claimant filed for divorce in Santa Clara County, California. On June 8, 1973, the Santa Clara County Superior Court entered an interlocutory judgment of dissolution of marriage. The judgment states that the court acquired jurisdiction over the NH on October 5, 1972, when he appeared before the court. Both the NH and the claimant remarried after the interlocutory judgment was entered.

In January 2008, the claimant applied for divorced spouse benefits based on her marriage to the NH. She was unable to provide a copy of her divorce certificate. When the Agency contacted the Santa Clara County Court to verify the length of claimant's marriage to the NH, the court discovered that a final divorce judgment had never been entered. Because the divorce was not finalized, the claimant began receiving divorced spouse's benefits on March 19, 2008.

On May 20, 2008, the Santa Clara County Superior Court entered a final judgment of Dissolution of Marriage nunc pro tunc as of April 5, 1973. As explained below, this is a valid judgment that is recognized under Nevada law.

Discussion

ANALYSIS

A claimant is entitled to wife's insurance benefits as a divorced spouse if she has reached age 62 (or has a qualifying child in her care), is not married, and is not entitled to old-age or disability insurance benefits, or is entitled to such benefits in an amount that is less than half of the primary insurance amount of the NH. 42 U.S.C. § 402(b); 20 C.F.R. § 404.331 (2006). The claimant is considered a divorced wife if she had been married to the NH for ten yeas prior to the date the divorce became effective. 42 U.S.C. § 416(d)(1); 20 C.F.R. § 404.331(a)(2) (2006) ("10 years immediately before your divorce became final."). Program Operations Manual System (POMS) GN 00305.170(B)(1)(c) directs further development when there is a "technical defect" in divorce proceedings, "e.g., [the] decree was not recorded properly, court costs [were] not paid, etc." The required development under this provision includes getting "a certified copy of the divorce decree" and "[a] statement from the clerk of court as to whether the records substantiate the allegation as to the defect" and "[c]ertifications of the pertinent court record entries." POMS GN 00305.170(B)(2)(b). The field office's development of this matter indicates that the parties were divorced on June 9, 1998, but their divorce was not recorded because they did not pay the fee. Although the file contains conflicting information, the documents provided by the court support this version of events.

The claimant's version of events is also similar to the court clerk's statement; she reported that she had been told by the court that she was divorced but had not paid the recording fee. The NH reported, however, that he had been told by the Alameda County court that no divorce had occurred and he was still married to the claimant. We doubt the accuracy of this statement given the fact that the court clerk told SSA that the parties were divorced but for payment of the fee. Moreover, the records provided by the court direct that "subject to the [NH] paying the response fee," dissolution of the parties' marriage was granted, and the parties were "restored to the status of unmarried persons on June 9, 1998."

As set forth above, the POMS also requires "a certified copy of the divorce decree." Id. We do not have a copy of the decree here, although we do have documents from the court indicating that the divorce was granted pending the NH's payment of the fee. California law, moreover, provides that a court may enter an order of dissolution of a marriage retroactively, i.e., "nunc pro tunc," if it determines that by "mistake, negligence, or inadvertence, the judgment has not been signed, filed and entered." Cal. Fam. Code § 2346(a) (2006). Statements from the NH obtained on August 18, 2006, indicate that the NH is in the process of obtaining such a nunc pro tunc judgment of dissolution of his marriage to the claimant. The NH indicated that he would provide SSA with a copy of any such order as soon as possible.

POMS GN 00305.170(B)(3) further directs that in any case where "there is a question as to whether the divorce is invalid or ineffective," an opinion from the Regional Chief Counsel should be sought. This appears to be an issue of first impression in our region. In 1981, the Regional Chief Counsel in Region VII issued an opinion stating that a couple who could not produce a divorce decree from Virginia was still married when the NH died in Michigan. Memorandum from OCG Region VII, Applicability of Estoppel to Deny Validity of Divorce -- Michigan and Virginia (August 26, 1981). That opinion cautioned that, if the issue was a "technical defect" in the parties' divorce, a different question would have been presented. This matter presents a technical defect. In fact, the court clerk told SSA that the parties' were divorced but had not paid the proper fees. The NH is in the process of correcting this technical defect in the divorce. We further note that the 1981 opinion was premised on applicable state law. We have not found California law stating that the parties are not divorced because they failed to pay fees. It is thus our conclusion that you may treat the divorce as valid for the purposes of determining the claimant's eligibility for wife's insurance benefits as divorced spouse.

Our conclusion is also indirectly supported by California law directing that the validity of a second marriage is presumed. The presumption may be rebutted, by the individual seeking to invalidate the second marriage by proving that the first marriage had not ended in death, divorce or annulment. Vargas v. Superior Court, 88 Cal.Rptr. 281, 283 (1970), citing Cal. Evid. Code §§ 604, 606, 663; see also Cal. Evid. Code § 605. In this case, although the parties are unclear on significant dates, no one contests the fact that the NH and the claimant were divorced, and no one contests the validity of the NH's second marriage.

As noted, the parties do not appear to be clear on the relevant dates in this matter. The claimant has repeatedly stated that she was divorced in the 1990s, varying her account from 1996 to 1999 yet she was the one who petitioned for dissolution of her marriage in March 1982. The NH sometimes indicated that he was divorced in 1978 but also claims that he filed for and was granted a divorce in 1996, and he unwaveringly claims that he remarried in 1983 believing that he was divorced. There is documentation of a divorce as early as 1982, and it appears that the claimant received the spousal and child support she was awarded pursuant to the 1982 proceedings. Thus, notwithstanding the court's 1998 judgment of dissolution, it appears that the parties could seek to have the nunc pro tunc judgment relate back to 1982. The court may enter judgment nunc pro tunc "even though the judgment may have been previously entered, where through mistake, negligence, or inadvertence the judgment was not entered as soon as it could have been entered under the law if applied for." Cal Fam. Code § 2346(c). Indeed, although it is not directly at issue here, having the dissolution apply to 1982 appears to be necessary for the NH to avoid issues regarding the validity of his current marriage. Since the NH and claimant were married in 1964, i.e., more than ten years before their divorce, it is immaterial to the claimant's application for divorced spouse's benefits whether she was divorced in 1982 or 1998.

CONCLUSION

The parties' divorce was granted but not recorded due to the failure to pay fees. The NH is in the process of obtaining a nunc pro tunc order granting the divorce retroactively. In the meantime, you may treat the divorce as valid for the purposes of the claimant's eligibility for wife's insurance benefits as divorced spouse.

The parties' divorce was granted but not recorded due to a technical defect. There are strong presumptions in favor of the validity of the second marriage. A nunc pro tunc judgment may be granted retroactively to avoid issues regarding the validity of the NH's 2nd marriage. Under California law the divorce may be treated as valid for the purposes of the claimant's eligibility to divorce spouse's benefits.

QUESTION

You have asked whether a divorce between the number holder, Justino M~ (the "NH"), and Manuela M~ (the "claimant"), granted on June 9, 1998, but not recorded for failure to pay fees, is nonetheless valid.

SUMMARY OF EVIDENCE

The NH and the claimant were married in Alameda County, California in 1964. The claimant petitioned for dissolution of the marriage in Alameda County on March 30, 1982. The next day, the Alameda County court issued an order for modification, which addresses child custody rights, child and spousal support requirements, residence issues and attorney's fees through the impending hearing, which was scheduled for April 26, 1982. The case number assigned to the divorce proceedings was H-82064-2. On a form page after "Order to Show Cause" regarding the modification order, the court provided additional notes. The care, custody and control of the parties' minor children was awarded to the claimant with reasonable visitation rights to the NH, the NH was to pay $200 per child per month in support payments and $600 per month in spousal support commencing May 1, 1982. The NH was excluded from the family home.

The next document for case number "H082064-2" in the file is dated June 9, 1998. Under the heading "Disposition," the document indicates that the Order to Show Cause was "continued from" April 14, 1998. The claimant was not present. The NH's "motion to bifurcate" was granted, and "subject to the respondent [the NH] paying the response fee," judgment of dissolution of the parties' marriage was granted "as to status only." The parties were "restored to the status of unmarried persons on June 9, 1998." Spousal support was reduced to zero "as of April 14, 1998." The NH's attorney was "to submit Judgment." A computer-generated history of the case indicated that a "judgment dissolution status only" was filed on June 9, 1998. On the copy of the document in our file, this entry was highlighted before being copied and thus is illegible. However, Virginia W~ of the San Leandro Field Office referenced the entry in her original request for assistance from the Regional Office on August 25, 2006.

Ms. W~ also indicated that these documents were provided to the field office by the court. The computer-generated history indicates that action occurred in the divorce in 1996, 1997, 2002 and 2003.

On August 28, 2006, the claimant applied for wife's insurance benefits as a divorced spouse on the NH's account. In her application, she indicated that she married the NH on October 15, 1964, and that her marriage ended by divorce on January 1, 1998 in California. She was not married at the time she applied. In an undated statement, she indicated that the NH told her he was filing for divorce in 1996. She said she had been notified of a court date in "about 1999" but did not appear at the hearing because she did not want to be involved in a conflict with the NH. She stated that she believed she was divorced because she had been awarded child and spousal support. She said she went to the court to get a copy of her divorce decree and was told that she was divorced but needed to pay for "the final divorce fees." The claimant indicated that all proceedings took place in Alameda County.

In an August 10, 2006, development request, the Manteca, California Field Office noted that, while the claimant said she was married to the NH until 1996 or 1997, the NH reported on his application for benefits that he had been married to the claimant until 1978, and had remarried in 1983. The request was to contact the NH and find out if he ever received a final divorce and to get a copy of the order. The report further indicates that the claimant's second wife was not old enough to file for benefits but that the divorce issue needed to be resolved because it affected both women. In the development notes, Technical Expert, Cindy G~, reported that she had contacted the NH, who reported that he had separated from the claimant in 1978 and had "a paralegal complete the documents." The NH said that he had remarried in 1983 thinking he was divorced. He reported that, "about a year ago," his son-in-law went to the court to get a copy of the divorce decree and was told that the judge did not sign the document. Ms. G~ reported that the parties were in the process of requesting the court to grant the divorce retroactively and would contact SSA as soon as the decree was available.

In a report of contact dated August 18, 2006, Claims Representative, Lupita T~, noted that she had spoken with the NH, who stated that he had been informed by the Alameda County court that his divorce was never finalized and was thus invalid. The NH said that he had hired a man he thought was an attorney to handle the divorce but that the final paperwork was never signed or submitted. The NH said he was advised that "this had to be filed again" and that it could take up to six months. In the meantime, the NH said he was informed that he was still married to the claimant. The NH was advised to submit evidence of the divorce. He said that he believed he was divorced when he married his second wife.

In her request for assistance, Ms. W~ noted that the field office checked with the court clerk and was "told that [the parties] were divorced on June 9, 1998 but they did not pay the final fee to have it recorded."

ANALYSIS

A claimant is entitled to wife's insurance benefits as a divorced spouse if she has reached age 62 (or has a qualifying child in her care), is not married, and is not entitled to old-age or disability insurance benefits, or is entitled to such benefits in an amount that is less than half of the primary insurance amount of the NH. 42 U.S.C. § 402(b); 20 C.F.R. § 404.331 (2006). The claimant is considered a divorced wife if she had been married to the NH for ten yeas prior to the date the divorce became effective. 42 U.S.C. § 416(d)(1); 20 C.F.R. § 404.331(a)(2) (2006) ("10 years immediately before your divorce became final."). Program Operations Manual System (POMS) GN 00305.170(B)(1)(c) directs further development when there is a "technical defect" in divorce proceedings, "e.g., [the] decree was not recorded properly, court costs [were] not paid, etc." The required development under this provision includes getting "a certified copy of the divorce decree" and "[a] statement from the clerk of court as to whether the records substantiate the allegation as to the defect" and "[c]ertifications of the pertinent court record entries." POMS GN 00305.170(B)(2)(b). The field office's development of this matter indicates that the parties were divorced on June 9, 1998, but their divorce was not recorded because they did not pay the fee. Although the file contains conflicting information, the documents provided by the court support this version of events.

The claimant's version of events is also similar to the court clerk's statement; she reported that she had been told by the court that she was divorced but had not paid the recording fee. The NH reported, however, that he had been told by the Alameda County court that no divorce had occurred and he was still married to the claimant. We doubt the accuracy of this statement given the fact that the court clerk told SSA that the parties were divorced but for payment of the fee. Moreover, the records provided by the court direct that "subject to the [NH] paying the response fee," dissolution of the parties' marriage was granted, and the parties were "restored to the status of unmarried persons on June 9, 1998."

As set forth above, the POMS also requires "a certified copy of the divorce decree." Id. We do not have a copy of the decree here, although we do have documents from the court indicating that the divorce was granted pending the NH's payment of the fee. California law, moreover, provides that a court may enter an order of dissolution of a marriage retroactively, i.e., "nunc pro tunc," if it determines that by "mistake, negligence, or inadvertence, the judgment has not been signed, filed and entered." Cal. Fam. Code § 2346(a) (2006). Statements from the NH obtained on August 18, 2006, indicate that the NH is in the process of obtaining such a nunc pro tunc judgment of dissolution of his marriage to the claimant. The NH indicated that he would provide SSA with a copy of any such order as soon as possible.

POMS GN 00305.170(B)(3) further directs that in any case where "there is a question as to whether the divorce is invalid or ineffective," an opinion from the Regional Chief Counsel should be sought. This appears to be an issue of first impression in our region. In 1981, the Regional Chief Counsel in Region VII issued an opinion stating that a couple who could not produce a divorce decree from Virginia was still married when the NH died in Michigan. Memorandum from OCG Region VII, Applicability of Estoppel to Deny Validity of Divorce -- Michigan and Virginia (August 26, 1981). That opinion cautioned that, if the issue was a "technical defect" in the parties' divorce, a different question would have been presented. This matter presents a technical defect. In fact, the court clerk told SSA that the parties' were divorced but had not paid the proper fees. The NH is in the process of correcting this technical defect in the divorce. We further note that the 1981 opinion was premised on applicable state law. We have not found California law stating that the parties are not divorced because they failed to pay fees. It is thus our conclusion that you may treat the divorce as valid for the purposes of determining the claimant's eligibility for wife's insurance benefits as divorced spouse.

Our conclusion is also indirectly supported by California law directing that the validity of a second marriage is presumed. The presumption may be rebutted, by the individual seeking to invalidate the second marriage by proving that the first marriage had not ended in death, divorce or annulment. Vargas v. Superior Court, 88 Cal.Rptr. 281, 283 (1970), citing Cal. Evid. Code §§ 604, 606, 663; see also Cal. Evid. Code § 605. In this case, although the parties are unclear on significant dates, no one contests the fact that the NH and the claimant were divorced, and no one contests the validity of the NH's second marriage.

As noted, the parties do not appear to be clear on the relevant dates in this matter. The claimant has repeatedly stated that she was divorced in the 1990s, varying her account from 1996 to 1999 yet she was the one who petitioned for dissolution of her marriage in March 1982. The NH sometimes indicated that he was divorced in 1978 but also claims that he filed for and was granted a divorce in 1996, and he unwaveringly claims that he remarried in 1983 believing that he was divorced. There is documentation of a divorce as early as 1982, and it appears that the claimant received the spousal and child support she was awarded pursuant to the 1982 proceedings. Thus, notwithstanding the court's 1998 judgment of dissolution, it appears that the parties could seek to have the nunc pro tunc judgment relate back to 1982. The court may enter judgment nunc pro tunc "even though the judgment may have been previously entered, where through mistake, negligence, or inadvertence the judgment was not entered as soon as it could have been entered under the law if applied for." Cal Fam. Code § 2346(c). Indeed, although it is not directly at issue here, having the dissolution apply to 1982 appears to be necessary for the NH to avoid issues regarding the validity of his current marriage. Since the NH and claimant were married in 1964, i.e., more than ten years before their divorce, it is immaterial to the claimant's application for divorced spouse's benefits whether she was divorced in 1982 or 1998.

CONCLUSION

The parties' divorce was granted but not recorded due to the failure to pay fees. The NH is in the process of obtaining a nunc pro tunc order granting the divorce retroactively. In the meantime, you may treat the divorce as valid for the purposes of the claimant's eligibility for wife's insurance benefits as divorced spouse.

Under California law, a judgment of dissolution of marriage may be entered nunc pro tunc as of the date on which the judgment originally could have been signed, filed and entered but was not signed, filed and entered due to “mistake, negligence, or inadvertence.” Notice of entry of judgment was mailed to the parties on November 13, 1998; the notice indicated that the effective date of termination of marital status was August 28, 1991. There is no evidence of appeal, therefore, the judgment is final and has res judicata effect.

You asked us to determine the final date of dissolution of marriage between Larry R~ and Victoria K~. The documents you have submitted show that the judgment of dissolution was entered, nunc pro tunc, August 28, 1991. Therefore, the marriage ended that date.

FACTUAL BACKGROUND

Mr. R~ and Ms. K~ were married in 1988. On January 31, 1991, they filed a petition seeking dissolution of the marriage in the Los Angeles County Superior Court of California. On November 13, 1998, the court issued an order directing entry of judgment of dissolution, nunc pro tunc, as of August 28, 1991. This order was apparently issued pursuant to the parties' stipulation. Judgment of dissolution was entered, and notice of entry of judgment was mailed to Mr. R~ and to Ms. K~ on November 13, 1998.

DISCUSSION

Federal Law

Mr. R~ is apparently receiving surviving divorced husband's benefits pursuant to 42 U.S.C. § 402(f); 20 C.F.R. § 404.331 (2006). The term "surviving divorced husband" means a man divorced from an individual, but only if he had been married to such individual for a period of 10 years immediately before the divorce became effective. 42 U.S.C. § 416(d)(5); 20 C.F.R. § 404.331(a)(2). The term "divorce" refers to a divorce "a vinculo matrimonii," i.e., a divorce which effects a complete dissolution of the marriage contract.

42 U.S.C. § 416(d)(8); Black's Law Dictionary 124 (5th ed. 1979).

California Law

Under California law, a judgment of dissolution of marriage may be entered nunc pro tunc as of the date on which the judgment originally could have been signed, filed and entered but was not signed, filed and entered due to "mistake, negligence, or inadvertence." Cal. Fam. Code § 2346(a); see also Program Operations Manual System (POMS) PR 06205.006 (specifically PR 04-278) California (incorrectly citing Cal. Fam. Code. § 2436(a)). The court may act under subdivision (a) on its own motion or upon the motion of either party to the proceeding; in contested cases, the motion shall be with notice to the other party. Cal. Fam. Code. § 2346(b). Upon entry of judgment, the parties have the same rights with regard to the dissolution of marriage becoming final on the date that it would have become final had the judgment been entered upon the date when it could have been originally entered. Cal. Fam. Code. § 2346(d); see POMS PR 06205.006 (specifically PR 03-015) (discussing prior California law, and explaining rationale for nunc pro tunc entry of judgment).

ANALYSIS

The Minutes entered by the clerk on dated November 13, 1998, indicate that the parties stipulated to entry of judgment of dissolution of marriage, as to status only, on August 21, 1991. The court found good cause to terminate the status of the marriage nunc pro tunc as of August 21, 1991. The judgment was filed November 13, 1998, and indicates that petitioner (K~) and respondent (R~) were present in court, and represented by their respective counsel. The court ordered entry of judgment on a specified date: August 28, 1991, and further indicated that judgment was to be entered nunc pro tunc as of August 28, 1991. Notice of entry of judgment was mailed to the parties on November 13, 1998; the notice also indicates that the effective date of termination of marital status was August 28, 1991. There is no evidence of appeal. Hence, the judgment is final, and has res judicata effect. See Weir v. Ferriera, 59 Cal. App. 4th 1509, 1515, 70 Cal. Rptr.2d 33 (1997) (citing cases). Accordingly, the evidence presented indicates that the marriage terminated August 28, 1991.

Your query expressed concern that one of the dates on a document (the judgment filed November 13, 1998) submitted by Donna C~, the insured's sister, had been altered. However, you also noted that copies of the same document had been obtained from the Los Angeles County Superior Court, and that the date in question had also been altered on the original document. As altered, the questioned date, i.e., the date martial status ended, is August 28, 1991, the same date indicated on the judgment as the date judgment was to be entered. More importantly, the notice of entry of judgment indicates that the "effective date of termination of marital status" is August 28, 1991; this date was not altered on the document's face. Further, the electronic case record that you obtained also indicates that judgment of dissolution was granted nunc pro tunc August 28, 1991.

New York courts would recognize a California Superior Court's nunc pro tunc judgment of dissolution of the claimant's marriage to the NH. The claimant is bound by the provisions of the final judgment of dissolution of marriage, and therefore does not meet the 10-year duration-of-marriage requirement for surviving divorced spouse's benefits.

QUESTION

You have requested an opinion regarding whether Susan P~ ("claimant") is entitled to widow's insurance benefits on the account of the deceased wage earner Anthony P~ (the "wage earner") under sections 202(e) and 216 (d) of the Social Security Act ('the Act"), 42 U.S.C. sections 402(e), 416(d).

ANSWER

It is our opinion that the claimant does not qualify as the wage earner's widow, because she was not legally married to the wage earner at the time of his death and her marriage to the wage earner did not last ten years.

SUMMARY OF EVIDENCE

Claimant married the wage earner on August 25, 1964, in New York State. Claimant filed for divorce from the wage earner in the Superior Court of California, County of Los Angeles. On January 30, 1973, the Superior Court entered an interlocutory judgment of divorce. The wage earner died in Costa Rica on December 21, 1978. The Costa Rican certificate of death, provided by the City of New York Department of Health Bureau of Vital Statistics, indicates in Spanish that the wage earner was a permanent resident ("residencia habitual") of New York at the time of his death. On June 29, 1979, claimant obtained a final judgment of dissolution of her marriage to the wage earner from the California Superior Court in Los Angeles. The Superior Court entered its judgment of dissolution nunc pro tunc as of January 1, 1974._11

Claimant has stated that the purpose of the nunc pro tunc divorce decree was to shield her from liability for the wage earner's debts. She stated that the wage earner had made his living by buying merchandise on credit, selling the merchandise, and then absconding before his creditors could present him with their bills. Claimant reported that she had separated from the wage earner after eight years of marriage but had been unable to secure a final divorce decree from him prior to his death due to his skill in avoiding the court's efforts to locate him. She also reported that the nunc pro tunc divorce decree had not served its intended purpose, because she had paid most of the wage earner's debts after his death.

The California Superior Court's final judgment of dissolution gave no reason for entry of the judgment nunc pro tunc. The only statutory provision the Superior Court cited was California Civil Code section 4506(1), which has been replaced without substantive change by California Family Code section 2310. Family Code section 2310 states that the two grounds for dissolution of a marriage or legal separation are: (a) irreconcilable differences, or (b) incurable insanity. Former Civil Code section 4506(1) was the provision for dissolution due to irreconcilable differences. Walton v. Walton, 28 Cal.App.3d 108, 111, 115, 104 Cal.Rptr. 472, 475, 478 (1972). Thus, the ground cited in the Superior Court's judgment of dissolution was irreconcilable differences.

ANALYSIS

To qualify for widow's insurance benefits under section 216(c) of the Act, claimant would have to have been married to the wage earner during the nine months immediately preceding his death, assuming the provisions of section 216(c) regarding children do not apply. To qualify as the surviving divorced wife of the wage earner under section 216(d) of the Act, claimant would have to have been married to the wage earner for at least ten years prior to the date on which the divorce became effective. According to the California Superior Court's nunc pro tunc judgment of dissolution, claimant's divorce from the wage earner became effective on January 1, 1974, less than ten years after commencement of the marriage on August 25, 1964. If this Superior Court's nunc pro tunc judgment controls, then claimant was not married to the wage earner either during the nine months immediately preceding his death or for a period of at least ten years and does not qualify for widow's or surviving divorced wife's benefits under section 216(c) or section 216(d) of the Act.

New York Law

SSA must look to the law of the state where the wage earner was domiciled at the time of his death to determine whether claimant qualifies as the wage earner's widow. Social Security Act § 216(h)(1)(A), 42 U.S.C. § 416(h)(1)(A). The wage earner apparently was domiciled in New York at the time of his death. The question therefore is whether New York would recognize the nunc pro tunc divorce decree entered by the California Superior Court.

The Full Faith and Credit Clause, Article IV, Section 1, of the United States Constitution provides that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Barber v. Barber, 323 U.S. 77, 79, 65 S.Ct. 137, 138, 89 L.Ed.2d 82 (1944). The Full Faith and Credit Clause further provides that Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved and the effect thereof. Id. Congress has provided that judgments "shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken." Id. (quoting 28 U.S.C. § 687).

"The judgment of a court of general jurisdiction of a sister state duly authenticated is prima facie evidence of the jurisdiction of the court to render it and of the right which it purports to adjudicate. Barber v. Barber, 323 U.S. at 86, 65 S.Ct. at 141. To overcome the prima facie effect of the California Superior Court's June 1979 final judgment of dissolution, there must be some persuasive indication that California law "subjects the judgment to the infirmity of modification or recall." Id. As discussed below, no such persuasive indication exists. Thus, New York courts would recognize the California Superior Court's nunc pro tunc judgment of dissolution under the Full Faith and Credit Clause. See Carbone v. Alverio, 452 N.Y.2d 121, 122, 89 A.D.2d 553 (1982) (holding that California divorce judgment had to be accorded full faith and credit by New York as to any arrears).

California Law

Under California law, a judgment of dissolution of marriage may be entered nunc pro tunc as of the date on which the judgment originally could have been signed, filed and entered but was not signed, filed and entered due to "mistake, negligence, or inadvertence." California Family Code § 2436(a). The California Superior Court had the power under California law to enter its June 1979 judgment of dissolution nunc pro tunc even though one of the parties to the marriage was deceased at the time of the final judgment. Kern v. Kern, 261 Cal.App.2d 325, 333, 67 Cal.Rptr. 802, 807 (1968) (construing former California Civil Code sections 132 and 133).

Claimant stated that her efforts to obtain a final judgment dissolving her marriage before June 1979 were complicated by the wage earner's skill in avoiding the court's efforts to locate him. This explanation suggests that the delay in securing the final judgment of dissolution was caused, at least in part, by the wage earner's efforts to avoid entry of a final judgment of dissolution by the California Superior Court rather than by the "mistake, negligence, or inadvertence" contemplated by California Family Code section 2436(a). This explanation for the delay seems questionable, however, inasmuch as personal service on an absent spouse is not a jurisdictional requirement if, as in this case, the action is brought in the state of domicile of the complainant. Rediker v. Rediker, 35 Cal.2d 796, 804, 221 P.2d 1 (1950). Thus, it seems more likely that the California Superior Court entered the final judgment of dissolution nunc pro tunc due to mistake, negligence, or inadvertence. In any event, the California Superior Court concluded that the grounds for entry of a nunc pro tunc judgment had been satisfied. "In reality the purpose of a nunc pro tunc order is to avoid injustice to a person whose rights are threatened by a delay which is not his fault." Hurst v. Hurst, 227 Cal.App.2d 859, 868, 39 Cal.Rptr. 162, 168-69 (1964). This purpose was served by entry of the nunc pro tunc final judgment of dissolution even if, as claimant asserts, the wage earner caused or contributed to the delay in entry of the final judgment by his skill in avoiding the Superior Court's efforts to locate him.

Claimant's assertion that she paid most of the wage earner's debts and that the nunc pro tunc divorce decree therefore had not served its intended purpose is immaterial. "The validity of a divorce decree cannot be contested y a party who has procured the decree." Rediker v. Rediker, 35 Cal.App.3d at 805. Thus, claimant is bound by the provisions of the June 1979 final judgment of dissolution of her marriage to the wage earner and is not entitled to widow's benefits on the wage earner's account.

CONCLUSION

_11 Nunc pro tunc means "now for then" in Latin. It is a phrase applied to acts allowed to be done after the time when they should have been done, with a retroactive effect, i.e., with the same effect as if regularly done. Black's Law Dictionary (4th ed.1976).

The “nunc pro tunc” language in the final judgment of divorce in this case appears to be valid because the applicable California statute expressly authorized the court to issue a final decree of dissolution effective nunc pro tunc where a final decree had not been entered because of mistake, negligence, or inadvertence. However, because the final judgment was not entered, the claimant has not acquired the status of a divorced spouse.

QUESTION

You asked for a determination of “the legality of the nunc pro tunc action by the judge from different county than the one which issued the interlocutory decree” for purposes of a claim for divorced spouse's insurance benefits.

ANSWER

The “nunc pro tunc” language in the final judgment appears to be valid because the applicable California statute expressly authorized the court to issue a final decree of dissolution effective nunc pro tunc where a final decree had not been entered because of mistake, negligence, or inadvertence. However, because Claimant's final judgment was not entered, Claimant has not acquired the status of a divorced spouse.

SUMMARY OF EVIDENCE

Claimant and the wage earner (formerly known as George H. C~) were married in Nevada on September 17, 1955. On December 7, 1959, Claimant commenced an action for divorce in Civil No. 31863 in the Superior Court of the State of California, County of Marin. On October 24, 1960, the court entered an interlocutory decree of dissolution. The court's custodian of records has certified that Civil No. 31863 does not contain any record of a final judgment and that the last docket entry reflects only the interlocutory decree entered October 24, 1960.

The only judgment that the Social Security Administration (SSA) could locate was provided by the wage earner. The judgment evidences that on February 13, 1980, the court in Civil No. 31863 issued a Final Judgment of Dissolution that “further ordered that this final judgment be entered nunc pro tunc as of 10/26/61.” While the judgment bears a “Filed” stamp indicating that the judgment was filed in court on February 15, 1980, the judgment does not bear an “Entered” stamp that would indicate that the judgment had been entered in the court's judgment book. Nonetheless, a copy of the judgment was recorded with the State of California Department of Health Services, Office of State Registrar.

ANALYSIS

We assess the court's Final Judgment of Dissolution according to the law that was in effect when the judgment was issued. See Cal. Fam. Code § 4 (1994) (concerning the effective date of California's Family Law Code).

Prior to July 1, 1984, California employed a two-tiered system of judgments in divorce actions. See generally B.F. Witkin, Summary of California Law, Vol. 11, Husband and Wife, §§ 155-165 (9th ed. 1990). First, an interlocutory decree of dissolution would be entered. See former Cal. Civ. Code § 4512 (1983). The interlocutory decree did not operate to dissolve the marriage but merely constituted a judicial declaration that the parties were entitled to seek dissolution. Riddell v. Guggenheim, 281 F.2d 836, 842-843 (9th Cir. 1960). Upon expiration of a statutory “cooling off” period, the court then could issue a final judgment of dissolution. See former Cal. Civ. Code § 4514 (1983). Upon entry, the final judgment dissolved the marriage. See Riddell v. Guggenheim, 281 F.2d at 843 (“dissolution occurs only upon entry of the final decree”) (citations omitted); see also Cal. Civ. Proc. Code § 664 (1987) (“In no case is a judgment effectual for any purpose until entered”).

Where the statutory “cooling off” period had elapsed and no final decree had issued, however, the court was authorized to issue a final decree effective nunc pro tunc as of the date when the decree first could have issued (i.e., upon expiration of the waiting period). See former Cal. Civ. Code § 4515 (1983). The main purpose of the provision was to empower courts to validate otherwise void marriages and thereby relieve individuals from bigamy which may have occurred through mere oversight or neglect in not obtaining entry of a final decree. In Re Estate Of Casimir, 97 Cal. Rptr. 623, 628 (1971) (citation omitted). Such a decree could issue only upon a showing of mistake, negligence, or inadvertence, and only upon the court's own motion or motion of either party. See former Cal. Civ. Code § 4515 (1983).

The final decree in this case did not issue until 1980, apparently because of mistake, negligence, or inadvertence of the parties. See, e.g., Nemer v. Nemer, 254 P.2d 661, 663 (1953) (court had power to enter nunc pro tunc final judgment where judgment had not been entered because of negligence and inadvertence given husband's reliance on wife's attorney to obtain final judgment). Accordingly, the court appears to have acted within its authority when it issued its judgment and ordered that the judgment be entered nunc pro tunc. The intended date of dissolution (i.e., October 26, 1961) satisfies the statutory waiting period whether the period was one-year or six-months. If the judgment otherwise were effective, then, the date of dissolution would be October 26, 1961.

The court's custodian of records, however, certified that the judgment has not been entered in Civil No. 31863. The fact that the judgment has not been entered in the case strongly suggests that the judgment has not been entered in the court's judgment book. Under California law, marital dissolution occurs only upon entry of a final judgment. See former Cal. Civ. Code § 4514 (1983); Riddell v. Guggenheim, 281 F.2d at 842-843. See also Cal. Fam. Code § 2346 (1994) (to the same effect under the current statute). Thus, Claimant cannot rely on the judgment to establish her status as a divorced spouse unless she demonstrates that the judgment has been duly entered in the court's judgment book. See generally Thomas v. Barnhart, 278 F.3d 948, 954-55 (9th Cir. 2002) (claimant's burden to make out prima facie case); 20 C.F.R. § 404.704 (2002).

CONCLUSION

Claimant has not shown that the Final Judgment was entered by the court from which it issued. Therefore, SSA cannot accord any effect to the judgment. Based on the evidence submitted, Claimant is not a “divorced spouse” of the wage earner for purposes of her claim for divorced spouse's benefits.

Janice L. W~

Regional Chief Counsel

By: ____________________

Dennis J. M~

Assistant Regional Counsel