The wage earner, Amando N~ and the claimant, Natalia N~, were married on June 16,
1929, in the Philippines. They appear to have been residents of the Philippines before
and at the time of their marriage, and they continued to reside in the Philippines
for a short time after their marriage. They had one son born (prior to their marriage)
in February 1929. Statements by the wage earner and the claimant indicate that the
wage earner left the Philippines in 1930 and moved to Hawaii. It appears that the
wage earner has continuously resided in Hawaii since that time, .and that the claimant
has continuously resided in the Philippines.
On December 2, 1942, the wage earner filed a libel for divorce from "Juliana N~" in
the First Circuit Court for the Territory of Hawaii. The wage earner (the "libelant")
claimed in the .libel that he had married Juliana N~ (the "libelee") on or about February
27, 1926 in the Philippines, and that the libelee had deserted him more than six months
previous to the filing of his libel. The wage earner further alleged that he had not
been able to ascertain the address or residence of his wife "after reasonable and
due inquiry and search for more than fifteen days" before the filing of the libel.
He therefore requested that service of the libel upon his wife be permitted by publication,
as provided by law. The same day, the court ordered that notice of the time and place
of hearing the libel for divorce be given the libelee by means of publication in a
Honolulu newspaper for three consecutive weeks, as provided by law. The court clerk
thereupon issued a divorce summons commanding the Hawaii sheriff or police to summon
Juliana N~ to appear in court thirty days after service of the summons. On the same
day, the sheriff returned the libel for divorce and summons, stating that after "due
and diligent search," the libelee could not be found within the jurisdiction of the
court. The notice of the libel and the date of the hearing thereon (January 19, 1943)
were published in The Honolulu Advertiser for three consecutive weeks in December
1942. The notice also listed the libelee as Juliana N~. On January 22,'1943, the court
entered a final decree of divorce between Amando N~ and Juliana N~ on the ground of
(the alleged) desertion by Juliana.
Natalia N~ filed an application with the veteran's Administration for wife's insurance
benefits on the wage earner's account. In the application, she indicated that she
married the wage earner on June 16, 1929, in .the Philippines, that the marriage ended
in divorce in Honolulu, and that she did not recall the date of the divorce. On a
separate statement filed with her application, the claimant stated. that she and the
wage earner had not been divorced "but [she] heard that he divorced [her]." She. further
stated that she never received any notice from a court concerning a divorce proceeding
and that she was never notified in any other way that her husband had tried to secure
a divorce. It appears that the claimant first learned of the fact that her husband
had purportedly divorced her when she filed the claim with the Veteran's Administration:
in a February 3, 1976, letter to that agency, the claimant said that she first learned
of the divorce from a V.A. representative.
The claimant's December 13, 1976, application for wife's insurance benefits was disallowed
by SSA because she did not meet the Social Security Act's twenty-year duration of
marriage requirement for divorced wife's benefits. On March 5, 1980, claimant filed
a second application for wife's insurance benefits. Benefits were granted effective
March 1979, because of the amendment to section 202(b) (1) of the Act, extending divorced
wife's benefits to women whose marriage lasted at least ten years. You sought our
advice as to: whether the wage earner and the claimant were, in fact, divorced in
1943 or whether that Hawaii divorce decree was invalid; if it was invalid, whether
SSA may collaterally attack it;. and whether a nunc pro tunc decree could remedy the
defect.
Before answering the questions you posed, we will address two other aspects of the
divorce court's authority in this matter. As late as 1927, statutory law in the Territory
of Hawaii required that a divorce action be filed in the judicial circuit wherein
the parties to the marriage last lived together as husband and wife. Thus, at least
until 1927, a divorce action filed in a Hawaii court wherein the parties had not resided
as husband and wife had to be dismissed by the court for lack of jurisdiction. See Ogata v. Ogata, 30 Hawaii 620 (1928). This "living together" requirement of Hawaii law apparently
had been abolished by 1940, however. See West v. West, 35 Hawaii 461 (1940). The fact that the wage earner and the claimant herein never
lived together in Hawaii prior to the filing of the 1942 libel for divorce therefore
did not deprive the Hawaii court of jurisdiction. Hawaii law from 1900 through 1967
required that the party filing for a divorce must have resided (i.e., been domiciled)
in Hawaii for two years prior to his or her application for divorce. Whitehead v. Whitehead, 53 Hawaii 302, 492 P.2d 939 (1972).1/ The wage earner had met the residency requirement.
Current Hawaii law clearly permits service of a divorce libel by publication: "[i]f
it appears . ú that plaintiff does not know the address or residence of the defendant
and has not been able to ascertain the same after reasonable and due inquiry and search
for at least fifteen. days either before or after the filing of the complaint ....
"Haw. Rev. Stat. §580 3(d). Service by publication on the basis of this same showing
has been authorized under Hawaii law since 1941. 1941 Haw. Sess. Laws (effective May
13, 1941), amending section. 4463 of the Revised Laws of Hawaii 1935. The libel and
affidavit submitted by the wage earner to the Hawaii court on December 2, 1942, contained
the allegations necessary for the court to permit service by publication.2/
The only remaining issue is the one you raised: whether the improper designation of
the libelee in the decree, the libel, and all documents involved in the divorce proceedings
invalidates the divorce and therefore subjects the decree to collateral attack by
SSA. Hawaii law is relatively straightforward in this area. The Supreme Court of Hawaii
has long held that a divorce decree rendered by a court without acquiring jurisdiction
of the person of the libelee is "absolutely void." Aki v. Aki, 20 Hawaii 623 (1911). This is in conformity with the generally accepted rule that
a divorce decree is void if the court rendering the decree lacked jurisdiction, and
that such a decree is subject to collateral attack. Williams v. North Carolina, 325
U.S. 226 (1945); see generally 24 Am. Jur. 2d, Divorce and Separation §954 (1966). Substantial compliance
with the laws on service of process being jurisdictional, if the plaintiff or the
official charged with securing service of process fails to comply with the pertinent
statute(s), the decree is void and may be collaterally attacked (even in another jurisdiction).
Cheely v. C~, 110 U.S. 701 (1884); see 24 Am. Jur. 2d, 'Divorce and Separation, §956 (1966) and cases cited therein.
It is clear that if service of process upon the claimant in the 1942 divorce action
at issue herein was not in substantial compliance with Hawaii law on service by publication,
then the Hawaii court had no jurisdiction, and its decree is void. As the Hawaii Supreme
Court stated in Aki v. Aki, cited previously,
A court may, at any time, vacate or set aside a judgment which is void as, for example,
a judgment rendered where there was a lack of the necessary jurisdiction, whether
through omission or defect of service, or otherwise.
20 Hawaii at 626 (emphasis added). There can be no doubt that the service of process
by publication was defective with respect to the claimant. Even if the claimant might
have seen a Honolulu newspaper (despite the fact that she evidently had never set
foot in Hawaii), the fact that the name used in the published notice bore little resemblance
to her own made it a virtual certainty that the claimant would have no knowledge of
the pending divorce proceeding against her. Whether the defective notice occurred
by the wage earner's design or by his attorney's error, as the wage earner contends,
the result is the same. The constructive notice sought to be provided by the Hawaii
law permitting service by publication obviously was thwarted. Consequently, we conclude
that under Hawaii law, and consistent with generally accepted principles of law, the
divorce decree obtained by the wage earner was invalid. It therefore is not binding
on SSA. See, e.g., GC opinions re John B. D~, September 24, 1982, and Adjudications of Trial Courts
as Binding on the Social Security Board," C-2101, September 8, 1943.
Finally, you asked what effect a nunc pro tunc order correcting the misnomer in the
divorce decree, would have in determining the claimant's marital status. Usually,
we do not address issues such as this, where no actual order has been entered, The
possible means whereby such an order might be entered in the future are purely speculative,
rendering a response difficult to frame. In this instance, however, we can respond,
based upon the basic principles of law involved.
The function of entry of a decree nunc pro tunc is the correction of judicial records
which fail to record, or improperly record, a court's actual judgment. Its purpose
is not to correct an error. in the judgment itself. This Hawaii law is in accord with
generally accepted legal principles throughout the United States with respect to nunc
pro tunc judgments. See 24 Am. Jur. 2d, Divorce and Separation §422 (1966). DuPonte v. DuPonte, 53 Hawaii 123, 488 P.2d 537 (1971).
The divorce decree rendered here did not grant to the wage earner a divorce from the
claimant but it did purport to grant him a "divorce" from the party he named (libelled)
and upon whom he attempted to serve process by publication. The court's decree therefore
properly recorded the only judgment it could have rendered on the basis of the wage
earner's pleadings. Thus, a court could not enter a nunc pro tunc decree of divorce
between the wage earner and the claimant (even if it obtained jurisdiction over both
parties beforehand), because it could not have entered such a decree in 1943. An entirely
new action would have to be filed to attain that result.
For the aforementioned reasons, we conclude that the claimant and the wage earner
were not divorced in 1943, and that the claimant was married to the wage earner when
she applied for wife' s insurance benefits in December 1976. She therefore would have
been entitled to receive benefits on the basis of that application, assuming she met
all other conditions of entitlement.
1_/ The Hawaii legislature reduced the residency requirement to one year in 1967.
2_/ We have some doubt as to the veracity of those allegations, and it appears that
the court did virtually nothing to assess the truthfulness of the wage earner's allegations
before approving the request for service by publication on the same day the request
was made. Nevertheless, the claims file-contains no evidence (from the divorce proceedings
or other sources)-upon which we could conclusively determine that the wage earner
lied to the court when he swore that he had been unable to locate his wife after making
reasonable efforts. Compare Murphy v. Murphy, 55 Hawaii 34, 514 P.2d 865 (1973), wherein the spouse seeking the divorce alleged
that she did not know her husband's whereabouts despite the fact that she had been
in touch with her husband's attorney shortly before she made that allegation. Had
the evidence in the divorce proceedings shown beyond question that the wage earner's
allegations were false, collateral attack by SSA might be warranted, but that is not
the situation here. See GC opinion re Manning P. L~, January 13, 1975.