The claimant cannot assert a defense of laches. Under Florida law, to establish an affirmative defense of laches, a defendant must prove 1) conduct on the defendant's part giving rise to the situation leading to the complaint; 2) plaintiff's failure, having knowledge of notice of the defendant's conduct, to assert his or her rights by suit; 3) defendant's lack of knowledge that plaintiff will assert the right on which he or she bases his or her suit; and 4) injury or prejudice to the defendant in the event relief is accorded to the plaintiff. Gaines v. Gaines, 870 So.2d 187,188 (Fla. Ct. App. 2004).

You have requested our opinion as to whether the doctrine of laches would apply to a situation where a widow's benefit claimant was receiving widow's benefits on the record of one man while married to another man. We believe that laches, an affirmative defense, would not apply to this situation. We also believe, however, that the claimant should be prosecuted for fraud.

The facts submitted are that Geraldine L~ (Claimant) filed an application for widow's benefits in March 2004 on the record of Number Holder Lloyd L~ (NH), who died in January 2004. She stated on her application that she and NH were married in May 1983 in Florida and that she was living with NH when he died. A copy of the marriage certificate was provided. Claimant, however, was receiving widow's benefits on the record of Homer C~ and had done so since 1995. Claimant had filed an application for benefits on Mr. C~'s record in May 1998 and did not mention her marriage to NH on that application. In fact, she listed NH's address in her application for benefits on Mr. C~'s record. Claimant married Mr. C~ in September 1950 (proof was supplied), and stated that she and Mr. C~ had separated in 1970 in Chicago, Illinois. Documents in the file indicate that a divorce was not completed in Chicago. Records in Escambia County, Florida, for 1970 to 1979 do not show a record of a divorce between Claimant and Mr. C~. For the period between July 1995 and July 2004, Claimant received a total of $53,275.70 in widow's benefits on Mr. C~'s record. You indicated that the case has been forwarded to the Office of the Inspector General for possible fraud.

Under Florida law, to establish an affirmative defense of laches, a defendant must prove: 1) conduct on the defendant's part giving rise to the situation leading to the complaint; 2) plaintiff's failure, having knowledge or notice of the defendant's conduct, to assert his or her rights by suit;3) defendant's lack of knowledge that plaintiff will assert the right on which he or she bases his or her suit; and 4) injury or prejudice to the defendant in the event relief is accorded to the plaintiff. Gaines v. Gaines, 870 So.2d 187, 188 (Fla. Ct. App. 2004). Here, this doctrine wouldnot apply. There has not been a suit filed. Even if a criminal case is initiated against Claimant, she could not show the second or third elements of this defense. She could not show that the Agency failed to assert its rights or that she had no knowledge that the Agency would assert its rights via a criminal prosecution. Further, even if Claimant believed that she was divorced from Mr. C~ in 1970, she no doubt knew that she should not filed for benefits on his record while married to another man. There is no basis for Claimant to assert a defense of laches. She should be prosecuted for fraud, assuming the elements of fraud could be proven (and we believe they could be proven).

Very truly yours,
Mary Ann S~
Regional Chief Counsel

Laurie G. R~
Assistant Regional Counsel

MARRIAGE— Presumption of Validity of Second Marriage - FLORIDA

DIVORCE — In General - FLORIDA

Under Florida law the doctrine of laches may be invoked to bar a first wife from asserting her status as the legal wife if, without convincing explanation, she stands idly by for long periods of time and permits her husband to deceive others by misrepresenting his marital status. Lanigan v. Lanigan, 78 So.2d 92 (1955), Pawley v. Pawley, 46 So.2d 464 (1960). See also, (D~, John, Mary, Marguerite, RAIV (W~) to Northeastern Program Service Center, August 4, 1980).

(E~, Mitchell, RA IV (W~) to Dir. IPB, 6/1/82).

In your memorandum you asked whether the doctrines of laches and estoppel under Florida law would bar the insured's first wife from challenging the validity of the insured's fourth and last marriage.

The insured married Bertha M~ (first wife) in Jacksonville (Duval County) Florida in May, 1921. A son was born of this marriage in February 1923. Sometime after the son was born the insured and his first wife separated. There is no precise evidence in the file detailing when this separation occurred. On November 29, 1926, the insured married Gertrude (2nd wife), and this marriage ended in a divorce on December 5, 1945. The insured married a 3rd time to Veda on October 27, 1945, in Folkston, Georgia. This marriage also ended in divorce in May, 1948. His third marriage apparently occurred before his second marriage was terminated. The insured was married for the fourth time on May 30, 1948 to Mattie W~. This marriage continued until the insured's death in Jacksonville, Florida on June 16, 1980. The fourth wife, Mattie W~, filed an application for widow's benefits on the insured's account on July 3, 1980, and she was determined to be entitled to benefits effective June, 1980 as a defacto wife of the insured. On September 18, 1980, the insured's first wife, Bertha, also filed an application for widow's benefits on the insured's account.

According to the fourth wife (Mattie W~), she married the insured in good faith and without any knowledge of a legal impediment to their marriage. The first wife, Bertha, has given different accounts of when she left Jacksonville following her separation from the insured. In one account, she said she moved to Philadelphia when her son was old enough to walk. In another account, she said she moved to Philadelphia in 1939. Her son would have been 16 years old at that time. The son said his mother moved to Philadelphia in the 1930's. After moving to Philadelphia, the first wife apparently remained there permanently, and her son was raised by her mother in Jacksonville, Florida. The first wife also acknowledges she was aware that the insured wanted a divorce and eventually married someone else. While still a child, the son apparently expressed to his mother (1st wife) his concern about the other women his father had married. However, his mother advised him that he had nothing to worry about because he was the insured's only legal child since she and the insured were never divorced. A search for a divorce record terminating the marriage between the first wife and the insured was conducted in all counties in which either the insured or the first wife were residents but without success. There is no documentary evidence to establish that the insured and the first wife were divorced.

Under Florida law, a presumption exists in favor of the validity of the last marriage, and the presumption is one of the strongest presumptions known to the law. To rebut this presumption, the first wife is not required to eliminate every remote possibility that a divorce might have been secured by her husband. However, it is necessary that her evidence establish the absence of a reasonable probability that her husband actually secured a divorce. Jablonski v. Caputo, 297 Sp.2d 310 (1974), Teel v. Nolen Brown Motors, 93 So.2d 874 (1957). To discharge her burden, the first wife must conduct a search of the divorce records maintained by the Florida State Bureau of Vital Statistics as well as the known counties of residence. Jablonski v. Caputo, supra.

In the present case, the Social Security Administration has conducted a search of the divorce records maintained by the Florida Bureau of Vital Statistics and has searched the records of Duval County, Florida and Montgomery County, Pennsylvania. These were the only counties of residence of the first wife and the insured. The absence of any record of divorce between the first wife and the insured substantiates the first wife's contention that they were never divorced. Further, this evidence also rebuts the presumption of validity of the last marriage under Florida law. Jablonski v. Caputo, supra.

Assuming the evidence does rebut the strong presumption of validity of the last marriage of the insured, the evidence of record also establishes that the first wife was aware that the insured wanted a divorce and was aware that he did marry someone else. Their son had expressed to his mother (1st wife) his concerns about his father's women and subsequent remarriages. However, the first wife did not assert her status as the insured's legal wife until she filed her application for widow's benefits on the insured's account in September of 1980. This application was filed approximately 50 years after the first wife and the insured separated. During the interim, the insured was married to three other women. Under Florida law, the doctrine of laches may be interposed to bar a first wife from asserting her status if she sat idly by for a long period of time and, aware of her husband's remarriage(s), permitted innocent persons to be deceived and misled by her husband's false representation of his marital status. Unless the first wife has some convincing explanation for her failure to act, she would be barred from asserting her status as the legal wife of the insured under Florida law. Lanigan v. Lanigan, 78 So.2d 92 (1955), Pawley v. Pawley, 46 So.2d 464 (1960).

If you find the first wife was aware of the insured's subsequent marriage(s), and you further find there was no convincing explanation for her failure to assert her status to prevent innocent persons from being deceived by her husband's misrepresentation of his marital status, it is the opinion of this office that you would be justified in concluding that Florida's doctrine of laches would bar the first wife from now asserting her status as the legal wife of the insured.

DIVORCE — In General - FLORIDA

Under Florida law the doctrines of laches and estoppel may be invoked to bar a first wife from challenging the validity of a Mexican divorce procured by her husband if the first wife unreasonably delays in bringing her action. Lanigan v. Lanigan, 78 So.2d 92 (1955).

(D~ John, Mary, Marguerite, RA IV (W~) to Northeastern Program Service Center, August 4, 1980)

In your memorandum of October 24, 1979, you asked whether the Florida courts may recognize an otherwise invalid Mexican divorce on the basis of estoppel and further you solicited comments on the "Memorandum of Law" by the attorney of the second wife, Marguerite. Since the "Memorandum of Law" discussed New York and Connecticut law, this office will defer any comment to the Regional Attorney responsible for those states. This opinion will be confined to a discussion of the competing public policy concerns the Florida courts would face under the facts of this case including the circumstances in which the doctrines of 1aches and estoppel may be applied by the Florida courts.

The wage earner, John D~ married his first wife, Mary, in Brooklyn, New York on October 11, 1936. Four children were born of this marriage. While he and Mary were residing in the state of New York, the wage earner procured a Mexican divorce on September 19, 1968. The wage earner was physically present in Mexico prior to initiating his divorce action for a period of three days, but Mary did not appear in Mexico personally or through counsel. The Mexican Judgment of Divorce stated that the ground for divorce was "incompatibility of temperment" and further stated that Mary was served by publication in the official newspaper of the Mexican state. The wage earner alleges notice of the divorce action appeared in the New York Times and further alleges his lawyer notified Mary by letter of wage earner's intent to divorce her. Mary, however, denies any knowledge of the divorce. Mary did not remarry.

The wage earner subsequently married Marguerite in the state of Connecticut on December 8, 1968. The file does not reflect the nature or extent of the wage earner's ties to the state of Connecticut. Marguerite was apparently aware of the Mexican divorce prior to her marriage to the wage earner and believed it removed any impediment to marriage between her and the wage earner. While residing in Long Beach, New York, a child was born of this marriage in March of 1971.

As residents of New York, the wage earner applied for retirement benefits on May 24, 1976, and Marguerite applied for wife's insurance benefits in June 1976. Marguerite was "deemed" to be the wife of the wage earner and was awarded benefits on that basis. In November 1978, wage earner and Marguerite moved to Florida and apparently became domiciled there. The first wife, Mary, filed her application for wife's benefits on the earnings record of the wage earner on January 3, 1979, as a resident of New York.

Mary alleges that she was aware the wage earner was living with another woman and that the wage earner had a child by this woman. Further, Mary alleges that she was in contact with the wage earner, that she and wage earner went out together even after this child was born and that she and wage earner mortgaged jointly owned real estate to generate $26,000 for a son born of the marriage between John and Mary. However, Mary denies any knowledge of a marriage between wage earner and Marguerite. Mary further states she was not aware of the existence of a divorce between she and wage earner.

Assuming the move to Florida by the wage earner and Marguerite in November of 1978 constituted a change of domicile from New York to Florida, the law of Florida will be determinative of the marital status, if any, existing between the wage earner and his first wife, Mary. Section 216(h)(A) of the Social Security Act. Florida courts follow the general rule that the validity of a marriage is determined by the law of the state where the contract of marriage exists. Young v. Garcia, 172 So.2d 243 (1965); Goldman v. Ditrich, 179 S. 715 (1938). Therefore, Florida courts would likely look to the law of both New York and Connecticut in its analysis of the wage earner's marital status.

However, since Florida courts would not apply the laws of these sister states if violative of a paramount public policy of Florida, this opinion will focus on the competing public policy considerations which would face the Florida courts in this matter. Hebron v Passailaigue, 110 So.539 (1926); Beckwith v. Bailey, 161 So.576 (1925).

The Florida courts refuse to recognize divorces procured in Mexico under circumstances whereby neither spouse was domiciled in Mexico. Kittel v. Kittel, 194 So.2d 640 (1967). In Kittel, supra, the District Court of Appeals of Florida was faced with a factual situation similar to this D~ matter. Although husband and wife were residents of Florida, the husband went to Mexico to file his divorce action, remained there a few days in a transient hotel and secured a divorce on the ground of incompatibility of temperment which was not a ground for divorce in Florida. The wife was personally served with due notice of the Mexican action but did not appear. The wife instituted an action in Florida to enjoin her husband from prosecuting the Mexican divorce action. In affirming the lower court's ruling that the Mexican divorce was not valid in Florida, the Kittel court strongly denounced the husband's efforts as follows:

"To hold the alleged divorce decree is valid as was obtained in Mexico by Mr. Kittel would permit any party desiring to shed himself of a wife to simply go to a state or country several thousand miles away, remain there a few days and secure a divorce on grounds not. even recognized in this state. Should this be permitted, it would violate all principles of morality and justice .... "

Since neither wage earner nor Mary were domiciled in Mexico, the Mexican court lacked jurisdiction to grant a divorce to the wage earner. However, the subsequent marriage of the wage earner, Mary's awareness of Marguerite and the child born of the union of wage earner and Marguerite, and the ten year delay in contesting the relationship between wage earner and Marguerite raises the issue of whether the doctrine of laches and estoppel would be applicable under Florida law. In Lanigan v. Lanigan, 78 So.2d 92 (1955), the husband initiated a divorce action in Rhode Island but his wife successfully counterclaimed for a divorce from bed and board (procured a separation and support order). The husband then went to Nevada, initiated a divorce action and was granted a divorce. Subsequently, the husband held himself out as single or at least as divorced from his first wife, married twice thereafter and engaged in commercial transactions with persons who relied on the divorce decree. Sixteen years after the Nevada judgment, the first wife asked the Florida court to declare the Nevada divorce decree invalid and to enforce a Rhode Island judgment for alimony arrearages. Recognizing that the Nevada court may have lacked jurisdiction to grant this divorce since the husband was domiciled in Florida at the time the Nevada action was initiated and further recognizing that the actions of the husband in attempting to get a divorce under such circumstances were reprehensible, the court nevertheless focused on the sixteen year lapse between the husband's Nevada divorce and his first wife's effort to challenge its validity. Concerned about the reliance of third parties on the Nevada decree, to include subsequent wives, the court found the sixteen year delay of the wife sufficient to bar her action in the absence of a convincing explanation which would excuse her delay in contesting the Nevada divorce.

Consequently, Florida courts will not recognize a Mexican divorce if neither party to the action was domiciled in Mexico. However, the Florida courts may invoke the doctrines of laches and estoppel to deny the first wife the opportunity to contest the validity of a Mexican divorce apparently invalid on jurisdictional grounds if the first wife is aware her husband is representing to the world a single or divorced status if third persons are relying upon such representations, and if she unreasonably delays in contesting the validity of his represented marital status.

Therefore, it is the opinion of this office that you would be warranted in determining that Marguerite would be entitled to wife's benefits if you find the following :

(1) that wage earner was representing to the world by words and/or actions that he was single or remarried and third persons relied on such representations; and

(2) that Mary was aware of the wage earner's representations but unreasonably delayed in challenging the wage earner's status.

Should you determine that the facts of this case are insufficient to enable you to make a determination as to whether or not the Florida courts would invoke the doctrines of laches and estoppel in accordance with the criteria discussed above, we suggest in the absence of clear precedent that you refer this matter to the Regional Attorney for Region II for his opinion as to the applicability of the law of New York to the facts of this case.