Margaret A. Hopkins v. R. James NicholsonMargaret A. Hopkins v. R. James Nicholson
KASOLD, Judge:
This is an appeal through counsel of a June 10, 2003, decision of the Board of Veterans’ Appeals (Board) that determined that clear and unmistakable error (CUE) did not exist in an earlier Board decision that had denied the appellant dependency and indemnity compensation (DIC) benefits after finding that she could not be recognized fоr VA-benefits purposes as the widow of veteran Charles Hopkins. Record (R.) at 1-9. This finding was rendered in an October 1979 Board-remand decision (R. at 299-308) that was finalized on June 10, 1980 (“earlier Board“). R. at 9. The appellant argues, inter alia, that the 2003 Board committed error when it failed to find that the earlier Board had applied the law of the wrong state in determining the validity of her marriage to the veteran. Appellant‘s Brief (Br.) at 6-7. The Secretary argues that the earlier Board decision was based upon the correct law and that the 2003 Board decision was not arbitrary and capricious. Secretary‘s Br. at 9. For the reasons set forth below, the 2003 Board decision will be affirmed.
I. BACKGROUND
The appellant married James Gray in Greely, Colorado, in May 1937. R. at 91. They had one child together. R. at 94. On December 23, 1942, the appellant par
In August 1948, the appellant filed an application for VA “Pension or Compensation by Widow and/or Child of Deceased Person.” R. at 33-36. In that application, she indicated that her only marriage had been to Lieutenant Hopkins. R. at 34. In resрonse to her application, a VA regional office (RO) requested clarification from her as to why her surname on her child‘s birth certificate was “Hopkins” and the surname on her marriage certificate was “Gray.” R. at 38. The appellant replied that “[u]pon the birth of a son to a common-law husband, I adopted the name of the father without being married to him for the sake of the child.” R. at 41. Upon further investigation, the RO determined that the appellant had been married to Mr. Gray in a legal ceremony and that her ceremonial marriage to Lieutenant Hopkins was therefore void. R. at 112. The RO denied the appellant‘s claim, and she did not appeal.
In November 1949, the appellant filed with the Arizona Superior Court of Pima County a complaint for annulment of her marriage to Mr. Gray on the ground that the marriage contract was induced by fraud on the part of Mr. Gray. R. at 217-18. On April 22, 1950, after finding that the defendant had admitted all allegations in the complaint (R. at 116), that court issued a decree of annulment declaring that marriage “wholly null and void, ab initio and of no force and effect.” R. at 116.
In October 1957, the appellant submitted a new claim for DIC. R. at 124-27. The RO determined that she could not be recognized as the widow of Lieutenant Hopkins because, inter alia, of the following: “When claimant married the veteran she was the wife of James C. Gray. It was a bigamous marriage and void. The suit for annulment was instituted after the death of the veteran. The decree еntered therein could not have the effect of making the claimant‘s marriage to the veteran valid.” R. at 139. The RO‘s determination was upheld in a July 1958 Board decision. R. at 146.
In June 1977, the appellant filed another claim for DIC. R. at 156-59. The RO denied that claim, after noting that the 1957 claim could be reopened only on the basis of new and material evidence. R. at 174. The appellant, through her son, stated that Mr. Gray had been in a prior undissolved marriage at the time of his marriage to the appellant and that Mr. Gray had annulled his marriage to the appellant prior to the date of the appellant‘s ceremonial marriage to the veteran. R. at 188. The appellant provided no evidence to support thesе assertions. The Secretary also was unable to locate any documents in support of them. R. at 207. As a result, the RO denied the claim.
On appeal, the Board in 1979 again determined that the appellant was not the legal widow of the veteran and denied her claim for DIC. R. at 307. The Board discussed an Arizona Court of Appeals case, Hodges v. Hodges, 118 Ariz. 572, 578 P.2d 1001 (1978), regarding the relatiоn-back theory, and determined that an annulment of an earlier marriage could not retroactively validate a subsequent otherwise void marriage. R. at 306-07. In her appeal to the Board, the appellant stated
The appellant submitted her fourth claim for DIC in August 2001. R. at 339. The RO again denied the claim on the basis that the appellant had never been validly married to Lieutenant Hopkins. R. аt 352-53. The appellant then filed a motion for reconsideration or, in the alternative, a claim that the earlier Board decision contained CUE by applying the wrong law in concluding that her second ceremonial marriage was void. R. at 363-72. The motion for reconsideration was denied, and the 2003 Board found no CUE in the earlier decision. This appeal fоllowed.
II. ANALYSIS
A. CUE Standard of Review
A claim of CUE in a prior final decision of the Board is a collateral attack on that decision. See Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed.Cir. 2000); see also
In reviewing Board decisions evaluating allegations of CUE in prior final decisions, the Court “cannot conduct a plenary review of the merits of the original decision.” Andrews, 18 Vet.App. at 181 (quoting Archer v. Principi, 3 Vet.App. 433, 437 (1992)). Moreover, this Court recently reiterated that the standard of review of a Board‘s determination on the merits of a CUE claim is whether the Board‘s decision is “‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ in denying the CUE allegation.” Andrews, 18 Vet.App. at 181 (quoting
Although a Board‘s denial of a CUE claim will be overturned only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, the various elements that lead to a valid CUE claim are subjеct to review under the standard applicable to that element. For ex
Accordingly, in the case on appeal, although the ultimate decision of the 2003 Board—that any error or misapplication of the law in the earlier Board decision did not constitute CUE such that the outcome would have been manifestly different—is reviewed under the “arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law” standard, whether the earlier Board correctly applied the law at the time of its decision is a matter that is reviewed de novo.
B. Effect of the Annulment
The appellant argues that the Arizona court‘s decree that her first marriage was “void, ab initio” meant that her first marriage never existed and therefore cоuld not serve as a legal barrier to a second marriage and, further, she argues that the Secretary and this Court are bound by that interpretation. Although the validity of the annulment judgment is a question of state law for the appropriate state court, and not for the Secretary or this Court to decide, see Badua v. Brown, 5 Vet.App. 472-74 (1993) (explaining that the Secretary determines the validity оf a marriage by applying the law of the place where the marriage occurred); see also Ankenbrandt v. Richards, 504 U.S. 689, 703, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992) (confirming that domestic-relations exception to Federal jurisdiction excludes issuance or modification of divorce, alimony, or child-custody decree); Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (explaining that regulation of domestic relations is “an area that has long been rеgarded as virtually exclusive province of the States“); Barber v. Barber, 62 U.S. (21 How.) 582, 584, 16 L.Ed. 226 (1859) (holding that domestic relations is an exception to Federal-court jurisdiction), the issue in this case is not the validity of the annulment, but rather the effect that the annulment had on the appellant‘s second ceremonial marriage and, more specifically in this case, the effect that the annulment had, if any, on the appellant‘s entitlement to VA survivor benefits. See De Sylva v. Ballentine, 351 U.S. 570, 580, 76 S.Ct. 974, 100 L.Ed. 1415 (1956) (holding that agency applies state law when determining entitlement to Federal right based upon a familial relationship). The Secretary makes this decision in the first instance subject to review by the Board and the Court. See
C. Void or Voidable
It is generally the law that a void marriage is one that never had any validity, while a voidable marriage is one that had validity until such time as it was voided, see 4 Am.Jur.2d Annulment of Marriage § 48 (2004), and this was the law in Colorado when the appellant entered into her first marriage, see Williams v. Williams, 83 Colo. 180, 263 P. 725, 726-27 (1927), and the law in Arizona when she entered into her second marriage, see S. Pac. Co. v. Indus. Comm‘n, 54 Ariz. 1, 91 P.2d 700, 703-04 (1939), overruled on other grounds by Means v. Indus. Comm‘n, 110 Ariz. 72, 515 P.2d 29 (1973), as well as the law in New Mexico, where she may have been resident at the time of her second mar
The validity of a marriage is determined according to the lex loci, the law of the state that solemnized the marriage. See
At the time of the appellant‘s first marriage, Colorado prohibited only three tyрes of marriages: Bigamous marriages, incestuous marriages, and out-of-state marriages void where performed. See Griswold v. Griswold, 23 Colo.App. 365, 129 P. 560, 561, 562, 565 (1913) (explaining prohibition against bigamous and void out-of-state marriages and adopting 2 KENT‘S COMMENTARIES 93 14th ed., indicating incestuous marriages are void); see also
In this case, the appellant‘s first marriage was annulled apparently on the basis of fraud, not because the marriage was prohibited undеr Colorado law when entered into. R. at 225-27. Moreover, the use of the term “void, ab initio” in the appellant‘s Arizona annulment decree cannot be read in a vacuum to mean that the court in that case determined that the appellant‘s first marriage was never valid. The term “void,” as used in the State of Arizona, referred to both “voidable” marriages, which аre subject to ratification or disaffirmance by the injured party, as well as “void” marriages, which are incapable of ratification.
Accordingly, given the interchangeability of the terms “void” and “voidable” under Arizona law and the fact that there were no grounds to support a determination that the marriage performed in Colorado was void under Colorado law at the time it was performed, the Arizona Superior Court‘s declaration that the appellant‘s first marriage was “void, ab initio,” could mean only that her first marriage was voidable from the beginning and, not having been ratified by the parties, was therefore declared void, ab initio. See Hodges and S. Pac. Co., both supra. Since the aрpellant‘s first marriage was not invalid at the time it was entered into and remained valid until voided, her second marriage was invalid during the period of validity of the first marriage. See Prince, supra; see also In re Estate of Milliman, supra; S. Pac. Co., 91 P.2d at 703-05; Hodges, supra; 52 AM.JUR.2D Marriage § 57 (2004). Until the time of her annulment, the appellant was precluded by law from entering into a second marriage, and this was true throughout the United States. See 52 AM.JUR.2D Marriage § 57; see also
D. Relation-Back Theory
Consistent with the above discussion, the appellant actually does not argue that her ceremonial second marriage was valid at the time she entered into it. Rather, she contends that the law recognizes a relation-back effect that revives a secоnd marriage when a first marriage has been annulled. The appellant misunderstands the relation-back theory, and her attempt to apply it to her situation has no support in the law. Under the relation-back theory, a second marriage that is valid when entered into but later is declared void may result in the revival of the obligations attendant to an earlier marriage, dependent on the facts and equities of the situation. See generally Sefton v. Sefton, 45 Cal.2d 872, 291 P.2d 439, 440-42 (1955). For example, an award of insurance benefits, associated with a first marriage and terminated upon remarriage, has been held to be reinstated upon the annulment of the second marriage and the return of the lump-sum insurance settlement. Means, supra; see United States Fid. & Guar. Co. v. Indus. Comm‘n, 25 Ariz.App. 244, 542 P.2d 825, 827 (1975). On the other hand, an award of аlimony, ordered upon dissolution of a first marriage and terminated upon remarriage, may not be reinstated because public policy will seek to protect the innocent party, the alimony obligor from the first marriage, who has relied upon the validity of the second marriage. See Hodges, 578 P.2d at 1004-05; Sefton, 291 P.2d at 442-43; Torgan v. Torgan, 159 Colo. 93, 410 P.2d 167, 171 (1966).
Had the appellant‘s first marriage been an invalid marriage such that it had no validity when entered into, a second marriage would be valid. See Prince, supra. That is not the case here. Rather, the appellant‘s second ceremonial marriage was itself invalid and, as noted, there is no
III. CONCLUSION
The Court concludes that the appellant has not demonstrated a misapplication of the law by the earlier Board or the 2003 Board. Moreover, the 2003 Board decision (that there was no CUE in the earlier Board decision) is adequately supported by the record and an adequate statement of reasons or bases, and that decision is therefore not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See