Citation Nr: 1035331 Decision Date: 09/20/10 Archive Date: 09/28/10 DOCKET NO. 08-19 750A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to recognition as the surviving spouse of the Veteran. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from May 1954 to October 1954. He died in September 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) decision of January 2006, which found that the appellant was not entitled to recognition as the Veteran's surviving spouse. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The appellant's November 1968 marriage to the veteran was terminated by divorce in December 1981, with knowledge of both parties, the divorce was still valid at he time of the Veteran's death, and there was no subsequent remarriage between the parties. CONCLUSION OF LAW The criteria for recognition as the surviving spouse of the veteran are not met. 38 U.S.C.A. §§ 101(3), 103, 1102, 1304 (West 2002); 38 C.F.R. §§ 3.1(j), 3.50, 3.52, 3.54 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009)), imposes obligations on VA in terms of its duties to notify and assist claimants. In a letter dated in June 2003, prior to the initial adjudication of the claim, the RO advised the claimant of the information necessary to substantiate the claim, and of her and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In particular, she was informed that the file contained an official divorce decree, and she was informed that she must submit evidence that she and the Veteran were married. Her responses have shown that she understands this requirement. Therefore, the Board finds that there was no prejudicial error in the notice error in this case. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board concludes that the duty to assist has also been satisfied. In this regard, the issue in this case is whether the appellant meets the requirements of a surviving spouse. She has submitted her own and lay statements in support of her claim, as well as legal documents and arguments from an attorney purporting to show that the divorce between her and the Veteran was not final at the time of his death. There is no potentially relevant information in the possession of the federal government, as to this matter. Thus, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Status as Surviving Spouse The appellant claims entitlement to VA benefits as the surviving spouse of the veteran, who died in September 2002. In order to establish her status as claimant, it must be shown that the appellant had a valid marriage to the veteran. Aguilar v. Derwinski, 2 Vet.App. 21 (1991). The term "surviving spouse" means a person of the opposite sex who was the spouse of a veteran at the time of the veteran's death, and who lived with the veteran continuously from the date of marriage to the date of the veteran's death (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse). 38 U.S.C.A. § 101(3) (West 2002); 38 C.F.R. § 3.50 (2009). A spouse of a veteran is a person whose marriage to the veteran is valid according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C.A. § 103(c) (West 2002); 38 C.F.R. § 3.1(j) (2009). The file contains documentation of the marriage between the Veteran and the appellant in Nevada in September 1981. They both identified themselves as residents of Texas. The file also contains a certified copy of a divorce decree, showing that they were divorced in July 2000 in Bexar County, Texas. In September 2002, the Veteran died. According to the death certificate, the Veteran's marital status was divorced; the informant was his sister. The appellant contends that although a divorce decree was entered, she had contested the divorce, a new trial had been ordered, and no final decision had been entered at the time of the Veteran's death in September 2002. In support of this assertion, she submitted a May 2003 letter from an attorney to the appellant, stating that due to the death of her husband, her divorce was not finalized, and, as such, she was still married to the Veteran at the time of his death. He stated that at the time her husband died, no final order had been rendered in her case, as it was under reconsideration by the court following a motion for new trial which had been filed on her behalf. A copy of a notice of nonsuit filed in May 2005 by the appellant's attorney states that in October 2000 the Court granted a motion for a new trial. According to this document, after a hearing, the Court continued the matter pending additional information regarding the community estate, and no final divorce decree was ever signed by the Court after granting the motion for new trial. Accordingly, an order granting nonsuit and dismissing the divorce case was requested. In June 2005, an order granting nonsuit was entered, and the case was dismissed. In January 2006, VA contacted the Clerk of Courts for Bexar County, Texas, who confirmed that a notice of nonsuit had been filed in 2001 by the appellant, but this did not invalidate the final decree of divorce previously granted. According to the Clerk, a notice of nonsuit was filed when a party wished to dispute a term of the divorce, but it did not undo the divorce decree. The appellant's attorney stated, in February 2008 that although a divorce was pending, the cause was non-suited and dismissed in June 2005, due to the death of the Veteran. The effect of this order was to dismiss the divorce, and, therefore, the parties were still married at the time of the Veteran's death. Previously a final decree of divorce had been entered in June 2000. The appellant hired the attorney to appeal the decree. In the attorney's opinion, the prior attorney had not obtained an equitable division of the community property. A motion for new trial had been granted , which, the attorney argued, set aside and invalidated the prior divorce decree. The attorney also states that the Order granting nonsuit, rather than the notice of nonsuit, was the document which stated that the case was dismissed. He also stated that the Clerk of the Court was not competent to provide legal advice. The Clerk is, however, competent to report the status the parties' actions. In this case the Clerk reported that the divorce had not been invalidated. The file contains a certified copy of the divorce decree, signed by a judge in July 2000. There is no document of similar authority showing that during the Veteran's lifetime, the divorce decree was overturned. While the attorney states that a motion for a new trial was granted in October 2000, he has not provided any documentation of this, or of the consequences on the divorce of a new trial. Instead, he submitted an order granting nonsuit, dated in June 2005, after the Veteran's death, which appears to have the effect of dismissing the action pending at the time of the Veteran's death. While it was stated, in the notice of nonsuit dated in May 2005, that no final divorce decree was ever signed by the Court after granting the motion for new trial, this was a motion filed by the attorney and not a legally binding document. The order granting non-suit simply stated that a notice of nonsuit had been received (the space for the date of receipt of notice of nonsuit was left blank), and that the case was dismissed. The attorney himself pointed out that divorce actions do not survive the death of a party; therefore, the June 2005 order granting nonsuit cannot constitute a substantive action affecting the divorce. Significantly, the appellant has never submitted direct evidence supporting the assertion that the divorce was overturned, such as the grant for a motion for a new trial, which would presumably include its terms. The Clerk of the Court verified only that a notice of nonsuit had been filed by the appellant in 2001. There is no official verification that the divorce was overturned. In sum, the evidence shows that while the appellant was contesting the terms of the divorce, and had apparently been granted a new trial, the divorce remained final at the time of the Veteran's death. Accordingly, the Board finds that the parties were legally divorced at the time of the Veteran's death. Since the divorce, the appellant has continued to state, in her statements submitted to VA, that she and the Veteran were still married. However, the case she cited in support involves parties who were legally married to each other; the issue was whether there was continuous cohabitation; as noted above, there must be both of these for a valid marriage. Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir. 2007). In contrast, in this case, parties were divorced at the time of death. Although the appellant has not claimed a common-law marriage, in view of her arguments that she remained married to the Veteran until his death, and that they reconciled, the question of a common-law marriage must be addressed. The state of Texas, where the veteran and the appellant resided, recognizes common law marriages. The elements of a common law, or informal, marriage are (1) a man and woman agreed to be married; (2) after the agreement they lived together in Texas as husband and wife; and (3) they represented to others in the state that they were married. See Tex. Fam. Code Ann. § 2.401 (2008). The proponent of such a marriage may establish these elements by either direct or circumstantial evidence. See Russell v. Russell, 865 S.W.2d 929, 932 (Tex. 1993). An essential element of a common law marriage is that the parties agree to be married. In subsequent statements submitted in connection with her request for apportionment of the Veteran's VA benefits, she stated that the was still married to the Veteran. The Veteran, however, denied that they were married. In addition to submitting a copy of the divorce decree in July 2000, stated, in February 2001, that he was no longer married to the appellant. In several statements, the appellant stated that although they had had marital problems, and he had abused her, they had reconciled. She states that she took care of his daily needs and drove him to the hospital for blood transfusions once a week. In support of this, she submitted a letter from her sister, stating that she had been at their hearing concerning the divorce, and that the Veteran stated that he wanted to work things out and be happy with the appellant. However, the Veteran died in September 2002, and the appellant's initial first correspondence with VA after his death was a letter dated in February 2003 in which she stated that she had been notified by the VA that the Veteran had died. This does not indicate a close relationship between her and the Veteran at the time of his death, let alone support the existence of a common-law marriage. At an RO hearing in May 2008, the appellant indicated that the Veteran periodically left her to go off with his friends, and that he was off on one of these sojourns at the time he died. However, his death occurred at an address which he had previously identified as his home address, approximately 160 miles from the appellant's home address. A report of contact dated in September 2002 indicates that he was living with another woman at this address at the time of his death. Evidence submitted by the appellant showing that the Veteran desired that she receive his VA benefits was dated in 1991, several years before the separation and divorce, and does not reflect the Veteran's state of mind after the divorce. Thus, while the appellant maintains that they remained married until his death, correspondence from the Veteran prior to his death does not support this assertion, and the evidence indicates that he was living with another woman at the time of his death. In sum, the Veteran and the appellant were divorced in July 2000; both parties were present in person in the final divorce proceedings, and thus were factually aware of the divorce. After the divorce, the weight of the evidence establishes that there was no cohabitation. There is no credible evidence that the Veteran intended to or actually entered into a common-law marriage with the appellant after the divorce. Since the appellant was not married to the Veteran at the time of his death, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to recognition as the surviving spouse of the veteran is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs