Citation Nr: 1136734 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 07-11 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to recognition that a common-law marriage existed between the appellant and the Veteran. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, E.M., M.M. ATTORNEY FOR THE BOARD James Alsup, Counsel INTRODUCTION The Veteran served on active duty from November 1961 to November 1963 and August 1965 to November 1968. The Veteran died in February 1977. The RO had denied the appellant's initial appeal for DIC benefits in a March 1982 administrative decision that because the RO found that the Veteran and the appellant did not meet the criteria for a common-law marriage in Alabama at the time of the Veteran's death. That decision was not appealed. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an October 2005 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the appellant's application for dependency and indemnity compensation (DIC). The appellant disagreed and perfected an appeal. In August 2009, the appellant, M.M. and E.M. presented testimony in support of the appellant's claim at a hearing at the RO before the undersigned Acting Veterans Law Judge. A transcript of that hearing is included in the Veteran's VA claims folder. In a September 2009 decision, the Board reopened the appellant's claim and remanded the claim for further procedural development. FINDINGS OF FACT 1. The Veteran and the appellant were married between 1966 and [redacted] 1974, and the Veteran died in September 1977. 2. After [redacted] April 1974, the preponderance of the record evidence shows that the Veteran and the appellant agreed to live together as husband and wife in Alabama; held themselves out to be husband and wife; were recognized by members of the public to be husband and wife; and, cohabitated together in their home in Alabama. 3. The state of Alabama recognizes common-law marriages and will deem a man and a woman married if they: (1) capacity; (2) present agreement or mutual consent to enter into the marriage relationship; (3) public recognition of the existence of the marriage; and (4) cohabitation or mutual assumption openly of marital duties and obligations. Creel v. Creel, 763 So.2d 943 (Ala. 2000); see also Boswell v. Boswell, 497 So.2d 479, 480 (Ala. 1986) (citing Etheridge v. Yeager, 465 So.2d 378 (Ala. 1985). CONCLUSION OF LAW Entitlement to recognition of a common-law marriage is warranted. 38 C.F.R. § 3.1(j) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks recognition by VA that she and the Veteran were married at the time he died in September 1977. The Board will address preliminary matters and then render a decision on the issue on appeal. Stegall concerns In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (the Court) held that compliance with remand instructions is neither optional nor discretionary and further held that the Board errs as a matter of law when it fails to ensure compliance with remand orders. Although VBA is required to comply with remand orders, it is substantial compliance, not absolute compliance that is required. See Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more that substantially complied with the Board's remand order"). As noted above, the Board remanded the appellant's claim for further procedural development. Specifically, the September 2009 Board remand ordered VBA to provide the appellant with notice that would satisfy the terms of the Veterans Claims Assistance Act of 2000 (VCAA). The record includes the September 2009 letter from the RO to the appellant which, as described in detail below, satisfies the requirements of the VCAA. For that reason, the Board finds that VBA substantially complied with the Board's September 2009 remand order. Duties To Notify And To Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1). The appellant was informed in a November 2009 letter of the evidence required to substantiate a claim for DIC benefits. The Board notes that the notice provided the Veteran of the evidence needed to substantiate a DIC claim based on a condition not yet service-connected in accordance with Hupp v. Nicholson, 21 Vet. App. 342 (2007). The appellant was further informed of the steps VA would take to assist her in developing his claim, including obtaining pertinent records from VA, military and other federal and state agencies, and from private medical or employment providers. The Board finds below that the appellant and the Veteran's relationship met the criteria for a common-law marriage in Alabama. Thus, any failure to properly notify the appellant is rendered moot because the appellant is not prejudiced by any notice discrepancy. The record includes statements from lay witnesses who had personal knowledge of the Veteran's and the appellant's relationship during the time period in question and state agency information provided by the appellant. The appellant has been represented by a service representative and has been informed by the RO of the law and regulations that apply to her claims. As noted in the Introduction, the appellant and two witnesses presented evidence at a hearing before the undersigned Acting Veterans Law Judge. For those reasons, the Board finds that VBA satisfied the duties to assist and notify the appellant, and that all due process has been provided. The Board will proceed to a decision on the claim on appeal. Entitlement to recognition of a common law marriage. The appellant contends that she and the Veteran were in a relationship that met the criteria for a common-law marriage in Alabama at the time of the Veteran's death. She ultimately seeks DIC benefits, but because her claim has been denied by the RO based on a finding that she was not married under Alabama law at the time the benefits accrued, the limited issue before the Board is whether the appellant and Veteran were married when the Veteran died. Before an award of DIC benefits can be made, the appellant must provide sufficient evidence to establish, by a preponderance of the evidence, that she is the spouse of the veteran. See Scott v. Principi, 3 Vet.App. 352, 354 (1992); see also Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). In a determination of whether a person is married for purposes of entitlement to VA benefits, 38 C.F.R. § 3.1(j) (2010) defines marriage as: Marriage means a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. There are several ways the appellant may prove a common-law marriage. 38 C.F.R. § 3.205(a)(6) provides that "[M]arriage is established by one of the following types of evidence: (6) In jurisdictions where marriages other than by ceremony are recognized the affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parities held themselves out as married, and whether they were generally accepted as such in the communities in which they lived. The appellant contends that she and the Veteran resided in Alabama at the time of the Veteran's death. The evidence in support of that proposition includes the sworn testimony of the appellant, M.M. and E.M., and the statements of J.N., F.B., and M.T. VA records in the Veteran's VA claims folder show that he resided in Alabama during periods in the 1970s. There is evidence that the Veteran often travelled to his family home in Puerto Rico after April 1974 and lived in Puerto Rico for long periods after he divorced the appellant. Indeed, the Veteran died in Puerto Rico in September 1977. The Board finds, however, that the Veteran often resided with his family in Alabama after his divorce from the appellant and intended to reside in Alabama before he died. The evidence shows that he had been in Alabama and had returned to Puerto Rico to take care of family business just before he died and at the time of his death he intended to return to live with his wife in Alabama. See hearing transcript at pages 4, 6, 22 and 27. For those reasons, the Board finds that Alabama was the place of residence for purposes of determining whether a common law marriage existed. The state of Alabama recognizes common-law marriages and will deem a man and a woman married if there is evidence of: (1) capacity; (2) present agreement or mutual consent to enter into the marriage relationship; (3) public recognition of the existence of the marriage; and (4) cohabitation or mutual assumption openly of marital duties and obligations. Creel v. Creel, 763 So.2d 943 (Ala. 2000); see also Boswell v. Boswell, 497 So.2d 479, 480 (Ala. 1986) (citing Etheridge v. Yeager, 465 So.2d 378 (Ala. 1985). With regard to the element of capacity, the Alabama Supreme Court has recognized that "[A] marriage contract is of no validity if either of the contracting parties is of unsound mind." See Beck v. Beck, 246 So.2d 420, 425 (1971) (citing Willis v. Willis, 189 So. 873 (1939). "It is unsoundness, not mere weakness of mind, which will avoid a marriage contract unless the weakness be so considerable as to amount to derangement. Beck at 425 citing Rawdon v. Rawdon, 28 Ala. 565 (1856). The Beck Court noted that while Willis and Rawdon involved ceremonial marriages, the "principles for which they are cited here are equally applicable where the question is presented as to whether a claimed common-law marriage is valid." In this case, there is no evidence of record to show that either the appellant or the Veteran had an inability to understand the responsibilities of marriage or had any defect of mind that would put their agreement to live together in question. The combined statements and testimonies show the appellant to be competent and they also show that the Veteran was competent up to the time of his death. Indeed, it appears from the record that VA found the Veteran to be competent to handle his VA benefit payments. The Beck Court also addressed the element of mutual consent and held that it essentially meant an agreement evidenced by action: mutual consent "must be followed by a public recognition of the existence of the common-law marriage." Beck at 425 citing Goodman v. McMillan, 61 So.2d 55 (1952); see also Waller v. Waller, 567 So.2d 869, 869-870 (Ala. Civ.App. 1990). The Alabama Court of Civil Appeals in Buford v. Buford, 874 So.2d 562 (2003), quoted Maryland v. Baldwin, 112 U.S. 490, 495 (1884): But where no such ceremonies are required, and no record is made to attest to the marriage, some public recognition of it is necessary as evidence of its existence. The protection of the parties and their children, and considerations of public policy require this public recognition; and it may be made in any way which can be seen and known by men, such as living together as man and wife, treating each other and speaking of each other in the presence of third parties as being in that relation, and declaring the relation in documents executed by them whilst living together, such as deeds, wills, and other formal instruments. "There must also be clear and convincing evidence that the parties 'live[d] as to achieve public recognition of their status as husband and wife' or, cohabitated." Buford at 566 citing Piel v. Brown, 361 So.2d 90, 95 (Ala. 1978). The appellant testified that three days after their divorce, the Veteran moved back to the house they resided in during the marriage and continued to live there, off and on, until he died. See for example, hearing transcript at page 20. J.N. in essence stated in a December 2004 notarized statement that the Veteran and the appellant held themselves out to be husband and wife. E.M., the son of the appellant and the Veteran, stated in a January 2005 statement that the Veteran "came back and lived with" his mother after the divorce because he loved her so much. F.B. stated in a November 2009 statement that he had long known the Veteran and that he and his wife were friends with the appellant. In the context of social visits, F.B. heard them refer to each other as husband and wife, saw that they lived together in their house in Alabama and based on his observations he believed that they were married. M.T. stated in a November 2009 statement that she lived with the appellant and the Veteran in 1975 and never knew of their divorce, and considered them to be married and living together at that time. M.M. testified that the Veteran and the appellant held themselves out publically to be husband and wife. See hearing transcript at pages 4-5. Also of record are property records showing that the Veteran purchased Florida property in 1975 and that the appellant is now the owner and that she has paid taxes on the property. For those reasons, the Board finds that there is evidence showing the Veteran and the appellant agreed to live together as husband and wife after their divorce in 1974 and that there was public recognition of the fact that they held themselves out as husband and wife after 1974. As to the final element, cohabitation or mutual assumption openly of marital duties and obligations, the Alabama Supreme Court has found that there was "a lack of uniformity in which the man and woman must have lived, following their mutual consent, to constitute a valid common-law marriage." Beck v. Beck, 246 So.2d 420, 425 (1971). After reviewing Alabama cases, the Beck Court wrote: We find in none of our common-law marriage cases a clear-cut definition of the cord "cohabitation" or an explanation of the use of the words "living together as man and and wife" in conjunction with the word "cohabitation." Nor can we ascertain from those cases what the words "mutual assumption openly of marital duties and obligations" were intended to add to the requirement that the mutual consent should be consummated by cohabitation as man and wife. Likewise, we are unable to determine from our cases why the word "or" is used between the clause "the mutual consent should be consummated by cohabitation between man and wife" and the clause "their mutual assumption openly of marital duties and obligations," while in other cases the word "and" is used between those clauses. The Court concluded that it would not attempt to reconcile the differences between the language used in the several opinions and held the lack of evidence of coition "should not operate to prevent a common-law marriage." The Board observes that the RO determined that the Veteran and the appellant did not live together for a sufficient period of time to justify a finding of a common law marriage between them. The RO's action essentially added an element to the requirements for common-law marriage in Alabama that is not addressed or recognized by Alabama court cases. Indeed, the Beck Court found that a common-law marriage existed when the common-law wife was shown to cohabitate with the common-law husband between 9 August 1966 and the date of his death on 9 September 1966. It appears from the record that the RO has already determined that the Veteran and the appellant cohabitated for a longer period of time than the one month found in Beck. The Board finds that the record is replete with evidence that the Veteran and the appellant held themselves out to be married and cohabitated as though they were married. There are many references to the fact that the Veteran returned to the appellant and that she took care of him. Witnesses have stated or testified that the Veteran and the appellant called each other husband and wife and that they lived together in the same home they had lived in when they were married. Family members of the appellant believed they were married. Friends who knew the couple thought that they were married. There is evidence that the Veteran moved for a period of time to Puerto Rico to live with his mother and father, but the evidence shows that he returned to Alabama. He did die while he was in Puerto Rico, but according to testimony of M.M., the appellant and E.M., he had been in Alabama shortly before and the Veteran told others that he intended to return to Alabama to be with his family after taking care of business in Puerto Rico. E.M. testified that he did not become aware that there was a divorce between his father and mother until his mother applied to VA for benefits. He essentially testified that he did not discern any real change after the date of the divorce in his parents' relationship. Finally, M.M. testified that she was in the Veteran's and appellant's home and knew that the Veteran slept in the same bed with the appellant. After review of all the evidence and in view of Alabama law, the Board finds for purposes of VA benefits that the appellant and the Veteran were in a common-law marriage at the time of the Veteran's death. There is a preponderance of evidence in the record to show that they were competent to enter into an agreement, did enter into an agreement to live as husband and wife, and held themselves out to be husband and wife by cohabitating and by representing to third parties that they were married. Accordingly, the Board finds that recognition of a common-law marriage between the appellant and the Veteran is warranted. ORDER Entitlement to recognition that a common-law marriage existed between the appellant and the Veteran is granted. ____________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs