Citation Nr: 19129481 Decision Date: 04/16/19 Archive Date: 04/16/19 DOCKET NO. 15-41 563 DATE: April 16, 2019 ORDER Entitlement to recognition of the Appellant as the Veteran’s surviving spouse for Department of Veterans Affairs (VA) benefits purposes is granted. FINDING OF FACT There is clear and convincing evidence that the Veteran and the Appellant resided in the state of Alabama from 1980 to 1995, had the capacity to enter into a common-law marriage, demonstrated mutual assent to enter into marriage, publicly recognized the existence of their marriage, and cohabited and mutually assumed marital duties and obligations. CONCLUSION OF LAW The criteria for recognition of the Appellant as the surviving spouse of the Veteran, for purposes of entitlement to VA benefits, have been met. 38 U.S.C. §§ 101, 103, 5107; 38 C.F.R. §§ 3.50, 3.52, 3.53, 3.54, 3.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1970 to October 1971, including service in the Republic of Vietnam. The Veteran died in February 1995 and the Appellant seeks recognition as the Veteran’s surviving spouse for VA death benefits purposes. 1. Entitlement to recognition of the Appellant as the Veteran’s surviving spouse for Department of Veterans Affairs (VA) benefits purposes. The Appellant seeks to be recognized as the surviving spouse of the Veteran for the purpose of eligibility for VA death benefits. For the following reasons, the Board finds that the Veteran and the Appellant entered into a common law marriage as defined by Alabama law prior to January 1, 2017. A birth certificate indicates that a child was born to the Veteran and the Appellant in 1984. The child was given the Veteran’s last name. In a May 2015 statement, the Appellant’s sister states that the Appellant and Veteran “[l]ived together continuously [from] 1980 till 1989” and from 1992 to 1993. The Appellant was in prison from 1990 to 1992 and from 1994 to 1995. Also according to the sister, the Appellant was briefly released from prison to attend the Veteran’s funeral. The Appellant’s sister considered the Appellant and the Veteran to be husband and wife. The Appellant has also submitted a May 2015 statement from a friend who states that he knew the Veteran for 16 years and lived in the same house with the Veteran for an unspecified period of time. This friend states that the Veteran and the Appellant referred to themselves as husband and wife and had a son together. He also states that the Veteran and the Appellant lived together from 1980 to 1989 and from 1992 to 1993, and that the Appellant was incarcerated from 1990 to 1992 and from 1993 to 1994. This friend also considered the Appellant and the Veteran to be husband and wife. When a Veteran dies, his or her surviving spouse may be eligible to receive VA death benefits, to include dependency and indemnity compensation (DIC) benefits, death compensation, and death pension. 38 U.S.C. §§ 1121, 1310, 1541; 38 C.F.R. § 3.50(a). The term “surviving spouse” means a person who (1) was legally married as defined by 38 C.F.R. § 3.1(j), was the spouse of the Veteran at the time of the Veteran’s death, (2) 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, and (3) except as provided in § 3.55, has not remarried or has not since the death of the Veteran or, after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50. The surviving spouse of a qualified Veteran is eligible to receive death benefits if the surviving spouse was married to the Veteran for one year or more prior to the Veteran’s death or for any period of time if a child was born of or before the marriage. 38 C.F.R. § 3.54. “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. 38 U.S.C. § 103(c); 38 C.F.R. § 3.1(j). In cases involving alleged common-law marriages, there must be proof of a common-law marriage for the purpose of receiving VA benefits. Supporting evidence of common-law marriage should include 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. 38 C.F.R. § 3.205(a)(6). 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 parties held themselves out as married, and whether they were generally accepted as such in the communities in which they lived. Id. State law evidentiary burdens apply to the criteria for common law marriage. Burden v. Shinseki, 727 F.3d 1161, 1166 (Fed. Cir. 2013). Common law marriages were abolished in Alabama effective January 1, 2017, but such marriages remain valid prior to that date. ALA. CODE § 30-1-20. The elements of an Alabama common law marriage are (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. See Creel v. Creel, 763 So.2d 943, 946 (Ala. 2000). The second requirement is often “simply inferred from cohabitation and public recognition.” Skipworth v. Skipworth, 360 So. 2d 975, 977 (Ala. 1978). “[N]o words of consent are required” to supply this requisite consent to enter into a common law marriage. Scott v. Principi, 3 Vet. App. 352, 354 (1992). Divorce ending a ceremonial marriage does not necessarily end a common law marriage in Alabama. If the couple continued to reside together, held themselves out as husband and wife, and continued to act as if they were married, they were in a common law marriage. See Huffmaster v. Huffmaster, 279 Ala. 594, 188 So. 2d 552 (1966) (upholding the trial court’s finding that a common law marriage existed when the couple resumed cohabitating a couple of months after their divorce, held themselves out as married, and there was public recognition of the existence of the marriage). Alabama law requires use of a “clear and convincing” evidentiary standard in determining whether a common law marriage existed between two parties. Baker v. Townsend, 484 So. 2d 1097, 1098 (Ala. Civ. App. 1986). This standard is more onerous than the “benefit of the doubt” standard of proof usually employed in VA benefits adjudication. See 38 U.S.C. § 5107(b). The Court has upheld the Board’s use of a clear and convincing standard in determining whether a common law marriage existed when that standard is required by the jurisdiction within which a common law marriage is claimed to exist. See Burden v. Shinseki, 25 Vet. App. 178, 186 (2012) (holding that the Board did not err in applying Alabama’s “clear and convincing proof” requirement when determining whether the parties were common law married under Alabama law). All four criteria of an Alabama common law marriage are established by clear and convincing evidence. Regarding the first element, the Veteran was born in 1948 and the Appellant was born in December 1962, so they would both have been older than 18 by 1981. This constitutes clear and convincing evidence that they had capacity to enter into a common law marriage. See ALA. CODE § 30-1-5. The second element, present agreement or mutual consent, is also satisfied by clear and convincing evidence. At the December 2018 hearing, the Appellant indicated that she and the Veteran paid bills together, and were covered under the same insurance policy. The Veteran came to visit her while she was incarcerated. According to the Appellant, she and the Veteran moved to a new house after her first incarceration to give her a new start. Consistent with this, statements from the Appellant’s sister and friend both indicate that the Veteran and the Appellant moved to a different address after the Appellant was released from prison. Based on this evidence, the second element is satisfied. The final elements, public recognition and cohabitation, are also satisfied by clear and convincing evidence. Statements from the Appellant’s sister and friend both state that the Veteran and the Appellant lived together and held themselves out as husband and wife. According to the Appellant’s hearing testimony, this included attending church together. Based on this evidence, the final elements are satisfied. In concluding that there is clear and convincing evidence of continuous cohabitation, the Board has considered the May 2015 administrative decision, which concludes that there was no continuous cohabitation. This decision is based in part on a June 1993 VA medical record indicating that the Veteran was being sued for child support for an illegitimate child, which the Veteran intended to resolve by legitimizing the child and allowing the child to draw from the Veteran’s Social Security. According to the May 2015 decision, this record refers to the child born to the Veteran and the Appellant in 1984. The Board disagrees with this characterization of the June 1993 VA medical record. The first problem is the implicit assumption that the child born in 1984 was the Veteran’s only child. This is not the case. The May 2015 lay statements submitted on behalf of the Appellant both state that the Veteran was previously married to “Patton’s mother,” but do not list this mother’s name and indicate that Patton’s mother divorced the Veteran prior to the Appellant’s common law marriage with the Veteran. This is evidence that the Veteran had a child before his common law marriage with the Appellant. Furthermore, the June 1993 record reads as follows: “He has been more stressed recently, as he was sued for back child support for an illegitimate child, but eventually he got this resolved by agreeing to legitimize the child and allow him to draw on his Social Security benefits.” Importantly, the Veteran refers to his being sued and his legitimization as “recent” phenomena. Court records submitted with the claims file indicate that in January 1986, the Veteran signed an “Order of Legitimation” for the child that he had with the Appellant. It is unlikely that the Veteran would need to sign a second “Order of Legitimation” for the same child seven years after signing the original order. It is also unlikely that in 1993 the Veteran would refer to his first signing as “recent.” Giving the Veteran the benefit of the doubt, it is more reasonable to conclude that the child referred to in the June 1993 VA medical record was not the child that was born in 1984. The May 2015 decision also points out that in November 1994, the child born to the Veteran and the Appellant was ordered to “remain” in foster care until September 2003. This would have been during the Appellant’s second incarceration, which was for a parole violation. The decision implies that because the child was ordered to “remain” in foster care, he was never under the care of the Veteran and the Appellant. But it is unclear why the child’s placement in foster care is proof that there was no cohabitation. The May 2015 administrative decision also notes that in VA medical records submitted during the Veteran’s lifetime, he indicated that he was divorced and living alone. However, in light of the evidence as a whole, this finding by itself is insufficient to establish that the Veteran and the Appellant did not continuously cohabit. In light of the problems outlined above, the Board finds that the May 2015 administrative decision is entitled to minimal probative value. In considering the evidence as a whole, the Board finds that there is clear and convincing evidence that the Veteran and the Appellant were in a common law marriage under Alabama law at the time of the Veteran’s death. It follows that the Appellant is entitled to recognition as the Veteran’s surviving spouse for VA benefits purposes. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel