Citation Nr: 21073710
Decision Date: 12/10/21	Archive Date: 12/10/21

DOCKET NO. 19-01 640
DATE: December 10, 2021

ORDER

Recognition of J.S. as the Veteran's legal surviving spouse for purposes of entitlement to VA death benefits is granted.

FINDINGS OF FACT

1. In November 1964, the Veteran and J.S. married in the Commonwealth of Virginia; they had six children together by August 1971.

2. In September 1980, the Circuit Court for Prince George's County, Maryland granted J.S. a divorce a mensa et thoro, or limited divorce, from the Veteran, which granted her the legal right to live separately from the Veteran but did not sever their marital bond.

3. The legal separation between J.S. and the Veteran was due to the misconduct of the Veteran without the fault of J.S., and J.S. and the Veteran never obtained an absolute divorce.

4. Since the Veteran's death in August 2015, J.S. did not remarry and did not live with another person of the opposite sex and hold herself out openly to the public to be the spouse of such other person.

CONCLUSION OF LAW

The criteria for recognition of J.S. as the Veteran's surviving spouse have been met. 38 U.S.C. §§ 101(3), 103, 501(a); 38 C.F.R. §§ 3.1 (j), 3.50, 3.53, 3.152.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from February 1965 to February 1967 and from April 1967 to October 1970, including service in the Republic of Vietnam during his first period of service. 

The appellant, J.S., is seeking to be recognized as the Veteran's surviving spouse. However, an interested party, D.W., had previously sought and has been recognized by VA as the Veteran's surviving spouse. (For clarity, D.W. is referenced by her maiden name in this decision). Since there are two individuals claiming to be the Veteran's lawful surviving spouse (and thus eligible for VA death benefits), this appeal involves a simultaneously contested claim. See 38 U.S.C. § 7105A; 38 C.F.R. § 20.3(p). In this respect, the allowance of the appellant's (J.S.) appeal as the Veteran's lawful surviving spouse, could result in a denial of benefits to D.W., or vice versa.

This matter comes before the Board of Veterans' Appeals (Board) from a September 2018 decision. In January 2020, J.S. and her son, S.S., testified at a Board videoconference hearing; a transcript of the hearing is associated with the claims file. 

As a contested claim, certain procedural safeguards are in place. See 38 U.S.C. § 7105A; 38 C.F.R. §§ 19.100, 19.101, 19.102, 20.500 - 20.504, 20.713.

This appeal was previously before the Board in April 2021. Based on the procedural safeguards, the Board found that additional development was necessary. The Agency of Original Jurisdiction (AOJ) was instructed to contact D.W. to adequately notify her of the contested claim appeal and to provide her with a copy of the appellant's December 2018 and March 2019 substantive appeals and with the January 2020 Board hearing transcript.

VA sent D.W. correspondence in June 2021, informing her of the contested claim and provided her a copy of the appellant's December 2018 and March 2019 substantive appeals and the January 2020 Board hearing transcript. D.W. was invited to send any evidence or argument.

Here, D.W. was notified of the contested claim appeal and the appropriate documents were provided to D.W. in compliance with contested claim procedures. As such, the Board finds that there has been substantial compliance with the April 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

In September 2021, J.S., S.S., and D.W. testified at a Board virtual hearing; a transcript of the hearing is associated with the claims file. 

1. Recognition of J.S. as the Veteran's legal surviving spouse for purposes of entitlement to VA death benefits

As noted above, the appellant seeks recognition as the Veteran's surviving spouse for purposes of entitlement to VA death benefits or dependency and indemnity compensation (DIC) benefits. DIC is awarded to a veteran's surviving spouse for death resulting from a service-connected disability. 38 U.S.C. § 1310. The appellant asserts that she and the Veteran had legally separated pursuant to a September 1980 decree of divorce a mensa et thoro by a Maryland court, but their marriage was never dissolved by an absolute divorce. In turn, the appellant contends that the Veteran was not free to marry, his purported marriage in October 1990 to D.W. was void, and the appellant is entitled to recognition as the Veteran's surviving spouse.

To establish status as a proper claimant for VA death benefits, the evidence must show that the appellant was validly married to the Veteran under the laws of the appropriate jurisdiction, and she must also meet the criteria of a surviving spouse. 38 C.F.R. § 3.152. For VA benefits purposes, a "spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of §3.1(j). 38 C.F.R. § 3.50(a). A marriage "means a marriage valid under 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 rights to benefits accrued." 38 C.F.R. § 3.1(j).

The term "surviving spouse," except as provided in 38 C.F.R. § 3.52, means a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the veteran at the time of the veteran's death. 38 C.F.R. § 3.50(b). A surviving spouse must have lived with the veteran continuously from the date of marriage to the date of the veteran's death except where there was a separation that was due to the misconduct of, or procured by, the veteran without the fault of the spouse. Id. § 3.50(b)(1). In addition, except as provided in § 3.55, the surviving spouse must not have remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held herself out openly to the public to be the spouse of such other person. Id. § 3.50(b)(2).

The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation. 38 C.F.R. § 3.53(a). The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken. State laws will not control in determining questions of desertion; however, due weight will be given to findings of fact in court decisions made during the life of the veteran on issues subsequently involved in the application of this section. 38 C.F.R. § 3.53(b).

Where an attempted marriage of a claimant to the veteran was invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if (a) the marriage occurred 1 year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage (see §3.54(d)); and (b) the claimant entered into the marriage without knowledge of the impediment; and (c) the claimant cohabitated with the veteran continuously from the date of marriage to the date of his or her death as outlined in §3.53; and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran's death. 38 C.F.R. § 3.52.

A Certificate of Marriage shows the appellant and the Veteran were married in November 1964 in the Commonwealth of Virginia. At the time of their marriage, the appellant was 15 years old, and the Veteran was 20 years old; neither party had previously been married. Between March 1965 and August 1971, the appellant and Veteran had six children together. Each child's birth certificate is associated with the Veteran's VA claims file.

In an Affidavit filed in January 1980 with the Circuit Court for Prince George's County, Maryland, the appellant detailed that earlier in the month, the Veteran came uninvited to her workplace and unbeknownst to her, disconnected the coil to the distributor in her car. As a result, the appellant was "forced to seek help, all at great expense and inconvenience to herself and the parties' children who depend upon her." Approximately two weeks later, the Veteran "ripped the distributor cap from the engine to [the appellant's] car, physically seized the keys to the car from her, using force to overcome her resistance, and refused to return them to her." County police officers obtained the keys from the Veteran and returned them to the appellant, "but she was forced to pay $30.00 to repair her vehicle after her husband intentionally disabled it." Finally, on the same day after disabling the appellant's car, the Veteran intentionally took an overdose of an unknown drug, and rescue and emergency personnel rushed him to a hospital where he was treated.

In September 1980, the Circuit Court of Prince George's County, sitting in equity, adjudged, ordered, and decreed that the appellant was granted a divorce a mensa et thoro from the Veteran/Defendant. The Court further ordered that the appellant was awarded custody of the six minor children of the parties with visitation rights granted to the Veteran "so long as he does not enter the children's residence... but remains in his car; that the Veteran pay to the appellant child support for the children; that all arrearages of child support under the pendente lite decree from March 1980 were suspended and cancelled; that the Veteran was "enjoined from harassing, molesting, assaulting, battering, or otherwise disturbing the [appellant] and from entering her place of residence or employment;" and that the appellant's "request for alimony is denied but the right to seek alimony in the context of an absolute divorce proceeding is reserved."

In June 1983, the Veteran filed a claim for VA compensation benefits. He indicated that he and the appellant had divorced in June 1980 in Washington, DC.

After an April 2000 rating decision granted service-connected disability benefits, the Veteran submitted a VA Form 21-686c, Declaration of Status of Dependents, indicating that he had married D.W. in October 1990. He provided a marriage license and certificate, which indicated the Veteran had been divorced once and documented that he and D.W. had married in Virginia in October 1990. In June 2000 correspondence, the agency of original jurisdiction (AOJ) requested more information before VA could pay additional benefits for his dependents, including the exact date and place of all terminated marriages. In correspondence received in July 2000, L.S., a daughter from the Veteran's marriage to J.S., explained that the Veteran had given her a form to complete, requesting the dates of his marriages; however, she could not complete the form because she did not know the dates of his marriages. Although the Veteran did not provide the requested information, in August 2000, the AOJ notified the Veteran that his dependent spouse, D.W., had been added to his disability compensation award.

In November 2003 and January 2004, the AOJ received claims for "an apportionment of my husband's... monthly VA benefits" from the appellant. In February 2004, the AOJ notified the appellant and the Veteran in separate letters that the claim for an apportionment of the Veteran's VA benefits had been denied because the evidence showed the appellant, J.S., and the Veteran divorced in June 1980 in Washington, DC.

In December 2012, the Veteran filed an application requesting VA to appoint his wife, D.W., as his fiduciary to handle all his financial affairs. A May 2013 rating decision concluded the Veteran was not competent to handle disbursement of funds, and D.W. was appointed as his fiduciary for VA compensation purposes the same month.

The Veteran's August 2015 certificate of death lists D.W. as his surviving spouse.

Following his death, D.W., filed a timely claim for DIC benefits. She reported that no children were born to her and the Veteran during or prior to their marriage; that she had lived continuously with the Veteran from the date of their marriage to his death; and that at the time of her marriage to the Veteran, she had not been aware of any reason the marriage might not be legally valid. In an October 2015 rating decision, the AOJ granted service connection for the cause of the Veteran's death and basic eligibility to dependents' educational assistance (DEA).

Meanwhile, in October 2015, the Veteran's J.S. had also filed a timely claim for DIC benefits, explaining in her application that although the Veteran had married a second time in October 1990, he was never divorced from his first marriage to her. She reported she had not remarried since the Veteran's death and had been married only once, and she and the Veteran had separated for reasons documented in the September 1980 Court Order. In support of her claim, she enclosed the first page of the September 1980 Decree, which granted her a divorce a mensa et thoro from the Veteran. (She subsequently submitted the entire Decree).

In a January 2018 decision letter, the AOJ denied J.S.'s claim for death benefits because a September 1980 legal court decree "granted divorce." Accordingly, J.S. was not entitled to death benefits because she could not be recognized as the surviving spouse of the Veteran.

In February 2018, J.S. requested reconsideration of her claim, emphasizing that she and the Veteran had been granted a "divorce a mensa et thoro, which means we were legally separated, but our marriage was never dissolved." She emphasized that such a divorce does not provide either party the right to remarry but does permit the parties to live separately. Subsequently, the AOJ notified D.W. and the appellant that this was a contested claim, and the appellant perfected an appeal.

In support of her claim for VA death benefits, including recognition as the Veteran's surviving spouse, J.S. submitted additional evidence. An October 2017 letter from the Clerk of the Circuit Court of Prince George's County indicated J.S. had requested verification that on September 25, 1980, her marriage to the Veteran had been legally dissolved. The Clerk notified J.S. that no record was found regarding the information requested, and the Clerk returned the appellant's U.S. Money Order.

The J.S. submitted a second letter dated November 14, 2017, from the Clerk of the Circuit Court of Prince George's County, which again indicated that no record of a Divorce Decree for J.S. and Veteran was located in a case search. The Clerk returned the same U.S. Money Order previously submitted. The Clerk explained that a divorce a mensa et thoro means "a separation of spouses which does not involve a dissolution of the marriage; separation; separation from bed and board. Not a divorce."

In an undated, unsigned administrative decision, the VA Pension Management Center (PMC) concluded that marital status was not established between the Veteran and J.S. The decision explained that after the Veteran and the appellant divorced, he married D.W. in October 1990, D.W. was added to the Veteran's VA compensation award as a dependent spouse from 1995 until his death, and D.W. had submitted a copy of the Veteran's will entrusting everything to his wife, D.W. The administrative decision also concluded that D.W.'s marriage to the Veteran met the requirements of a "deemed valid" marriage, although the decision did not include supporting analysis.

In her December 2018 substantive appeal, as well as during a January 2020 videoconference hearing and September 2021 virtual hearing, the appellant reiterated her contention that she and the Veteran had been legally separated due to the Veteran's abuse of the appellant and their children, but they had never obtained an absolute divorce. Therefore, she was entitled to recognition as the Veteran's surviving spouse.

In January 2020 correspondence, T.R., an attorney from Maryland, related that he had represented the appellant many years ago in a domestic case involving her husband, [the Veteran]. "At that time, the Circuit Court of Prince George's County, Maryland granted [the appellant] a limited divorce, which was referred to at the time as a divorce a mensa et thoro, which means 'from bed and board.'" The attorney elaborated that the Maryland Court of Appeals explained in Courson v. Courson, 213 Md. 183, 188 (1957), "In this state, a limited divorce is one from bed and board. It grants unto the injured spouse the right to live separate and apart from the one at fault. However, the parties remain man and wife, and there is no severance of the marital bonds." (Emphasis added by T.R.). The attorney explained that under the "divorce a mensa et thoro, there was no severance of the marital bonds between" the appellant and the Veteran. Finally, the attorney reported that the appellant had informed him that "neither she nor her husband sought an absolute divorce from the other at a later time."

Having considered the evidence of record, the appellant, J.S., is recognized as the Veteran's legal surviving spouse for purposes of entitlement to VA death benefits.

As noted above, the Veteran and J.S. were married in November 1964. The Board notes that at the September 2021 Board hearing a question as to the validity of the marriage was raised due to J.S. only being 15 years old at the time of the marriage and whether the parents of J.S. consented to the marriage. In this regard, the November 1964 marriage certificate was issued in Virginia and clearly states the correct age of J.S. and the Veteran. Thus, Virginia law controls in determining whether the marriage was valid. 38 C.F.R. § 3.1(j); 38 U.S.C. § 103(c).

In Virginia there is no statutory provision declaring that marriages involving persons under the age of consent are either void or voidable. Needam v. Needam, 83 Va. 681, 685, 33 S.E.2d 288, 290 (1945). Further, the parties to a voidable marriage "are husband and wife unless and until the marriage is annulled." Payne v. Commonwealth, 201 Va. 209, 211, 110 S.E.2d 252, 254 (1959). Moreover, Virginia policy favors the upholding of marriages. Needam v. Needam, supra, 183 Va., at p. 686, 33 S.E.2d, at p. 290. The Veteran and J.S. had a valid marriage license and there is no evidence of an annulment. Therefore, there is no indication that the marriage between the Veteran and J.S. was not valid.

In this case, the evidence of record reflects that J.S. was granted a limited divorce, or divorce a mensa et thoro, from the Veteran due to his misconduct. As indicated by the September 1980 Decree itself, by responses from the Clerk of the Circuit Court of Prince George's County, and by the appellant's former attorney, the September 1980 Decree did not grant an absolute divorce, and there is no legal record that the appellant and Veteran had obtained an absolute divorce. Instead, the September 1980 Decree granted only a legal separation. As such, each party had a legal impediment to entering a marriage with another person.

Therefore, because the record indicates that the Veteran was married to J.S. from November 1964 until his death, D.W.'s marriage to the Veteran was not valid under the law of the place where they resided at the time of the marriage. In this regard, the September 1990 marriage certificate was issued in Virginia. Thus, Virginia law controls in determining whether the marriage was valid. 38 C.F.R. § 3.1(j); 38 U.S.C. § 103(c).

Virginia law prohibits a marriage entered into prior to the dissolution of an earlier marriage of one of the parties. Code of Virginia § 20-38.1, § 20-45.1. Further, Virginia law provides that "[a]ll marriages which are prohibited by § 20-38.1" are considered legally invalid from their inception. Code of Virginia § 20-45.1. Thus, the Board finds that D.W. and the Veteran were not legally married.

Regarding continuous co-habitation, the appellant's written statements and testimony regarding abuse and other misconduct by the Veteran are supported by legal documents, including the January 1980 Affidavit attesting that he had tampered with her car and the September 1980 Decree that enjoined him from abusing or battering her. There is no evidence of fault by J.S.  Thus, the Board finds that the separation was due to the misconduct of the Veteran without the fault of J.S. 

In addition, since the Veteran's death in August 2015, the appellant has not remarried or lived with another person of the opposite sex and held herself out openly to the public to be the spouse of such other person. Based on the foregoing facts, the requirement that there must be continuous cohabitation from the date of marriage to the date of death of the Veteran is considered as having been met. 38 C.F.R. §§ 3.50(b)(1), 3.53(a).

Finally, the Veteran's attempted marriage to D.W. in October 1990 may not be deemed valid because the legal surviving spouse of the Veteran, J.S., had filed a timely claim for VA death benefits. 38 C.F.R. § 3.52.

The Board sympathizes with all parties and has carefully considered all arguments in this matter. However, in all instances the Board is bound by the law. Accordingly, J.S. is entitled to recognition as the surviving spouse for the purpose of entitlement to DIC benefits.

 

 

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Gastoukian, Kelly

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.