UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 03-1341
MARGARET A. HOPKINS, APPELLANT ,
V.
R. JAMES NICHOLSON ,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On appeal from the Board of Veterans' Appeals
(Decided May 4, 2005 )
Theodore C. Jarvi, of Tempe, Arizona, was on brief for the appellant.
Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel;
Catherine A. Chase, Deputy Assistant Counsel; and Gary E. O'Connor, all of Washington, D.C.,
were on the brief for the appellee.
Before IVERS, Chief Judge, and STEINBERG and KASOLD, Judges.
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 for 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 participated in a
marriage ceremony with the veteran, Lieutenant Charles Hopkins, in Alamogordo, New Mexico.
R. at 28-29. At the time of this second ceremonial marriage, her first marriage had not been
terminated. R. at 112. On November 30, 1943, the appellant and the veteran had a child. R. at
30. On January 20, 1944, Lieutenant Hopkins was reported missing in action, and on January
24, 1946, he was presumed dead by the Secretary of War. R. at 25.
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 response 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
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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 entered 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 these 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, 578 P.2d 1001 (Ariz. Ct. App. 1978), regarding the
relation-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 that she did not believe that there was a legal impediment to a second
marriage, and the Board remanded the matter to the RO to determine whether her ceremonial
marriage to the veteran could be considered a "deemed valid marriage" based upon her state of
mind. R. at 283, 307. The RO found that the appellant knew or should have known that she
could not marry a second time without obtaining a divorce from her first husband or an
annulment of her first marriage. R. at 315-16. Accordingly, the RO determined that the
appellant's second ceremonial marriage could not be considered a "deemed valid marriage". R.
at 317. In June 1980, the Board agreed with the RO and denied the appellant's claim. R. at
325-29.
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
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Lieutenant Hopkins. R. at 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 followed.
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
38 U.S.C. §§ 7111, 5109A(a); 38 C.F.R. § 20.1403(a) (2003). To succeed, a claimant must
prove (1) that the decision was flawed because either the facts known at the time were not before
the adjudicator or the law then in effect was incorrectly applied, and (2) that the outcome would
have been manifestly different if the error had not been made. See Russell v. Principi,
3 Vet.App. 310, 313 (1992) (en banc); see also Andrews v. Principi, 18 Vet.App. 177, 181
(2004) (noting that standard of review enunciated in Russell, supra, is applicable to CUE claims
raised under 38 U.S.C. § 7111). A mere disagreement with how the facts were weighed or
evaluated is not enough. Russell, supra; 38 C.F.R. § 20.1403(d)(3) (2004). Moreover, the
claimant must allege and identify with some degree of specificity the alleged error and, unless it
is the kind of error that, if true, would be CUE on its face, "persuasive reasons must be given as
to why the result would have been manifestly different but for the alleged error." Fugo v.
Brown, 6 Vet.App. 40, 44 (1993); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir.
1999) (adopting the "manifestly changed the outcome" language in Russell, supra); 38 C.F.R.
§ 20.1403(c).
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
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otherwise not in accordance with law' in denying the CUE allegation." Andrews, 18 Vet.App. at
181 (quoting 38 U.S.C. § 7261(a)(3)(A)).
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 subject to review under the standard applicable to that
element. For example, two circumstances relating to a CUE matter are reviewed under the de
novo standard of review. See Joyce v. Nicholson, __ Vet.App. __, __, No. 03-59, 2005 WL
646165, at *7 (Mar. 22, 2005). "The first is . . . whether the appellant, as a matter of law, has
presented a valid CUE allegation . . . ." Andrews, 18 Vet.App. at 182. The second is whether
applicable law or regulation was applied or was correctly applied. See Joyce and Andrews, both
supra.
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 the 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 could 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 of a marriage by
applying the law of the place where the marriage occurred); see also Ankenbrandt v. Richards,
504 U.S. 689, 703 (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 (1975) (explaining that regulation of domestic relations is "an area that has
long been regarded as virtually exclusive province of the States"); Barber v. Barber, 62 U.S.
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(21 How.) 582, 584 (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 (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 38 U.S.C. §§ 103, 511, 7104, and 7252; see also Badua, supra. Based on the analysis set
forth below, the Court concludes that the annulment in this case does not relate back to make
valid an otherwise invalid marriage.
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, 263 P. 725, 726-27 (Colo. 1927), and
the law in Arizona when she entered into her second marriage, see S. Pac. Co. v. Indus. Comm'n,
91 P.2d 700, 703-04 (Ariz. 1939), overruled on other grounds by Means v. Indus. Comm'n,
515 P.2d 29 (Ariz. 1973), as well as the law in New Mexico, where she may have been resident
at the time of her second marriage, Chavez v. Chavez, 485 P.2d 735, 736 (N.M. 1971) (citing
Flaxman v. Flaxman, 273 A.2d 567, 568-69 (N.J. 1971)). Thus, if the appellant's first marriage
was void when performed, there would be no legal bar to her second marriage, although if her
first marriage was valid when entered into and only rendered a nullity at some later point, that
first marriage would have been legal and valid until the time it was declared void, and a second
marriage entered into during the period of validity of the first marriage would be invalid. See
Hodges, 578 P.2d at 1003; In re Estate of Milliman, 415 P.2d 877, 881 (Ariz. 1966); S. Pac. Co.,
91 P.2d at 703-05; see also Prince v. Freeman, 112 P.2d 821, 822 (N.M. 1941).
The validity of a marriage is determined according to the lex loci, the law of the state that
solemnized the marriage. See 38 U.S.C. § 103(c) (for VA-benefits purposes, the validity of a
marriage is determined according to the law of the place where the parties resided at the time of
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the marriage); see also ARIZ. REV . STAT . § 25-112 (2004); Cook v. Cook, 104 P.3d 857, 859
(Ariz. Ct. App. 2005) (citing Gradias v. Gradias, 74 P.2d 53, 53 (Ariz. 1937), and Horton v.
Horton, 198 P. 1105, 1107 (Ariz. 1921)); Payne v. Payne, 214 P.2d 495, 487-98 (Colo. 1950).
Thus, in an action to declare a marriage decree as having no validity, a court must look to the
substantive law of the state in which the marriage took place or the law of the state where the
right to benefits accrued. See Cook, supra; 4 AM . JUR. 2D Annulment of Marriage § 2 (2004). In
this case, because the appellant entered into her first marriage in Colorado, and the parties to the
marriage were residents of Colorado at the time, it is Colorado law that determines the validity
of the marriage. See ARIZ. REV . STAT . § 25-112 (1948); see also 38 U.S.C. § 103(c); Gradias
and Horton, both supra.
At the time of the appellant's first marriage, Colorado prohibited only three types of
marriages: Bigamous marriages, incestuous marriages, and out-of-state marriages void where
performed. See Griswold v. Griswold, 129 P. 560, 561, 562, 565 (Colo. Ct. App. 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 COLO . REV .
STAT . § 14-10-111(1)(g) (2004) (still recognizing only three types of prohibited marriages). A
marriage induced by fraud was not prohibited per se by Colorado law; rather, such a marriage
was valid until and unless it was later declared void by judicial decree. COLO . REV . STAT .
§ 14-10-111(1)(d) (1973); see also Coffman v. Godsoe, 351 P.2d 808, 813 (Colo. 1960)
("[M]arriage status is voidable upon a showing that it was induced by false material
representations.").
In this case, the appellant's first marriage was annulled apparently on the basis of fraud,
not because the marriage was prohibited under 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 are subject to ratification or disaffirmance by the injured party, as
well as "void" marriages, which are incapable of ratification. ARIZ. REV . STAT . § 25-301 (1955);
see S. Pac. Co., 91 P.2d at 703-04; Hodges, supra. Whether the marriage was void or voidable
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was determined in these cases by the grounds for which the appellant petitioned for annulment.
See Hodges, supra. The facts in this case indicate that the only ground supporting the annulment
was fraud, and nothing indicates that the ground for annulment involved a bigamous marriage or
an incestuous marriage, or that the first marriage was otherwise void under Colorado law when
performed. R. at 131-34; see Griswold, supra.
Accordingly, given the interchangeability of the terms "void" and "voidable" under
Arizona law and the fact that the 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 appellant'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 N.M.
CONST . art. XXI, §1 (amended 1953) (incorporating language from the New Mexico Enabling
Act); New Mexico Enabling Act, 61 Pub. L. 219, § 2, 36 Stat. 558 (1910); Cleveland v. United
States, 329 U.S. 14, 18 (1946) (quoting Reynolds v. United States, 98 U.S. 145, 164 (1879)); S.
Pac. Co. and Prince, both supra; Williams v. Williams, 23 N.W. 110, 115 (Wis. 1885).
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 second 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
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obligations attendant to an earlier marriage, dependent on the facts and equities of the situation.
See generally Sefton v. Sefton, 291 P.2d 439, 440-42 (Cal. 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,
542 P.2d 825, 827 (Ariz. Ct. App. 1975). On the other hand, an award of alimony, 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, 410 P.2d 167, 171 (Colo. 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 authority supporting the appellant's proposition that her second ceremonial marriage achieved
legal status when the first marriage, itself a valid and legal marriage, was later annulled. The
cases relied upon by the appellant all involve the relation-back theory restoring benefits or
obligations attendant to a valid first marriage that had been extinguished by a subsequent second
marriage without regard to the second marriage's being void or voidable. See Means, 515 P.2d at
31; In re Marriage of Cargill, 843 P.2d 1335 (Colo. 1993); see also Folsom v. Pearsall, 245
F.2d 562, 566 (9th Cir. 1957). Although the appellant argues that the relation-back theory
should make legal a marriage that was otherwise prohibited by law at the time that it was
attempted to be entered into, she cites no law in support of her proposition, and the Court can
find none.
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
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discretion, or otherwise not in accordance with law. See 38 U.S.C. § 7261(a)(3)(A).
Accordingly, the 2003 Board decision is AFFIRMED.
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