
    Amanda C. YARBROUGH v. UNITED STATES, and Reginald Daniely, Alvin B. Martin and Mary Lee Smith, Third-Party Plaintiffs.
    No. 155-62.
    United States Court of Claims.
    Feb. 19, 1965.
    
      John P. Witsil, Washington, D. C., for plaintiff.
    Katherine H. Johnson, Washington, D. C., with whom was Asst. Atty. Gen. John W. Douglas, for defendant.
    Bernard Povich, Washington, D. C., for third-party plaintiff Alvin B. Martin.
    J. Patrick Endsley, Indianapolis, Ind., for third-party plaintiffs Reginald Dan-iely and Mary Lee Smith.
    Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS and COLLINS, Judges.
    
      
      . Third-party Reginald Daniely was dismissed by consent.
    
   PER CURIAM:

This case was referred pursuant to Rule 57 (a) to Trial Commissioner Marion T. Bennett with directions to make findings of fact and recommendation for conclusion of law. The commissioner has done so in an opinion and report filed on December 3, 1964. An election to submit on previously submitted objections and memorandum of law was filed on behalf of the third-party plaintiff Alvin B. Martin on December 30, 1964, an election to submit on commissioner’s report and proposed conclusions of law was filed on behalf of the plaintiff on December 31, 1964, and defendant’s acceptance of the commissioner’s opinion and findings of fact was filed on January 4, 1965. The time for filing exceptions and brief to the commissioner’s report pursuant to Rule 58 has expired and the case is submitted to the court without oral argument. Since the court is in agreement with Trial Commissioner Bennett’s findings, his opinion and his recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case. Plaintiff is entitled to recover and judgment is entered to that effect with the amount of recovery to be determined pursuant to Rule 47(c)(2). The petitions of the third-party plaintiffs are dismissed.

OPINION OF COMMISSIONER

The plaintiff, Amanda C. Yarbrough, instituted this suit for payment of death benefits which were allegedly due to her as the widow of Floyd Yarbrough, who died on January 6, 1955, having made contributions since 1940 to the retirement fund of the Civil Service Commission while employed by the Veterans Administration Hospital in Tuskegee, Alabama.

Under the Civil Service Retirement Act of 1930 (5 U.S.C. § 724(c) (1952)) an annuity is paid to the surviving widow of a deceased government employee who has rendered at least 5 years of service. Section 724(d)(1) defines the term “widow” as the “surviving wife of an individual, who either (A) shall have been married to such individual for at least two years immediately preceding his death, or (B) is the mother of issue by such marriage.”

In the event the employee dies without a surviving widow, no annuity is paid. Section 724(e) directs, instead, that a lump sum, consisting of the total amount of payments deducted from the employee’s salary over the years be paid in the following order of precedence:

First, to any beneficiaries that the deceased employee may have designated in writing (inapplicable in this case).

Second, to the widow, without regard to the definition of this term in section 724(d).

Third, to the children of the employee.

Fourth, to his parents.

Fifth, to his executor or administrator.

Sixth, to other next of kin.

On April 1, 1957, the plaintiff filed her second claim with the Civil Service Commission for death benefits, stating that she was the widow of Floyd Yarbough. On the application form, she indicated that the deceased had been married previously to a Mrs. Alvene Clark Yarbrough Leroy. In the space asking how this marriage had been terminated the word '“divorce” was stricken through and the word “separation” typed above it. Plaintiff made errors in completing this form, .as shown in the findings, and this casts doubt on the accuracy of what she said thereon about the alleged separation in lieu of divorce.

Plaintiff was subsequently notified by the chief of the claims section that no benefits would be paid out until Mrs. Leroy had been contacted and the status ■of her marriage to the decedent satisfactorily determined.

After the suit had been commenced here, the Government successfully moved to issue notice to Mary Lee Smith, Reginald Daniely, and Alvin Martin to appear as third parties and to assert their interests in the subject matter of the action. The three appeared through their attorneys, Mary Lee Smith claiming to be ■one of two daughters of the decedent by the prior marriage and Alvin B. Martin claiming to be the son of Lillie Mae Yar-brough, the other daughter of this marriage. Reginald Daniely, the son of Mary Lee Smith, has been dismissed as a plaintiff by consent of his attorney, as his interests derive solely through his living mother.

Mary Lee Smith and Alvin B. Martin, the third-party plaintiffs, assert that the decedent’s first marriage was the only valid marriage which was contracted during his life, and that they, therefore, are entitled to all funds on deposit with the Civil Service Commission in the name of the decedent.

The central question is thus whether Amanda C. Yarbrough, the plaintiff, is the surviving “widow” of the deceased under section 724(d)(1) and the answer will depend on whether she was “married” to him for 2 years immediately preceding his death. The evidence and findings of fact establish that the first marriage — the one between Alvene and Floyd Yarbrough — was a legal one taking place in South Carolina in 1916 and that from this union two daughters were born. One of the daughters is a third-party plaintiff and the son of the other and deceased daughter is also a third-party plaintiff here, as indicated above. There is no evidence based upon a search of court records to show that this marriage was not at some time legally dissolved by divorce.

Alvene went through another marriage ceremony about 1940 with a John Leroy. In the meantime, in 1918 or 1919, Floyd deserted his wife and children, moved to Alabama, and in 1926 married plaintiff Amanda Yarbrough. He lived with her until his death in 1955 and never communicated with his first wife or his children. He had no issue by the second wife. At the time of marriage, Amanda had a husband from whom a divorce decree was not final. Faced with this mixed-up situation the Civil Service Commission has wisely refrained from making any payments to any of the claimants until their rights are clarified.

In enacting section 724, Congress undoubtedly left the determination of whether'an employee was married or not up to the laws of the individual states. Under traditional doctrine, a marriage is valid everywhere if the requirements of the marriage law are complied with in the state where the contract of marriage takes place. See Restatement, Conflict of Laws, § 121. In this case, the law of Alabama governs the capacity of the parties to enter into the contract of marriage in issue and determines the validity of the marriage of the decedent to the plaintiff. If this marriage is valid under the laws of that state, then Amanda C. Yarbrough is entitled to the annuity provided for in section 724(c).

Under Alabama law, where a spouse repudiates the marital contract and marries another, followed by years of cohabitation, there is a very strong presumption that the later marriage, legal or common law, is valid, and that the prior marriage has been dissolved by divorce. Sloss-Sheffield Steel & Iron Co. v. Alexander, 241 Ala. 476, 3 So.2d 46 (1941). In such cases, the burden of overcoming the presumption of validity attaching to the second marriage is cast upon the party questioning it. Ex parte Young, 211 Ala. 508, 101 So. 51 (1924); Sloss-Sheffield Steel & Iron Co. v. Alexander, supra; Matthews v. Matthews, 259 Ala. 332, 67 So.2d 22 (1953). The claimant must not only show the fact of a previous valid marriage by one of the parties, but must also establish that such prior marriage has not been dissolved by divorce or death, notwithstanding that he is thereby required with difficulty to prove a negative. Ex parte Young, supra; Sloss-Sheffield Steel & Iron Co. v. Alexander, supra; Jordan v. Copeland, 272 Ala. 336, 131 So.2d 696 (1961).

The plaintiff has made out a prima facie case for the validity of her marriage. She married the decedent on April 6, 1926, which was 2 days before her divorce from Robert Fluellin became final. However, it is well settled in Alabama that if the parties marry in good faith when a legal impediment exists as to their marriage and they continue to cohabit as man and wife after the removal of the impediment to their lawful union, the law will presume an actual marriage immediately after the removal of the obstacle. King v. King, 269 Ala. 468, 114 So.2d 145 (1959); Hill v. Lindsey, 223 Ala. 550, 137 So. 395 (1931); Smith v. Smith, 247 Ala. 213, 23 So.2d 605 (1945). Thus, the presumption of validity of the latest marriage is brought into effect.

The presumption referred to just above is not an absolute one. It has its natural limitations and the Alabama Supreme Court has stated on numerous occasions that it should be applied with caution and discretion, yielding whenever the facts and circumstances of the case require a reasonable inference to the contrary. Freed v. Sallade, 245 Ala. 505, 17 So.2d 868 (1944); Dorsey v. Dorsey, 259 Ala. 220, 66 So.2d 135 (1953); Sloss-Sheffield Steel & Iron Co. v. Watford, 245 Ala. 425, 17 So.2d 166 (1944); Bell v. Tennessee Coal, Iron & R. Co., 240 Ala. 422, 199 So. 813 (1941).

In Dorsey v. Dorsey, supra, and quoting from Fuquay v. State, 217 Ala. 4,114 So. 898, 902, the Supreme Court of Alabama stated:

“[5] There are no absolute presumptions of the dissolution of the first marriage state ‘in order to establish the innocence of the other party to a subsequent marriage’. In each case the question is one of fact ‘to be determined like any other question of fact, upon * * * the attending facts and circumstances, and such inferences as fairly and reasonably flow therefrom.’ ”

The quantum and quality of the evidence needed to overcome the presumption can have no exact, universally applicable measure. Jones v. Case, 266 Ala. 498, 97 So.2d 816 (1957). One rule does emerge, though, from the various Alabama cases which have dealt with this matter, i. e., that the uncorroborated testimony of one party to the prior marriage that he or she did not obtain a divorce is by itself insufficient to rebut the presumption the marriage was in fact dissolved. Jordan v. Copeland, supra. As this court has stated, in a case involvingsimilar issues under California law, “ * * * proof that one party to a former marriage has not secured a divorce is not proof that the other party * * * to such marriage has not done so.” Briggs v. United States, 90 F.Supp. 135, 116 Ct.Cl. 638, 652 (1950). Thus, it is incumbent upon the party seeking to prove that the earlier marriage was not dissolved to corroborate the fact that neither party obtained a divorce. The specific type and amount of corroborating evidence required will vary from case to case, but certain standards have developed.

In most cases an examination of the records of the divorce courts of all the counties where the parties had lived and where domicile for divorce could have been obtained has been held sufficient proof to rebut the presumption of dissolution of the prior marriage. This is considered very reliable evidence and is the most common method employed. Bell v. Tennessee Coal, Iron & R. Co., supra; Sloss-Sheffield Steel & Iron Co. v. Watford, supra. See also Dorsey v. Dorsey, supra, where, in addition to a search of the records, the refusal of the other spouse to the first marriage to testify was also taken into consideration as corroborating evidence. But see Ray v. Social Security Board, 73 F.Supp. 58 (D. C.Ala.1947). In several cases the Alabama courts have held such a search of the records to have been a necessary ingredient of the proof that the other party did not obtain a divorce. Ashley v. Ashley, 255 Ala. 313, 51 So.2d 239 (1951); Whitman v. Whitman, 253 Ala. 643, 46 So.2d 422 (1950); Jordan v. Copeland, supra.

However, such record evidence of non-divorce has not been regarded as an indispensable element of such proof in every ease. See Jordan v. Copeland, supra, 131 So.2d at page 700. In one 1957 ease, the Alabama Supreme Court upheld the discretion of the trial court which had held that the presumption of validity attaching to the later marriage had been successfully rebutted by other corroborating evidence, Jones v. Case, supra. The Jones case was a suit in equity by a widow against her deceased husband’s cousin for a decree granting her title to certain realty of the husband. The original parties were married in 1906 and separated in 1922. Twelve years later, after the wife had “married” another man, the first husband requested her to join him in executing a mortgage on the property in question. The court treated this fact as an acknowledgment on the part of the husband that he had not procured a divorce up to that time, since he apparently considered himself still legally married to her.

As additional corroborating evidence, the defendant-cousin had, after the death of the decedent, requested the wife to execute a quitclaim deed to the property in his favor. This the court construed as an admission on his part that the first marriage had indeed not been dissolved, and that the defendant-cousin believed the complainant to be the legal wife of the deceased at the time of his death. Thus, the court decided that the acknowledgment of the decedent and the admission of the defendant were sufficient evidence, in the absence of a search of the records, to establish that no divorce had been decreed.

As has been stated previously, the presumption of the validity of the second marriage is indeed a strong one. Sloss-Sheffield Steel & Iron Co. v. Alexander, supra; see also 14 A.L.R.2d 7, et seq. It arises because the law will assume morality and legitimacy and that parties who have lived together as man and wife for a number of years do so-legally. Thus, in order to rebut this, presumption of validity, reliable and convincing evidence is required, but such has not been presented here. On the basis of the evidence at hand, it cannot, be said that the marriage between Floyd and Alvene Yarbrough was not dissolved' by divorce.

Although it would not have been possible for either party to have obtained' a decree dissolving their marriage in South Carolina prior to 1949, since that. State’s constitution specifically prohibited divorce, it was entirely possible for the decedent to have procured an Alabama divorce at any time during his long residency there. The third parties here have made no attempt to search the records of any divorce courts, and except for the questionable admission by the plaintiff on her application for death benefits in 1957, there is no competent evidence to corroborate the naked allegation of the third parties that the first marriage was not in fact legally dissolved.

The great majority of cases in Alabama, and in most other states, have held a search of the court records to have been necessary. Only the Jones case, supra, has permitted other evidence alone to rebut the presumption of divorce. In that case there was, in addition to the admission of the defendant, an acknowledgment by the decedent that he considered himself still legally married to the complainant. Moreover, there was testimony to the effect that the parties continued to communicate with each other and to visit at regular intervals after their separation.

In the case at bar, the decedent never communicated with his first wife after 1918 or 1919 and did not thereafter consider himself still legally married to her. In fact, by subsequent marriages both Floyd and Alvene Yarbrough in effect declared that they wei'e free to marry again. See Freed v. Sallade, supra; Jordan v. Copeland, supra. The third parties here have thus failed to carry the strict burden that the law casts upon those who would attack the validity of the latest marriage, and consequently the presumption that the first marriage was dissolved by divorce stands unassailed.

Thus, the plaintiff, Amanda C. Yar-brough, was the lawful “widow” of the decedent within the meaning and intent of section 724(c) and is entitled to receive the annuity provided for in that section. 
      
      . South Carolina Constitution (1895), Article XVII, § 3.
     