Veteranclaims’s Blog

February 14, 2020

Single Judge Application; Common Law Marriage; common law marriage was thought by the spouse to be valid; Lamour v. Peake, 544 F.3d 1317 (Fed. Cir. 2008); 38 C.F.R. § 3.52 (2019); § 3.54; § 3.53; 38 U.S.C. § 103;

Filed under: Uncategorized — veteranclaims @ 2:06 am

Excerpt from decision below:

” B. Deemed Validity of Common Law Marriage Although the Court determines on the record before it that the Board did not err in finding no valid common law marriage between the appellant and the veteran, the law provides another avenue for a surviving spouse to obtain benefits. 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 7 (b) The claimant entered into the marriage without knowledge of the impediment, and (c) The claimant cohabited 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 (2019) (implementing 38 U.S.C. § 103). This provision is applicable in situations where a common law marriage was thought by the spouse to be valid but was not recognized by the relevant jurisdiction. See generally Lamour v. Peake, 544 F.3d 1317 (Fed. Cir. 2008). Mrs. Scholz stated that she believed Michigan recognized common law marriages. R. at 242. The Board did not address whether the Scholzes could be deemed to have had a valid common law marriage under § 3.52. But neither did the appellant raise the issue with the Court. There is no mention of § 3.52 (or section 103) in Mrs. Scholz’s opening brief or her reply brief. Such silence constitutes forfeiture of an issue. See Norvell v. Peake, 22 Vet.App. 194, 201-02 (2008). She hasn’t even attempted to raise it in her Rule 35 motion for post-decisional review. Only on its own initiative during reconsideration of the case has the Court identified the potential relevance of this provision. The Court relies on attorneys to identify Board error, develop the legal arguments, and frame the issues on appeal. Counsel should have brought § 3.52 to the Court’s attention.”

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Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 18-5276

DIEDRIE R.SCHOLZ,APPELLANT, V. ROBERT L.WILKIE, SECRETARY OF VETERANS AFFAIRS,APPELLEE.

Before TOTH, Judge.

MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

TOTH, Judge: Diedrie R. Scholz is the widow of veteran Thomas P. Scholz. The two were in a committed relationship for 30 years but were officially married only four months before the veteran’s death. In a May 2018 decision, the Board denied Mrs. Scholz’s claim for service connection for the cause of the veteran’s death, concluding that she did not meet any of the legal criteria to qualify as his surviving spouse for VA benefits purposes. She appealed, arguing that the Board did not properly consider whether she and the veteran had a valid common-law marriage that would entitle her to benefits. In a December 18, 2019, single-judge memorandum decision, the Court affirmed. Mrs. Scholz filed a timely motion for panel review that reiterated her challenges to the Board decision and raised some new ones regarding the Court’s analysis. SeeU.S.VET.APP.R. 35. Although single-judge reconsideration was not requested, the Court grants it sua sponte, withdraws the December 2019 memorandum decision, and issues this one in its stead. As before, the Court finds no error in the Board decision regarding the validity of Mrs. Scholz’s marriage to the veteran. The legal theory she advances on appeal is based on a factual assertion not present in the record, which means that the Board had no obligation to address it. Nor, since this new purportedly favorable evidence is being offered for the first time on appeal, may the Court provide 2 relief based on it. However, there is a regulation potentially applicable in this case, 38 C.F.R. § 3.52, under which an invalid marriage may nevertheless be deemed valid. Because the Board did not address the applicability of this provision, the Court vacates and remands for it to do so in the first instance. This disposition moots the pending motion for panel review. I. BACKGROUND Thomas Scholz served with distinction in the Army from 1968 to 1970. He and the appellant first met in Kokomo, Indiana, in 1990. One year later—according to Mrs. Scholz, as well as several family members and friends—the couple exchanged rings and vows and began a lifelong commitment to each other. Although they held themselves out as husband and wife, they were not married in a legal ceremony. The veteran began receiving disability compensation in 1993 and was ultimately awarded a combined rating of 100% from that date. He died at the VA medical center in Indianapolis on February 25, 2013, from bilateral bronchopneumonia, caused by acute renal insufficiency superimposed on chronic renal insufficiency. Michigan is listed as his state of residence. Four months before the veteran’s death, on October 26, 2012, he and Mrs. Scholz were legally married in a civil ceremony in St. Joseph County, Indiana. (The marriage license likewise lists the couple’s state of residence as Michigan.) In December 2013, VA denied Mrs. Scholz’s claim for dependency and indemnity compensation (DIC), finding that the veteran’s death was not caused by a service-connected disability and that, in any event, she did not qualify as a surviving spouse because she and the veteran were married for less than one year prior to his death. She filed a Notice of Disagreement, arguing that she and the veteran believed they had been in a common-law marriage for decades and that such a marriage “was recognized in our state.” R. at 242. In one January 2016 letter that described their lives together, Mrs. Scholz asserted: “We vacationed to several states over the years: Florida, South Carolina, Ohio, Missouri, Indiana, Illinois, and even to Canada. When we would check in at hotels Tom would refer to me as his wife.” Id. The Board denied the claim in May 2018, determining that she did not qualify as the veteran’s surviving spouse for VA benefits purposes. Given this determination, the Board did not resolve whether the veteran died as the result of a service-connected disability. This appeal followed. 3 II. ANALYSIS A. Validity of Common Law MarriageDIC is a monthly benefit payable to the surviving spouse of a veteran whose death was related to service. 38 U.S.C. § 1310. “A ‘surviving spouse’ is a person (1) whose marriage to a veteran meets the requirements of 38 C.F.R. § 3.1(j); (2) who was married to the veteran at the time of the veteran’s death; (3) who lived with the veteran continuously from the date of marriage to the date of death [(barring circumstances not applicable here)]; and (4) has not remarried since the veteran’s death.” Gazaille v. McDonald, 27 Vet.App. 205, 207-08 (2014). Under § 3.1(j), a marriage’s validity is determined based on “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 C.F.R. § 3.1(j) (2019); accord 38 U.S.C. § 103(c). In the context of DIC, the “right to benefits” accrues at the time of the veteran’s death. See Lynch v. Wilkie, 30 Vet.App. 296, 303 (2018). Further, when DIC is at issue, a marriage must meet one of three additional eligibility requirements. Where, as here, the veteran died after January 1, 1957, the marriage must have (1) lasted for 1 year or more; (2) produced a child; or (3) begun not later than 15 years after the relevant period of service ended. 38 U.S.C. § 1304(2); 38 C.F.R. § 3.54(c) (2019). Here, the Board determined that a qualifying marriage was not established based on the October 2012 ceremony. Although solemnized under the laws of Indiana, the Board found that no children were born of the marriage and that it lasted less than a year before the veteran passed away. R. at 6. Mrs. Scholz doesn’t challenge these findings. The Board did not make a specific determination regarding the third alternative requirement. It determined that the marriage did not occur before May 8, 1955, id., but that date only applies when the claim at issue is for death pension, see 38 C.F.R. § 3.54(a)(3)(vii). Given the undisputed fact that the veteran’s service ended in 1970, it doesn’t appear that the marriage legally entered into in October 2012 meets § 3.54(c)(1)’s 15-year deadline. But as noted above, the appellant presents no argument with respect to the legal ceremony in Indiana, so any challenge to this aspect of the Board’s analysis has been forfeited. See Batcher v. Wilkie, 31 Vet.App. 138, 144 n.7 (2019). Instead, Mrs. Scholz’s arguments relate to whether she and the veteran had a valid common-law marriage that would entitle her to DIC. “Ordinarily,” the Board observed, the couple’s cohabitation for over 20 years “would raise the possibility of a common law marriage that might satisfy the basic eligibility requirements even without an ‘official’ marriage with the requisite 4 timing or length.” R. at 6. But the Board found that no common-law marriage existed because “such marriages are only valid if recognized by governing state law,” and the Scholzes resided in Michigan at the time of the veteran’s death, “the laws of which do not recognize common law marriages.” Id. The appellant does not dispute the Board’s determination regarding common-law marriages purportedly formed in Michigan. See Appellant’s Br. at 8 (“New common law marriages have not been permitted to be formed within the State of Michigan since 1957.”). Instead, she now asserts that, because Michigan will recognize a common-law marriage formed in another state that permits the valid formation of such unions, the Board should have considered and addressed whether she and the veteran formed a valid common-law marriage in South Carolina, where they “resided for an extended period” in 2005. Id. She asks the Court to find that she meets the legal requirements to be recognized as the veteran’s surviving spouse. Id. at 12. The legal premises of Mrs. Scholz’s arguments appear sound. Despite its abolition by the legislature in 1957, Michigan “will recognize the validity of a common-law marriage contracted in another state that would be valid by the laws of that state.” People v. Schmidt, 579 N.W.2d 431, 434 (Mich. Ct. App. 1998) (applying Alabama common-law marriage principles). And South Carolina, at least during the period at issue in this case, permitted the contracting of common-law marriages. See Stone v. Thompson, 833 S.E.2d 266, 270 (S.C. 2019) (declaring that “no individual may enter into a common-law marriage in South Carolina after the date of this opinion,” July 24, 2019, but declining to “undo[ ]” common-law marriages that “heretofore were considered valid”). Notwithstanding these general legal principles, however, the Board had no reason to consider whether a valid common-law marriage was formed in South Carolina, and the new factual assertion underlying such a question is not a basis on which the Court can provide relief. The Board is only required to address issues that are reasonably raised by the appellant or the evidence of record; it need not “assume the impossible task of inventing and rejecting every conceivable argument in order to produce a valid decision.” Robinson v. Peake, 21 Vet.App. 545, 552-53 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Here, the Board determined that the Scholzes resided in Michigan at the time of the veteran’s death. This is supported by myriad documents in the record consistently reflecting the couple’s Michigan addresses over the decades. The only mention of South Carolina in the record is the appellant’s January 2016 statement, in which she referenced that state as among several where she and the 5 veteran “vacationed . . . over the years” and held themselves out to be husband and wife. R. at 242. The first assertion that the Scholzes “resided” in South Carolina is in the appellant’s opening brief in this Court. Appellant’s Br. at 8. Since there was no mention below of the fact that the couple purportedly resided in South Carolina, the Board could not have been expected to address whether a valid common-law marriage was formed in that state. Nor is it permissible for the Court to consider this issue or to remand for the Board to consider it. The contention that the Scholzes resided in South Carolina for some period is not simply a new argument that the Court has the discretion to address in the first instance or remand for initial adjudication by the Board. It is a new factual assertion—essentially, new evidence—not previously part of the record. This Court cannot consider such evidence in the first instance. See Kyhn v. Shinseki, 716 F.3d 572, 575-78 (Fed. Cir. 2013). And, because the Court’s authority “is limited to reviewing the correctness of the Agency’s factual and legal conclusions based on the record before the Agency at the time of its decision,” the Court cannot vacate an otherwise final decision and remand a matter for the Board simply to consider evidence proffered for the first time after the Board decision issued. Bonhomme v. Nicholson, 21 Vet.App. 40, 41, 43 (2007). In short, Mrs. Scholz has not demonstrated Board error or any other permissible basis for the Court to remand. The appellant’s failure to assert the potential relevance of South Carolina law below, despite having the assistance of legal counsel, prevented the Board from making factual and legal determinations necessary for the proper consideration of her contention that she and the veteran had a valid common-law marriage at the time of his death. The Court has explained why it cannot consider that question as a threshold matter. But it is also worth noting that the silence in Mrs. Scholz’s briefs on several salient issues would, in any case, have prevented the Court from reversing the Board decision as she requests. For example, the appellant acknowledges that Michigan recognizes “the validity of a common-law marriage contracted in another state that would be valid by the laws of that state,” Schmidt, 579 N.W.2d at 434 (emphasis added); see Appellant’s Br. at 8. In her reply brief, she states that her common-law marriage to the veteran “was formed in South Carolina” in 2005. Reply Br. at 1, 4. Elsewhere in her briefing, however, she appears to assert that they formed a common-law marriage—albeit invalidly—in Michigan in 1991. See Appellant’s Br. at 2, 5, 10. As best the Court can discern, she seems to be arguing that she and the veteran entered into a legally 6 unrecognized common-law marriage in 1991 while residing in Michigan; “resided” in South Carolina for less than a year in 2005, at which point their common-law marriage became valid; and then returned to Michigan in a now-recognized common-law marriage and resided there until the veteran’s death in 2013. But whether South Carolina law (and, hence, Michigan law) would regard this as the contracting or formation of a valid common-law marriage in South Carolina is a question that Mrs. Scholz doesn’t attempt to answer. In fact, Mrs. Scholz has not offered much information regarding South Carolina law in this regard. She argues that an “understanding of the general basis for common law marriage can be compiled by borrowing from similar and related precedents in other parts of the United States.” Appellant’s Br. at 9 (discussing Alabama common-law marriage requirements). Such recourse is necessary, she contends, because “South Carolina does not specify any certain requirements for the establishment of a common law marriage.” Id. But this is not so: South Carolina case law does specify the elements necessary to have formed a valid common-law marriage in that state. See, e.g., Callen v. Callen, 620 S.E.2d 59, 62 (S.C. 2005); Barker v. Baker, 499 S.E.2d 503, 506-07 (S.C. 1998). And it cannot be assumed that the analysis applicable in one state holds true in another state. When “determining whether a claimant seeking federal benefits has entered into a valid marriage under the laws of a particular state, courts apply not only the substantive elements of state law, but also state law evidentiary burdens.” Burden v. Shinseki, 727 F.3d 1161, 1168 (Fed. Cir. 2013) (emphasis added). These substantive omissions are additional problems with Mrs. Scholz’s appellate arguments. For all these reasons, the Court cannot find clear factual or legal error in the Board’s determination that Mrs. Scholz and the veteran did not have a valid common law marriage.

B. Deemed Validity of Common Law Marriage Although the Court determines on the record before it that the Board did not err in finding no valid common law marriage between the appellant and the veteran, the law provides another avenue for a surviving spouse to obtain benefits. 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 7 (b) The claimant entered into the marriage without knowledge of the impediment, and (c) The claimant cohabited 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 (2019) (implementing 38 U.S.C. § 103). This provision is applicable in situations where a common law marriage was thought by the spouse to be valid but was not recognized by the relevant jurisdiction. See generally Lamour v. Peake, 544 F.3d 1317 (Fed. Cir. 2008). Mrs. Scholz stated that she believed Michigan recognized common law marriages. R. at 242. The Board did not address whether the Scholzes could be deemed to have had a valid common law marriage under § 3.52. But neither did the appellant raise the issue with the Court. There is no mention of § 3.52 (or section 103) in Mrs. Scholz’s opening brief or her reply brief. Such silence constitutes forfeiture of an issue. See Norvell v. Peake, 22 Vet.App. 194, 201-02 (2008). She hasn’t even attempted to raise it in her Rule 35 motion for post-decisional review. Only on its own initiative during reconsideration of the case has the Court identified the potential relevance of this provision. The Court relies on attorneys to identify Board error, develop the legal arguments, and frame the issues on appeal. Counsel should have brought § 3.52 to the Court’s attention. Notwithstanding this omission, however, the Court will vacate the Board decision and remand for it to consider in the first instance whether § 3.52 applies in Mrs. Scholz’s circumstances and permits her common law marriage to the veteran to be “deemed” valid. Because the matter was never addressed by the Board, and given this disposition, the Court still declines to consider the appellant’s contentions that Mr. Scholz died from a service-connected disability. See Appellant’s Br. at 5-6. The appellant may press this issue before the Board on remand. III. CONCLUSION The December 18, 2019, memorandum decision is withdrawn and this decision is issued in its stead. The Court VACATES the May 17, 2018, Board decision and REMANDS the case for 8 further proceedings consistent with this opinion. The pending motion for panel review is now moot. DATED: February 12, 2020 Copies to: Matthew R. Cooper, Esq. VA General Counsel (027)

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