                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-9-1994

Huff v. US Office of Personnel Mgmt, et al.
Precedential or Non-Precedential:

Docket 93-1706




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                            No. 93-1706
                            ___________

                       CLIFFORD IRENE HUFF

                                 v.

           DIRECTOR, UNITED STATES OFFICE OF PERSONNEL
                   MANAGEMENT; ETHEL R. LEECAN


                         ETHEL R. LEECAN,
                                     Appellant

                            ___________

          Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                (D.C. Civil Action No. 92-04978)



                            ___________

            Submitted Under Third Circuit LAR 34.1(a)
                        February 17, 1994


     PRESENT:   BECKER, HUTCHINSON and COWEN, Circuit Judges

                   (Filed    November 9,   1994)

                            ____________

Debra A. Washington, Esquire
First Floor
340 South Sixteenth Street
Philadelphia, PA     19102
          Attorneys for Appellant

Stephen L. Axelrod, Esquire
Suite 1600
1845 Walnut Street
Philadelphia, PA    19103
           Attorneys for Appellee
                             ____________

                        OPINION OF THE COURT
                            ____________


HUTCHINSON, Circuit Judge.



          Appellant, Ethel R. Leecan ("Mrs. Leecan"), appeals a

declaratory judgment of the United States District Court for the

Eastern District of Pennsylvania in favor of appellee, Clifford

Irene Huff ("Huff").    This district court's judgment declared

that Huff was the legal spouse of William N. Leecan ("Mr. Leecan"

or "the decedent") at the time of his death.    Both women claimed

entitlement to decedent's federal employee survivor benefits as

his surviving spouse.    This case arose when the Director of the

United States Office of Personnel Management ("USOPM") requested

both claimants to file this action asking the district court to

judicially determine who was Mr. Leecan's spouse at the time of

his death.

          For purposes of determining who is a spouse entitled to

survivors' benefits, USOPM looks to applicable state law.    It

will apply the law of the state with the most significant

interest in the marital status of the employee.    The only two

states whose law could apply to the dispute between Mrs. Leecan

and Huff are Pennsylvania and Texas.    We believe that

Pennsylvania law would control in this case, as it has the

greater interest in the marital status of the now deceased

government employee.    The district court did not do a choice of

laws analysis but concluded instead that the outcome would be the
same under either Texas or Pennsylvania law.   It then looked to

Pennsylvania case law and held that Huff was the legal spouse of

the decedent at the time of Mr. Leecan's death absent proof of

divorce or annulment of his marriage to her.

          We think that the district court erred in analyzing

Pennsylvania law and concluding that Pennsylvania has an

absolutely inflexible rule that a second marriage is always

invalid in the absence of strict proof of a divorce decree or

annulment of the first marriage.   The Supreme Court of

Pennsylvania has specifically instructed courts applying that

state's domestic relations law to perform a balancing test by

weighing the evidence in the record to determine which of two

presumptions, one in favor of continuation of the first marriage

and the other in favor of the validity of the second marriage, is

more easily sustained by the evidence.   Concluding that the

second presumption could never apply in the absence of strict

formal proof of termination of the first marriage, the district

court failed to do this.   Therefore, we will remand this case to

the district court so that it can properly balance the

presumption in favor of the first marriage against the one

favoring the second.   In adjusting that balance, we think no

mechanical rule will suffice.   Instead, we think the court should

consider the conduct of both parties and their respective

contributions to the stability of the family each chose to

support or deny in light of the value our society attributes to

traditional families and evolving conditions of family life in

this nation.   On remand, we also think the district court should
make an express finding as to when and how Huff first learned of

the decedent's marriage to Mrs. Leecan and the reasons for her

lack of curiosity for twenty-eight years about the man she now

claims as her husband.



                                 I.

           Huff and the decedent were married in 1956 in Victoria

County, Texas.1   Shortly thereafter, they moved to Philadelphia.

They had no children together.     In 1961, they separated and Huff

returned to Victoria County, Texas.    Huff continued her residence

there until 1964 when she moved to Houston in Harris County,

Texas.   The decedent continued to live in Philadelphia.   In 1962,

Huff commenced divorce proceedings against the decedent in

Victoria County, Texas.   The action was dismissed for lack of

prosecution in 1964.   A record search of Victoria and Harris

Counties, Texas, and Philadelphia, Pennsylvania produced no

record of divorce or annulment.2


1
 . Mrs. Leecan argues that Huff's marriage to the decedent was
invalid because Huff was only seventeen years of age at the time.
This impediment renders the marriage merely voidable, not void.
Because Huff did not, at any time, disclose this impediment to
the district court and because a declaratory judgment is an
equitable remedy, Mrs. Leecan also argues that Huff should be
precluded from recovery because she did not come into court with
clean hands. Huff and the decedent continued to live together as
husband and wife after Huff attained the age of majority, and no
action for annulment was commenced within sixty days of the
marriage ceremony. See 23 Pa. Cons. Stat. Ann. §§ 3303,
3305(a)(2) (1991). Therefore, we reject these arguments.
2
 . Texas law requires a plaintiff in a divorce action to have
resided in the county where the action was filed for six months
prior to institution of the action. See Tex. Fam. Code Ann.
            Huff later took up residence with Thomas Bennett and

had three children with him, all bearing the surname Bennett.      On

the children's birth certificates, Huff's name is given as Irene

Bennett.    Huff never married Bennett.

            Following his separation from Huff, the decedent was

hired by the United States Post Office in Philadelphia.     His

employment there entitled his spouse to federal survivor annuity

benefits.    On November 8, 1967, the decedent completed his death

benefit form naming Ethel Leecan as his wife.    Three days later,

on November 11, 1967, the decedent and Ethel Leecan, after

obtaining a Pennsylvania marriage license, were married.3    The

decedent, in applying for the marriage license, declared that he

had never been married before.    Following their marriage, the

decedent and Mrs. Leecan held themselves out as husband and wife,

bought property together and had two children together.4

            Decedent died in an automobile accident in June of
(..continued)
§ 3.21 (West 1994). Huff appears to have resided only in Harris
and Victoria Counties, Texas.

]3. Decedent's designation of "Ethel Leecan" as his beneficiary
would be ineffective if she is not his wife. Only spouses and
certain unmarried children are entitled to death benefits under
the Federal Employees Health Benefit's Program. See 5 U.S.C.A.
§ 8341 (West Supp. 1994). Indeed, the Death Benefits
Registration Form in which decedent listed his spouse as
"Ethel R." identified the family member eligible for death
benefits. See Appendix ("App.") at Doc. 14.
4
 . The ages of the decedent's children do not appear in the
record. If we assume that any children born to Mr. and Mrs.
Leecan were born after the date of Mr. Leecan's attempt to
contract a valid ceremonial marriage to Mrs. Leecan in 1967 and
the decedent's death in 1971, these children would today be
between the ages of 23 and 27.
1971.   Later that same year Mrs. Leecan began collecting

survivors' benefits as his spouse.   Not until about eighteen

years later, in 1989, did Huff petition the USOPM to award her

any survivors' benefits due Mr. Leecan's spouse.5   Thus, Huff and

Mrs. Leecan now both claim entitlement to benefits as the legal

spouse decedent at the time of his death.    Initially, USOPM

awarded Huff a retroactive payment of $58,819.20 and ordered Mrs.

Leecan to repay the benefits she had received over the eighteen

years that preceded Huff's petition, but USOPM reversed this

decision after deciding that Huff had waited too long to

challenge decedent's marriage to Mrs. Leecan and ordered Huff to

repay the retroactive award.

            At the urging of USOPM, both parties filed an action in

the district court seeking a declaratory judgment determining who

was the legal spouse of the decedent under applicable state law

at the time of his death.    USOPM suspended all benefit payments

and efforts to collect repayments pending the district court's

decision.

            Huff filed a motion for summary judgment which the

district court denied, holding that there was sufficient evidence

at the summary judgment stage to overcome Pennsylvania's

presumption of favoring the continued existence of the first

marriage.    This evidence included testimony that the decedent

believed he had been divorced, that he told others he had

5
 . Applications for survivor annuities may be filed within
thirty years of the death of an employee. See 5 U.S.C.A.
§ 8345(i)(2) (1980).
obtained a divorce from Huff, that he had children with Mrs.

Leecan, and that Huff never attempted to contact the decedent

until eighteen years after the decedent's death and almost

twenty-eight years after her separation from him.

          Later, at a bench trial, other evidence showed the

decedent told Mrs. Leecan he had been married previously but that

this marriage had been annulled and decedent's half-brother also

testified that the decedent had told him before he married Mrs.

Leecan that his marriage to Huff had been annulled.   He also

testified that Mr. Leecan had hosted a party to celebrate his

annulment.

          Unfortunately for Mrs. Leecan, the district court did

not credit this testimony, but found instead there was no

credible evidence that the decedent and Huff were ever divorced

or that their marriage was ever annulled.   The district court did

not expressly find that Huff lacked knowledge of Mr. Leecan's

subsequent marriage to Mrs. Leecan but did find, "she had not had

any contact with him or any knowledge about him since prior to

his death in 1971."   Appendix ("App.") at Exhibit 4, p.6

(District Court oral op.).

          Mrs. Leecan did not raise any conflict of law issues

before the district court, nor did she or Mrs. Huff object to the

district court's application of Pennsylvania law to the question

of who was Mr. Leecan's spouse at the time of his death.     The

district court, without deciding whether Texas or Pennsylvania

law applied, concluded that the outcome would have been the same

under the law of either state.
          Because there was no evidence that the decedent and

Huff were ever divorced, or that their marriage had been

annulled, the district court held that Mr. Leecan's second

marriage to Ethel Leecan was void ab initio.   It went on to

conclude that Huff was still legally married to the decedent at

the time of his death but noted, "[t]his result may seem

inequitable under the facts of this case."   Id. at Exhibit 4,

p.7.

          Mrs. Leecan filed a timely notice of appeal.6




6
 . The district court had subject matter jurisdiction under 28
U.S.C.A. § 1332 because of diversity of citizenship. We have
appellate jurisdiction over Leecan's appeal from the district
court's final order granting the declaratory judgment under 28
U.S.C.A. § 1291. We exercise plenary review over the district
court's decision that no conflict of laws analysis was required
and that under the law of Pennsylvania Huff was the legal spouse
of the decedent at the time of his death. Epstein Family
Partnership v. Kmart Corp., 13 F.3d 762, 765-66 (3d Cir. 1994).
Any subsidiary factual findings, however, are subject to the
clearly erroneous standard of review. Id.
                              II.

          In deciding who is entitled to federal survivor

benefits, USOPM looks to state common law to define marriage and

to determine who is the legal widow of the decedent:
          "Marriage" means a marriage recognized in law
          or equity under the whole of the jurisdiction
          with the most significant interest in the
          marital status of the employee, Member or
          retiree unless the law of that jurisdiction
          is contrary to the public policy of the
          United States. If a jurisdiction would
          recognize more than one marriage in law or
          equity, the Office of Personnel Management
          (OPM) will recognize only one marriage, but
          will defer to the local court to determine
          which marriage should be recognized.



5 C.F.R. § 831.603 (1994) (emphasis added).   The only question

before us on appeal of this declaratory judgment action is who

was the legal spouse of William Leecan when he died in 1971.

          In deciding this issue, we agree with the district

court that it is unnecessary to perform a conflicts analysis as

the result is the same under either Texas or Pennsylvania law.

Compare In re Estate of Watt, 185 A.2d 781, 785-86 (Pa. 1962)

(discussed infra) with Parson v. Parson, 387 S.W.2d 764, 766

(Tex. Civ. App. 1965) (if previous marriage has not been

terminated by divorce, annulment or death of prior spouse, party

does not have capacity to enter into second marriage and any

attempted second marriage is void ab initio); Hudspeth v.

Hudspeth, 198 S.W.2d 768, 769 (Tex. Civ. App. 1946) (Texas law

presumes validity of second marriage and that presumption

prevails until it is rebutted "by evidence which negatives the
effective operation of every possible means by which a

dissolution of the prior marriage could have taken place"); see

also 23 Pa. Cons. Stat. Ann. § 1702 (1991); Tex. Fam. Code Ann.

§ 2.22 (West 1994).

           In any event, to the extent that there are any material

differences in the law of Texas and Pennsylvania, we believe

standard conflicts analysis points to Pennsylvania law.

Pennsylvania had the "most significant interest in the marital

status of the employee."    5 C.F.R. § 831.603 (1994) (emphasis

added).   Although Huff and the decedent were married in Texas,

they moved to Pennsylvania shortly after their marriage in 1956

and they resided here until their separation in 1961.       Mrs.

Leecan's marriage to the decedent occurred in Pennsylvania and

they resided there until decedent died.    In addition, the

decedent's federal employment was in Pennsylvania.    The only

contacts with Texas are Huff's marriage to Leecan and Huff's

longtime residence there.    See Headon v. Pope & Talbot, Inc., 252

F.2d 739, 742-43 (3d Cir. 1958) (giving great weight to forum

state's presumptions where parties lived in forum during most of

marital relationship).

           Pennsylvania law has two conflicting presumptions, both

of which apply in this case.    The first presumption is that a

valid first marriage continues until it is proven to be dissolved

by death, divorce or annulment.    Watt, 185 A.2d at 785.    The

second presumes the innocence and validity of a second marriage.

Id.   In case a conflict between these presumptions arises, we are

advised "that presumption should yield which from the evidence
and inferences therefrom render it the least probable to

sustain."   Id. at 786.7

            The Supreme Court of Pennsylvania considered the impact

of these two presumptions in In re Estate of Watt.    In Watt, in

upholding the first marriage, the supreme court stated that any

subsequent marriage is void unless the first marriage is

dissolved in some manner.   Id. at 785.   It went on to say that

even assuming the second wife "acted in the utmost of good faith

and in reliance upon [a fraudulent] decree of divorce, per se

such good faith and reliance on her part would not breathe

vitality into her marriage to decedent unless, in fact, decedent

had the legal capacity to enter into such a marriage."   Id.

Therefore, to overcome the first presumption, there must be proof

of facts and circumstances that make it apparent that the first

marriage has been dissolved or the spouse has died.    Id.; see In

re Estate of Henry, 353 A.2d 812, 813-15 (Pa. 1976) (because

there was no evidence of divorce between deceased and his first

wife or that deceased's first wife died prior to deceased's

second marriage, first marriage was valid unless during trial, on

remand from grant of summary judgment, second wife could prove

that first marriage had never been consummated and decedent had

never lived together with first wife, as she alleged).



7
 . Texas law also presumes the validity of the second marriage,
but that presumption is destroyed by evidence which negates the
effective operation of every possible means by which dissolution
of the prior marriage could have taken place. See Hudspeth, 198
S.W.2d at 770 (citations omitted).
           At the same time, the supreme court recognized that it

had to reconcile this presumption in favor of the continuing

validity of the first marriage with a competing presumption:

"the presumption of innocence in contracting a second marriage as

well as the presumption of the validity of a second marriage, the

former furnishing the rationale for the latter."    Watt, 185 A.2d

at 785.   "Underlying [these latter] presumptions is the theory

that parties to the second marriage did so innocently and without

criminal or wrongful purpose or intent and that the law will

infer matrimony rather than concubinage."   Id.   Where children

have been born of the second marriage, as in Mrs. Leecan's case,

the presumption of legitimacy considerably strengthens the

presumption of the validity of the second marriage.    Id. at 785

n.6.   The birth of children is not sufficient, in itself,

however, to rebut the presumption in favor of the continuing

validity of the first marriage.   See In re Estate of Henry, 353

A.2d at 814; see also Johnson v. J.H. Terry & Co., 126 A.2d 793,

797 (Pa. Super. 1956), aff'd, 133 A.2d 234 (Pa. 1957).    A long

period of absence or desertion, as well as the fact that the

first spouse may have also remarried, and proof that the decedent

recognized the validity of the second marriage, may also support

the second presumption.   See In re Estate of D'Ippolito, 218 A.2d
224, 225 (Pa. 1966) (where twenty-four year period elapsed

between time decedent was deserted by her first husband and her

second marriage, and where whereabouts of first husband continued

to be unknown and decedent had attempted to locate him prior to

her second marriage, continuance of decedent's first marriage, so
as to defeat second husband's right to decedent's estate, was not

established).

            In deciding how to balance these conflicting

presumptions the Pennsylvania Supreme Court, in Watt, cited

Madison v. Lewis, 30 A.2d 357, 360 (Pa. Super. 1943), with

approval.
            "When a valid marriage is proven the law
            presumes that it continues until the death of
            one of the parties (actual or presumptive
            after seven years), or a divorce is shown.
            Without either of these appearing if one of
            the parties marries again, while another
            presumption arises that it is innocent, that
            alone is not sufficient to overcome the
            previously existing presumption of the
            continued validity of the first marriage.
            The second presumption does not of itself
            destroy the first but requires some proof of
            facts and circumstances to be given the
            effect of overcoming the first; as for
            instance, the long lapse of time during which
            the other party may be presumed to have died,
            the question of legitimacy of a child of the
            second marriage, the fact that the other
            spouse had likewise remarried, proof that the
            decedent, whose heirs are attacking the
            second marriage, had himself recognized the
            validity of it."



Watt, 185 A.2d at 785-86 (quoting Madison, 30 A.2d at 360)

(footnote & citations omitted); cf. In re Estate of Bruce, 538

A.2d 923, 923 (Pa. Super. 1988).    In our case there is evidence

that the decedent himself had recognized the second marriage as

valid, two children were born of the second marriage, there was a

long lapse of time, approximately twenty-eight years, during

which the decedent and Huff had no contact with one another, and
Huff lived with another man, used his surname and had children

with him.

            The Watt court continued:
            From the presumption in favor of the validity
            of the second marriage and the presumption of
            innocence upon the part of the parties to
            that marriage there follows, as a corollary,
            another presumption i. e. that either death
            or divorce had terminated the prior marriage,
            and he who claims the invalidity of the
            second marriage must over come that . . .
            presumption by proof of some nature. The
            presumption that a first marriage has been
            terminated by death or divorce is neither
            absolute nor inflexible and each case must be
            resolved on the basis of its own facts and
            circumstances and such inferences as fairly
            arise and can be reasonably drawn from them.



Watt, 185 A.2d at 786 (citations omitted).

            We believe the real thrust of the several presumptions

is to place the burden of proving the invalidity of the second

marriage upon the person who claims such invalidity and we think

that requires proof of some nature that the first marriage was

not dissolved by death or divorce at the time of the second
marriage.   Id. at 785-86; but see Headen v. Pope & Talbot, Inc.,

252 F.2d at 741 ("The validity of the marriage in question [the

second marriage] may be sustained only if there is proof of the

dissolution of [the first marriage]."); D'Ippolito, 218 A.2d at

225 ("[T]he burden remains upon the party supporting the validity

of the subsequent marriage to produce such facts as will shift

the burden of proof back to the party supporting the validity of

the prior marriage.").    While Pennsylvania cases exhibit
considerable confusion about who has the burden of proving the

termination of the first marriage and the strength of the

evidence that is needed to establish that fact, they indicate to

us the absence of an entirely mechanical rule and, under the

circumstances of this case, we believe that Huff should bear the

burden of proving the first marriage was not dissolved at the

time of the second marriage.

            As the district court recognized in denying Huff's

motion for summary judgment, there is evidence which could

overcome the presumption of the continued existence of the first

marriage.    This evidence includes the fact that the decedent

advised others that he had obtained a divorce from Huff, Mrs.

Leecan and the decedent had two children together in the second

marriage and Huff bore decedent no children.    Huff used the

surname of her children's father, a man with whom she lived, in

her correspondence with USOPM and on the birth certificates of

her children, and Huff never attempted to contact the decedent

until eighteen years after his death and twenty-eight years after

their separation.    The district court nevertheless declined to

balance the conflicting presumptions but instead held if there is

no divorce decree or annulment of the first marriage, the second

is automatically void ab initio.    We think this reading of

Pennsylvania law renders the second presumption meaningless; no

weighing of the evidence is even necessary because a second

marriage automatically becomes void ab initio unless a decree of

divorce or annulment is produced.    This seems to us contrary to

the state supreme court's analysis in Watt.    Because there was
evidence supporting each presumption, we think that the district

court should have weighed one against the other in light of the

social value of each claimant's conduct and the contribution of

each to the family which Mr. Leecan wanted to benefit with funds

which he treated as his own after Mrs. Huff returned to Texas and

entered into a relationship with another man that produced a

separate family which Mr. Leecan not only had no contact with,

but knew nothing about.   Rather than weighing the competing

presumptions favoring Mr. Leecan's first and second marriages, as

suggested by Watt, the district court ended its analysis with a

rule of law that no divorce or termination of the first marriage

had been proven and therefore the second marriage was void ab

initio.   We do not criticize the district court for doing so

because there are indeed indications in Pennsylvania case law

that such a strict rule exists, and we recognize the strong need

for certainty and definiteness in the rules governing a status so

important to society's well being as marriage.   Nevertheless, it

seems to us that inflexible application of a rule requiring,

without exception, that the first marriage be shown conclusively

to terminate before the second can be recognized would make the

competing presumption in favor of the validity of the second

marriage meaningless.   Because that presumption also has strong

underpinnings in desirable social policy, we do not think

Pennsylvania would totally ignore it under the circumstances that

this case presents.

           Moreover, the district court may have erred in

concluding that Huff had conclusively demonstrated that no
divorce or annulment existed based only upon a search of the

court records in Victoria and Harris Counties, Texas and

Philadelphia, Pennsylvania.   In Pennsylvania, there is no six-

month residency requirement as in Texas and the requirement of

venue may be waived by entry of a general appearance by

defendant, see Chasman v. Chasman, 53 A.2d 876 (Pa. Super. 1947);

see also Shields v. Folsom, 153 F. Supp. 733 (E.D. Pa. 1957).

This record does not show that all counties in Pennsylvania were

searched to establish conclusively that there was no divorce or

annulment here.   Thus, although the evidence shows that Huff

resided only in Philadelphia, Pennsylvania and Victoria and

Harris Counties, Texas, we are not convinced that the record

search Huff offered was broad enough to be conclusive.

          Finally, even assuming Huff can establish on remand

that no divorce or annulment exists and the district court

concludes the presumptions balance in her favor, we believe it

also erred in failing to make a finding as to when Huff learned

of the decedent's marriage to Mrs. Leecan.   California and Texas

law persuasively support the equitable principles that Watt seems

to foreshadow and later Pennsylvania law does not preclude.

USOPM decisions concerning entitlement use similar principles.

Thus, USOPM may bar the first wife from asserting a claim as the

legal surviving spouse where she unreasonably delayed taking

legal action to challenge the validity of her husband's later

marriage within a reasonable time after gaining knowledge of it.

See Jacobs v. Office of Personnel Management, 13 M.S.P.R. 23, 26
(1982) (citing United States v. George-Pacific Co., 421 F.2d 92,
96 (9th Cir. 1970); Brown v. Brown, 79 Cal. Rptr. 257 (Cal. App.

1969), modified, 82 Cal. Rptr. 238 (Cal App. 1969)); see also

Simpson v. Simpson, 380 S.W.2d 855, 859-60 (Tex. Civ. App. 1964).

We agree that Huff would not be barred from challenging the

validity of the second marriage if she knew only that the

decedent "had a woman."   Brief of Appellant at 11.   This is

clearly insufficient under Watt.   See Watt, 185 A.2d at 790 n.9.

The district court, however, failed to make any finding on when

Huff learned of decedent's second marriage.   For all these

reasons, we conclude this case should be remanded to the district

court for further proceedings.8



                               III.

          For the foregoing reasons we will vacate the order of

the district court and remand for further proceedings consistent

with this opinion.




8
 . We note that the district court was itself troubled by the
length of time between the decedent's death and Huff's claim of
entitlement to the survivor benefits as well as the inequitable
result if Mrs. Leecan were now ordered to repay the $58,819.20
she was previously awarded through no fault or bad faith on her
part. Thus, the equitable doctrines of laches and equitable
estoppel, as well as waiver of overpayment under OPM regulations,
may be applicable in fashioning a final benefits award even if
the district court concludes after balancing the conflicting
presumptions in light of all the evidence that Mrs. Huff has
established a continuing validity of the marriage to Mr. Leecan
and the consequent invalidity of his second marriage to Mrs.
Leecan.
