                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             DEC 3 1998
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    BERTHA L. MATLOCK,

                Petitioner,

    v.                                                   No. 98-9502
                                                     (No. D-431-52-7585)
    RAILROAD RETIREMENT BOARD,                       (Petition for Review)

                Respondent.




                              ORDER AND JUDGMENT          *




Before BALDOCK, EBEL, and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Petitioner Bertha L. Matlock seeks review of the final decision of the

Railroad Retirement Board (Board) denying her application for disabled widow’s

benefits. Because the Board’s decision is supported by substantial evidence and

is legally correct, we affirm.

      Petitioner filed an application for disabled widow’s insurance benefits

under 45 U.S.C. § 231a(d) of the Railroad Retirement Act, on the account of the

deceased wage earner, Joseph H. Matlock, who died on June 24, 1986. Petitioner

claimed she was the widow of decedent, based on her marriage to him on

August 27, 1970, or, in the alternative, that she and decedent had been married

under the common law when he died. After denial of petitioner’s application and

request for reconsideration, a hearing officer determined that petitioner was not

the legal widow of decedent. His conclusion rested on two findings: (1)

petitioner’s marriage to decedent was void because decedent was already married

to Donna Matlock (formerly Waldon) at the time; and (2) even if the marriage had

been valid, petitioner’s subsequent marriages and that of decedent were presumed

valid, including a presumption that the former marriages had been dissolved by

divorce or death, and petitioner failed to rebut this presumption. The Board

affirmed, and this petition for review followed.




                                         -2-
      Petitioner and decedent were both married on numerous occasions. Some

of these marriages were valid, others were not. To decide this case, we set out

the following chronology of relevant marriages and divorces:


September 30, 1955 – Donna Waldon was granted an interlocutory decree of
divorce from Robert Waldon in California. The decree ordered that a final
judgment be entered after expiration of one year from the date of entry of the
interlocutory decree.

February 25, 1960 – Donna Waldon married decedent in Douglas County, Nevada.

April 13, 1962 – Donna Waldon and Robert Waldon were granted a final
judgment of divorce in California.

August 27, 1970 – petitioner married decedent in Storey County, Nevada.

October 10, 1972 – petitioner and decedent were granted a decree of divorce in
Tulsa County, Oklahoma.

February 27, 1973 – the divorce decree between petitioner and decedent was set
aside in Tulsa County, Oklahoma, based on their reconciliation.

January 27, 1975 – petitioner married Gary Day in Washoe County, Nevada.

October 8, 1975 – decedent was granted a decree of divorce from Donna
(Waldon) Matlock in Washoe County, Nevada.

June 25, 1976 – Gary Day was granted a decree of divorce from petitioner in
Washoe County, Nevada.

December 9, 1977 – decedent married Amalia Norris in Washoe County, Nevada.

October 2, 1980 – petitioner married Lawson Herring in Sebastian County,
Arkansas.

February 17, 1982 – Amalia (Norris) Matlock was granted a divorce from
decedent in Washoe County, Nevada.

                                        -3-
May 22, 1984 – Lawson Herring was granted a decree of divorce from petitioner
in Tulsa County, Oklahoma.

June 24, 1986 – decedent died in Nevada.

February 27, 1987 – Donna (Waldon) Matlock obtained an amended divorce
decree from Robert Waldon in California, declaring the divorce to be effective as
of September 1, 1956, nunc pro tunc.


      To determine an applicant’s eligibility for railroad retirement benefits, the

Railroad Retirement Act incorporates several provisions of the Social Security

Act. See 45 U.S.C. § 231a(d)(1), (4) (incorporating the definition of a “widow”

and the rules for determining whether an applicant is the deceased employee’s

widow). Under the provisions relevant to this case, petitioner is decedent’s

“widow” if “she was married to him for a period of not less than nine months

immediately prior to the day on which he died.” 42 U.S.C. § 416(c)(5). Her

status is to be determined by examining whether the courts of the state in which

decedent was domiciled when he died, in this case Nevada, would find that

petitioner and decedent were validly married when he died.   See 42 U.S.C.

§ 416(h)(1)(a)(i).

      Petitioner argues the Board’s findings regarding the validity of her

marriage to decedent were erroneous because (1) Donna Waldon was not yet

divorced when she married decedent, and thus their marriage was void under

Nevada law, which meant that petitioner’s marriage to decedent was valid; and


                                          -4-
(2) petitioner rebutted the presumption that the subsequent marriages were valid

by showing that she and decedent had not been divorced. Petitioner argues also

that the hearing officer and Board erred in ignoring her evidence that she was

married to decedent under Oklahoma common law between the spring of 1985 and

the date of decedent’s death.

       We have jurisdiction to review decisions of the Railroad Retirement Board

pursuant to 45 U.S.C. § 231g. That section incorporates the standard of review

under the Railroad Unemployment Insurance Act, which states that “[t]he findings

of the Board as to the facts, if supported by evidence and in the absence of fraud,

shall be conclusive.” 45 U.S.C. § 355(f). This court has emphasized the limited

nature of our review, noting that “[o]nce we determine that the Board’s factual

findings are supported by substantial evidence and its decision is not based on an

error of law, our task is complete.”   Gatewood v. Railroad Retirement Bd.   , 88

F.3d 886, 888 (10th Cir. 1996).

       We need not determine whether petitioner’s marriage to decedent was valid

because, even assuming it was, substantial evidence supports the Board’s finding

that petitioner failed to rebut the presumption of validity regarding her subsequent

marriages and that of decedent. Nevada affords a strong presumption of validity

to subsequent marriages. “‘When there has been a formal marriage, according to

legal requirements, the law will presume the competency of the parties to enter


                                           -5-
into the marriage contract, and will presume that any former marriage of either of

the parties was dissolved by death or divorce.’”     Villalon v. Bowen , 273 P.2d 409,

413 (Nev. 1954) (quoting     Aguirre v. Aguirre (In re Aguirre’s Estate)   , 62 P.2d

1107, 1109 (Nev. 1936));     see Ponina v. Leland , 454 P.2d 16, 20 (Nev. 1969)

(noting strong public policy in Nevada favoring marriage, so that “‘a marriage

will, if possible, be upheld as valid and . . . its validity will be presumed unless

disproved’”) (quoting 35 Am. Jur.     Marriage , Sec. 3, p. 181); Parker v. De

Bernardi , 164 P. 645, 650 (Nev. 1917) (“The presumption in favor of a valid

marriage has been declared to be one of the strongest known to the law. . . .

[C]ommon law presumes . . . every marriage legitimate until the contrary is

shown”). The burden of disproving the presumption that her former marriage

ended in divorce is on petitioner.   See Aguirre , 62 P.2d at 1108-09; De Bernardi ,

164 P. at 647 (“When a marriage has been shown . . . the law raises a strong

presumption of its legality -- not only casting the burden of proof on the party

objecting, but requiring [her] throughout, in every particular, to make plain,

against the constant pressure of this presumption, . . . that it is illegal and void.”)

(quotations omitted).

       Here the record supports the Board’s conclusion that petitioner failed to

rebut the presumption. Petitioner’s evidence that her initial divorce from

decedent was set aside did not negate the possibility that decedent obtained a


                                            -6-
divorce from her at a later date. This is especially true in light of Nevada law

permitting ex parte divorces, and evidence that petitioner lived outside the state

after she and decedent had allegedly reconciled. Decedent’s marriage to Amalia

Norris after this purported reconciliation also provides evidence that he obtained

a divorce from petitioner at some point. In addition, in petitioner’s marriage

license application for her marriage to Lawson Herring, she swore under oath that

she was single, unmarried, and could legally contract for and join in the marriage.

Petitioner’s failure to disprove that decedent divorced her before either of them

remarried, together with evidence that both decedent and petitioner believed

themselves free to remarry, provides substantial evidence for the Board’s factual

finding that petitioner failed to rebut the presumption of validity.   See Villalon ,

273 P.2d at 413 (upholding factual finding that presumption rebutted based on

former husband’s affidavit that he never divorced claimant, and noting that

presumption may have proven decisive had former husband’s existence or

whereabouts been unknown).

       This conclusion is buttressed by an examination of petitioner’s last

marriage, which took place in Arkansas. The general rule is that

       A marriage which satisfies the requirements of the state where the
       marriage was contracted will everywhere be recognized as valid
       unless it violates the strong public policy of another state which had
       the most significant relationship to the spouses and the marriage at
       the time of the marriage.


                                             -7-
Restatement (Second) Conflict of Laws, § 283(2) (1971). Nevada appears to

follow this rule.   See Orr v. Bowen , 648 F. Supp. 1510, 1511 (D. Nev. 1986)

(construing Nevada law to recognize validity of common law marriages legally

contracted in other states despite nonrecognition of such marriages contracted

within its borders).

       Under Arkansas law, the presumption of validity afforded to subsequent

marriages is extremely strong, and may only be disproved by negating every

possibility that either spouse obtained a divorce.   See, e.g. , Stokes v. Heckler , 773

F.2d 990, 991-93 (8th Cir. 1985) (holding, as a matter of law, “heavy burden of

proof imposed under Arkansas law” not satisfied in absence of “clear and decisive

evidence” showing that former spouse did not obtain divorce from the deceased

before he remarried); Sims v. Estate of Powell , 432 S.W.2d 838, 841-42 (Ark.

1968) (holding spouse attacking subsequent marriage and showing absence of

divorce in places where decedent lived failed to negate possibility that decedent

obtained divorce in some other place);     Clark v. Clark , 719 S.W.2d 712, 714 (Ark.

Ct. App. 1986) (holding spouse’s testimony that he did not obtain divorce did not

negate presumption that his former spouse had done so). Applying this law, it is

clear that petitioner’s evidence failed to rebut the presumption that her Arkansas

marriage was valid because her former marriage had terminated in divorce.




                                             -8-
       Finally, we conclude the Board did not err in failing to rule on petitioner’s

claim of an Oklahoma common law marriage with decedent, as she abandoned

this argument by not raising it either to the hearing officer,   see R. at 165, 176-77,

or to the Board, id. at 8. See James v. Chater , 96 F.3d 1341, 1343-44 (10th Cir.

1996) (holding issues omitted from administrative appeal are deemed waived);

Rivera-Zurita v. INS , 946 F.2d 118, 120 n.2 (10th Cir. 1991) (holding failure to

raise issue on appeal to Board was failure to exhaust administrative remedies,

precluding review).

       Even if we were to address the common law claim on the merits, we would

conclude as a matter of law that petitioner’s evidence was not “clear and

convincing” regarding the four elements to be shown: an actual and mutual

agreement to be husband and wife; a permanent relationship; an exclusive

relationship, proved by cohabitation as man and wife; and the parties’ holding out

of themselves as man and wife.       See Boyd v. Monsey Constr. Co. (In re Boyd)   ,

959 P.2d 612, 614 (Okla. Ct. Civ. App. 1998). Although petitioner’s evidence

showed episodic holding out as man and wife, it was insufficient to establish the

first three elements required by the common law of Oklahoma.




                                              -9-
The decision of the Railroad Retirement Board is AFFIRMED.



                                         Entered for the Court



                                         David M. Ebel
                                         Circuit Judge




                              -10-
