 United States Court of Appeals for the Federal Circuit



                                        04-3391


                                 YVONNE J. DICKEY,

                                                             Petitioner,

                                           v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                                       Respondent.




      Karl W. Carter, Jr., of Washington, DC, argued for petitioner.

       William K. Olivier, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
Brian M. Simkin, Assistant Director. Of counsel on the brief was Earl A. Sanders,
Special Counsel, Office of General Counsel, Office of Personnel Management, of
Washington, DC.

Appealed from: United States Merit Systems Protection Board
 United States Court of Appeals for the Federal Circuit



                                       04-3391

                                 YVONNE J. DICKEY,

                                                            Petitioner,

                                           v.

                      OFFICE OF PERSONNEL MANAGEMENT,


                                                            Respondent.

                            ________________________

                             DECIDED: August 17, 2005
                            ________________________



Before MAYER, GAJARSA, and DYK, Circuit Judges.

GAJARSA, Circuit Judge.

      Yvonne J. Dickey ("Ms. Dickey") appeals the final decision of the Merit Systems

Protection Board ("MSPB") affirming the Office of Personnel Management's ("OPM")

decision denying her claim to a spousal survivor annuity. Ms. Dickey asserts that since

she is the common-law widow of James L. Dickey ("Mr. Dickey"), a former government

employee, she is entitled to survivor annuity benefits as Mr. Dickey's surviving spouse.

OPM denied Ms. Dickey's claim based on its finding that she had failed to establish that

she was married to Mr. Dickey. Dickey v. Office of Pers. Mgmt., No. DC-0831-04-0230-

I-1 (May 12, 2004). Because the MSPB committed legal error in relying on the alleged

separation of Mr. and Ms. Dickey to reach its determination that the two were not
married at the time of Mr. Dickey's death, we vacate and remand the case to the MSPB

for the application of the appropriate legal standard consistent with this opinion.

                                   BACKGROUND

A.     Facts

       Mr. Dickey, a former employee of Voice of America, United States Information

Agency, Broadcasting Board of Governors, died without a will in the District of Columbia

on February 3, 2001. Mr. Dickey was employed by the federal government at the time

of his death.

       Ms. Dickey alleges that she and Mr. Dickey were common-law husband and wife

from late April 1984, when they began living together at 71 G Street SW, Washington,

D.C., to the time of his death in February 2001.

       Ms. Dickey provided various amount of evidence in support of her claim. First

she submitted affidavits and testimony from her cousin Rachel Dorsey, her friend Isaiah

Lewis, and her sister Annett Carmon (the "witnesses"). The witnesses attested to their

understanding that the couple lived together as husband and wife. In their affidavits,

dated April 2001, the witnesses stated that it was their understanding that Ms. Dickey

and Mr. Dickey had commenced living together as husband and wife in 1984, but that

the couple had separated in 1987.

       Ms. Dickey testified that she rented a second residence, at 905 6th Street SW,

Washington, D.C., in late 1987, so that her son, who was returning home from college,

could live with her. She claimed that the 71 G Street residence in which she and

Mr. Dickey had been living together was not big enough to accommodate both them and

her son, so she rented another apartment. She stated that she, Mr. Dickey, and her son




04-3391                                      2
stayed at 905 6th Street during the week, and that she and Mr. Dickey stayed at 71 G

Street on weekends, when her son was not with them.

       Ms. Dickey's testimony concerning the nature of her relationship with Mr. Dickey

after she rented the 6th Street apartment was called into question by the affidavits of

her witnesses. In 2001, the witnesses stated in their affidavits that the couple had

separated in 1987. However, at the hearing before the Administrative Judge ("AJ"), all

three witnesses recanted their testimony that the couple had separated in 1987, and

asserted that the leasing of a second residence was precipitated by Ms. Dickey's son

coming to live with her and the need for more space. The AJ found that this convenient

change of stories undermined the credibility of these witnesses.

       To further demonstrate that she was the common-law wife of Mr. Dickey,

Ms. Dickey also provided her income tax returns for the years 1999 through 2001; she

filed as "married, filing separately" in 1999 and 2000, and as "single" in 2001, after

Mr. Dickey's death.

       Ms. Dickey also provided copies of Mr. Dickey's health plan enrollment form for

1994, on which he enrolled Ms. Dickey as his wife. This is the only document in the

record on which Mr. Dickey indicated that Ms. Dickey was his wife. It is worth noting,

however, that in this document Mr. Dickey also declared himself to be unmarried.

       Finally, Ms. Dickey provided a copy of a settlement agreement she reached with

Mr. Dickey's daughter, Nakilah, during a 2003 suit in federal district court to establish

her entitlement as his widow to Mr. Dickey's federal life insurance proceeds. Pursuant

to the agreement, Nakilah received the bulk of Mr. Dickey's life insurance proceeds and

waived her right to any of his survivor annuity benefits.




04-3391                                      3
B.     The Proceedings Below

       Ms. Dickey applied to OPM for death benefits as Mr. Dickey's surviving widow,

and her claim was initially accepted and processed by OPM. In addition, Ms. Dickey

applied for and received Mr. Dickey's unpaid compensation from his employing agency

based on her status as Mr. Dickey's common-law widow. In acknowledging Ms. Dickey

as the common-law widow of Mr. Dickey, the Deputy General Counsel of the

Broadcasting Board of Governors stated that the agency was persuaded by the

settlement agreement Ms. Dickey reached with Nakilah and by the three affidavits

provided by Ms. Dickey attesting to the Dickeys' common-law marriage.

       OPM subsequently suspended its payment of benefits to Ms. Dickey based on

information that indicated that she was not Mr. Dickey's common-law wife at the time of

his death. In its reconsideration decision, OPM noted that in December of 1986, when

Ms. Dickey filled out an application for retirement from federal service effective February

1, 1987, she stated that she was not married. She also listed her name as Yvonne

Jean Robinson, gave her address as 5609 Suitland Road, Suitland, MD, and elected a

life annuity rather than a reduced annuity that would have provided a survivor annuity

for her spouse.     The AJ found this to be the most probative evidence concerning

Ms. Dickey's marital status because the document was prepared before Mr. Dickey's

death and not in anticipation of litigation.    The AJ also noted that had Ms. Dickey

declared herself to be married, she would have been required to either select a reduced

annuity for her husband or provide a signed waiver from Mr. Dickey authorizing her to

elect a life-only annuity.




04-3391                                     4
       The AJ was also influenced by the fact that Ms. Dickey had not provided any of

the documentary evidence that OPM had requested and that could, in OPM's view,

corroborate cohabitation as husband and wife.            Specifically, Ms. Dickey did not

demonstrate joint property ownership, joint bank accounts, joint leases, joint loans, joint

utility bills, joint insurance policies, joint credit cards, or the like, despite the fact that

Ms. Dickey alleges that she had lived with Mr. Dickey for seventeen years.

       On the basis of this evidence, the AJ found that Ms. Dickey had failed to

establish that she was the common-law widow of Mr. Dickey. Ms. Dickey did not file a

petition of review of the initial decision of the AJ. Therefore, after 35 days, the initial

decision became the final decision of the MSPB pursuant to 5 C.F.R. § 1201.113.

Ms. Dickey now petitions this court for review.          We have jurisdiction pursuant to

28 U.S.C. § 1295(a)(9) (2000).

                                       DISCUSSION

A.     Standard of Review

       Congress has expressly limited the scope of our review in an appeal from the

MSPB. Specifically, we must affirm a decision of the MSPB unless it was "(1) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained

without procedures required by law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence." 5 U.S.C. § 7703(c) (2000). Hairston v. Office

of Pers. Mgmt., 318 F.3d 1127, 1130 (Fed. Cir. 2003). "Substantial evidence" is defined

as "such relevant evidence as a reasonable mind might accept as adequate to support

a conclusion." Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).




04-3391                                       5
B.    Common-law Marriage Under the Law of the District of Columbia

      In determining whether a common-law marriage existed, we must apply the laws

of the state where the government employee had a permanent home when he or she

died, in this case, the District of Columbia.      The District of Columbia has long

recognized common-law marriages. Hoage v. Murch Bros. Constr. Co., 50 F.2d 983

(D.C. Cir. 1931). The elements of common-law marriage in the District of Columbia are

an express mutual agreement, which must be in words of the present tense, followed by

cohabitation as husband and wife. East v. East, 536 A.2d 1103, 1105 (D.C. 1988). The

burden is on the proponent to prove, by a preponderance of the evidence, all of the

essential elements of a common-law marriage.        United States Fid. & Guar. Co. v.

Britton, 269 F.2d 249, 252 (D.C. Cir. 1959).

      Courts view with caution claims of common-law marriage. "Since ceremonial

marriage is readily available and provides unequivocal proof that the parties are

husband and wife, claims of common-law marriage should be closely scrutinized,

especially where one of the purported spouses is deceased and the survivor is

asserting such a claim to promote his financial interest." Coates v. Watts, 622 A.2d 25,

27 (D.C. 1993).

      In order to constitute a common-law marriage, both spouses must intend and

expressly covenant to enter into a permanent relationship of husband and wife.

Cohabitation, even though continued and prolonged, without an express agreement to

enter into a permanent married state does not result in a common-law marriage,

irrespective of reputation. A couple's expressions to each other that they are husband

and wife can constitute mutual consent. See Nat'l Union Fire Ins. Co. v. Britton, 187




04-3391                                        6
F. Supp. 359, 363-64 (D.D.C. 1960) (finding that expressions that the decedent was the

husband of the plaintiff, and she his wife, constituted mutual agreement in words of the

present tense to be husband and wife). Although "the best evidence of the exchange of

marriage consent between the parties would come from those who were personally

present when they mutually agreed to take each other as husband and wife . . . a legal

marriage may be established . . . by what is called habit or repute."         Travers v.

Reinhardt, 205 U.S. 423, 436 (1907).       Thus, like any other fact, existence of the

agreement to become husband and wife may be established by either direct or

circumstantial evidence.   Nat'l Union Fire Ins., 187 F. Supp. at 363.     However, an

inference of common-law marriage may be rebutted by direct evidence that there was

no present agreement. Marcus v. Dir., Office of Workers' Comp. Programs, U.S. Dep't

of Labor, 548 F.2d 1044, 1048 n.9 (D.C. Cir. 1976).

      In Marcus, the United States Court of Appeals for the District of Columbia found

no common-law marriage between Joan Hawker and Alphonso Marcus where Marcus

presented only circumstantial evidence of a mutual agreement to marry. The evidence

included: a "congratulations card" sent to friends and signed as "Joan and Fonso,"

unsolicited letters addressed to "Joan Marcus" and a promissory note signed by "Joan

Hawker Marcus." Id. at 1049 n.13. The evidence rebutting the inference of marriage

consisted of testimony by witnesses that while living, Joan had referred to Marcus as

her "boyfriend," never acknowledged their marriage to relatives or employers, continued

to date other men, and even contemplated marriage with another man. Id. at 1049

n.14. Further evidence rebutting the inference of marriage included the facts that all of

her employment records had been in her maiden name. Id. Similarly, her INS card,




04-3391                                    7
death certificate, and statement of burial expenses referred only to her maiden name.

Id.

       In cases where one party is available as a witness, courts have typically required

more direct evidence of consent. The United States Court of Appeals for the District of

Columbia Circuit has held that "when one of the parties to the alleged marriage asserts

its existence but either denies or fails to say there was mutual consent or agreement,

then mere cohabitation, even though followed by reputation, will not justify an inference

of mutual consent or agreement to be married." United States Fid. & Guar. Co., 269

F.2d at 252. This holding has been interpreted to stand for the rather unremarkable

proposition that "[i]f at least one of the parties to the alleged marriage is available as a

witness," the living party must assert that there was mutual consent to be married.

Jackson v. Bowen, 690 F. Supp. 58, 59 (D.D.C. 1988).

       Although formation of a common-law marriage is notoriously simple under the

laws of the District of Columbia, dissolution is relatively difficult. Once a common-law

marriage has been established, it can only be terminated by death or by a divorce

decree. Lee v. Lee, 201 A.2d 873, 875 (D.C. 1964).

C.     Existence of a Common-law Marriage

       In finding that Ms. Dickey had not established the existence of a common-law

marriage the AJ relied primarily on two determinations: (1) the evidence showed that

the Dickeys were no longer cohabiting after 1987; and (2) the testimony of the

witnesses and Ms. Dickey regarding the Dickeys' living arrangements after 1987 was

not credible. Neither of these determinations, however, addresses whether or not the

Dickeys entered into a common-law marriage in 1984.




04-3391                                      8
       The AJ concluded that the witnesses' affidavits established that Mr. and Ms.

Dickey separated at some point in 1987. This circumstance is irrelevant to determining

whether Mr. and Ms. Dickey were married under the common-law. A separation does

not preclude the prior formation of a common-law marriage. Nat'l Union Fire Ins., 187

F. Supp. at 364 ("The fact that a married couple separates obviously does not affect the

validity of the prior marriage."). Once such a union has been formed, it is not nullified by

mere physical separation. The formalities and strictures of a formal divorce proceeding

are required to dissolve the marriage.

       In light of the AJ’s heavy reliance on the 1987 separation throughout the opinion,

it seems clear that the AJ misapplied the legal standard of common-law marriage in the

District of Columbia. Disregarding the separation in 1987 and the Dickeys’ subsequent

living arrangements, the legal question before us is whether Mr. and Ms. Dickey entered

into a common-law marriage in 1984.

       There is significant evidence in the record to support a finding of common-law

marriage. Ms. Dickey was available and testified to the mutual consent to her marriage

to Mr. Dickey. Both her testimony and the statements of the witnesses are evidence

that the couple began living together in April of 1984; that they lived together for a

period of three years, until Ms. Dickey acquired a second residence; that they

considered each other to be husband and wife; and that they held themselves out as

such in their community. These circumstances are sufficient to establish the formation

of a common-law marriage under the laws of the District of Columbia.               Further,

Ms. Dickey twice filed federal income tax returns indicating that she was married. False

returns are subject to the penalty of perjury. 26 U.S.C. § 7207 (2000).




04-3391                                      9
      However, there is also sufficient evidence to support a contrary finding. The AJ

concluded that the witnesses' testimony regarding the Dickeys' behavior in the period

post 1987 was not credible.      The AJ further disbelieved Ms. Dickey regarding the

formation of a common-law marriage in 1984 on the basis that Ms. Dickey filled out her

Civil Service Retirement Death Benefits form in the name of Yvonne Jean Robinson in

1986. Additionally, the administrative judge could rely on the facts that Ms. Dickey kept

her previous name, that she elected a life-annuity for herself to the exclusion of a

survivor annuity for Mr. Dickey in 1986, and that Mr. Dickey neither designated her as a

beneficiary nor engaged in any joint enterprises with her.

      Although we may not necessarily agree with the weight given to these findings,

the AJ was entitled to entirely disbelieve the witnesses in light of the fact that they

contradicted themselves.     Similarly, the AJ was entitled to disbelieve Ms. Dickey

because her testimony contradicted her statement in the 1986 retirement application

that she was not married at the time. Ms. Dickey's 1986 statement creates an issue of

fact that must be resolved by the MSPB. See Checkpoint Sys., Inc. v. All-Tag Sec.

S.A., No. 04-1395, slip op. at 11 (Fed. Cir. June 20, 2005).

      The AJ's holding that "any marriage-like relationship formed in 1984 ended in

1987," Dickey, slip op. 11, is clear legal error. As explained above, a common-law

marriage, if it existed, cannot be terminated merely by separation. The AJ’s heavy

reliance on the 1987 separation throughout the opinion, causing a misapplication of the

common-law marriage rule, requires the decision to be vacated and remanded.




04-3391                                    10
                                    CONCLUSION

      For the reasons stated above, we conclude that although there was substantial

evidence that could support a finding of common-law marriage, the evidence could also

support a contrary finding.    Consequently, we remand this case to the Board to

determine whether there was a common-law marriage in 1984 by applying the correct

legal standard.

       Accordingly, the decision of the MSPB is

                              VACATED AND REMANDED.

                                       COSTS

      Each party shall bear its own costs.




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