                                                         NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                         ____________

                              No. 10-4577
                             ____________

                            LAVONA HILL

                                   v.

      BERT BELL/PETE ROZELLE NFL PLAYER RETIREMENT PLAN;
RETIREMENT BOARD OF THE BERT BELL NFL PLAYER RETIREMENT PLAN

                                   v.

                      BARBARA H. SULLIVAN,

                                             Appellant
                             ____________

             On Appeal from the United States District Court
                for the Eastern District of Pennsylvania
                         (D.C. No. 09-cv-04051)
              District Judge: Honorable Berle M. Schiller
                             ____________

               Submitted Under Third Circuit LAR 34.1(a)
                            May 24, 2012

      Before: RENDELL, FUENTES and HARDIMAN, Circuit Judges.

                      (Filed: November 26, 2013)

                             ____________

                               OPINION
                             ____________
HARDIMAN, Circuit Judge.

       Barbara Sullivan appeals the District Court’s order awarding ERISA benefits to

Lavona Hill. We will affirm.

                                              I

       Because we write for the parties, who are well acquainted with the case, we recite

only the essential facts and procedural history.

                                             A

       From 1972 to 1978, Thomas Sullivan played in 84 games, ran for 3,142 yards, and

scored 22 touchdowns for the Philadelphia Eagles and Cleveland Browns. This case

comes to us because Thomas attempted an even more difficult feat following his

professional football career: he tried to have two wives at the same time. On March 15,

1979, Thomas married Lavona Hill in Maryland. This marriage never ended in divorce,

but the parties agree that Thomas and Hill separated sometime in the 1980’s.

       In 1981, Thomas met Barbara Sullivan when they worked together at an Exxon

facility. On March 15, 1986, Thomas and Barbara purported to marry in South Carolina

and they lived together as if they were husband and wife for the next sixteen years until

Thomas died on October 10, 2002.

       Following Thomas’s death, Barbara filed for benefits under the NFL’s retirement

plan (Plan), which provides benefits to a player’s surviving spouse, which is defined

according to “applicable state law.” The Plan began to pay Barbara benefits in November

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2002. Four years later, Hill contacted the Plan to request benefits, and after some

investigation, the Plan suspended payments to Barbara in May 2007 pending a court

order. After Hill failed to obtain the requisite court order, the Plan resumed the

distribution of benefits to Barbara.

                                              B

       In August 2009, Hill sued the Plan in state court, and the Plan removed the case to

the District Court. The Plan then filed an interpleader counterclaim against Hill and

Barbara. The Plan has deposited $2,700 per month since November 2009 with the Court,

and will continue to pay that amount to the prevailing party in this dispute. Following a

bench trial, the District Court found Barbara and Thomas’s marriage void under South

Carolina law and held that Hill was entitled to the benefits. Barbara timely filed a notice

of appeal.1

                                              II

       Barbara raises three arguments on appeal. First, she claims the District Court

clearly erred in finding that Thomas and Hill separated around 1983. Second, Barbara

contends that her marriage to Thomas was not void pursuant to an exception to South

Carolina bigamy law. Finally, she argues in the alternative argument that the District

Court should have applied the putative spouse doctrine. We review the District Court’s

factual findings at the bench trial for clear error, and we subject its legal conclusions to




                                               3
plenary review. Sharp v. Johnson, 669 F.3d 144, 153 (3d Cir. 2012) (citing Trs. of Nat’l

Elevator Indus. Pension, Health Benefit & Educ. Funds v. Lutyk, 332 F.3d 188, 191 (3d

Cir. 2003)).

                                              A

       The time of separation is relevant because of an exception found in South

Carolina’s bigamy law. The relevant statute provides:

       All marriages contracted while either of the parties has a former wife or
       husband living shall be void. But this section shall not extend to a person
       whose husband or wife shall be absent for the space of five years, the one not
       knowing the other to be living during that time, not [sic] to any person who
       shall be divorced or whose first marriage shall be declared void by the
       sentence of a competent court.

S.C. Code Ann. § 20-1-80. Thus, if Thomas and Hill separated before March 15, 1981—

five years before Thomas purported to marry Barbara—and Thomas did “not know [Hill]

to be living during that time,” then the subsequent marriage would not be void.

       As is discussed in Part II.B, infra, the actual date on which Thomas and Hill

separated is not material to the outcome of this appeal. Even if it were, however, the

District Court did not err. Barbara argued to the District Court that in a social security

application, Hill said she and Thomas separated in February 1979, a date that preceded

Thomas and Barbara’s 1986 putative marriage by more than five years. Barbara argues

on appeal that because she met Thomas in 1981, and never learned of Hill, it was error to


       1
          The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and we have
jurisdiction under 28 U.S.C. § 1291.
                                              4
find that Thomas and Hill separated in 1983.

       At trial, the District Court received Hill’s testimony that she and Thomas traveled

to South Carolina together periodically in the early 1980s, until Thomas moved to South

Carolina alone in 1983. Hill testified she last had contact with Thomas in 1985. The

evidence showed that Thomas travelled back and forth from South Carolina during the

early 1980s and that he started dating Barbara before finally ending his relationship with

Hill. Consequently, the evidence proffered by Hill and Barbara was not inherently

contradictory. And even if it had been, the District Court did not err by crediting Hill’s

testimony over the social security application and the date Barbara first met Thomas.

Such determinations are within the purview of the District Court, and “we are not left

with the definite and firm conviction that a mistake has been committed.” Sabinsa Corp.

v. Creative Compounds, LLC, 609 F.3d 175, 182 (3d Cir. 2010).

                                             B

       Ultimately the District Court’s finding regarding the separation date was academic

because it held, quite correctly, that there was no evidence to find that Barbara and

Thomas’s putative marriage was rendered legal by an exception to South Carolina’s

prohibition on bigamy. See Yarbrough v. Yarbrough, 314 S.E.2d 16, 18 (S.C. 1984)

(citing Day v. Sec’y of Health & Human Servs., 519 F. Supp. 872, 878 (D.S.C. 1981))

(“Once a marriage is shown to exist, the person attacking its validity has the burden of

proving invalidity.”). Under the bigamy law, a presumption of death arises after the lapse

                                             5
of the five-year period, but only if “evidence [is] introduced that diligent search and

inquiry have been made.” Day v. Day, 58 S.E.2d 83, 85 (S.C. 1950). Barbara introduced

no evidence to show that Thomas searched or inquired as to Hill’s whereabouts.

Consequently, her marriage to Thomas is void under South Carolina law.

                                             C

       Finally, Barbara argues in the alternative that the District Court should have held

that South Carolina would adopt the “putative spouse” doctrine. In light of both the

potential force of this legal argument and the obvious equities in favor of Barbara as the

apparent wife of Thomas during the last sixteen years of his life, we certified this

question to the South Carolina Supreme Court. In an opinion dated August 28, 2013, the

South Carolina Supreme Court answered the question by concluding: “we decline to

adopt the putative spouse doctrine in South Carolina.” Hill v. Bell, 405 S.C. 423, 426,

747 S.E.2d 791, 793 (S.C. 2013). As the last word on South Carolina law, the Supreme

Court’s rejection of the putative spouse doctrine precludes Barbara’s final argument.

                                             III

       For the reasons stated, we will affirm the judgment of the District Court.




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