UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NAOMI NEUMANN COLE, Widow of

Robert Cole,

Petitioner,

SHIRLEY L. COLE LAHMAN;

LUTHER C. COLE,

Intervenors,

No. 94-2537

v.

DIRECTOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR,

Respondent.

On Petition for Review of an Order

of the Benefits Review Board.

(90-1735-BLA)

Submitted: February 6, 1996

Decided: February 22, 1996

Before MURNAGHAN, WILKINS, and MOTZ, Circuit Judges.

_________________________________________________________________

Reversed and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Christopher J. Kempf, BLOOMFIELD & KEMPF, Columbus, Ohio,

for Petitioner. Shirley L. Cole Lanham, Luther C. Cole, Intervenors

Pro Se. Patricia May Nece, Richard Anthony Seid, Sarah Marie Hur-
ley, UNITED STATES DEPARTMENT OF LABOR, Washington,

D.C., for Respondent.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Naomi Cole seeks review of a decision of the Benefits Review

Board (Board) affirming the administrative law judge's (ALJ) decision denying her black lung benefits pursuant to 30 U.S.C.A. §§ 901-

45 (West 1986 & Supp. 1995). In his first consideration of this case,

the ALJ awarded benefits to Naomi as the surviving spouse of Robert

Cole, a deceased coal miner, but on modification determined that

another woman, Mary Cole, instead qualified as the miner's surviving

spouse, and consequently found that the award due on the miner's

application for benefits rightly belonged to Mary. The ALJ determined that Mary entered into a valid marriage with Robert in Maryland in 1934, and that the couple separated in 1937, but never

divorced. He further found that although Naomi entered into a legitimate marriage ceremony with Robert in 1973 without any prior

knowledge of Robert's first marriage, and that such marriage would

have been valid if not for the prior marriage, Naomi was not eligible

for benefits because Mary's status as the legal surviving spouse precluded Naomi's entitlement under 20 C.F.R. § 725.214(d) (1995).

An individual qualifies as the surviving spouse of a miner by meeting the relevant statutory and regulatory relationship and dependency

requirements. See 30 U.S.C. § 902(e) (1988), referencing 42 U.S.C.

§ 416(h)(1) (West 1988 & Supp. 1995); 20 C.F.R. §§ 725.212, 214-

15 (1995). Under § 725.214(a), an individual is considered to be the

miner's surviving spouse if the courts of the State in which the miner

was domiciled at the time of his death would find that the individual

and the miner were validly married. In this case, the miner was domiciled in Ohio when he died.

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In determining the validity of a marriage, however, Ohio courts

generally look to the law of the state in which the marriage was

formed. See Seabold v. Seabold, 84 N.E.2d 521, 522 (Ohio App.

1948). In this case, Mary and Robert were purportedly married in

Maryland. Under Maryland law, where there are conflicting marriages, there is a strong presumption in favor of the second marriage,

and the party challenging the validity of the second marriage bears a

heavy burden to strictly prove, to a moral certainty, that a prior marriage was validly created and not later dissolved. See McKnight v.

Schweiker, 516 F. Supp. 1102, 1105-07 (D. Md. 1981).

The Board rejected Naomi's contention that Mary bore the burden

to rebut the presumption on the ground that Mary never appealed

from an administrative determination by the district director (then the

deputy commissioner) that she was entitled to benefits, and thus was

never a proper party to the claim. While we note that Naomi, as the

aggrieved party, properly requested a hearing before the ALJ on this

issue, we find that Mary was clearly a party to this action under 20

C.F.R. § 725.360 (1995), as her right to benefits, as much as Naomi's

right, stood to be prejudiced by any decision rendered by the ALJ. We

also note, contrary to the apparent assumption of the Board and the

ALJ, that because the miner's surviving spouse was derivatively entitled to any benefits paid on the deceased's miner's disability claim,

it was unnecessary for either Mary or Naomi to individually file an

application for benefits in order to be a party to the claim. See

Pothering v. Parkson Coal Co., 861 F.2d 1321, 1327-28 (3rd Cir.

1988).

Even assuming that the ALJ properly found that Mary entered into

a valid marriage with Robert under Maryland law, however, we find

that the evidence submitted by Mary to show that such union was

never dissolved is inadequate as a matter of law to rebut Maryland's

powerful presumption to the contrary. In McKnight, the district court

considered a conflicting marriage case where two putative spouses

each claimed to be the surviving widow of an insured decedent for the

purpose of collecting widow's benefits under the Social Security Act.

Applying Maryland law, the court found that if the party challenging

the second marriage met her burden to demonstrate the validity of the

first marriage, she could rebut the presumption that such marriage had

been dissolved by demonstrating "that a careful but fruitless search of

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the records was made in those places where a divorce might have

been filed," and by then presenting corroborative testimony or documentation from third parties having independent knowledge of the

first marriage and its continuance. Id. at 1108. The court found such

evidence necessary to meet the demanding requirement of Maryland

law that the party to the first marriage rebut the presumption "to a

moral certainty," and by means of "strict proof." Id. at 1105-07.

In this case, Mary offered only her testimony that she never sought

a divorce and was never served with divorce papers to prove that her

marriage to Robert was never dissolved. Because such evidence was

insufficient as a matter of law to rebut the presumption to which

Naomi was entitled, we find that Maryland courts would find that

Naomi was validly married to Robert at the time of his death, and that

she therefore satisfies the criteria of § 725.214(a). We note that the

Director, Office of Workers' Compensation Programs (Director),

raises in her brief to this court for the first time in this litigation the

possibility that West Virginia law would apply to the question of

whether any dissolution of Mary's marriage to Robert was valid.

Because, however, Maryland would clearly presume a valid dissolution, and no party presented any evidence or argument relating to

whether such dissolution was valid, this issue is not before us.

The Director also argues for the first time that before Naomi is

awarded benefits she should be required to prove under Florida law

that she entered into a valid marriage with the miner in 1973.

Although the ALJ found that Naomi went through a legitimate marriage ceremony with Robert, he did not address whether her marriage

would be recognized as valid in Florida, where the ceremony

occurred. During the lengthy history of this claim, originally filed by

the miner in 1973, the validity of Naomi's marriage to Robert has not

been challenged except on the ground that Robert was already married. We therefore note that the contention is inappropriately raised

at this time. See Curry v. Beatrice Pocahontas Coal Co., 67 F.3d 517,

522 n.8 (4th Cir. 1995); E.P. Paup Co. v. Director, Office of Workers'

Compensation Programs, 999 F.2d 1341, 1348 n.2 (9th Cir. 1993);

South Carolina v. United States Dep't of Labor, 795 F.2d 375, 378

(4th Cir. 1986).

In any event, there is no reason to suspect that Florida courts would

find Naomi's marriage invalid. Under Florida law, once it is shown

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that a marriage was ceremonially entered into, it is presumed to be

legal and valid. See Stewart v. Hampton, 506 So.2d 70, 71 (Fla. App.

1987). In this case, the ALJ has factually determined that Naomi went

through a legitimate marriage ceremony with Robert, and there is no

evidence to the contrary. Moreover, where there are conflicting marriages, Florida applies the same presumption as Maryland in favor of

the second marriage, allocates the burden of proof in the same manner, and requires similar proof to rebut the presumption. Id. at 71-72;

Hillyer v. Lovan v. Fla. Industrial Comm'n, 19 So.2d 838, 839-40

(Fla. 1944). Thus, Florida law would favor Naomi in the same manner

as Maryland law.

We therefore decline the Director's invitation to vacate the Board's

decision and remand for further findings of fact. We find, instead, that

on this record Naomi is entitled to benefits as a matter of law.

Accordingly, we reverse the decision of the Board and remand to the

Board with instructions to order that benefits be awarded to Naomi

Cole. We note that our disposition of this case renders it unnecessary

to decide collateral issues raised by the parties relating to whether

Mary was dependent on the miner. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional

process.

REVERSED AND REMANDED WITH INSTRUCTIONS

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