August II, I952

Hon. G. Frank W~~~~PJES Plreme~~s Pension Comleeloner 702 Trlbune~~BulIdlng Austin, Texas Oplnlon Bo. v-1506

Dear Mr. Wllllam~: Re: Effeot of a m%mlage and subeequeut%mnalluent thereof upon the pension ellglbllltyof a flremmcs vldov,
Your request for an opinion reads in part a8 follovs: "The PensionLaw speolfles that upon the death of a Fireman vho 1s drsvlng a pension, his widov shall reoelve her pro rata part of hle pension,

. . . '60 long 8s she remain a wf%ow.

. . .' "Ue have a vldow vho drev her pro rata part of her huaband'Bpension for approxlmately five months; she remarriedand aboutseven months later secured a Decree of Annulment In the District Court of Tarrant County, Texaa. "The above mentionedwidow has now made appllcatlonto her local PenalonBoard to be reinstatedaa the vldow of the deceasedFlrem%n and that her penelon paymentsbe reswved inasmucha8 she claims the Courts set aside the purportednuwriage a8 'held for naught.'" The decree of annulmentmentioned in your letter provides

: "It Is thereforeOrdered,Adjudged and Decreed by the court that the purportedm%rrlage entered into betveen the plaintiffand defendanton or about the 5th day of July, 1951, be, and the same hereby is, diaaolved, annulled, set aside and held for naught beaauae of the natural and Incurable impotenceof defendant at the time of the purporteduriiage,

Hon. 0. Frank Williams, **page** 2 (V-1506)

and eny and all other grounds alleged in plaintifflspetition,and that said marrisge is in nowlse binding upon the plaintiff."
Your question is whether after the snnulment decree above mentioned the widow Is entitled to rein**statement** of the psnslon.

Article 4628, V.C.S., provt%es tbet: "The~lmrrrfsge

relationmay **be** dissolved vhere the causes slleged therefor shall be pstuml or lnmmsble ,intpotency of body at the time of entering Into the marriage contract, **or auy**  other lmpe6lmentthat renders such contract void, and the court m%y decree the marriage to be null and void. Section I.2

of Article 6243e, V.C.S., provides: "If any member of any dep%rtas?nt, as herein defined,vho h%a been retired on %llow%noebecame of length of service or dlsablllty,shall thereafterdie from sny oause vhstsoever;, or If vhlle In service,my member shall die from sny oaase growing out of and/or in consequen&eof the performanceof his duty; or ehall die from any oatzse

whatsoeverafter he has **become**entitled to say allowaaoe or pension certificateand, ahell leave survlvltxg **a** vldow, a child or obllW%n under the age of eighteen (18) yeams **cm** 8 dependent pment, said Bd%rd of Trusteesmshall order~pald ;o~t~lays%;~c~s%follows: **(a)** to the vldow, tl&? e wldow and provi%ecd she shall h%ve married such number prffior to his retirement,**a** mm equel to one-thirdof the average monthly salary of the deceasedat the tlnie of his retirement0% allovanaeor death;

. . ." (Zmphasls

added.) The Texas Courts have not consideredthe effeet of the annulment of a seoondmsrrlage upon the stetus **of** the vldow from % previousmarriage. **An** annulmeat is distlaguishedfrom a divorce In tb%t a "suit for ennulswmt presumes that there **never** was % valid marriage snd that therefore It shouldbe deolared void, while %Lsuit for divorce presumesa valid m%rrlage,but asksnthaG$ yletion be dissolved for postnuptialc%uses. i

.Hon. Q. Frsnk Wllli%m~,page 3 (v-1506)

G%role, 232 S.W.2d 782, 783 ~(Tex. Clv. App. 1950). A decree of annulment contemplatesthe existenceat the time of making **the** marriege **contract** of an lmpedlment sufficientto render the marriage contract void.

In other jurisdictions It **1s almost**  invsriably the law that once a marriage Is annulled, the decree of nullity relates back to the time the marriage was entered Into, and voids It from the beginning. See 55 C.J.S. 951, Marriage, Sec. 68.

Pursuing this line of reasoning, courts have held, vlth respect to annulledmarriages, that where, under a Btstute,marrlsge vi11 legltlmlaea prior born child, the child remains lllegltimateIf the.smrrlage Is snnulled. In re Moncrlef'sWill, 235 iV.Y. 390,'139I3.E.

550 (1923). A **wife** Is entitled to resumptionof sllmony paymeuts from her first husband after % decree annullln her second **mar-** $!j$$ j Slelaheti

v. Slelcher, 251 H.Y. &, 167 B.E. 501 After-amulmeut **,of** fier~second ntarriage,

a v&n is resiored to her status as % wldov entitled to vor@an'B compBnaatlon

payments. SouthernR. Co. v. Baskette, 175 Tenn. 253, 133 S.W.2d 489 (1939)‘.

In the Illlnolscase of Peoole ex rel. Byrne8 v. RetirementBoard, 272 Ill. App. 59 (1933)j it was held that 8 flremen~swidov Is entitled to resumptionof her pension paymentsafter annulment of her secondm%rrl%ge on grounds of Impotencyunder a statute providing the pension should "cease If such widow again marries." The court quoted with approval the Solloving language from another c%se regarding an annulledm%rrlage:

11

. . . annulment,when decreed, puts an end to it from the beginning

. . . (Cmlttlng cases cited.) It Is not dissolvedas upon dlvor$e. It Is effaced as If It had never been.
TM court quoted also from Tiffeny on Domestic Relations:

"Aftera decree of nullity,hovever, In the lifetime of the parties, the marriage Is void ab inltlo,and not merely from the date of the decree.

. . . In other words, It is just as though no nuwrlagehad ever taken place." This case **Is,** of course, directly In point on your question.. ‘,

**Hon.** 0. Frauk WllU.%ms, **page** 4 (V-1506)

**%vWthe16tBB, sme**  **eO&S &?htsle** rseegaixed that atriot iu#weedestPMte

to he t%ctrlw of Rreletlon bask" of nullltg~43%~

produos lmjllBt

Peanlts,particularly upon peame not,prty.te the anzmluent~proecedlag.Therefore, the3 oetmts v¶Xl in va3ny lnst%ncesrefuse to apply tge rule ~wsCvL11~~ke exeeptlatt~ 4%It besed upon general equltabli prluoi~lts. See Amnotation,2 A.L.R. 26 637. In gen8~~1, tfse~~%ppllaaticm of the rule vi11 be vlthheld as to tm?msactlons

concludedduring the Csllov v. Thoxm, 322 &ES. 550, 78??i:1id6~:3?ij.

There **appears** to **be** no equitable**reason** vhy the annulPant **of** the laarrisge betveen the p%rtiee here lnvelved ,xhould not be given effect to nullify the xmrriege fa Its inception. It Is thereforeour oglnlon that the wldov, under the decree, "remained a widow %ad **16~** ,en,titled to reln- %tatemei&t

to pension ellglblllty**as a**  flrem%n8svldov. In pe Morten~B’ Eetak, 224 B.Y.S. 75 (Sum. Ct. 1927); Soutsrrrt Ft. Co. w. Basketk, smra; PeoDle.exrel. Byrne8 v. Retlreisent Board, BUUI’ B.

A flreman~svldow vho remarriesand whose marriage Is Bubsequeatlg annulled 1s entitled to be rastcred to pension eligibilityunder Artlale 62436, V.C.S.

APPROVJZD: lOed XcDanlel State Affairs Dl~i~lon
E. Jacobson ReviewingAssistant Yours very truly, PRICE DABIEZ Attorney General

Charles S. Mathews Firat Asslst%nt RSL/LC/RT '