* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 6 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

MARJORIE R. SMITH, Widow of Harry A. Smith,

Plaintiff - Appellant,

v. JO ANNE B. BARNHART, Commissioner of Social Security Administration,

Defendant - Appellee. No. 02-3110 (D.C. No. 00-CV-2466-DJW) (D. Kansas)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Appellant Marjorie Smith challenges the decision of the Commissioner denying her benefits as a widow or surviving divorc ed spouse. We reverse and direct the award of benefits. Background Marjorie Smith was married to Harry Smith in Kansas on September 28, 1957. They had four children, born on September 15 , 1958, June 19, 1962, April 13, 1966, and January 12, 1971, respectively. Harry was a wanderer and spent extended periods of time away from home. Harry and Marjorie last lived together in April of 1970, when their last child wa s conceived. This last child was listed on her birth certificate as Harry’s legi timate child. Although Harry and Marjorie separated, Marjorie was never aware of any efforts by Harry to divorce her. Nonetheless, during a prior period of separation, H arry purported to marry Earlene Pratt on November 11, 1966. Harry and Earl ene were then divorced on October 19, 1969. They had no children together. After this divorce, Harry returned for a period of time to Marjorie, when the y conceived their last child together. Following Harry and Marjorie’s separation in April of 1970, Harry married Elva Calbraith on March 27, 1971. They had a child together. Harry remained married to Elva until his death on June 10, 1977, i n Oklahoma.-3-

Upon Harry’s death, both Marjorie and Elva applied for benefits for their children. Only Harry’s legitimate children were el igible for benefits. Because Harry resided in Oklahoma at the time of his death, the Social Security Administration (SSA) applied Oklahoma law to determ ine the relationship of the parties. Oklahoma law presumes the validity of the latest in a series of marriages, such that earlier marriages are presumed to have en ded in divorce absent evidence to the contrary. See Norton v. Coffield , 357 P.2d 434, 437 (Okla. 1960). In this proceeding, there was no evidence Marjorie and Harry had divorced, but because of his itinerant lifestyle, neither was there concl usive evidence that he had not obtained a divorce in one of the many counties wher e he had resided. Accordingly, the SSA presumed that Marjorie’s marri age had ended in divorce prior to Harry’s second marriage on November 11, 19 66. This meant that all of Marjorie’s minor children except her last child wer e eligible for benefits. Elva was determined to be Harry’s legal widow, and her c hild was determined to be eligible for benefits. Marjorie did not appeal thi s ruling. In 1996, the SSA informed Marjorie that she was eli gible for widow’s benefits. The SSA later realized it had made an er ror and revoked the benefits, and Marjorie sought a hearing to determine whether she should be eligible for either widow’s benefits or surviving divorced spous e benefits. To be eligible for benefits as a surviving divorced spouse, Marjorie w ould need to show that she-4-

had been married to Harry for at least ten years. See 42 U.S.C. § 416(d)(2). The Administrative Law Judge (ALJ) denied the request f or a hearing on grounds of res judicata, reasoning that the 1978 SSA decision precluded a finding that Marjorie was Harry’s legal widow, as well as a find ing that their marriage had lasted ten years. The Appeals Council determined that res judicata di d not prevent adjudication of whether Marjorie was a surviving di vorced spouse, as this issue had not been explicitly addressed in the 1978 SSA d ecision. The 1978 decision did not directly weigh the equities of Harry’s (fir st) marriage to Marjorie against Harry’s (second) marriage to Earlene. Rather, the comparison there was with Harry’s (third) marriage to Elva, which lasted thro ugh his death and produced a child. The Appeals Council determined that it woul d not be inconsistent with this earlier adjudication to weigh the presumption diffe rently when comparing Harry’s first and second marriages versus comparing his fir st and third marriages. The Appeals Council ordered the ALJ to hold a heari ng on the matter, and specifically directed the ALJ to (1) determine the length of Marjorie’s marriage to Harry and (2) search the records of a number of cou nties where Harry was known to have lived to determine if there was any record of divorce. On remand, the ALJ found no record of a divorce in any of the counties where Harry was known to have resided. However, th e ALJ determined that it-5-

was impossible to know with certainty all the count ies in which Harry lived and to search for a divorce record in those counties. Whi le there was some equivocation in the ALJ’s analysis, in the body of the decision the ALJ predicted that the Oklahoma courts would have presumed the validity of the second marriage and accordingly presumed that Harry’s marriage to Marjo rie ended prior to November 11, 1966, citing Marcum v. Zaring , 406 P.2d 970 (Okla. 1965). The Appeals Council then adopted this conclusion. Analysis We review the ALJ’s decision to determine if the fa ctual findings are supported by substantial evidence and if the correc t legal standards were applied. Castellano v. Sec’y of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). We need not defer to an ALJ’s interpretation of state law. Smereczynski v. Sec’y of Health & Human Servs. , 944 F.2d 296, 299 (6th Cir. 1991). When an ALJ declines review based on res judicata principle s, this court lacks jurisdiction to review that decision. Brown v. Sullivan , 912 F.2d 1194, 1196 (10th Cir. 1990). Here, however, while the ALJ initially cited admini strative res judicata, the Appeals Council directed the ALJ to consider new ev idence, thus effectively reopening the matter. Taylor ex rel. Peck v. Heckler , 738 F.2d 1112, 1114-15 (10th Cir. 1984). Accordingly, we are free to revi ew the ALJ’s decision on the merits. Id.-6-

We conclude that while Marcum v. Zaring does share some similarities with the instant case, the differences are more signific ant, especially in light of the policy rationale behind Oklahoma’s presumption. Wh en viewed in the context of other case law applying the presumption, we conclud e that Oklahoma courts would have found Marjorie and Harry to have been married at least through April of 1970. Therefore, Marjorie should have been foun d eligible for benefits as a surviving divorced spouse. Both Marcum and the earlier case of Norton v. Coffield applied the presumption to conclude that an earlier marriage wa s ended by divorce, thus permitting a valid second marriage. However, in bo th cases the court emphasized (1) the length of the marriage, and (2) whether the re were children born into the marriage as determinative factors. See Norton , 357 P.2d at 438 (“[T]he passage of time and recognition and acknowledgment of the v alidity of the marriage under attack strengthens the presumption that said marria ge is valid, and when the legitimacy of children of said marriages is at stak e the presumption is further strengthened.”); Marcum , 406 P.2d at 973 (presumption of validity of secon d marriage increases with passage of time and the birth of children). In those cases, the latter marriage carried greaterweight with respect to these factors. See Norton , 357 P.2d 436 (finding last marriage valid where i t lasted thirty-three years and resulted in three chi ldren, as opposed to earlier-7-

marriage which lasted under two years and resulted in one child); Marcum , 406 P.2d at 971, 972-73 (finding second marriage va lid where it lasted ten years and resulted in four children, as opposed to first marriage which produced no children). By contrast, in Puntka v. Puntka , 50 P.2d 1092 (Okla. 1935), a husband successfully argued that he had never been married to his common-law wife because she had never ended her prior, ceremonial marriage. Id. at 1092-93. There had been a child in the prior marriage. Id. The second husband’s presentation of competent evidence that there had b een no divorce in that first marriage was sufficient to defeat the presumption o f validity with respect to the second marriage. Id. at 1093.
In Harrison v. Burton , 303 P.2d 962 (Okla. 1954), the husband and wife had been divorced but then reunited, and they held themselves out as husband and wife. Id. at 963. The husband then married another woman ina ceremony approximately five days before a fatal car accidentin which both the husband and his second wife were killed. Id. Inheritance issues required determination of the validity of the second marriage. In concluding that the existence of the first marriage precluded a valid second marriage, the cou rt emphasized that the presumption in favor of the validity of a second marriage is rebuttable, and that the party opposing the validity of the second marri age “is not required to make-8-

plenary proof of a negative averment.” Id. at 964 (quotation marks and citation omitted).
In Harrison , the testimony establishing the common-law marriag e of husband and wife (following their reunion) was unco ntradicted, therefore the court concluded that the parties alleging the valid ity of the second marriage were not entitled to rely on the presumption. Id. Similarly, in the instant case, the factors of duration (at a minimum nine years as opposed to three) and children (four child ren as opposed to zero) weigh heavily in Marjorie’s favor. Further, there was no testimony or evidence contradicting Marjorie’s assertion that there had n ever been a divorce. It is also worth noting that Oklahoma courts have b een somewhat inconsistent in assessing the burden of proof again st the party attacking the marriage. Compare Puntka , 50 P.2d at 1093 (some, competent evidence suffici ent to eliminate the presumption), with Norton , 357 P.2d at 439 (evidence must be “clear, strong, and unequivocal”). The consistent rationale underlying these different applications, however, is that the presumption is rebuttable, and the strength of the rebuttal evidence must mirror the apparent strength of the validity of the marriage. See Norton , 357 P.2d at 439 (“[W]hether the person attacking a marriage has introduced sufficient evidence to over come the presumption of validity of the marriage depends upon the length of time that the attacked-9-

marriage has continued, whether a successful attackwill in effect bring about an adjudication that children of the marriage under attack are illegitimate, and other facts.”). Here, the evidence of the validity of Ha rry’s second marriage is not so overwhelming (in that it lasted only three years an d produced no children) that Marjorie should be required to meet it with overwhe lming rebuttal evidence. As expressed in the above decisions, one of the central policy rationales for Oklahoma’s presumption in favor of the validity of marriages is to promote a finding that children of a union are legitimate. Application of that rationale in this case supports the conclusion that Harry and Marjorie were married at least through the conception of their last child in April of 1970. Accordingly, the judgment of the United States District Court for the District of Kansas is REVERSED, and the district co urt shall enter an order granting surviving divorced spouse benefits to Marj orie Smith.

Entered for the Court

Monroe G. McKay Circuit Judge