UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 03-1341

MARGARET A. HOPKINS, APPELLANT,

V.

R. JAMES NICHOLSON,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On appeal from the Board of Veterans' Appeals

(Decided May 4, 2005 )

Theodore C. Jarvi, of Tempe, Arizona, was on brief for the appellant.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel;

Catherine A. Chase, Deputy Assistant Counsel; and Gary E. O'Connor, all of Washington, D.C.,

were on the brief for the appellee.

Before IVERS, Chief Judge, and STEINBERG and KASOLD, Judges.

KASOLD, Judge: This is an appeal through counsel of a June 10, 2003, decision of the

Board of Veterans' Appeals (Board) that determined that clear and unmistakable error (CUE) did

not exist in an earlier Board decision that had denied the appellant dependency and indemnity

compensation (DIC) benefits after finding that she could not be recognized for VA-benefits

purposes as the widow of veteran Charles Hopkins. Record (R.) at 1-9. This finding was

rendered in an October 1979 Board-remand decision (R. at. 299-308) that was finalized on

June 10, 1980 ("earlier Board"). R. at 9. The appellant argues, inter alia, that the 2003 Board

committed error when it failed to find that the earlier Board had applied the law of the wrong

state in determining the validity of her marriage to the veteran. Appellant's Brief (Br.) at 6-7.

The Secretary argues that the earlier Board decision was based upon the correct law and that the
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2003 Board decision was not arbitrary and capricious. Secretary's Br. at 9. For the reasons set

forth below, the 2003 Board decision will be affirmed.

I. BACKGROUND

The appellant married James Gray in Greely, Colorado, in May 1937. R. at 91. They

had one child together. R. at 94. On December 23, 1942, the appellant participated in a

marriage ceremony with the veteran, Lieutenant Charles Hopkins, in Alamogordo, New Mexico.

R. at 28-29. At the time of this second ceremonial marriage, her first marriage had not been

terminated. R. at 112. On November 30, 1943, the appellant and the veteran had a child. R. at

30. On January 20, 1944, Lieutenant Hopkins was reported missing in action, and on January

24, 1946, he was presumed dead by the Secretary of War. R. at 25.

In August 1948, the appellant filed an application for VA "Pension or Compensation by

Widow and/or Child of Deceased Person." R. at 33-36. In that application, she indicated that

her only marriage had been to Lieutenant Hopkins. R. at 34. In response to her application, a

VA regional office (RO) requested clarification from her as to why her surname on her child's

birth certificate was "Hopkins" and the surname on her marriage certificate was "Gray." R. at

38. The appellant replied that "[u]pon the birth of a son to a common-law husband, I adopted the

name of the father without being married to him for the sake of the child." R. at 41. Upon

further investigation, the RO determined that the appellant had been married to Mr. Gray in a

legal ceremony and that her ceremonial marriage to Lieutenant Hopkins was therefore void. R.

at 112. The RO denied the appellant's claim, and she did not appeal.

In November 1949, the appellant filed with the Arizona Superior Court of Pima County a

complaint for annulment of her marriage to Mr. Gray on the ground that the marriage contract

was induced by fraud on the part of Mr. Gray. R. at 217-18. On April 22, 1950, after finding

that the defendant had admitted all allegations in the complaint (R. at 116), that court issued a

decree of annulment declaring that marriage "wholly null and void, ab initio and of no force and

effect." R. at 116. 

In October 1957, the appellant submitted a new claim for DIC. R. at 124-27. The RO

determined that she could not be recognized as the widow of Lieutenant Hopkins because, inter
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alia, of the following: "When claimant married the veteran she was the wife of James C. Gray. It

was a bigamous marriage and void. The suit for annulment was instituted after the death of the

veteran. The decree entered therein could not have the effect of making the claimant’s marriage

to the veteran valid." R. at 139. The RO's determination was upheld in a July 1958 Board

decision. R. at 146.

In June 1977, the appellant filed another claim for DIC. R. at 156-59. The RO denied

that claim, after noting that the 1957 claim could be reopened only on the basis of new and

material evidence. R. at 174. The appellant, through her son, stated that Mr. Gray had been in a

prior undissolved marriage at the time of his marriage to the appellant and that Mr. Gray had

annulled his marriage to the appellant prior to the date of the appellant's ceremonial marriage to

the veteran. R. at 188. The appellant provided no evidence to support these assertions. The

Secretary also was unable to locate any documents in support of them. R. at 207. As a result,

the RO denied the claim. 

On appeal, the Board in 1979 again determined that the appellant was not the legal

widow of the veteran and denied her claim for DIC. R. at 307. The Board discussed an Arizona

Court of Appeals case, Hodges v. Hodges, 578 P.2d 1001 (Ariz. Ct. App. 1978), regarding the

relation-back theory, and determined that an annulment of an earlier marriage could not

retroactively validate a subsequent otherwise void marriage. R. at 306-07. In her appeal to the

Board, the appellant stated that she did not believe that there was a legal impediment to a second

marriage, and the Board remanded the matter to the RO to determine whether her ceremonial

marriage to the veteran could be considered a "deemed valid marriage" based upon her state of

mind. R. at 283, 307. The RO found that the appellant knew or should have known that she

could not marry a second time without obtaining a divorce from her first husband or an

annulment of her first marriage. R. at 315-16. Accordingly, the RO determined that the

appellant's second ceremonial marriage could not be considered a "deemed valid marriage". R.

at 317. In June 1980, the Board agreed with the RO and denied the appellant's claim. R. at

325-29.

The appellant submitted her fourth claim for DIC in August 2001. R. At 339. The RO

again denied the claim on the basis that the appellant had never been validly married to
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Lieutenant Hopkins. R. at 352-53. The appellant then filed a motion for reconsideration or, in

the alternative, a claim that the earlier Board decision contained CUE by applying the wrong law

in concluding that her second ceremonial marriage was void. R. at 363-72. The motion for

reconsideration was denied, and the 2003 Board found no CUE in the earlier decision. This

appeal followed.

II. ANALYSIS

A. CUE Standard of Review

A claim of CUE in a prior final decision of the Board is a collateral attack on that

decision. See Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000); see also

38 U.S.C. §§ 7111, 5109A(a); 38 C.F.R. § 20.1403(a) (2003). To succeed, a claimant must

prove (1) that the decision was flawed because either the facts known at the time were not before

the adjudicator or the law then in effect was incorrectly applied, and (2) that the outcome would

have been manifestly different if the error had not been made. See Russell v. Principi,

3 Vet.App. 310, 313 (1992) (en banc); see also Andrews v. Principi, 18 Vet.App. 177, 181

(2004) (noting that standard of review enunciated in Russell, supra, is applicable to CUE claims

raised under 38 U.S.C. § 7111). A mere disagreement with how the facts were weighed or

evaluated is not enough. Russell, supra; 38 C.F.R. § 20.1403(d)(3) (2004). Moreover, the

claimant must allege and identify with some degree of specificity the alleged error and, unless it

is the kind of error that, if true, would be CUE on its face, "persuasive reasons must be given as

to why the result would have been manifestly different but for the alleged error." Fugo v.

Brown, 6 Vet.App. 40, 44 (1993); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir.

1999) (adopting the "manifestly changed the outcome" language in Russell, supra); 38 C.F.R.

§ 20.1403(c).

In reviewing Board decisions evaluating allegations of CUE in prior final decisions, the

Court "cannot conduct a plenary review of the merits of the original decision." Andrews,

18 Vet.App. at 181 (quoting Archer v. Principi, 3 Vet.App. 433, 437 (1992)). Moreover, this

Court recently reiterated that the standard of review of a Board's determination on the merits of a

CUE claim is whether the Board's decision is "'arbitrary, capricious, an abuse of discretion, or
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otherwise not in accordance with law' in denying the CUE allegation." Andrews, 18 Vet.App. at

181 (quoting 38 U.S.C. § 7261(a)(3)(A)). 

Although a Board's denial of a CUE claim will be overturned only if it is arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law, the various elements

that lead to a valid CUE claim are subject to review under the standard applicable to that

element. For example, two circumstances relating to a CUE matter are reviewed under the de

novo standard of review. See Joyce v. Nicholson, __ Vet.App. __, __, No. 03-59, 2005 WL

646165, at *7 (Mar. 22, 2005). "The first is . . . whether the appellant, as a matter of law, has

presented a valid CUE allegation . . . ." Andrews, 18 Vet.App. at 182. The second is whether

applicable law or regulation was applied or was correctly applied. See Joyce and Andrews, both

supra.

Accordingly, in the case on appeal, although the ultimate decision of the 2003 Board –

that any error or misapplication of the law in the earlier Board decision did not constitute CUE

such that the outcome would have been manifestly different – is reviewed under the "arbitrary,

capricious, abuse of discretion, or otherwise not in accordance with the law" standard, whether

the earlier Board correctly applied the law at the time of its decision is a matter that is reviewed

de novo.

 B. Effect of the Annulment

The appellant argues that the Arizona court's decree that her first marriage was "void, ab

initio" meant that her first marriage never existed and therefore could not serve as a legal barrier

to a second marriage and, further, she argues that the Secretary and this Court are bound by that

interpretation. Although the validity of the annulment judgment is a question of state law for the

appropriate state court, and not for the Secretary or this Court to decide, see Badua v. Brown,

5 Vet.App. 472-74 (1993) (explaining that the Secretary determines the validity of a marriage by

applying the law of the place where the marriage occurred); see also Ankenbrandt v. Richards,

504 U.S. 689, 703 (1992) (confirming that domestic-relations exception to Federal jurisdiction

excludes issuance or modification of divorce, alimony, or child-custody decree); Sosna v. Iowa,

419 U.S. 393, 404 (1975) (explaining that regulation of domestic relations is "an area that has

long been regarded as virtually exclusive province of the States"); Barber v. Barber, 62 U.S.
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(21 How.) 582, 584 (1859) (holding that domestic relations is an exception to Federal-court

jurisdiction), the issue in this case is not the validity of the annulment, but rather the effect that

the annulment had on the appellant's second ceremonial marriage and, more specifically in this

case, the effect that the annulment had, if any, on the appellant's entitlement to VA survivor

benefits. See De Sylva v. Ballentine, 351 U.S. 570, 580 (1956) (holding that agency applies state

law when determining entitlement to Federal right based upon a familial relationship). The

Secretary makes this decision in the first instance subject to review by the Board and the Court.

See 38 U.S.C. §§ 103, 511, 7104, and 7252; see also Badua, supra. Based on the analysis set

forth below, the Court concludes that the annulment in this case does not relate back to make

valid an otherwise invalid marriage.

C. Void or Voidable

It is generally the law that a void marriage is one that never had any validity, while a

voidable marriage is one that had validity until such time as it was voided, see 4 AM. JUR. 2D

Annulment of Marriage § 48 (2004), and this was the law in Colorado when the appellant

entered into her first marriage, see Williams v. Williams, 263 P. 725, 726-27 (Colo. 1927), and

the law in Arizona when she entered into her second marriage, see S. Pac. Co. v. Indus. Comm'n,

91 P.2d 700, 703-04 (Ariz. 1939), overruled on other grounds by Means v. Indus. Comm'n,

515 P.2d 29 (Ariz. 1973), as well as the law in New Mexico, where she may have been resident

at the time of her second marriage, Chavez v. Chavez, 485 P.2d 735, 736 (N.M. 1971) (citing

Flaxman v. Flaxman, 273 A.2d 567, 568-69 (N.J. 1971)). Thus, if the appellant's first marriage

was void when performed, there would be no legal bar to her second marriage, although if her

first marriage was valid when entered into and only rendered a nullity at some later point, that

first marriage would have been legal and valid until the time it was declared void, and a second

marriage entered into during the period of validity of the first marriage would be invalid. See

Hodges, 578 P.2d at 1003; In re Estate of Milliman, 415 P.2d 877, 881 (Ariz. 1966); S. Pac. Co.,

91 P.2d at 703-05; see also Prince v. Freeman, 112 P.2d 821, 822 (N.M. 1941).

The validity of a marriage is determined according to the lex loci, the law of the state that

solemnized the marriage. See 38 U.S.C. § 103(c) (for VA-benefits purposes, the validity of a

marriage is determined according to the law of the place where the parties resided at the time of
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the marriage); see also ARIZ. REV. STAT. § 25-112 (2004); Cook v. Cook, 104 P.3d 857, 859

(Ariz. Ct. App. 2005) (citing Gradias v. Gradias, 74 P.2d 53, 53 (Ariz. 1937), and Horton v.

Horton, 198 P. 1105, 1107 (Ariz. 1921)); Payne v. Payne, 214 P.2d 495, 487-98 (Colo. 1950).

Thus, in an action to declare a marriage decree as having no validity, a court must look to the

substantive law of the state in which the marriage took place or the law of the state where the

right to benefits accrued. See Cook, supra; 4 AM. JUR. 2D Annulment of Marriage § 2 (2004). In

this case, because the appellant entered into her first marriage in Colorado, and the parties to the

marriage were residents of Colorado at the time, it is Colorado law that determines the validity

of the marriage. See ARIZ. REV. STAT. § 25-112 (1948); see also 38 U.S.C. § 103(c); Gradias

and Horton, both supra. 

At the time of the appellant's first marriage, Colorado prohibited only three types of

marriages: Bigamous marriages, incestuous marriages, and out-of-state marriages void where

performed. See Griswold v. Griswold, 129 P. 560, 561, 562, 565 (Colo. Ct. App. 1913)

(explaining prohibition against bigamous and void out-of-state marriages and adopting 2 KENT'S

COMMENTARIES 93 14th ed., indicating incestuous marriages are void); see also COLO. REV.

STAT. § 14-10-111(1)(g) (2004) (still recognizing only three types of prohibited marriages). A

marriage induced by fraud was not prohibited per se by Colorado law; rather, such a marriage

was valid until and unless it was later declared void by judicial decree. COLO. REV. STAT.

§ 14-10-111(1)(d) (1973); see also Coffman v. Godsoe, 351 P.2d 808, 813 (Colo. 1960)

("[M]arriage status is voidable upon a showing that it was induced by false material

representations."). 

In this case, the appellant's first marriage was annulled apparently on the basis of fraud,

not because the marriage was prohibited under Colorado law when entered into. R. at 225-27.

Moreover, the use of the term "void, ab initio" in the appellant's Arizona annulment decree

cannot be read in a vacuum to mean that the court in that case determined that the appellant's

first marriage was never valid. The term "void," as used in the State of Arizona, referred to both

"voidable" marriages, which are subject to ratification or disaffirmance by the injured party, as

well as "void" marriages, which are incapable of ratification. ARIZ. REV. STAT. § 25-301 (1955);

see S. Pac. Co., 91 P.2d at 703-04; Hodges, supra. Whether the marriage was void or voidable
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was determined in these cases by the grounds for which the appellant petitioned for annulment.

See Hodges, supra. The facts in this case indicate that the only ground supporting the annulment

was fraud, and nothing indicates that the ground for annulment involved a bigamous marriage or

an incestuous marriage, or that the first marriage was otherwise void under Colorado law when

performed. R. at 131-34; see Griswold, supra. 

Accordingly, given the interchangeability of the terms "void" and "voidable" under

Arizona law and the fact that the that there were no grounds to support a determination that the

marriage performed in Colorado was void under Colorado law at the time it was performed, the

Arizona Superior Court's declaration that the appellant's first marriage was "void, ab initio,"

could mean only that her first marriage was voidable from the beginning and, not having been

ratified by the parties, was therefore declared void, ab initio. See Hodges and S. Pac. Co., both

supra. Since the appellant's first marriage was not invalid at the time it was entered into and

remained valid until voided, her second marriage was invalid during the period of validity of the

first marriage. See Prince, supra; see also In re Estate of Milliman, supra; S. Pac. Co., 91 P.2d

at 703-05; Hodges, supra; 52 AM. JUR. 2D Marriage § 57 (2004). Until the time of her

annulment, the appellant was precluded by law from entering into a second marriage, and this

was true throughout the United States. See 52 AM. JUR. 2D Marriage § 57; see also N.M.

CONST. art. XXI, §1 (amended 1953) (incorporating language from the New Mexico Enabling

Act); New Mexico Enabling Act, 61 Pub. L. 219, § 2, 36 Stat. 558 (1910); Cleveland v. United

States, 329 U.S. 14, 18 (1946) (quoting Reynolds v. United States, 98 U.S. 145, 164 (1879)); S.

Pac. Co. and Prince, both supra; Williams v. Williams, 23 N.W. 110, 115 (Wis. 1885).

D. Relation-Back Theory

Consistent with the above discussion, the appellant actually does not argue that her

ceremonial second marriage was valid at the time she entered into it. Rather, she contends that

the law recognizes a relation-back effect that revives a second marriage when a first marriage

has been annulled. The appellant misunderstands the relation-back theory, and her attempt to

apply it to her situation has no support in the law. Under the relation-back theory, a second

marriage that is valid when entered into but later is declared void may result in the revival of the
9

obligations attendant to an earlier marriage, dependent on the facts and equities of the situation.

See generally Sefton v. Sefton, 291 P.2d 439, 440-42 (Cal. 1955). For example, an award of

insurance benefits, associated with a first marriage and terminated upon remarriage, has been

held to be reinstated upon the annulment of the second marriage and the return of the lump-sum

insurance settlement. Means, supra; see United States Fid. & Guar. Co. v. Indus. Comm'n,

542 P.2d 825, 827 (Ariz. Ct. App. 1975). On the other hand, an award of alimony, ordered upon

dissolution of a first marriage and terminated upon remarriage, may not be reinstated because

public policy will seek to protect the innocent party, the alimony obligor from the first marriage,

who has relied upon the validity of the second marriage. See Hodges, 578 P.2d at 1004-05;

Sefton, 291 P.2d at 442-43; Torgan v. Torgan, 410 P.2d 167, 171 (Colo. 1966).

Had the appellant's first marriage been an invalid marriage such that it had no validity

when entered into, a second marriage would be valid. See Prince, supra. That is not the case

here. Rather, the appellant's second ceremonial marriage was itself invalid and, as noted, there is

no authority supporting the appellant's proposition that her second ceremonial marriage achieved

legal status when the first marriage, itself a valid and legal marriage, was later annulled. The

cases relied upon by the appellant all involve the relation-back theory restoring benefits or

obligations attendant to a valid first marriage that had been extinguished by a subsequent second

marriage without regard to the second marriage's being void or voidable. See Means, 515 P.2d at

31; In re Marriage of Cargill, 843 P.2d 1335 (Colo. 1993); see also Folsom v. Pearsall, 245

F.2d 562, 566 (9th Cir. 1957). Although the appellant argues that the relation-back theory

should make legal a marriage that was otherwise prohibited by law at the time that it was

attempted to be entered into, she cites no law in support of her proposition, and the Court can

find none.

III. CONCLUSION

The Court concludes that the appellant has not demonstrated a misapplication of the law

by the earlier Board or the 2003 Board. Moreover, the 2003 Board decision (that there was no

CUE in the earlier Board decision) is adequately supported by the record and an adequate

statement of reasons or bases, and that decision is therefore not arbitrary, capricious, an abuse of
10

discretion, or otherwise not in accordance with law. See 38 U.S.C. § 7261(a)(3)(A).

Accordingly, the 2003 Board decision is AFFIRMED.