* This order and judgment is not binding precedent, e xcept under the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

### DEC 3 1998 

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

BERTHA L. MATLOCK,

Petitioner,

v. RAILROAD RETIREMENT BOARD,

Respondent. No. 98-9502 (No. D-431-52-7585) (Petition for Review)

ORDER AND JUDGMENT *

Before BALDOCK, EBEL, and MURPHY , 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) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.-2-

Petitioner Bertha L. Matlock seeks review of the fi nal decision of the Railroad Retirement Board (Board) denying her appli cation for disabled widow’s benefits. Because the Board’s decision is supporte d by substantial evidence and is legally correct, we affirm. Petitioner filed an application for disabled widow’ s insurance benefits under 45 U.S.C. § 231a(d) of the Railroad Retirement Act, on the account of the deceased wage earner, Joseph H. Matlock, who died o n June 24, 1986. Petitioner claimed she was the widow of decedent, based on hermarriage to him on August 27, 1970, or, in the alternative, that she a nd decedent had been married under the common law when he died. After denial of petitioner’s application and request for reconsideration, a hearing officer dete rmined that petitioner was not the legal widow of decedent. His conclusion restedon two findings: (1) petitioner’s marriage to decedent was void because decedent was already married to Donna Matlock (formerly Waldon) at the time; and (2) even if the marriage had been valid, petitioner’s subsequent marriages and that of decedent were presumed valid, including a presumption that the former marr iages had been dissolved by divorce or death, and petitioner failed to rebut th is presumption. The Board affirmed, and this petition for review followed.-3-

Petitioner and decedent were both married on numero us occasions. Some of these marriages were valid, others were not. To decide this case, we set out the following chronology of relevant marriages and divorces:
September 30, 1955 – Donna Waldon was granted an interlocutory decree of divorce from Robert Waldon in California. The decr ee ordered that a final judgment be entered after expiration of one year fr om the date of entry of the interlocutory decree. February 25, 1960 – Donna Waldon married decedent i n Douglas County, Nevada. April 13, 1962 – Donna Waldon and Robert Waldon we re granted a final judgment of divorce in California. August 27, 1970 – petitioner married decedent in St orey County, Nevada. October 10, 1972 – petitioner and decedent were granted a decree of divorce in Tulsa County, Oklahoma. February 27, 1973 – the divorce decree between peti tioner and decedent was set aside in Tulsa County, Oklahoma, based on their rec onciliation. January 27, 1975 – petitioner married Gary Day in W ashoe County, Nevada. October 8, 1975 – decedent was granted a decree of divorce from Donna (Waldon) Matlock in Washoe County, Nevada. June 25, 1976 – Gary Day was granted a decree of di vorce from petitioner in Washoe County, Nevada. December 9, 1977 – decedent married Amalia Norris i n Washoe County, Nevada. October 2, 1980 – petitioner married Lawson Herring in Sebastian County, Arkansas. February 17, 1982 – Amalia (Norris) Matlock was granted a divorce from decedent in Washoe County, Nevada.-4-

May 22, 1984 – Lawson Herring was granted a decree of divorce from petitioner in Tulsa County, Oklahoma. June 24, 1986 – decedent died in Nevada. February 27, 1987 – Donna (Waldon) Matlock obtainedan amended divorce decree from Robert Waldon in California, declaring the divorce to be effective as of September 1, 1956, nunc pro tunc.
To determine an applicant’s eligibility for railroa d retirement benefits, the Railroad Retirement Act incorporates several provis ions of the Social Security
Act. See 45 U.S.C. § 231a(d)(1), (4) (incorporating the def inition of a “widow” and the rules for determining whether an applicant is the deceased employee’s widow). Under the provisions relevant to this case , petitioner is decedent’s “widow” if “she was married to him for a period of not less than nine months immediately prior to the day on which he died.” 42 U.S.C. § 416(c)(5). Her status is to be determined by examining whether the courts of the state in which decedent was domiciled when he died, in this case N evada, would find that petitioner and decedent were validly married when he died. See 42 U.S.C. § 416(h)(1)(a)(i). Petitioner argues the Board’s findings regarding th e validity of her marriage to decedent were erroneous because (1) Don na Waldon was not yet divorced when she married decedent, and thus their marriage was void under Nevada law, which meant that petitioner’s marriage to decedent was valid; and-5-

(2) petitioner rebutted the presumption that the su bsequent marriages were valid by showing that she and decedent had not been divor ced. Petitioner argues also that the hearing officer and Board erred in ignorin g her evidence that she was married to decedent under Oklahoma common law betwe en the spring of 1985 and the date of decedent’s death. We have jurisdiction to review decisions of the Rai lroad Retirement Board pursuant to 45 U.S.C. § 231g. That section incorpo rates the standard of review under the Railroad Unemployment Insurance Act, whic h states that “[t]he findings of the Board as to the facts, if supported by evide nce and in the absence of fraud, shall be conclusive.” 45 U.S.C. § 355(f). This co urt has emphasized the limited nature of our review, noting that “[o]nce we determ ine that the Board’s factual findings are supported by substantial evidence and its decision is not based on an error of law, our task is complete.” Gatewood v. Railroad Retirement Bd. , 88 F.3d 886, 888 (10th Cir. 1996). We need not determine whether petitioner’s marriage to decedent was valid because, even assuming it was, substantial evidence supports the Board’s finding that petitioner failed to rebut the presumption of validity regarding her subsequent marriages and that of decedent. Nevada affords a s trong presumption of validity to subsequent marriages. “‘When there has been a f ormal marriage, according to legal requirements, the law will presume the compet ency of the parties to enter-6-

into the marriage contract, and will presume that a ny former marriage of either of the parties was dissolved by death or divorce.’” Villalon v. Bowen , 273 P.2d 409, 413 (Nev. 1954) (quoting Aguirre v. Aguirre (In re Aguirre’s Estate) , 62 P.2d 1107, 1109 (Nev. 1936)); see Ponina v. Leland , 454 P.2d 16, 20 (Nev. 1969) (noting strong public policy in Nevada favoring marriage, so that “‘a marriage will, if possible, be upheld as valid and . . . its validity will be presumed unless disproved’”) (quoting 35 Am. Jur. Marriage , Sec. 3, p. 181); Parker v. De Bernardi , 164 P. 645, 650 (Nev. 1917) (“The presumption in favor of a valid marriage has been declared to be one of the stronge st known to the law. . . . [C]ommon law presumes . . . every marriage legitimate until the contrary is shown”). The burden of disproving the presumption that herformer marriage ended in divorce is on petitioner. See Aguirre , 62 P.2d at 1108-09; De Bernardi , 164 P. at 647 (“When a marriage has been shown . . . the law raises a strong presumption of its legality -- not only casting the burden of proof on the party objecting, but requiring [her] throughout, in everyparticular, to make plain, against the constant pressure of this presumption, . . . that it is illegal and void.”) (quotations omitted). Here the record supports the Board’s conclusion that petitioner failed to rebut the presumption. Petitioner’s evidence that her initial divorce from decedent was set aside did not negate the possibili ty that decedent obtained a-7-

divorce from her at a later date. This is especial ly true in light of Nevada law permitting ex parte divorces, and evidence that pet itioner lived outside the state after she and decedent had allegedly reconciled. D ecedent’s marriage to Amalia Norris after this purported reconciliation also pro vides evidence that he obtained a divorce from petitioner at some point. In additi on, in petitioner’s marriage license application for her marriage to Lawson Herr ing, she swore under oath that she was single, unmarried, and could legally contra ct for and join in the marriage. Petitioner’s failure to disprove that decedent divo rced her before either of them remarried, together with evidence that both deceden t and petitioner believed themselves free to remarry, provides substantial ev idence for the Board’s factual finding that petitioner failed to rebut the presumption of validity. See Villalon , 273 P.2d at 413 (upholding factual finding that pre sumption rebutted based on former husband’s affidavit that he never divorced c laimant, and noting that presumption may have proven decisive had former hus band’s existence or whereabouts been unknown). This conclusion is buttressed by an examination of petitioner’s last marriage, which took place in Arkansas. The genera l rule is that A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recogniz ed as valid unless it violates the strong public policy of anot her state which had the most significant relationship to the spouses an d the marriage at the time of the marriage.-8-

Restatement (Second) Conflict of Laws, § 283(2) (19 71). Nevada appears to follow this rule. See Orr v. Bowen , 648 F. Supp. 1510, 1511 (D. Nev. 1986) (construing Nevada law to recognize validity of com mon law marriages legally contracted in other states despite nonrecognition o f such marriages contracted within its borders). Under Arkansas law, the presumption of validity aff orded to subsequent marriages is extremely strong, and may only be disp roved by negating every possibility that either spouse obtained a divorce. See, e.g. , Stokes v. Heckler , 773 F.2d 990, 991-93 (8th Cir. 1985) (holding, as a matter of law, “heavy burden of proof imposed under Arkansas law” not satisfied in absence of “clear and decisive evidence” showing that former spouse did not obtaindivorce from the deceased before he remarried); Sims v. Estate of Powell , 432 S.W.2d 838, 841-42 (Ark. 1968) (holding spouse attacking subsequent marriage and showing absence of divorce in places where decedent lived failed to ne gate possibility that decedent obtained divorce in some other place); Clark v. Clark , 719 S.W.2d 712, 714 (Ark. Ct. App. 1986) (holding spouse’s testimony that he did not obtain divorce did not negate presumption that his former spouse had done so). Applying this law, it is clear that petitioner’s evidence failed to rebut th e presumption that her Arkansas marriage was valid because her former marriage had terminated in divorce.-9-

Finally, we conclude the Board did not err in faili ng to rule on petitioner’s claim of an Oklahoma common law marriage with deced ent, as she abandoned this argument by not raising it either to the hearing officer, see R. at 165, 176-77, or to the Board, id. at 8. See James v. Chater , 96 F.3d 1341, 1343-44 (10th Cir. 1996) (holding issues omitted from administrative appeal are deemed waived); Rivera-Zurita v. INS , 946 F.2d 118, 120 n.2 (10th Cir. 1991) (holding f ailure to raise issue on appeal to Board was failure to exhau st administrative remedies, precluding review). Even if we were to address the common law claim on the merits, we would conclude as a matter of law that petitioner’s evide nce was not “clear and convincing” regarding the four elements to be shown : an actual and mutual agreement to be husband and wife; a permanent relat ionship; an exclusive relationship, proved by cohabitation as man and wif e; and the parties’ holding out of themselves as man and wife. See Boyd v. Monsey Constr. Co. (In re Boyd) , 959 P.2d 612, 614 (Okla. Ct. Civ. App. 1998). Alth ough petitioner’s evidence showed episodic holding out as man and wife, it was insufficient to establish the first three elements required by the common law of Oklahoma.-10-

The decision of the Railroad Retirement Board is AF FIRMED.

Entered for the Court

David M. Ebel Circuit Judge