F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAR 6 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

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

                Plaintiff - Appellant,

    v.                                                   No. 02-3110
                                                 (D.C. No. 00-CV-2466-DJW)
    JO ANNE B. BARNHART,                                 (D. Kansas)
    Commissioner of Social Security
    Administration,

                Defendant - Appellee.


                             ORDER AND JUDGMENT           *




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



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision 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.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Appellant Marjorie Smith challenges the decision of the Commissioner

denying her benefits as a widow or surviving divorced 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 was conceived. This last child

was listed on her birth certificate as Harry’s legitimate 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, Harry purported to marry

Earlene Pratt on November 11, 1966. Harry and Earlene 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 they 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, in Oklahoma.


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       Upon Harry’s death, both Marjorie and Elva applied for benefits for their

children. Only Harry’s legitimate children were eligible for benefits. Because

Harry resided in Oklahoma at the time of his death, the Social Security

Administration (SSA) applied Oklahoma law to determine 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 ended in divorce absent evidence

to the contrary.   See Norton v. Coffield , 

, 437 (Okla. 1960). In this

proceeding, there was no evidence Marjorie and Harry had divorced, but because

of his itinerant lifestyle, neither was there conclusive evidence that he had not

obtained a divorce in one of the many counties where he had resided.

Accordingly, the SSA presumed that Marjorie’s marriage had ended in divorce

prior to Harry’s second marriage on November 11, 1966. This meant that all of

Marjorie’s minor children except her last child were eligible for benefits. Elva

was determined to be Harry’s legal widow, and her child was determined to be

eligible for benefits. Marjorie did not appeal this ruling.

       In 1996, the SSA informed Marjorie that she was eligible for widow’s

benefits. The SSA later realized it had made an error and revoked the benefits,

and Marjorie sought a hearing to determine whether she should be eligible for

either widow’s benefits or surviving divorced spouse benefits. To be eligible for

benefits as a surviving divorced spouse, Marjorie would need to show that she


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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 for 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 finding that their marriage had

lasted ten years.

       The Appeals Council determined that res judicata did not prevent

adjudication of whether Marjorie was a surviving divorced spouse, as this issue

had not been explicitly addressed in the 1978 SSA decision. The 1978 decision

did not directly weigh the equities of Harry’s (first) marriage to Marjorie against

Harry’s (second) marriage to Earlene. Rather, the comparison there was with

Harry’s (third) marriage to Elva, which lasted through his death and produced a

child. The Appeals Council determined that it would not be inconsistent with this

earlier adjudication to weigh the presumption differently when comparing Harry’s

first and second marriages versus comparing his first and third marriages.

       The Appeals Council ordered the ALJ to hold a hearing 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 counties 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, the ALJ determined that it


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was impossible to know with certainty all the counties in which Harry lived and to

search for a divorce record in those counties. While 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 Marjorie ended prior to

November 11, 1966, citing      Marcum v. Zaring , 

(Okla. 1965). The

Appeals Council then adopted this conclusion.

       Analysis

       We review the ALJ’s decision to determine if the factual findings are

supported by substantial evidence and if the correct legal standards were applied.

Castellano v. Sec’y of Health & Human Servs.        , 

, 1028 (10th Cir.

1994). We need not defer to an ALJ’s interpretation of state law.        Smereczynski

v. Sec’y of Health & Human Servs.       , 

, 299 (6th Cir. 1991). When an

ALJ declines review based on res judicata principles, this court lacks jurisdiction

to review that decision.     Brown v. Sullivan , 

, 1196 (10th Cir. 1990).

Here, however, while the ALJ initially cited administrative res judicata, the

Appeals Council directed the ALJ to consider new evidence, thus effectively

reopening the matter.      Taylor ex rel. Peck v. Heckler   , 

, 1114-15

(10th Cir. 1984). Accordingly, we are free to review the ALJ’s decision on the

merits. 

conclude that while Marcum v. Zaring does share some similarities with

the instant case, the differences are more significant, especially in light of the

policy rationale behind Oklahoma’s presumption. When viewed in the context of

other case law applying the presumption, we conclude that Oklahoma courts

would have found Marjorie and Harry to have been married at least through April

of 1970. Therefore, Marjorie should have been found 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 was ended by divorce, thus

permitting a valid second marriage. However, in both cases the court emphasized

(1) the length of the marriage, and (2) whether there 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 validity of the marriage under

attack strengthens the presumption that said marriage is valid, and when the

legitimacy of children of said marriages is at stake the presumption is further

strengthened.”); Marcum , 406 P.2d at 973 (presumption of validity of second

marriage increases with passage of time and the birth of children).

       In those cases, the latter marriage carried greater weight with respect to

these factors.   See Norton , 

(finding last marriage valid where it

lasted thirty-three years and resulted in three children, as opposed to earlier


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marriage which lasted under two years and resulted in one child);       Marcum ,

406 P.2d at 971, 972-73 (finding second marriage valid 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 , 

(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.         

There had been a child in the prior marriage.     

husband’s

presentation of competent evidence that there had been no divorce in that first

marriage was sufficient to defeat the presumption of validity with respect to the

second marriage.   

       In Harrison v. Burton , 

(Okla. 1954), the husband and wife

had been divorced but then reunited, and they held themselves out as husband and

wife. 

The husband then married another woman in a ceremony

approximately five days before a fatal car accident in which both the husband and

his second wife were killed.   

required determination of the

validity of the second marriage. In concluding that the existence of the first

marriage precluded a valid second marriage, the court 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 marriage “is not required to make


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plenary proof of a negative averment.”     

(quotation marks and citation

omitted).

       In Harrison , the testimony establishing the common-law marriage of

husband and wife (following their reunion) was uncontradicted, therefore the

court concluded that the parties alleging the validity of the second marriage were

not entitled to rely on the presumption.   

the instant case, the factors of duration (at a minimum nine

years as opposed to three) and children (four children as opposed to zero) weigh

heavily in Marjorie’s favor. Further, there was no testimony or evidence

contradicting Marjorie’s assertion that there had never been a divorce.

       It is also worth noting that Oklahoma courts have been somewhat

inconsistent in assessing the burden of proof against the party attacking the

marriage. Compare Puntka , 50 P.2d at 1093 (some, competent evidence sufficient

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 overcome the presumption of

validity of the marriage depends upon the length of time that the attacked


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marriage has continued, whether a successful attack will 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 Harry’s second marriage is not so

overwhelming (in that it lasted only three years and produced no children) that

Marjorie should be required to meet it with overwhelming 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 court shall enter an order

granting surviving divorced spouse benefits to Marjorie Smith.


                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge




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