B-130275, FEB. 28, 1957

B-130275, FEB. 28, 1957

TO MRS. GERTRUDE VIOLA ARMA COST:

WE REFER TO YOUR LETTER OF NOVEMBER 5, 1956, IN WHICH YOU REQUEST A REVIEW OF OUR OFFICE SETTLEMENT OF OCTOBER 29, 1956, WHICH DISALLOWED YOUR CLAIM FOR THE UNPAID COMPENSATION DUE PHILIP E. ARMA COST, DECEASED EMPLOYEE OF THE PHILADELPHIA NAVAL SHIPYARD, PHILADELPHIA, PENNSYLVANIA. THE CLAIM WAS DISALLOWED, INASMUCH AS MR. ARMA COST DID NOT DESIGNATE YOU AS HIS BENEFICIARY TO RECEIVE SUCH COMPENSATION PURSUANT TO SECTION 1 OF THE ACT OF AUGUST 3, 1950, 64 STAT. 395, 5 U.S.C. 61F, AND YOU MAY NOT BE CONSIDERED AS HIS COMMON-LAW WIDOW IN VIEW OF HIS APPARENTLY VALID PRIOR MARRIAGE TO MRS. CARRIE N. ARMA COST OF 1197 GRANVILLE ROAD, BALTIMORE, MARYLAND.

IN SUPPORT OF HER ALLEGED PRIOR MARRIAGE, MRS. CARRIE ARMA COST SUBMITTED A PHOTOSTATIC COPY OF A MARRIAGE CERTIFICATE EVIDENCING HER MARRIAGE TO PHILIP E. ARMA COST IN YONKERS, NEW YORK, ON APRIL 16, 1925. THE CERTIFICATE SHOWS THAT THE CEREMONY WAS PERFORMED BY DAVID GARFINKEL, ACTING CITY JUDGE, AND WAS WITNESSED BY JAMES J. MCCORMACK AND MAURICE DEGENSTEIN. SINCE YOU EXPRESS SOME DOUBT CONCERNING THE CEREMONIAL MARRIAGE OF MRS. CARRIE ARMA COST, WE ARE ENCLOSING A COPY OF THE CERTIFICATE EVIDENCING SUCH MARRIAGE. IN ADDITION, MRS. CARRIE ARMA COST SUBMITTED A COPY OF A DIVORCE DECREE DATED AUGUST 29, 1921, ENTERED IN THE CIRCUIT COURT OF BALTIMORE CITY,MARYLAND, DIVORCING KIRK P. ROTH FROM CARRIE N. ROTH. ALSO ON FILE IS A COPY OF A DIVORCE DECREE, DATED JANUARY 17, 1924, ENTERED IN CIRCUIT COURT NO. 2 OF BALTIMORE CITY, DIVORCING PHILIP E. ARMA COST FROM WILHELMINA ARMA COST. IN VIEW OF THESE DECREES IT APPEARS THAT ALL IMPEDIMENTS TO MARRIAGE BETWEEN CARRIE N. ROTH AND PHILIP E. ARMA COST HAD BEEN REMOVED PRIOR TO APRIL 16, 1925, AND IN THE ABSENCE OF ANY EVIDENCE TO THE CONTRARY, WE ARE REQUIRED TO CONCLUDE THAT THEIR MARRIAGE ON THAT DATE WAS A VALID ONE. MRS. CARRIE ARMA COST FILED AN AFFIDAVIT IN WHICH SHE DECLARED THAT HER MARRIAGE HAS NOT BEEN TERMINATED BY DIVORCE OR ANNULMENT, THAT SHE HAS NOT BEEN SERVED WITH ANY NOTICE PERTAINING TO DIVORCE OR ANNULMENT AND THAT SHE HAS NOT MARRIED SINCE THE SEPARATION.

ASIDE FROM THE MATTER OF MR. ARMA COST'S PRIOR AND SUBSISTING MARRIAGE, IT IS CLEAR THAT YOU COULD NOT HAVE ENTERED INTO A VALID COMMON-LAW MARRIAGE WITH HIM IN THE STATE OF MARYLAND, INASMUCH AS COMMON-LAW MARRIAGES ARE NOT VALID IN THAT STATE. SEE MITCHELL V. FREDERICK, 170 A. 391; TOWNSEND V. MORGAN, 63 A.2D 743; AND HENDERSON V. HENDERSON, 87 A.2D 403. AN INFORMAL MARRIAGE CONTRACTED IN A JURISDICTION WHICH DOES NOT RECOGNIZE COMMON-LAW MARRIAGES IS VOID AND THE RESULTING RELATIONSHIP IS REGARDED AS MERETRICIOUS. SEE KRONER V. KRONER, 23 N.Y.S.2D 670.

ALTHOUGH COMMON-LAW MARRIAGES ARE RECOGNIZED IN PENNSYLVANIA, A PURPORTED COMMON-LAW MARRIAGE ENTERED INTO IN THAT STATE BY ONE WHO HAS A LIVING SPOUSE FROM WHOM HE HAS NOT OBTAINED AN ABSOLUTE DIVORCE IS VOID AB INITIO. SEE SHARPE V. FEDERAL WINDOW AND OFFICE CLEANING CO., 19 A.2D 509 AND IN RE CLINE'S ESTATE, 194 A. 222. YOU HAVE FURNISHED NO EVIDENCE THAT MR. ARMA COST'S PREVIOUS MARRIAGE WAS EVER DISSOLVED BY DIVORCE OR ANNULMENT, OR OTHERWISE, ALTHOUGH IT APPEARS THAT YOU ARE IN POSSESSION OF ALL OF HIS RECORDS IN WHICH SUCH EVIDENCE WOULD LIKELY BE FOUND. WITH A LIVING WIFE, IT WAS OF COURSE IMPOSSIBLE FOR HIM TO ENTER INTO A VALID COMMON-LAW MARRIAGE WITH YOU, AND A REPUTATION OF BEING MARRIED, OR HOLDING OUT TO BE MAN AND WIFE COULD NOT GIVE RISE TO SUCH A MARRIAGE. SEE IN RE CLINE'S ESTATE, SUPRA.

FURTHERMORE, IT DOES NOT APPEAR THAT A PRESUMPTION OF VALIDITY MAY BE ACCORDED YOUR ALLEGED SECOND MARRIAGE TO MR. ARMA COST. UNDER THE LAW OF PENNSYLVANIA, A VALID MARRIAGE, ONCE PROVED, IS PRESUMED TO CONTINUE UNTIL THE ACTUAL OR PRESUMPTIVE DEATH OF ONE OF THE PARTIES, OR UNTIL IT IS TERMINATED BY DIVORCE OR ANNULMENT. WITHOUT PROOF OF EITHER, IF ONE OF THE PARTIES MARRIES AGAIN, ALTHOUGH A PRESUMPTION OF INNOCENCE, MORALITY AND LEGITIMACY ARISES IN FAVOR OF THE SECOND MARRIAGE, THIS SECOND PRESUMPTION DOES NOT, OF ITSELF, OVERCOME THE PRESUMPTION OF THE CONTINUING VALIDITY OF THE FIRST MARRIAGE, BUT REQUIRES PROOF OF FACTS AND CIRCUMSTANCES WHICH WOULD HAVE THE EFFECT OF OVERCOMING THE PRESUMPTION FAVORING THE FIRST MARRIAGE, SUCH AS THE LAPSE OF A LONG PERIOD OF TIME DURING WHICH THE OTHER PARTY IS PRESUMED TO HAVE DIED, THE QUESTION OF THE LEGITIMACY OF CHILDREN OF THE SECOND MARRIAGE, THE FACT THAT THE OTHER SPOUSE HAD LIKEWISE REMARRIED, OR PROOF THAT A DECEDENT WHOSE HEIRS ARE ATTACKING THE VALIDITY OF THE SECOND MARRIAGE HAD HIMSELF RECOGNIZED ITS VALIDITY. SEE MADISON V. LEWIS, 30 A.2D 357; HUDEK V. UNITED ENGINEERING AND FOUNDRY CO., 33 A.2D 41; SHARPE V. FEDERAL WINDOW AND OFFICE CLEANING CO., 19 A.2D 509, AND THE ANALYSIS OF THESE AND OTHER PENNSYLVANIA CASES IN 14 ALR 2D 7, 39.

AS ALREADY POINTED OUT, MRS. CARRIE N. ARMA COST IS STILL ALIVE AND HAS SUBMITTED EVIDENCE SUFFICIENT TO ESTABLISH A PRIOR VALID MARRIAGE TO PHILIP E. ARMA COST. SINCE NO EVIDENCE HAS BEEN FURNISHED THAT SUCH MARRIAGE WAS TERMINATED BY DIVORCE OR ANNULMENT, WE MUST CONCLUDE THAT YOU ARE NOT THE LEGAL WIDOW OF THE DECEDENT.

ACCORDINGLY, THE SETTLEMENT OF OCTOBER 29, 1956 APPEARS TO BE CORRECT AND IS HEREBY AFFIRMED.