IN RE: the Claim of Tatiana GOMEZ (2005)

Appeal from a decision of the Workers' Compensation Board, filed July 6, 2004, which ruled that claimant is the legal widow of decedent and awarded her workers' compensation death benefits.

Wilder Gomez (hereinafter decedent) died on September 11, 2001 in the terrorist attacks upon the World Trade Center in New York City. When claimant applied for a workers' compensation death benefit as decedent's surviving spouse, Elisa Gomez Escalante objected and likewise sought a death benefit as decedent's surviving spouse.   It appears that decedent married Escalante in his native Colombia in 1984 and, following his solitary emigration to the United States in 1991, decedent married claimant in New York in 1992.

After decedent's work-related death was established, a Workers' Compensation Law Judge (hereinafter WCLJ) concluded that claimant was decedent's surviving spouse and awarded benefits.   Upon Escalante's application for further review, the Workers' Compensation Board affirmed, prompting this appeal.

Initially, we agree with Escalante that the Board should have formally considered certain evidence which had not been presented to the WCLJ but which was submitted as part of her application for Board review.   Escalante indicated to the WCLJ that she had been married to one Guillermo Rojas in 1981 but divorced him before her marriage to decedent.   In support of this claim, Escalante submitted her Colombian “civil registry record of birth” which noted, among other facts, that she had obtained a “separación de cuerpos” from Rojas and thereafter “contracted civil matrimony” with decedent.   Based upon the Spanish-to-English translation provided and representations made by Escalante's counsel, the WCLJ apparently concluded that Escalante and Rojas had merely been legally separated (see generally Domestic Relations Law art. 11) and that, as a result, her subsequent marriage to decedent was “questionable.”   Therefore, according to the WCLJ, that proof failed to overcome the presumptive validity of decedent's marriage to claimant (see Matter of Seidel v. Crown Indus., 132 A.D.2d 729, 730, 517 N.Y.S.2d 310 [1987] ).

 In her application for Board review, however, Escalante submitted a copy of the actual order of separación de cuerpos and an affidavit of an experienced Colombian attorney, Sulamita Kaim Torres.¹ Kaim Torres attested that the “birth registry” submitted by Escalante is a statutorily-derived, “unique and definitive” catalogue of facts relating to a person's legal capacity and status.   Moreover, Kaim Torres indicated that, under then-existing Colombian law, a separacion de cuerpos was used to civilly dissolve a canonic or religious marriage-such as purportedly existed between Escalante and Rojas-and that the device served as the functional equivalent to a divorce in that context.

Assuming the Board's unfamiliarity with the laws of Colombia, which are pertinent to the resolution of the instant dispute (see generally Matter of Masocco v. Schaaf, 234 App.Div. 181, 254 N.Y.S. 439 [1931] ), and inasmuch as Escalante proffered a credible excuse for failing to present the evidence in question to the WCLJ (see Matter of Servidio v. North Shore Univ. Hosp., 299 A.D.2d 685, 686, 749 N.Y.S.2d 587 [2002];  12 NYCRR 300.13[g];  compare Matter of Cutting v. Richard W. Nezelek, Inc., 293 A.D.2d 829, 830-831, 740 N.Y.S.2d 515 [2002] ), we conclude that the Board should have formally considered this additional proof.   However, in light of the fact that the Board stated that the new evidence, even if considered, would not change its determination, we decline to remit the matter for additional factfinding (cf. Matter of Barrow v. Loon Lake Hotel, 3 A.D.2d 783, 783-784, 160 N.Y.S.2d 593 [1957];  Matter of McLaskey v. City of New York, 277 App.Div. 1068, 1069, 100 N.Y.S.2d 694 [1950] ) and will instead review the record before us to ascertain whether the Board's determination in favor of claimant is supported by substantial evidence (see generally 111 NY Jur.2d, Workers Compensation §§ 772, 773).

 It has long been the rule that, where a marriage has been proven by the facts adduced, there exists a presumption that such marriage is valid (see Fisher v. Fisher, 250 N.Y. 313, 316-317, 165 N.E. 460 [1929];  Matter of Santorella v. Massapequa School Dist. No. 23, 29 A.D.2d 1021, 289 N.Y.S.2d 496 [1968], lv. denied 22 N.Y.2d 645, 295 N.Y.S.2d 1026, 242 N.E.2d 492 [1968];  Matter of Esmond v. Thomas Lyons Bar & Grill, 26 A.D.2d 884, 884, 274 N.Y.S.2d 225 [1966] ).   However, where, as here, two competing putative spouses have come forth with adequate proof establishing the existence of their respective matrimonies, the law further presumes that it is the second marriage which is valid and that the first marriage was dissolved by death, divorce or annulment (see Matter of Brown, 40 N.Y.2d 938, 939, 390 N.Y.S.2d 59, 358 N.E.2d 883 [1976];  Matter of Seidel v. Crown Indus., supra at 730, 517 N.Y.S.2d 310;  45 NY Jur.2d Domestic Relations § 73).   Thus, it was Escalante's burden to prove that the more recent marriage of decedent to claimant was invalid due to the continued existence of her own marriage to decedent (see Matter of Meehan, 150 App.Div. 681, 684, 135 N.Y.S. 723 [1912];  see also Matter of Dugro, 261 App.Div. 236, 239-240, 25 N.Y.S.2d 88 [1941], affd. 287 N.Y. 595, 38 N.E.2d 706 [1941] ).   Regardless of whether Escalante's burden of persuasion is set at a clear and convincing standard or something less stringent (compare Matter of Seidel v. Crown Indus., supra at 730, 517 N.Y.S.2d 310, and Matter of Esmond v. Thomas Lyons Bar & Grill, supra at 884-885, 274 N.Y.S.2d 225, with Matter of Brown, supra at 939, 390 N.Y.S.2d 59, 358 N.E.2d 883, and Steele v. Richardson, 472 F.2d 49, 52-53 [1972];  see generally Dolan v. Celebrezze, 381 F.2d 231 [1967] ), it is our view that Escalante has sufficiently established the vitality of her marriage to decedent and thus rebutted the presumptive validity of claimant's marriage to decedent (see Domestic Relations Law § 6;  see also Fishman v. Fishman, 48 A.D.2d 876, 877, 369 N.Y.S.2d 756 [1975] ).

As discussed above, Escalante produced documentary proof that a Columbian court issued a judgment of separación de cuerpos dissolving her marriage to Rojas, a fact further evidenced by a consistent notation on her Colombian civil registry form.   This evidence, in conjunction with Colombian documentation of her subsequent marriage to decedent, sufficiently resolves any question concerning Escalante's capacity to marry decedent.   Moreover, Escalante affirmatively testified that she and decedent never divorced and that decedent continued to provide for her and their three children following his emigration (see Matter of Lancaster, 30 Misc.2d 7, 9, 209 N.Y.S.2d 395 [1960] ).   Escalante's assertion is further buttressed by the fact that decedent disavowed any prior marriages on the marriage certificate associated with his marriage to claimant (see Matter of Seidel v. Crown Indus., supra at 731, 517 N.Y.S.2d 310;  see also Dolan v. Celebrezze, supra at 232;  Fishman v. Fishman, supra at 877, 369 N.Y.S.2d 756;  Matter of Terry, 32 Misc.2d 470, 471, 222 N.Y.S.2d 865 [1961] ).   Significantly, the notarized Colombian marriage registration documenting the union between Escalante and decedent, as well as Escalante's civil registry, both of which were generated by Colombian authorities after decedent's death, make no mention of any dissolution of the marriage.   Again, Kaim Torres explained the significance of the absence of such notation on Escalante's registry form and, further, there is record evidence indicating that no divorce action involving decedent or Escalante has been commenced anywhere within New York City (see Domestic Relations Law § 230[1];  § 231;  Matter of Seidel v. Crown Indus., supra at 730, 517 N.Y.S.2d 310;  see also Metropolitan Life Ins. Co. v. Jackson, 896 F.Supp. 318, 321-322 [1995];  cf. CPLR 4521).   Accordingly, inasmuch as we find the presumptive validity of decedent's marriage to claimant to be sufficiently rebutted by Escalante's proof, and insofar as claimant has failed to adduce affirmative proof of the invalidity of Escalante's marriage to decedent, we find the decision unsupported by substantial evidence (see Matter of Terry, supra at 471, 222 N.Y.S.2d 865;  compare Matter of Bihanskyj, 55 A.D.2d 836, 837, 390 N.Y.S.2d 322 [1976] ).

ORDERED that the decision is reversed, without costs, and matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision.

FOOTNOTES

1.   Notably, the WCLJ had explicitly requested documentation memorializing the dissolution of the Escalante/Rojas union.   However, it appears that, at the time of the hearings before the WCLJ, only Escalante's birth registry was available from the Colombian authorities, despite the significant efforts of Kaim Torres and Escalante herself.

CARDONA, P.J.

MERCURE, CARPINELLO, MUGGLIN and LAHTINEN, JJ., concur.