Department of Health and Human Services
Departmental Appeals Board
AFDC QUALITY CONTROL REVIEW PANEL
SUBJECT: Oklahoma Department
of Human Services
Docket No. A-92-11
DATE: February 25, 1992
DECISION
The Oklahoma Department of Human Services (State)
appealed the
determination of the Acting Regional
Administrator of the Administration for
Children and
Families (Agency) based on a quality control (QC) review
of
AFDC payments 1/ made by the State in February 1991,
that D.I.
was overpaid $28. 2/ State QC had previously
determined
that the $214 grant to D.I. was correct.
However, federal QC found
that D.I. had a common law
spouse, N.S., who was the dependent child's
stepparent
and that the stepparent's presence in the home required
changes in the calculation of the grant, resulting in a
net
overpayment. The State disagreed, contending that
there was no common
law marriage between D.I. and N.S.
For the reasons discussed below, we conclude that it is
reasonable to
find that a common law marriage existed in
this case. We therefore
sustain the Agency's finding of
an overpayment.
Relevant Agency Regulations and Guidance and State Law
The applicable regulations require that the income (minus
certain
disregards) of a stepparent living with the
natural parent and dependent
child must be counted as
income, or deemed, to the assistance unit in
determining
the amount of the AFDC grant. 45 C.F.R.
233.20(a)(3)(xiv). 3/ A stepparent is defined as "one
who is married, under State law, to the child's parent."
Id.
A provision requiring that stepparent income be
deemed to the assistance
unit is also contained in the
Oklahoma Department of Human Services Manual,
section
331.725.
The Quality Control Manual issued by the Agency provides
that a cash
contribution by a stepparent must be counted
as income to the assistance
unit to the extent that it
exceeds the amount deemed under 45 C.F.R.
233.20(a)(3)(xiv). QC Manual, sections 3557 and
3565(A)(2)(e). The full amount of cash contributions by
other
individuals not legally liable for the support of a
member of the assistance
unit is generally counted as
income to the assistance unit. QC Manual,
section
3565(A)(2)(a).
Under Oklahoma law, there are five elements of a common
law
marriage:
(1) an actual and mutual agreement between
the
spouses to be husband and wife;
(2) a
permanent relationship;
(3) an exclusive
relationship;
(4) cohabitation as husband and wife;
and
(5) the parties hold themselves out publicly as
husband and wife.
Memorandum from Assistant General Counsel, Oklahoma
Department of Social Services, dated 9/30/91. 4/
Factual Background
The assistance unit in this case consisted of D.I. and a
dependent
child. During the February 1991 review month,
the household also
included D.I.'s other child and that
child's father, N.S. N.S. first
lived with D.I. and her
two children from sometime in 1988 until October
1989,
when D.I. and her children moved out. A year later, in
October 1990, N.S. moved in with D.I. and her children
and continued to
live with them through the February 1991
review month.
The caseworker narrative for the period February through
October 1989
(the only such notes provided by the State)
repeatedly refers to N.S. as a
"step-parent." In
addition, the narrative states in an entry dated
7/19/89
that N.S. was "a common law spouse." An entry dated
7/31/89 describes N.S. as D.I.'s "spouse." A periodic
redetermination of D.I.'s AFDC eligibility completed by a
caseworker on
7/18/89 identifies N.S. as D.I.'s "spouse"
and contains a note reading
"Stepparent and another child
in home."
The caseworker narrative indicates that the State agency
treated N.S.'s
income for February, April, July, August
and September 1989 as stepparent
income, deeming it to
the assistance unit. 5/ The income
for each of these
months was used in the calculation of a grant effective
two months later.
The State agency did not deem N.S.'s income to the
assistance unit in
calculating the grant for the February
1991 review month. Moreover, a
cash contribution by N.S.
of $50, which was less than the amount of N.S.'s
income,
was counted as income to the assistance unit. 6/
State QC found that the amount of the grant for February
1991 was proper,
describing N.S. as D.I.'s "boyfriend."
In support of this finding, the
State QC worksheet
identifies three people who stated that N.S. and D.I.
were not married, one of whom also stated that N.S. and
D.I. were not
known in the community as husband and wife.
In addition, the worksheet
indicates that both N.S. and
D.I. stated that they were free to marry but
did not want
to do so. State QC review worksheet, element 150.
In
the absence of any reference in the worksheet to
documents containing
these statements, we assume that
they were contemporaneous statements made
directly to the
State QC reviewer.
Federal QC found that the amount of the grant for
February 1991 was
incorrect because N.S. was not treated
as a stepparent. The federal QC
finding noted that D.I.,
when contacted on 6/27/91, stated that she and N.S.
had
never been divorced. The federal QC finding noted in
addition
that D.I. also stated that she and N.S. had
never held themselves out to the
public as man and wife,
but discounted this statement, stating that "the
county
record clearly establishes that the local state agency
determined
that the criteria for establishing a common
law marriage was met for Title
IV-A purposes in 1989."
Memorandum from McCowan to Demps dated 8/6/91,
p. 2. The
finding concluded that, under State law, N.S. should
continue to be considered D.I.'s common law spouse since
there was no
divorce.
According to federal QC, the failure to deem N.S.'s
income to the
assistance unit resulted in a $61
overpayment for February 1991.
(Federal QC used N.S.'s
actual income for the review month, $500, to
determine
the amount of the overpayment since the State had no
specific
methodology for calculating estimates.) Federal
QC also determined
that there was a $50 underpayment
because the cash contribution by N.S. was
treated as
income. Federal QC further determined that there was a
$17 overpayment because N.S. was given an additional
budgetary shelter
allowance. 7/ This resulted in a net
overpayment of $28
($61 - $50 + $17).
Upon the State's request for reconsideration, the
Regional Administrator
affirmed the federal QC finding.
His decision relied in part on an
application for child
support signed by D.I. on 10/17/89 which responded
affirmatively to written inquiries as to whether the
alleged father and
the applicant were free to marry and
were recognized in the community as man
and wife, and
whether the alleged father claimed the applicant and her
children as dependents. 8/ (The State asserted that
the latter question referred to whether the alleged
father claimed the
mother and her children as dependents
on his income tax return.) The
Regional Administrator
also relied on a section of the 7/18/89 periodic
redetermination signed by D.I. which listed N.S. as her
spouse.
State Position
The State did not dispute that, under State law, a common
law marriage
can only be dissolved by divorce and that,
if D.I. and N.S. had a common law
marriage in 1988 or
1989, they remained married in February 1991 despite the
fact that they did not live together from October 1989 to
October
1990. There is also no dispute that a spouse by
a common law marriage
can be a stepparent, and that if
N.S. was a stepparent, his income should
have been deemed
to the assistance unit and his cash contribution should
not have been counted as income.
However, the State took the position that there was no
documentation
which established that, under Oklahoma law,
a common law marriage existed
here. According to an
opinion of legal counsel furnished by the State,
the
statement in D.I.'s child support application that she
and N.S. were
free to marry did not show that there was
an actual or mutual agreement
between the parties to be
husband and wife, but simply meant that there were
no
legal constraints on their capacity to marry. Counsel's
opinion
also stated that neither D.I.'s statement in the
application that she and
N.S. were recognized in the
community as man and wife nor D.I.'s description
in the
periodic redetermination of N.S. as her spouse were
dispositive
because there was no other documentation such
as income tax returns,
mortgages, deeds, loan
applications, bank accounts, or utility or telephone
listings which demonstrated D.I.'s and N.S.'s intent to
hold themselves
out as husband and wife. (The State
asserted elsewhere that D.I.'s
statement in the child
support application that N.S. claimed her and her
children as dependents was not reliable.)
Discussion
It is clear that the State agency's initial and
subsequent treatment of
N.S. cannot both be correct
since, absent a divorce, a common law marriage
could not
have existed in 1989 and not in 1991. As discussed
below, we conclude that it is reasonable under the
circumstances here to
hold the State to its initial
determination that N.S. was D.I.'s common law
spouse.
Although the State argued that there was no common law
marriage, it failed to provide sufficient evidence to
rebut its initial
determination that such a marriage
existed.
Both the 1989 caseworker narrative and the portion of the
periodic
redetermination completed by that caseworker
show that the caseworker viewed
N.S. as a stepparent. In
addition, the caseworker narrative
specifically indicates
that N.S. had this status by virtue of a common law
marriage. During the same time period, D.I. signed the
redetermination form identifying N.S. as her "spouse."
Based
on this information, the State agency calculated
the grant for several
months treating N.S. as a
stepparent. In contrast, there is no
documentation in
the record showing the basis for the State agency's
calculation of the February 1991 grant, in which N.S. was
not treated as
a stepparent. For example, there are no
caseworker notes concerning
D.I.'s marital status nor
documents in which D.I. identifies N.S. as other
than a
"spouse." 9/ Moreover, the State did not offer any
explanation for its inconsistent treatment of N.S. other
than to say
that the earlier treatment was wrong. Since
only one of the State
agency's determinations could have
been correct, we conclude that the State
should be held
to the better documented, earlier determination.
10/
Conclusion
For the foregoing reasons, we conclude that it is
reasonable to find that
a common law marriage existed.
We therefore sustain the Agency's
finding of an
overpayment.
_____________________________
Sara Anderson
_____________________________
Andrea M. Selzer
_____________________________
Carolyn Reines-Graubard
* * * Footnotes * * *
1. AFDC payments are made
pursuant to the Aid to
Families with Dependent Children program established
by
title IV-A of the Social Security Act.
2. We identify the individuals involved in this
case by
their initials in order to protect their privacy.
The State QC review
number is 200390.
3. The
regulations state that this requirement
applies only in states which do not
have laws of general
applicability holding the stepparent legally
responsible
to the same extent as the natural or adoptive parent.
4. We conclude that it is
appropriate to defer to
the State's interpretation of its own law since the
Agency specifically declined to set "standards and
protections to guide
State agencies in establishing the
existence of common law marriages."
51 Fed. Reg. 9191,
9198 (March 18, 1986) (preamble to final rule amending
regulations relating to the AFDC program).
5. The caseworker narrative
does not contain any
entries for the intervening months.
6. This information is not
documented in the
record; however, the Agency's assertions to this effect
were not disputed by the State. The record does not
indicate
whether or not N.S. was treated as a stepparent
for purposes of calculating
the grants for December 1989
through January 1991.
7. The State did not
contest the finding of a $17
overpayment related to the additional budgetary
shelter
allowance. This finding is not related to whether N.S.
was
a stepparent since only members of the assistance
unit are entitled to the
basic budgetary allowance (see
QC Manual, section 3574) and N.S. did not
request that he
be included in the assistance unit.
8. In the same document,
however, D.I. responded
"No" to the question whether she had ever been
married.
9. The State QC
reviewer relied on statements by
D.I. and N.S. themselves as well as by
other people that
D.I. and N.S. were not married, in addition to a
statement by one person that N.S. and D.I. did not hold
themselves out
as man and wife. The former statements
are not sufficiently
definitive, however, because they
could have referred to a formal marriage
rather than a
common law marriage. Moreover, all the statements were
apparently obtained by the State QC reviewer at the time
of the State QC
review, well after the review month.
Even if some elements of a common
law marriage were not
present at that time, the statements do not establish
that, at an earlier time, all elements were not present.
If that
was the case, then D.I. and N.S. would remain
married at common law unless
and until they obtained a
divorce.
10. Since our conclusion relies on the State's
failure to
explain its inconsistent treatment of N.S., it
is not a determination
regarding D.I.'s marital status
for purposes other than determining whether
an error
finding should be imposed on the State in this review
month on
the basis of the evidence in this record.