Board of Contract Appeals General Services Administration Washington, D.C. 20405 ___________________ March 16, 1998 ___________________ GSBCA 14122-RELO In the Matter of JAMES H. PERDUE James H. Perdue, Atlanta, GA, Claimant. Susan C. Lauga, Certifying Officer, National Finance Center, Department of Agriculture, Washington, DC, appearing for Department of Agriculture. WILLIAMS, Board Judge. On February 25, 1997, the Department of Agriculture requested that this Board render an opinion as to whether claimant, James H. Perdue, may be reimbursed for 100% of the real estate expenses which he incurred in conjunction with a permanent change of station (PCS). The agency had reduced the amount claimed by 50% because claimant purchased the house with another individual, Linda I. Roetman. Claimant contends that he should be reimbursed for 100% of the real estate expenses because the co-purchaser was also his spouse under a common law marriage. The agency requests our opinion on two questions: (1) Does Ms. Roetman qualify as a member of Mr. Perdue's immediate family in accordance with the guidelines established in the Federal Travel Regulations (FTR)? (2) If the cohabitation of Mr. Perdue and Ms. Roetman can be considered a legal common law marriage, can Mr. Perdue be reimbursed 100% for the relocation, even though his agency did not authorize family members? Because claimant and the co-purchaser of the home have established that their relationship constitutes a common law marriage in Alabama, we answer both questions in the affirmative. Claimant may thus be reimbursed for 100% of the reasonable real estate expenses to which he is entitled under the FTR. Background The PCS at Issue On May 4, 1994, claimant was issued a travel authorization for his permanent change of station from New Orleans, Louisiana, to Asheville, North Carolina. The estimated expenditures authorized were $17,669.50. Claimant was authorized to occupy temporary quarters and to store and ship his household goods, but was not authorized any expenditures for members of his immediate family. Real estate expenses were also authorized for the purchase of a residence in the stated amount of $3,000 and for his lease termination in the amount of $450. On May 17, 1994, claimant and Ms. Linda I. Roetman executed the following agreement: Let it be known that Linda I. Roetman has entered into a personal arrangement with James H. Perdue whereby Ms. Roetman will lend her name and credit history to Mr. Perdue for the purposes of securing a loan to purchase the property at Bane Road, Horseshoe, North Carolina. In return Mr. Perdue has agreed to meet all the financial obligations arising from this loan, including but not limited to closing costs, monthly notes, city, state and local taxes, mortgage insurance and hazard insurance. Mr. Perdue has also agreed to place Ms. Roetman's name on the property title so that in the event of Mr. Perdue's demise there will be no question as to the rights of succession, and Ms. Roetman would have sole control of the property. This arrangement will continue until such time as the two parties mutually agree to change it. On June 24, 1994, claimant and Ms. Roetman went to settlement on the house they purchased in North Carolina, and they were both listed as purchasers. The warranty deed for the purchased residence listed the grantee as James H. Perdue, single man, and Linda I. Roetman, single woman, as joint tenants with right of survivorship and not as tenants in common. Claimant submitted a claim for the real estate expenses incurred in connection with this purchase in the amount of $2,996.05. Claimant also sought reimbursement of expenses in conjunction with the termination of his lease in New Orleans in the amount of $703. The agency denied one half the expenses, reasoning that "title of residence must be held exclusively by the employee or members of the immediate family." In support of his claim for reimbursement, claimant stated that Ms. Roetman is his common law wife and submitted the following statement by Ms. Roetman: This letter is to verify that from April 1989 through June 1994 I, Linda I. Roetman, resided at 5800 Forest Isle Drive, Apt. #575, New Orleans, Louisiana 70131 with James H. Perdue. I resided at this location at the discretion of Mr. Perdue who fulfilled financial obligations such as rent, utility use, and phone. I was listed as 'roommate' on the original lease, so that the apartment complex would have me on record as a resident for security purposes. Copies of checks showed that claimant alone had paid the rent on the apartment in New Orleans from April 30, 1989, through May 23, 1994. Claimant also paid the lease termination fee of $703. In addition, copies of checks from the period May 9, 1994, through October 25, 1994, indicated that claimant alone had paid credit and appraisal fees, the escrow for the North Carolina property, closing costs, wiring costs, propane fill-up costs, power bills, and the mortgage. The Common Law Marriage Documentation submitted by claimant establishes the following facts.[foot #] 1 As of the time of ----------- FOOTNOTE BEGINS --------- [foot #] 1 At the request of the Board, claimant and Ms. Roetman submitted additional evidence regarding the fact that they entered into a common law marriage in the state of Alabama. This evidence was submitted on February 25, 1998. ----------- FOOTNOTE ENDS ----------- claimant's transfer in May 1994, he and Ms. Roetman had been living together continuously for almost eight years. Claimant and Ms. Roetman began co-habitation in Alabama, a state that recognizes common law marriage, in 1987 in a residence owned by claimant. Both claimant and Ms. Roetman were of legal age to consent to marriage and both were single at the time they began the co-habitation. They continuously have held themselves out publicly as husband and wife since 1987. Each has worn a wedding ring, and the couple has maintained a monogamous relationship since 1987. In 1989, claimant was transferred from Alabama to New Orleans and was accompanied by Ms. Roetman. In a subsequent permanent change of station, claimant was transferred from Asheville, North Carolina, to Atlanta, Georgia, and Ms. Roetman was listed as his spouse on the travel authorization. Full relocation expenses were approved for claimant and Ms. Roetman as his spouse when he relocated from Asheville to Atlanta in November 1995. Discussion The authority to reimburse federal employees for real estate expenses incurred incident to a transfer is contained in 5 U.S.C. 5724a(a)(4) (1994), which sets forth certain requirements relating to the title of property sold or purchased. These requirements are incorporated in the FTR, which provides that real estate expenses may be reimbursed so long as: The title to the residence or dwelling at the old or new official station . . . is in the name of the employee alone, or in the joint names of the employee and one or more members of his immediate family, or solely in the name of one or more members of his immediate family. 41 CFR 302-6.1(c) (1996). The FTR defines "immediate family" as an employee's spouse, children, and certain dependent relatives who are members of the employee's household at the time he reports to his new duty station. Id. 302-1.4(f). Here, title to the residence at the new duty station was in the name of claimant and Ms. Roetman. Under FTR 302-6.1(c), if Ms. Roetman is legally claimant's spouse under a common law marriage, he is entitled to full reimbursement of his reasonable real estate expenses. The burden of proof is on the claimant to establish his common law marriage. As the Comptroller General has recognized, issues of marital status are determined by state law. E.g., Stephen P. Atkinson, B-260688 (Oct. 23, 1995); Connie P. Isaac, B-247541 (June 19, 1992). The Comptroller General has found that the relationship of spouse exists if there is a common law marriage recognized under the law of the state where the parties entered into such a marriage. E.g., Susan L. Marsh, B-212900 (Nov. 18, 1983); James R. Murphy, B-186179 (June 30, 1976). Claimant contends that he entered into a valid common law marriage in Alabama prior to his transfer to New Orleans. It has long been recognized that a marriage at common law is a valid marriage in the state of Alabama. Campbell v. Gullatt, 43 Ala. 57 (1869). A valid common law marriage exists in Alabama where there is capacity to enter into a marriage, present agreement or consent to be husband and wife, public recognition of the existence of the marriage and consummation. Waller v. Waller, 567 So. 2d 869 (Ala. Civ. App. 1990); Hudson v. Hudson, 404 So. 2d 82 (Ala. Civ. App. 1981). Applying this standard, we conclude that claimant has established that he and Ms. Roetman entered into a valid common law marriage in the state of Alabama. Through his written statements and exhibits, claimant demonstrated that in 1987 he and Ms. Roetman began living together in the state of Alabama in a residence owned by claimant, held themselves out as husband and wife, and consummated the marriage, and that there was public recognition of the marriage. The record also demonstrates that claimant and Ms. Roetman have continued their relationship, holding themselves out as husband and wife in the other states in which they subsequently resided. Although common law marriages cannot legally be entered into in the state of Louisiana, that state does recognize common law marriages which were effected legally in another state. Honore v. Jones, 180 La. 109, 156 So. 191 (1934). North Carolina, like Louisiana, does not consider common law marriages arising in that state to be valid, but recognizes common law marriage if the act alleged to have created it took place in a state in which such a marriage is valid. State v. Alfred, 298 N.C. 465, 259 S.E.2d 242 (1979). Because claimant has demonstrated that he and Ms. Roetman were husband and wife through common law marriage at the time of his relocation to Asheville, and that they held the purchased property as joint tenants by the entirety, he may be fully reimbursed for reasonable real estate expenses incurred in connection with his transfer. Decision The claim is granted. ____________________________ MARY ELLEN COSTER WILLIAMS Board Judge