## Facts

- John Carthel Hewitt married Barbara Ann Cullum in Texas in 1966.
- John and Barbara lived together as husband and wife in Texas and Maryland and had children together.
- In 1969, John left Barbara and later went through a ceremonial marriage with Nancy Anne Threatt Hewitt, who believed John’s prior marriage had ended.
- In 1973, Barbara and John discussed getting divorced; Barbara claimed she contacted a lawyer and forwarded paperwork to John, but the divorce was never completed.
- In 1977, while John and Nancy were living in Virginia, John was killed in an automobile accident.
- After John’s death, Barbara sought Social Security survivor benefits; the Social Security Administration concluded it found no divorce decree and awarded benefits to Barbara, though the federal court treated that agency determination as not competent proof of marital status in this proceeding.
- Nancy and the administrator of John’s estate sued Firestone Tire & Rubber Company in a Virginia wrongful-death action in federal court (diversity jurisdiction) and obtained a $400,000 settlement.
- Because Virginia law requires court approval of wrongful-death settlements and court-directed distribution, the district court held a hearing to determine who qualified as John’s “surviving spouse” and how the settlement should be distributed among statutory beneficiaries.
- Two women—Barbara (first wife) and Nancy (later ceremonial wife)—each claimed surviving-spouse status; both relationships also involved children who potentially qualified as beneficiaries.

## Issues

1. Whether, under Virginia law, the presumption favoring the validity of a later ceremonial marriage controlled, or whether the evidence was sufficient to prove that John’s earlier marriage to Barbara had not been dissolved by divorce.
2. Which claimant—Barbara or Nancy—qualified as John’s “surviving spouse” for purposes of Virginia’s Death by Wrongful Act statute.
3. Whether the proposed wrongful-death settlement was fair and just, and how the settlement proceeds should be apportioned among the statutory beneficiaries.

## Decision

- The court ruled that the evidence established John’s 1966 marriage to Barbara remained valid and had not been dissolved by divorce.
- The court held Barbara was the lawful “surviving spouse” under Virginia’s wrongful-death statute; Nancy’s later ceremonial marriage did not confer surviving-spouse status.
- The court approved the proposed $400,000 compromise settlement as fair and just under Va. Code § 8.01-55.
- The court ordered distribution of the settlement proceeds among the proper statutory beneficiaries, including the surviving spouse (Barbara) and the decedent’s children, using the allocation authority granted by § 8.01-55.

## Legal Principles

- Virginia recognizes a strong presumption that a later ceremonial marriage is valid, including a presumption that any earlier marriage ended by death or divorce.
- The presumption favoring the later marriage can be overcome by clear, cogent, and convincing proof that the earlier marriage was not dissolved.
- In a wrongful-death action under Va. Code § 8.01-55, the court must approve any compromise settlement and must determine the rightful beneficiaries and an apportionment that is fair and just.
- A claimant’s good-faith belief that a marriage was valid does not create surviving-spouse status when an earlier, undissolved marriage renders the later ceremony invalid for that purpose.

## Conclusion

In a court-supervised Virginia wrongful-death settlement, the district court determined that John Hewitt’s first marriage to Barbara had never been dissolved, so Barbara—not Nancy, the later ceremonial wife—was the lawful surviving spouse; the court then approved the $400,000 settlement as fair and just and directed distribution of the proceeds among Barbara and the decedent’s children as statutory beneficiaries.


Hewitt v. Firestone Tire & Rubber Co., 490 F. Supp. 1358 (1980)