Gladys P. Cole v. Office of Personnel Management

951 F.2d 1266 NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. Gladys P. COLE, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. No. 91-3440. United States Court of Appeals, Federal Circuit. Dec. 12, 1991. Before MICHEL, LOURIE and CLEVENGER, Circuit Judges. PER CURIAM. [1] Gladys P. Cole petitions for review of the final decision of the Merits Systems Protection Board denying her claim to a survivor annuity as the widow of Thomas R. Harrison, Jr. Docket No. AT08319110021 (February 27, 1991). We affirm. [2] Ms. Cole claimed entitlement to a survivor annuity as the common law wife of Mr. Harrison. She bore the burden of proving by a preponderance of the evidence that she was entitled to the claimed annuity benefits. See Cheeseman v. OPM, 791 F.2d 138, 141 (Fed.Cir.1986), cert. denied, 479 U.S. 1037 (1987). The Administrative Judge, whose initial decision became the final decision of the Board when it declined to review the initial decision, found after a hearing that Ms. Cole had failed to establish that she had been the common law wife of Mr. Harrison in the State of Georgia, the claimed venue of the common law marriage. That finding was based on the absence of credible evidence that the Cole-Harrison relationship had been consummated by cohabitation in the State of Georgia, and by the presence of substantial evidence that Mr. Harrison had not considered the relationship as an actual contract of common law marriage. [3] Where substantial evidence exists to support the Board's decision, and where a petitioner's contention is not supported by substantial evidence--as is the case here--we must sustain the decision of the Board. 5 U.S.C. § 7703(c); Hayes v. Department of Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984).