Davis v. Califano

• Decision Date: 25 July 1979
• Docket Number: Nos. 78-2374,78-2375,s. 78-2374
• Citation: 603 F.2d 618
• Parties: Mary DAVIS, Plaintiff-Appellee, Cross-Appellant, v. Joseph A. CALIFANO, Secretary of Health, Education and Welfare, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 618

603 F.2d 618

Mary DAVIS, Plaintiff-Appellee, Cross-Appellant, v. Joseph A. CALIFANO, Secretary of Health, Education and Welfare, Defendant-Appellant, Cross-Appellee.

Nos. 78-2374, 78-2375.

United States Court of Appeals,

Seventh Circuit.

Argued April 24, 1979.

Decided July 25, 1979.

John W. Wojciechowski, Social Security Div., Baltimore, Md., for defendant-appellant, cross-appellee.

Barbara L. Samuels, Legal Assistance Foundation of Chicago, Chicago, Ill., for plaintiff-appellee, cross-appellant.

Before FAIRCHILD, Chief Judge, MOORE, Senior Circuit Judge, ^* and WOOD, Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

Henry Davis, a truckdriver, died in 1972. One year later his two wives applied for widow's insurance benefits under the Social Security Act, 42 U.S.C. § 401 Et seq. The Secretary of Health, Education and Welfare ruled that the first wife, Novella, was the "legal" widow. The second wife, Mary, filed this action against the Secretary in federal district court. The district court judge, while finding that Novella was the "legal" widow, ordered that the two wives split the widow's insurance benefits. The Secretary appealed the district court's order, and Mary cross-appealed. We note jurisdiction under 28 U.S.C. § 1291.

In 1922 Henry Davis married Novella Harrison in Obrion County, Tennessee. In 1938, three years after their fifth child was born, Henry deserted the family, and on grounds of abandonment Novella obtained a "divorce from bed and board," a legal order of separation in Dresden, Tennessee. ¹ Novella never asked for a decree of absolute divorce and remained in Tennessee. She continued to use the name Mrs. Henry Davis and raised the five children alone.

In 1940 while employed as an interstate truckdriver, Henry met Mary Day, in Martin, Tennessee. He told her that he had been previously married to Novella Davis, that they were divorced in Dresden, Tennessee, ² and that he was jailed on one occasion for failure to make "alimony" payments. ³ Mary never examined, nor did she ask to see, the actual divorce decree. In 1942 in St. Louis, Missouri, Henry and Mary were married and they immediately moved to Chicago where they resided for the next thirty years. They were divorced in 1954 in Illinois but remarried in 1955. For the next 17 years Henry and Mary lived together continuously as husband and wife until Henry's death in 1972. No children resulted from Henry's second marriage.

After Henry's death Mary applied in January 1973 for Social Security disabled widow's insurance benefits on the account of Henry, the wage earner. The present controversy began in April 1973 when, also on Henry's account, Novella applied for widow's insurance benefits.

Under the Social Security Act, widow's insurance benefits are payable to the widow or the surviving divorced wife of an individual who died fully insured if the wife (a) has not married, (b) has attained age 60, or has reached 50 years of age but has not yet attained age 60 and is under a disability, and (c) has filed an application, 42 U.S.C. § 402(e). The term "widow" means the surviving wife of the insured, 42 U.S.C. § 416(c).

There are two methods for qualifying for widow's insurance benefits. A spouse qualifies under the state marital status test, which looks to the law of the state of the insured worker's domicile at the time of the worker's death, if the courts of that state would find either that: (a) the two were "validly married," or (b) the applicant, although not validly married, may be considered the widow "if such applicant would, under the laws applied by such courts in determining the devolution of intestate personal property, have the same status with respect to the taking of such property as a . . . widow." 42 U.S.C. § 416(h)(1)(A). ⁴

If an applicant cannot pass the state marital status test, the applicant may still receive widow's benefits under the "purely 'federal' marital status test." Martin, Social Security Benefits for Spouses, 63 Cornell L.Rev. 789, 818 (1978). Congress established this test in 1960 by amending the Act to provide benefits to individuals who, because of a legal impediment under state law, had invalid marriages and were consequently ineligible to receive benefits. See S.Rep.No.1856, 86th Cong., 2d Sess., Reprinted in (1960) U.S.Code Cong. & Admin.News pp. 3608, 3629. Section 416(h)(1)(B), generally known as the "deemed spouse" provision, requires that: (a) the applicant married the wage earner in good faith, without knowing of the legal impediment to the validity of the marriage, (b) the applicant was living with the wage earner at the time of his death, and (c) no other widow "is or has been entitled to a benefit" under the state marital status test. 42 U.S.C. § 416(h)(1)(B). ⁵

A "legal impediment" to the validity of a purported marriage is defined as resulting from either the lack of dissolution of a previous marriage or a defect in the marriage ceremony, 42 U.S.C. § 416(h)(1)(B). See also S.Rep.No.1856, 86th Cong., 2d Sess., Reprinted in (1960) U.S.Code Cong. & Admin.News pp. 3608, 3629 and 3685. Section 416(h)(1)(B) also includes a clause for terminating the payments of a deemed widow once the "legal widow" has made a formal application for widow's benefits, 42 U.S.C. § 416(h)(1)(B).

Mary's initial application was denied at both the initial and reconsideration levels because Mary failed to meet the disability requirement under the Social Security Act, 42 U.S.C. § 402(e). In 1975 Mary's application was reviewed, a hearing was held and an administrative law judge in Chicago decided that Mary was not entitled to widow's benefits because she was neither disabled nor the legal widow of Henry. In April 1976 the administrative law judge's decision was affirmed by the Social Security Appeals Council and adopted as the final decision of the Secretary of Health, Education and Welfare.

Pursuant to 42 U.S.C. § 405(g), Mary Davis filed suit in district court in June 1976 seeking review of the Secretary's decision denying her claim for widow's disability insurance benefits. Mary sought a reversal of the Secretary's decision claiming, among other things, that (1) the Secretary erroneously placed the burden of proof on the plaintiff to prove dissolution of a previous marriage, (2) the Secretary's decision was unsupported by substantial evidence, and (3) the deemed spouse exception in 42 U.S.C. § 416(h) (1)(B), inoperable if a legal widow was eligible for benefits, violated the equal protection and due process guarantees of the Fifth Amendment.

The district court referred the case to a magistrate, and, upon a motion by the Secretary, the magistrate remanded the cause on April 11, 1977, for further administrative proceedings on the issues of whether Mary was disabled and whether she was the legal widow of the deceased wage earner, Henry Davis. Following a second hearing the second administrative law judge issued a recommended decision on May 25, 1977. In his decision the administrative law judge commented on Illinois law:

There can be no doubt that in Illinois a divorce from an earlier marriage will be presumed in order to sustain the validity of a second marriage. Sparling v. Industrial Commission, 48 Ill.2d 332 (270 N.E.2d 411) (1971); Johnson v. Johnson, 114 Ill. 611 (3 N.E. 232) (1885); Coal Run Coal Co. v. Jones, 127 Ill. 379 (8 N.E. 865) (1889); Schmisseur v. Beatrie, 147 Ill. 210 (35 N.E. 525) (1893); Cole v. Cole, 153 Ill. 585 (1894); Winter v. Dibble, 251 Ill. 200 (95 N.E. 1093) (1911); Matthes v. Matthes, 198 Ill.App. 515 (1916); In re Estate of Dedmore, 257 Ill.App. 519 (1930); In re Estate of Pancio (Panico), 268 Ill.App. 585 (1932); Baer v. DeBerry, 31 Ill.App.2d 86 (175 N.E.2d 673) (1961). Equally clear are the statements of the Supreme Court of Illinois which declare that "the presumption may be rebutted by evidence which, standing alone, affords reasonable grounds for concluding that no divorce has been secured" citing Schmisseur v. Beatrie, 147 Ill. 210, 217 (35 N.E. 525) (1893); Cole v. Cole, 153 Ill. 585, 587-588 (38 N.E. 703) (1894); In re Estate of Pancio (Panico), 268 Ill.App. 585, 590-591 (1932); In re Estate of Dedmore, 257 Ill.App. 519, 522-523 (1930). Sparling v. Industrial Commission, 48 Ill.2d 332, 336-337 (270 N.E.2d 411) (1971). The burden of proof is initially upon the person asserting the invalidity of the second marriage. Johnson v. Johnson, 114 Ill. 611, 617 (3 N.E. 232) (1885). This burden requires the proof of a negative contention. In Schmisseur v. Beatrie, 147 Ill. at 217 (35 N.E. 525), the court stated that "it is well settled, that a party is not required to make plenary proof of a negative averment. It is enough that he introduces such evidence as, in the absence of all counter testimony, will afford reasonable ground for presuming that the allegation is true: and when this is done the Onus probandi will be thrown on his adversary."

The administrative law judge then isolated the central issue of the case, considered the evidence and made findings of fact: ⁶

The crucial query in the instant case is whether the first wife, Novella Davis, has presented sufficient evidence so as to overcome the presumption favoring the validity of the marriage between Mary and Henry Davis and thereby shifting the burden of proof to Mary Davis to show that there was, in fact, a divorce A vinculo matrimonii.

Novella Davis testified at the hearing or deposition taken in her behalf that there has never been an absolute divorce or divorce A vinculo matrimonii so as to dissolve the marital status between herself and Henry R. Davis. The June 15, 1938 decree of "divorce from bed and board" or a divorce A mensa et thoro is granted at the discretion of the court and is clearly not considered to be a final and absolute divorce (section 36-802 T.C.A.). In 1963 the divorce statute of Tennessee was amended so as to allow either party to a "divorce from bed and board" to petition for an...