Dolan v. Celebrezze

• Decision Date: 18 July 1967
• Docket Number: Docket 31153.,No. 490,490
• Citation: 381 F.2d 231
• Parties: Elizabeth DOLAN, Appellant, v. Anthony CELEBREZZE, Secretary of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

381 F.2d 231 (1967)

Elizabeth DOLAN, Appellant, v. Anthony CELEBREZZE, Secretary of Health, Education and Welfare, Appellee.

No. 490, Docket 31153.

United States Court of Appeals Second Circuit.

Argued June 8, 1967.

Decided July 18, 1967.

Richard Owen, New York City (Morton J. Turchin, New York City, of Counsel), for appellant.

Howard L. Stevens, Asst. U. S. Atty. (Joseph P. Hoey, U. S. Atty., Eastern District of New York), for appellee.

Before MOORE, FRIENDLY and ANDERSON, Circuit Judges.

FRIENDLY, Circuit Judge:

Elizabeth Dolan brought this action in the District Court for the Eastern District of New York under 42 U.S.C. § 405 (g), to review a decision of the Secretary of Health, Education and Welfare which denied her application for insurance benefits as the widow of John J. Dolan, 42 U.S.C. § 402(e). Section 216 (c) of the Social Security Act, 42 U.S.C. § 416(c), defines "widow" as the surviving wife of an insured individual; under § 216(h) (1) (A) of the Act the test is whether "the courts of the State in which such insured individual * * was domiciled at the time of death," here New York, "would find that such applicant and such insured individual were validly married * * * at the time he died." The Hearing Examiner thought that on the evidence here they would but the Appeals Council disagreed and this action followed. Both parties having moved for summary judgment, the District Court granted the Secretary's motion; we think it should have granted Mrs. Dolan's and so order.

It is undisputed that the claimant married Dolan on May 14, 1914. A son, John Howard, was born of the marriage. Three years later Dolan left for Peru to work as an electrician. He returned in 1920 or 1921, stayed for six months, then renewed his employment contract and took his wife and son with him to Peru. Since Mrs. Dolan did not like the climate, she and the son came back to New York, where Dolan joined them in 1925 or 1926. A year later he returned to South America. For the first year of his absence they received news and support from him; when these ceased, Mrs. Dolan inquired about her husband and was told by his employer that Dolan had left its employ and his whereabouts were unknown.

Having little or no money Mrs. Dolan and her son lived for a time with various members of her family. In the mid-1930's she became acquainted with James Reilly, an engineer for the Long Island Railroad, and took up living with him in a home he provided for her and John Howard. Dolan returned to New York in 1936 and got in touch with his son. For a year and a half they worked together in an art gallery but Dolan made no effort to disrupt the ménage; in fact he did not see his wife. In his employment and social security forms he listed himself as "single" — not "divorced" — and named John Howard Dolan, described as a "nephew," as his beneficiary, as the son knew. John Howard testified that during this period his father never said he had gotten a divorce from Mrs. Dolan; "he still felt that he was married to her but he was just separated," and he told the people at the art gallery that he was separated and that John Howard was the son of the marriage. John Howard lost touch with his father in 1939. Three years later Reilly and Mrs. Dolan decided upon matrimony. The application for a license recited she was a widow, and a ceremony was performed in St. Patrick's Cathedral. Mrs. Dolan testified she thought that after seven years of separation without support she was free to remarry; the statement as to Dolan's death, acknowledged to be without basis, is understandable in view of the parties' desire for a Catholic religious ceremony. Reilly died in 1949 and Mrs. Dolan, representing herself to be his widow, obtained from the Railroad Retirement Board the lump sum annuity payable under 45 U.S.C. § 228e(f) (2). Two years later Dolan appeared at her home, stayed overnight on several occasions and finally took up living there and contributing to the support of the household. After his death the son claimed a lump sum payment for Dolan's burial expenses under 42 U.S.C. § 402(i) as a nephew, the role in which his father had cast him. The application stated that Dolan had been married in 1913 to an unknown person and that the marriage had ended in divorce, the date and place of which were also unknown. The son collected the pay due to Dolan at the date of death, making an affidavit that he was a nephew and the sole living relative.

Mrs. Dolan denied she had ever initiated or received notice of a proceeding for divorce, and a search of the County Clerk's records of Bronx, New York and Queens Counties covering the years 1912 to 1942 disclosed no evidence of a divorce or annulment.¹ When her claim as Dolan's widow under the Social Security Act led the Railroad Retirement Board to seek recovery of its payment to her as Reilly's, she acknowledged her indebtedness but pleaded inability to repay; the Retirement Board took no action, see 45 U.S.C. § 228i(c).

If we were to look solely at the record, we could not find that the evidence supporting the Secretary's decision "is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed" to his view, Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951), the standard here applicable. The credibility findings of the Hearing Examiner, who saw and heard Mrs. Dolan and her son, are entitled to great weight, id. at 496, 71 S.Ct. 456, 465, and the factual matters relied on by the Appeals Council for its contrary view are unimpressive. We are unable to join the Council in finding significance in Dolan's statements that he was single or unmarried when these were false on any view; rather they tend against the claim he was divorced since there would have been no need for him thus to lie if that had been the fact. In re Terry's Estate, 32 Misc. 2d 470, 222 N.Y.S.2d 865 (Surr.N.Y.Co. 1961); cf. Rudyk v. Rudyk, 198 Misc. 260, 264, 98 N.Y.S.2d 258, 262 (Sup.Ct. Queens Co. 1950). Reliance on the son's statements that Dolan was divorced and had no other living relative, made in collecting Dolan's social security death benefits and back pay, is similarly misplaced when the same statements made the known false averments that Dolan had married an unknown person and that the son was a nephew; moreover the Trial Examiner evidently believed John Howard's testimony that his father never said he had been divorced, and had in fact introduced his son at the art gallery with the explanation that he was only separated from his wife. Mrs. Dolan's representing herself as Reilly's widow in collecting his railroad retirement benefits, while somewhat more probative, also falls in place if her testimony that she thought herself entitled to remarry is credited. The slender evidence that claimant continued to be known as Mrs. Reilly after Dolan's reappearance is no more persuasive. It is apparent to us that the Hearing Examiner had a much better "feel of the case" of these poor and unlearned people, see Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 216, 67 S.Ct. 752, 91 L.Ed. 849 (1947), than did the Appeals Council.

The Council relied heavily on what it characterized as "a strong presumption in favor of the validity of a second or subsequent marriage" recognized by the New York courts which, in its view, "can be rebutted only by evidence demonstrating that the prior marriage was still in effect at the time of the later marriage." Examination of the New York decisions convinces us that both the Council and the District Court considerably overestimated the demonstration New York would require in a case like this.

The limited character of the presumption appears clearly enough in the fountain head of New York law on this subject, In re Meehan's Estate, 150 App.Div. 681, 135 N.Y.S. 723 (1st Dept. 1912), a contest for letters of administration between children of a second marriage and more distant relatives. In upholding the second marriage the court emphasized the nature of the contest as well as the strong public policy favoring legitimacy. It also noted that no evidence had been offered to prove that the first marriage was not dissolved; in fact, there was "testimony which suggests that Meehan obtained a divorce from her the first wife, and the surrogate found that their marriage was legally dissolved prior to * * *. the second wedding." 135 N.Y.S. at 724. The court specifically declined to rely on the presumption, applied in some other jurisdictions, that in the absence of contrary evidence the first marriage will be deemed to have been dissolved. Instead, it rested "decision on a somewhat broader ground," stating that each case must stand on its own facts and only when the proof is insufficient for a decision will the law indulge in presumptions, and holding that where a ceremonial marriage is followed by a long period of cohabitation and the birth of children and the parties are dead, a person not claiming under a prior marriage bears a heavy burden of proving invalidity of the second marriage even to the extent of proving the negative that the first marriage was not dissolved. This statement is enough to show in how many respects the instant case differs from Meehan.

The Second Department has taken an equally limited view of the presumption, in a case more appealing for upholding the second marriage than this one. In re Bauer's Will, 278 App.Div. 658, 102 N.Y.S.2d 577 (2d Dept. 1951), was a contest between the first and second husbands which the surrogate had decided in favor of the latter on the basis of the presumption and without a trial. The Appellate Division reversed, stating that under the facts already of record "and particularly in the absence of issue, the presumption of the validity of the second marriage is not so strong as to require the appellant to adduce express proof that all of the contingencies which would render the...