Grey v. Heckler

• Decision Date: 24 October 1983
• Docket Number: D,No. 709,709
• Citation: 721 F.2d 41
• Parties: Mozell GREY, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee. ocket 82-6249.
• Court: U.S. Court of Appeals — Second Circuit

Page 41

721 F.2d 41

3 Soc.Sec.Rep.Ser. 209

Mozell GREY, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services Defendant-Appellee.

No. 709, Docket 82-6249.

United States Court of Appeals Second Circuit.

Argued Jan. 27, 1983.

Decided Oct. 24, 1983.

Florence Roberts, Brooklyn, N.Y. (Brooklyn Legal Services Corp. A, and Arnold Rothbaum, Brooklyn, N.Y., of counsel), for plaintiff-appellant.

Beryl Jones, Asst. U.S. Atty., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Miles M. Tepper and Ben Wiles, Asst. U.S. Attys., Brooklyn, N.Y., of counsel), for defendant-appellee.

Before LUMBARD, VAN GRAAFEILAND and PIERCE, Circuit Judges.

LUMBARD, Circuit Judge:

Following the death of Arthur Grey, Mozell Grey applied for widow's insurance benefits, pursuant to section 202(e) of the Social Security Act, 42 U.S.C. Sec. 402(e). The Secretary of Health and Human Services denied her application, finding that Arthur had divorced her some time between 1931 and 1961 and that Margaret Grey, who married Arthur in 1961, was his surviving wife. The district court affirmed the Secretary's determination, finding it to be supported by substantial evidence. We reverse.

Under the statute, Mozell is entitled to widow's benefits if the courts of Illinois, Arthur's domicile at the time of his death in 1977, "would find that [the] applicant and [the] insured individual were validly married at the time [of his death]." 42 U.S.C. Sec. 416(h)(1)(A) (1976).

The weight of the evidence in this case clearly overwhelms any presumption that Illinois may indulge in favor of the validity of Arthur Grey's marriage to Margaret and hence against the continuation of his 1921 marriage to Mozell Grey. ¹ Mozell has established, by all the means available to her and to the Social Security Administration (SSA), that Arthur never divorced her. Under Illinois precedents it is abundantly clear that the Illinois courts would so hold. There is no substantial evidence to support the contrary determination of the Secretary or the manifestly reluctant affirmance of that determination by the district court. We therefore conclude that petitioner is entitled to receive benefits under the SSA.

THE FACTS

Arthur Grey married Mozell, nee Darsey, in Opelika, Alabama, on July 23, 1921. Mozell bore him a daughter, Ann Elizabeth, in 1922, and the couple continued to reside in Opelika for about seven years from the time of their marriage, although Arthur's job as an itinerant mason took him, with his father, to various cities in the South. Mozell and Ann Elizabeth have both testified that around 1928, while on a job in Atlanta, Arthur committed a crime (apparently aggravated assault) and that he was more or less on the run from the police thereafter, but returned periodically to visit his family. The Administrative Law Judge (ALJ) found that he finally deserted Mozell and passed beyond her ken "about 1931," and we see no reason to disturb that finding.

Arthur then apparently fled to the Great Lakes area. His movements from 1931 to 1936 are somewhat obscure. The SSA, however, learned from Margaret, whom Arthur married in 1961, that he told her that he had lived in Milwaukee, Cleveland, and Detroit before moving to Chicago.

From 1936 until his retirement in 1966, Arthur was continuously employed by the Midland Ross Division of National Casting in Cicero, Illinois, which is a suburb of Chicago and lies in Cook County. In a statement annexed to his claim for retirement benefits in 1966, he stated that he had married a Mary Holt in Chicago in 1942. (No record of this marriage could be found, and Ms. Holt has not appeared.) Arthur returned once to Alabama during this period, apparently in 1947, to attend his father's funeral. He saw both Mozell and Ann Elizabeth at the funeral and did not mention a divorce, either completed or contemplated, to either of them.

In 1954, Arthur met Margaret Rushing and in 1961 went through a ceremonial marriage with her in Chicago, which was evidenced by a certificate but not recorded with the county. At some undisclosed point in their acquaintance, according to Margaret's evidence, Arthur "told her he divorced somebody in Detroit M[ichigan]." On retirement in 1966, Arthur listed Margaret as his wife on his application for social security benefits, leaving blank several lines that requested information about any previous marriages. In 1974, Arthur and Margaret moved to Rockford, Illinois, where they lived until Arthur's death in 1977.

Mozell, meanwhile, lived with her daughter in Opelika, in continuous contact with Arthur's brother and eldest sister. In 1955, Ann Elizabeth moved to Brooklyn, New York, where Mozell followed her two years later. Mozell and Ann Elizabeth have lived in Brooklyn, with the knowledge of Arthur's relatives, ever since. (When Arthur wanted to get in touch with Ann Elizabeth in 1975, he was able to obtain her address at once from Julia Jones, his sister in Milwaukee, who had in turn gotten it from one "Kathyrin"--presumably the sister still in Alabama.) Mozell has repeatedly stated, without contradiction and with the support of Ann Elizabeth, that she was never apprised of any divorce proceedings against her, that she never divorced Arthur, and that she never remarried.

In the summer of 1976, slightly over a year before his death, Arthur visited his sister, Julia Jones. Julia described this visit in a contemporaneous letter to Mozell:

Brother call 2 Sundes ago wont to know what your name was before you all got married wont to know did you ever married again he said he hafter get a dovice [?] from you. [Spelling and punctuation reproduced from original.]

Julia repeated this account in substance in answer to interrogatories in 1980, and added her "belief" that Arthur had never divorced Mozell. She maintained this opinion despite the fact that "Arthur had mentioned [to Julia] that he had divorced Mozell, but he never went into specifics." In August of 1976, Margaret wrote to Ann Elizabeth. She did not mention the subject of divorce in that letter, but did remark that Arthur had asked Julia for Mozell's maiden name.

Arthur died in Rockford, Illinois, on October 28, 1977. On November 3, 1977, Margaret applied for and began receiving widow's insurance benefits. Thereafter, on November 13, 1978, Mozell applied for widow's insurance benefits. After Mozell had filed her claim for widow's benefits, the SSA, acting on its information from Margaret, searched or caused to be searched the divorce records for the counties containing Opelika, Milwaukee, Cleveland, Detroit, Chicago and Cicero, and the two towns in which Arthur lived after his retirement. In addition, the SSA commissioned a search of the records of Lake County, Indiana, which is just across the state line from Chicago. None of these searches located any record of a divorce between Arthur and Mozell.

Mozell's application was denied on September 24, 1979, on the ground that the presumption indulged by Illinois law in favor of the validity of Arthur's marriage to Margaret had not been rebutted. On November 16, 1979, Mozell requested reconsideration of her application, contending that she had never been divorced from Arthur. Upon reconsideration, the denial of benefits was affirmed on the grounds that Mozell had failed to account for Arthur's whereabouts after he left her, and he was therefore presumed to have divorced her before he married Margaret.

Mozell thereafter sought and secured a hearing before an Administrative Law Judge. Testimony was introduced at the hearing that Mozell had neither instituted divorce proceedings against Arthur nor heard of any such proceedings having been instituted by him. Evidence also was introduced showing negative results of searches through divorce records in those places where Arthur was known or believed to have resided. The Administrative Law Judge upheld the denial of Mozell's application on the ground that Mozell's "proof and the evidence in the record [did] not reasonably rebut the presumption that there existed no legal impediament [sic] at the time of [Arthur's] marriage to Margaret Grey," and that Arthur "obtained a divorce in the marriage between himself and Mozell Grey sometime between 1931 and August 11, 1961." ² On July 12, 1981, the ALJ's decision became final when it was approved by the Appeals Council.

Mozell then sought review in the Eastern District of New York pursuant to Sec. 205(g) of the Social Security Act, 42 U.S.C. Sec. 405(g). On July 23, 1982, Judge Bramwell granted the Secretary's motion for judgment on the pleadings, and this appeal followed.

The Secretary's ruling in favor of Margaret may not be overturned unless it is based on legal error or is not supported by substantial evidence. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982). We conclude that the administrative decision was defective in both respects.

Under Sec. 216(h)(1)(A) of the Social Security Act, 42 U.S.C. Sec. 416(h)(1)(A), appellant's status as Arthur's widow must be determined by the law of Illinois, the State in which Arthur was domiciled at the time of his death. Steele v. Richardson, 472 F.2d 49, 51 (2d Cir.1972). Under Illinois law, where there are conflicting marriages, the second marriage is to be presumed valid on the theory that the twice-married spouse is entitled to a presumption of innocence of the crime of bigamy. Belluomini v. Belluomini, 73 Ill.App.3d 836, 841, 30 Ill.Dec. 14, 18, 392 N.E.2d 669, 673 (1979). ³ To support that master presumption, Illinois law provides that "[w]here the celebration of a marriage is shown and also a prior marriage, the death or divorce of the former spouse will be presumed, and the burden of proof is on the party asserting the invalidity of the last marriage." Baer v. DeBerry, 31 Ill.App.2d 86, 89, 175 N.E.2d 673, 674-75 (1961); Winter v. Dibble, 251 Ill. 200, 206, 95 N.E. 1093, 1095 (1911).

In ruling against Mozell, the ALJ, whose...