Sherman v. Federal Security Agency, C-5454.

• Decision Date: 30 January 1947
• Docket Number: No. C-5454.,C-5454.
• Parties: SHERMAN v. FEDERAL SECURITY AGENCY, SOCIAL SECURITY BOARD.
• Court: U.S. District Court — District of New Jersey

70 F. Supp. 758

SHERMAN v. FEDERAL SECURITY AGENCY, SOCIAL SECURITY BOARD.

No. C-5454.

District Court, D. New Jersey.

January 30, 1947.

Sidney Alpern, of Long Branch, N. J., for plaintiff.

Edgar H. Rossbach, of Newark, N. J., U. S. Atty., and Edward V. Ryan, of Jersey City, N. J., Asst. U. S. Atty., for defendant.

FORMAN, District Judge.

Louis Teitelbaum and Belle Samisch were legally married on September 24, 1929 and continued to reside in New York until they separated. On July 28, 1934 a Mexican decree of divorce was issued to plaintiff in this case, and on September 1, 1934 Teitelbaum was served with an English translation. Neither Teitelbaum nor plaintiff was a resident of Mexico, nor did either of them go to Mexico for the purpose of the action.

Plaintiff married Berthold A. Sherman, the deceased wage earner on August 19, 1935 in the State of Connecticut, while both parties were residents of New York State. They moved to New Jersey in 1937 and resided in this district until the death of Sherman on April 23, 1944. At his death there were three children of the marriage between him and plaintiff.

On May 22, 1944 plaintiff filed with the Bureau of Old Age Survivors Insurance of the Social Security Board an application under the provisions of Title II of the Social Security Act, as amended, 42 U.S.C.A. § 401 et seq., for "widow's current insurance benefits" on her own behalf, and for "child's insurance benefits" on behalf of her children. On July 10, 1944, the Bureau allowed child's insurance benefits on behalf of the children, but held that plaintiff was not entitled to a widow's current insurance benefit. She thereupon requested reconsideration by the Bureau and on August 8, 1944 the Bureau affirmed its initial determination. Thereafter, at the request of plaintiff, hearings were held before a referee of the Board, resulting in a decision on February 12, 1945 which affirmed the holding of the Bureau. Thereafter, plaintiff requested and received a review by the Appeals Council of the Social Security Board which on April 24, 1945 affirmed the decision of the referee. Plaintiff then, pursuant to statute, commenced the above entitled cause, but prior to the filing of the Board's answer and pursuant to 42 U.S.C.A. § 405(g), on August 6, 1945, a consent order was entered remanding the claim and the case to the Social Security Board for further proceedings. Additional evidence was taken including the testimony of Teitelbaum and on January 18, 1946 the Appeals Council issued a supplemental decision. Thereafter answer was filed on behalf of defendant denying the right of the plaintiff to recover, and it moved for summary judgment, the proceedings now before the court.

Applicable federal statutes are as follows: "Every widow * * * of an individual who died a fully or currently insured individual after December 31, 1939 * * * shall be entitled to receive a widow's current insurance benefit * * *". 42 U.S.C.A. § 402(e) (1).

"The term `widow' * * * means the surviving wife of an individual who either (1) is the mother of such individual's son or daughter, or (2) was married to him prior to the beginning of the twelfth month before the month in which he died." 42 U.S.C.A. § 409(j).

"In determining whether an applicant is the wife, widow, child, or parent of a fully insured or currently insured individual for purposes of sections 401-409 of this title, the Board shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a wife, widow, child, or parent shall be deemed such." 42 U.S.C.A. § 409(m).

The pertinent New Jersey statute provides: "Full faith and credit shall be given in all courts of this state to a decree of annulment of marriage or divorce by a court of competent jurisdiction in another state of the United States when the jurisdiction of such court was obtained in the manner and in substantial conformity with the conditions prescribed in sections 2:50-9, 2:50-10 and 2:50-11 of this title. Nothing herein contained shall be construed to limit the power of any court to give such effect to a decree of annulment or divorce by a court of a foreign country as may be justified by the rules of international comity; provided, that if any inhabitant of this state shall go into another state or country, in order to obtain a decree of divorce for a cause which occurred while the parties resided in this state, or for a cause which is not ground for divorce under the laws of this state, a decree so obtained shall be of no force or effect in this state." N.J.S.A. 2:50 — 35.

From the facts disclosed herein it appears that plaintiff and her husband resided in New York State at the time of the Mexican divorce, and that she did not become a resident of New...