Slessinger v. Secretary of Health and Human Services, 87-1231

• Citation: 835 F.2d 937
• Decision Date: 28 December 1987
• Docket Number: No. 87-1231,87-1231
• Parties: , 20 Soc.Sec.Rep.Ser. 125, Unempl.Ins.Rep. CCH 17,843 Georgia SLESSINGER, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 937

835 F.2d 937

56 USLW 2436, 20 Soc.Sec.Rep.Ser. 125,

Unempl.Ins.Rep. CCH 17,843

Georgia SLESSINGER, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.

No. 87-1231.

United States Court of Appeals, First Circuit.

Submitted Sept. 18, 1987.

Decided Dec. 28, 1987.

Richard E. Fleury, Linda S. MacDonald and Saunders, Dumas & Fleury, East Greenwich, R.I., on brief, for plaintiff, appellant.

Robert M. Peckrill, Asst. Regional Counsel, Dept. of Health and Human Services, Lincoln C. Almond, U.S. Atty., and Michael P. Iannotti, Asst. U.S. Atty., on brief, for defendant, appellee.

Before BOWNES, BREYER and SELYA, Circuit Judges.

PER CURIAM.

Claimant Georgia Slessinger filed an application for mother's insurance benefits on September 24, 1984 based on the death on November 29, 1981 of her husband Steven Slessinger. After a hearing, the Administrative Law Judge ("ALJ") found on September 5, 1985 that claimant was not entitled to mother's insurance benefits because of her remarriage to Donald Snow on October 22, 1983. The ALJ ruled that a divorce decree obtained by claimant and Donald Snow in the Dominican Republic on August 6, 1984 did not end her marriage to Snow. The ALJ applied Rhode Island law to determine the validity of the divorce decree because Rhode Island was the state of Steven Slessinger's domicile at the time of his death. The ALJ held that Rhode Island would not recognize the Dominican divorce decree because neither claimant nor Snow was domiciled in the Dominican Republic at the time of the divorce. After the Appeals Council denied claimant's request for review of the ALJ's decision, claimant appealed to the district court, which affirmed the Secretary. Claimant appeals. We affirm.

The issue in this appeal involves the Secretary's determination of the law governing recognition of claimant's Dominican divorce. As we will note in more detail below, there were no disputed factual issues before the Secretary. Accordingly, we do not apply a substantial evidence standard in reviewing the Secretary's conclusions. Application of that standard is limited to "[t]he findings of the Secretary as to any fact." 42 U.S.C. Sec. 405(g). The Secretary's conclusions of law are reviewable by this court. Thompson v. Harris, 504 F.Supp. 653, 654 (D.Mass.1980).

Under 42 U.S.C. Sec. 402(g)(1) and 20 C.F.R. Sec. 404.339, a widow may continue to receive mother's insurance benefits only as long as she remains unmarried. Neither the Act nor the Secretary's regulations specify to what law the Secretary should refer in determining whether a divorce decree has validly terminated a marriage for purposes of Sec. 402(g)(1).

We cannot accept claimant's contention that in making this determination the Secretary should refer not to the law of any particular state, but rather to some form of federal law of divorce, arising out of the Act, governing the validity of divorce decrees for purposes of mother's insurance benefits. Claimant argues that since the Act should be liberally construed in favor of claimants seeking benefits, see Cunningham v. Harris, 658 F.2d 239, 243 (4th Cir.1981), this purported federal law of divorce under the Act should be applied, as a matter of broad statutory construction, to accord generous recognition to divorce decrees in order to permit eligibility for benefits. However, both the Act and the Secretary's regulations expressly mandate reference to state law to evaluate other aspects of eligibility for mother's insurance benefits. 42 U.S.C. Sec. 416(h)(1)(A) provides,

An applicant is the wife, husband, widow, or widower of a fully or currently insured individual for purposes of this subchapter if the courts of the State in which such insured individual is domiciled at the time such applicant files an application, or, if such insured individual is dead, the courts of the State in which he was domiciled at the time of death, or, if such insured individual is or was not so domiciled in any State, the courts of the District of Columbia, would find that such applicant and such insured individual were validly married at the time such applicant files such application or, if such insured individual is dead, at the time he died.

Under 20 C.F.R. Sec. 404.345, similarly, the Secretary must refer "to the laws of the State where the insured had a permanent home when he or she died" to determine whether the insured and the claimant "were validly married under State law." Given these provisions, we cannot think that Congress intended that the validity of a claimant's divorce could be determined other than by reference to applicable state law. See Lugot v. Harris, 499 F.Supp. 1118 (D.Nev.1980) (court applied the law of the state of the parties' domicile, Nevada, to determine the validity of the insured's Mexican divorce from his first wife for purposes of deciding the insured's second wife's claim for widow's insurance benefits).

This conclusion is strongly reinforced by the settled principle that matters of divorce and marital status are uniquely of state, not federal, concern. See, e.g., Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 559-60, 42 L.Ed.2d 532 (1975); Armstrong v. Armstrong, 508 F.2d 348 (1st Cir.1974). It would do violence to this principle for a court to apply federal law under the Act to give effect to a foreign divorce decree that would not be honored in the state of domicile.

We note claimant's point that 20 C.F.R. Sec. 404.346 provides,

If your relationship as the insured's wife, husband, widow, or widower cannot be established under State law as explained in Sec. 404.345, you may be eligible for benefits based upon a deemed valid marriage. You will be deemed to be the wife, husband, widow, or widower of the insured if, in good faith, you went though a marriage ceremony with the insured that would have resulted in a valid marriage except for a legal impediment.

See 42 U.S.C. Sec. 416(h)(1)(B). Section 404.347 adds a requirement that the insured and spouse have been "living in the same household" at relevant times. It is true that in applying these provisions the Secretary must determine the existence of a "deemed valid marriage" by reference to the specific eligibility requirements set out in the statute and regulations as a matter of federal law, and cannot rely on the law of the state of domicile. However, the Act and regulations do not similarly set out criteria by which the Secretary might determine the validity of a divorce decree as a matter of federal law. Nothing in the Act or regulations suggests that such a determination should be made other than by reference to applicable state law.

Finally, we find frivolous claimant's argument that the Secretary's decision to apply state law to determine the validity of a divorce, in the absence of any express statutory or regulatory provision directing such application, constitutes an impermissible promulgation of a new regulation without appropriate notice and comment procedures. The Secretary hardly need promulgate a new regulation whenever he is required, in his adjudicatory capacity, to interpret the Act in order to resolve an issue not determined by existing regulations.

As for the choice of which state's law should govern, we see no error in the Secretary's decision to apply Rhode Island law to determine the validity of the Dominican divorce decree. It is undisputed that the insured was domiciled in Rhode Island when he died. Accordingly, under 20 C.F.R. Sec. 404.345 Rhode Island law clearly governs a fundamental requirement for claimant's eligibility for benefits, i.e., whether claimant and the insured were validly married. It is undisputed, also, that claimant was a Rhode Island domiciliary at the time of the divorce decree (the decree itself specifically so states). Therefore, regardless of whether the insured's domicile or the claimant's domicile is thought determinative, Rhode Island law should apply. It is true that there is no dispute that claimant's second husband, Frank Snow, was domiciled in Massachusetts at the time of the divorce decree. However, even if it were thought that Massachusetts law could apply, we conclude, as we explain below, that neither Rhode Island nor Massachusetts would give effect to the Dominican divorce decree under the circumstances of this case.

We first consider the law of Rhode Island in this area. The district court, the Secretary, and the parties essentially agree that Rhode Island has not spoken on the precise question of the validity in Rhode Island of a bilateral divorce decree obtained in another country by parties without domicile in the decree-granting jurisdiction. Our independent research into Rhode Island law confirms this conclusion. Nor do we find, contrary to the respective contentions of the parties, that such Rhode Island authority as exists points persuasively in one direction or the other.

The Secretary points to Rhode Island authority "repeat[ing] the oft-stated rule that, although full faith and credit must be given to an ex parte divorce decree, all states are entitled to determine for themselves the jurisdictional basis upon which the foreign decree is founded and to withhold full faith and credit if not satisfied that the party asserting the foreign divorce was properly domiciled within the divorce-decreeing state at the time the decree was entered." Rheaume v. Rheaume, 107 R.I. 500, 504, 268 A.2d 437, 440 (1970). See Rymanowski v. Rymanowski, 105 R.I. 89, 94, 249 A.2d 407, 409 (1969). ¹ These cases, however, involved ex parte decrees. In the instant case, by contrast, both parties appeared before the Dominican tribunal, claimant in person and Donald Snow through his attorney.

Claimant relies on Rhode Island authority barring a party who consented to a foreign state's jurisdiction over his or her divorce proceeding in that state, and who participated in that proceeding, from collaterally attacking the foreign state's divorce decree...