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July 5, 1957

Carol Ann MAGNER, by Alberta C. Magner, her next friend, Plaintiff,
Marion B. FOLSOM, Secretary of Health, Education and Welfare, Defendant

The opinion of the court was delivered by: DAWSON

This is a motion for summary judgment brought by an infant plaintiff, Carol Ann Magner, through her mother, Alberta C. Magner, to set aside a determination of the Appeals Council, Social Security Administration, Department of Health, Education and Welfare. Defendant also moves for summary judgment under Rule 56, Fed.R.Civ.P., 28 U.S.C.A. on a cross motion in support of the determination of the Appeals Council.

Plaintiff seeks to have this Court reverse the conclusions of the administrative tribunal as to the determination of her illegitimacy and the subsequent disallowance of her claim for 'child's insurance benefits,' 42 U.S.C.A. § 402(d). Title 42 U.S.C.A. § 405(g) permits such review by the district court, and states: 'The findings of the Administrator as to any fact, if supported by substantial evidence, shall be conclusive * * *.' Plaintiff claims that no substantial evidence exists to support the conclusion of the Administrator that she is illegitimate.

The Facts

 The following facts appear to be established without substantial controversy:

 The parents of the claimant, George H. Magner and Alberta C. Henke, residents of Mount Vernon, N.Y., obtained divorce decrees from their respective spouses on June 26, 1934, and were subsequently married to each other on July 7, 1934, by a Justice of the Peace in Greenwich, Connecticut. The antecedent divorces of the father and mother of the child were granted by the Civil Court of Juarez, Chihuahua, Mexico, through the efforts of a Mexican attorney, and on the mail order application of Mrs. Magner and Mrs. Henke. Neither of the parties established a residence in Mexico, nor were they, for that matter, ever within its boundaries. There appears to be no doubt that under settled New York law such a divorce is against public policy and completely invalid. Atwater v. Ewing, D.C.E.D.N.Y.1949, 86 F.Supp. 47. As a result, since George Magner was lawfully married to Louise Magner in 1911 and Alberta Henke to Hubert Henke in 1922, and since both Mrs. Magner and Mr. Henke were alive on July 7, 1934, the attempted marriage of George and Alberta in Connecticut was a nullity.

 George Magner and Alberta Henke lived together as man and wife from the date of the attempted marriage until his death on April 28, 1950. They were residents of Rye, N.Y. Claimant Carol Ann Magner was born of this union November 26, 1936 and until the determination of the Board believed herself to be the legitimate daughter of George H. Magner and his wife Alberta. The deceased was a fully insured wage earner under the Social Security Act at the time of his death and claim was thereupon made for a widow's and a child's benefits under its applicable sections.

 Prior Proceedings

 The claims were originally denied by a referee appointed by the Agency and later allowed by the District Court for the Southern District of New York. On appeal by the Secretary of Health Education and Welfare to the Court of Appeals, the mother, Alberta C. Magner, was denied widow's benefits and the child's claim was remanded to the Board for a further decision on the question of her legitimacy. Magner v. Hobby, 2 Cir., 1954, 215 F.2d 190. The Court ruled that New York Civil Practice Act § 1135(6) *fn1" controlled the determination, and said: 'The critical fact is whether when the marriage in Connecticut was performed the decedent entered into it in good faith in the belief that his former marriage and that of Alberta had been lawfully dissolved by the Mexican divorces.' 215 F.2d at page 195. After this remand and on June 24, 1955, the Appeals Council of the Social Security Administration, after a hearing, made the determination that George H. Magner attempted to marry Alberta C. Henke without the prerequisite belief that his prior marriage had been lawfully dissolved, and that as a result Carol Ann Magner was an illegitimate child of such union and as such entitled to no benefits under the Act.

 Appellant's brief persuasively sets out arguments which may well indicate that the Administrator's findings as to the father's lack of 'good faith' in contracting the second marriage were not 'supported by substantial evidence.' Be that as it may, this Court believes that such findings are not conclusive on its ultimate determination of the merits of the case. Section 1135(6) of the Civil Practice Act of New York is both mandatory as to part, and permissive as to part. *fn2" If one of the parties to the void marriage was competent to so contract, the child is declared the legitimate issue of the party who entered into the relationship in good faith. But the statute has a permissive provision that reads:

 'If either or both parties to such subsequent marriage were incompetent to contract, the court by the judgment may decide that a child of the marriage is the legitimate child of such an incompetent.'

 This portion of the statute is wholly discretionary.

 Therefore despite the indication of the Court of Appeals to the contrary, the critical fact is not whether the father of the appellant entered into his second marriage in good faith and in the belief that the Mexican divorce had lawfully dissolved his former marital relationship. In order for a court to be required in the exercise of its mandatory power to declare the child legitimate it would have been necessary to establish two critical facts, i.e. (1) that the father was in fact competent to marry and (2) that he entered into the marriage in good faith in the belief that the Mexican divorce had lawfully dissolved his former marriage. Since it seems to be undisputed that the Mexican divorce did not dissolve his former marriage the conclusion is irresistible that the father was not competent to contract a second marriage and that Carol was not his legitimate daughter, irrespective of his good faith or lack of it in entering into the second marriage.

 The Appeals Council had found that the father of appellant was not competent to marry. This finding was supported by substantial evidence and is therefore conclusive.

 However, the Appeals Council determined that they could not exercise the discretionary power granted to the New York courts in § 1135(6) of the Civil Practice Act, under which a New York judge in an annulment proceeding could declare Carol to be the legitimate child of the father even though he was incompetent ...

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