The opinion of the court was delivered by: DIMOCK
This is an action brought by an infant plaintiff through her mother as next friend to set aside the determination of the Appeals Council, Social Security Administration, Department of Health, Education and Welfare. The determination which is attacked is that Carol Ann Magner, the infant plaintiff, is illegitimate and therefore not entitled to social security benefits as the child of her father, George H. Magner. Both plaintiff and defendant, the Secretary of Health, Education and Welfare, have moved for summary judgment.
The claim has a long history. The background was stated by the Court of Appeals for this Circuit when the case was before it under the name of Magner v. Hobby, 2 Cir., 215 F.2d 190, and I shall paraphrase that statement.
George H. Magner, when he died on April 28, 1950, was an insured wage-earner under the Social Security Act, 74th Congress, Sess. 1, ch. 531, August 14, 1935, 49 Stat. 620, as amended. He had been lawfully married to Louise W. Henke in 1911 and an adult child by that wife is living. The plaintiff mother, Alberta, was in 1922 lawfully married to Hubert W. Henke, a brother of Louise W. Henke. In 1934, while both couples were living in Mount Vernon, N.Y., they agreed among themselves that each wife would endeavor to obtain a Mexican divorce so that Mr. Magner and Mrs. Henke could get married. It was left to Mr. Magner to make arrangements to obtain such divorces at this own expense. On May 22, 1934, he wrote to a Mexican lawyer in Juarez, Chihuahua, Mexico, who undertook to obtain both divorces for a stated fee. The lawyer sent papers to the parties in New York, including confessions of jurisdiction by the husbands, and these were signed and returned to him. None of the parties established a residence in Mexico, none even went to Mexico. The lawyer obtained a divorce decree as of June 26, 1934, for each wife in a court at Juarez and sent them to the parties in New York. On June 30, 1934, Mr. Magner and Mrs. Alberta Henke, the plaintiff mother, obtained a marriage license in Greenwich, Conn., and were married there by a Justice of the Peace on July 7, 1934, while his first wife and her first husband were still living.
Thereafter they continued to reside in New York, living together as men and wife until Mr. Magner died. The plaintiff Carol Ann Magner, their child born on November 26, 1936, is now in the care of her mother who has been living in Rye, N.Y., since Mr. Magner died.
Upon Mr. Magner's death, Alberta, plaintiff's mother, made claim for social security benefits for herself as Mr. Magner's widow and for plaintiff as his child. The claim on behalf of Alberta was made under section 202(g) of the Social Security Act, 42 U.S.C. 402(g), and that on behalf of the child was made under sections 202(d) and 216(e) of the Act, 42 U.S.C. §§ 402(d) and 416(e). The claims were denied by the Bureau of Old-Age Survivors Insurance of the Social Security Administration. This determination was reviewed before the Appeals Council of the Social Security Administration which reached the same result in a determination dated October 1, 1951. This action was then brought pursuant to section 205(g) of the Act, 42 U.S.C. § 405(g). The determination of the Appeals Council was reversed by decision of the District Court and the Secretary of Health, Education and Welfare appealed to the Court of Appeals for this Circuit. The Court of Appeals reversed the judgment of the District Court and remanded the cause, Magner v. Hobby, 2 Cir., 215 F.2d 190. The Court of Appeals held that the marriage between George H. and Alberta Magner was invalid so that Alberta was not a widow within the terms of the Social Security Act. With respect to Carol Ann, infant plaintiff herein, however, who is the issue of the union between George and Alberta, the Court of Appeals directed that the Administrator should find the facts pertinent to a decision of legitimacy under section 1135(6) of the Civil Practice Act of the State of New York. In so doing, the Court of Appeals acted under section 216(h)(1) of the Social Security Act, 42 U.S.C. § 416(h)(1), which provides that, in determining whether an applicant is the child of an insured 'the Secretary 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 * * * or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death'.
Section 1135(6) of the Civil Practice Act, which the Court of Appeals directed the Administrator to apply, reads in part as follows:
'Legitimacy of children. The following provisions govern the effect of declaring a marriage void or annulling a voidable marriage upon the legitimacy of children of the marriage:
'6. If a marriage be declared a nullity or annulled upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, if it appears, and the judgment determines, that the subsequent marriage was contracted by at least one of the parties thereto in good faith, and with the full belief that the former husband or wife was dead or that the former marriage had been annulled or dissolved, or without any knowledge on the part of the innocent party of such former marriage, a child of such subsequent marriage is deemed the legitimate child of the parent who at the time of the marriage was competent to contract.'
It is to be noted that under this provision, where the second marriage has been contracted while one of the spouses of the first marriage is still alive and is thus invalid, if the second marriage has been contracted by at least one of the parties thereto in good faith in full belief that the former marriage has been dissolved, a child of the second marriage is deemed the legitimate child of the parent who, at the time of the marriage, was competent to contract.
The Court of Appeals held that the Mexican divorces were wholly void so that the second marriage was void. Hence neither party to the second marriage was competent to contract. The result was that the part of section 1135(6) of the Civil Practice Act above abstracted was of no help since neither party to the marriage was competent to contract it. Section 1135(6) goes on, however, to provide as follows:
'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.'
Thus it was within the power of the Secretary in this case to determine that Carol Ann was the legitimate child of either or both of the parties to the subsequent marriage. In remanding the case the Court of Appeals directed that the New York law be applied and continued, 215 F.2d at page 195:
'In so doing the Administrator should find the facts pertinent to a decision of legitimacy under Section 1135(6) of the Civil Practice Act. As such findings have not yet been made so far as now appears, it is necessary to remand for that purpose. 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.'
On the remand, the Appeals Council, by a decision dated June 24, 1955, found that George H. Magner did not contract the second marriage in good faith with the full belief that the former marriages had been dissolved and further found that the Appeals Council was without power to find in its discretion that Carol Ann was the legitimate child of George H. Magner under the last part of section 1135(6) because such a ...