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SCHROEDER v. CELEBREZZE

August 4, 1965

Dorothy SCHROEDER, Plaintiff,
v.
Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, United States of America, Defendant



The opinion of the court was delivered by: ZAVATT

ZAVATT, Chief Judge.

 This is an action under Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health, Education, and Welfare denying the plaintiff's claim for reinstatement as a recipient of mother's insurance benefits under Section 202(g) of the Act, 42 U.S.C. § 402(g). It is before this court on defendant's motion and plaintiff's cross-motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The facts are not in dispute. This case presents solely a legal question, to wit, whether a widow and mother who has lost her right to mother's insurance benefits by virtue of a subsequent marriage regains this right when that marriage is annulled by a decree of a New York court.

 The undisputed facts are as follows:

 On September 15, 1960, the plaintiff filed application on her behalf for mother's insurance benefits and, on behalf of her son, for child's insurance benefits based upon the earning record of her deceased husband, Frederick C. Schroeder. The claim was allowed and on October 3, 1960, plaintiff and her child were each awarded benefits of $89.30 per month. On August 27, 1962, plaintiff reported to the Social Security Administration that she had married one Dominick Mongoni on August 18, 1962, and accordingly her mother's insurance benefit was terminated. This did not affect the benefit being paid to plaintiff's son. On November 19, 1962, plaintiff instituted an action (in the Supreme Court of the State of New York, Nassau County) for annulment of her said marriage alleging that Mongoni refused to go through with a religious wedding ceremony as he had promised and had also refused to consummate the marriage. The court granted an interlocutory decree of annulment which was entered in the Nassau County Clerk's Office on February 26, 1963, and became final on May 27, 1963. The plaintiff did not seek support in her action for annulment and the decree of annulment did not direct the second husband to support the plaintiff. On June 10, 1963, the plaintiff notified the Social Security Administration of the said decree and requested that, as the widow of her first husband, she be reinstated as a recipient of a mother's insurance benefit. The Mineola District Office of the Social Security Administration denied her request upon the ground that she was no longer the unremarried widow of the deceased wage earner. This decision of the District Office was affirmed by the New York Payment Center on September 12, 1963. A hearing was held before an Examiner of the Bureau of Hearings and Appeals of the Social Security Administration on January 7, 1964, who, on January 31, 1964, decided that the marriage between the plaintiff and Dominick Mongoni was valid and subsisting under the law of New York from the date of its inception until the date the decree of annulment became final and, therefore, that the plaintiff was not the unremarried widow of Frederick C. Schroeder within the meaning of 42 U.S.C. § 402(g)(1). On August 6, 1964, the Appeals Council of the Bureau of Hearings and Appeals denied the plaintiff's request for review of the decision of the Hearing Examiner and that decision became the final administrative decision on plaintiff's claim.

 This court is now called upon to construe Section 202(g) of the Social Security Act, as amended, 42 U.S.C. § 402(g), the relevant sections of which are as follows:

 
"Mother's insurance benefits
 
(g) (1) The widow * * * of an individual who died a fully or currently insured individual, if such widow * * *
 
(A) has not remarried,
 
* * *
 
(D) has filed application for mother's insurance benefits, * * *
 
(E) at the time of filing such application has in her care a child of such individual entitled to a child's insurance benefit, * * *
 
* * *
 
shall be entitled to a mother's insurance benefit for each month, beginning with the first month after August 1950 in which she becomes so entitled to such insurance benefits and ending with the month preceding the first month in which any of the following occurs: * * * she remarries, * * *."

 The outcome of this case depends upon whether plaintiff's marriage to Dominick Mongoni is a remarriage within the meaning of 42 U.S.C. § 402(g), in view of the subsequent New York annulment. The words "remarried" and "remarries" are not defined in the ...


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