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October 20, 1965

Rae ZELDMAN, Plaintiff,
Anthony CELEBREZZE, Secretary of Health, Education and Welfare, United States of America, Defendant

The opinion of the court was delivered by: MISHLER

MISHLER, District Judge.

 This proceeding is brought pursuant to Social Security Act § 205(g), 42 U.S.C. § 405(g), for judicial review of a final decision of the Secretary of Health, Education and Welfare (Secretary). That decision denied the claim of plaintiff, Rae Zeldman, for wife's insurance benefits based upon the Social Security earnings record of one, Harry Zeldman, on the ground that she is no longer his wife within the meaning of Social Security Act § 216, 42 U.S.C. § 416.

 Harry Zeldman, the wage earner, and fully insured under the Act, became entitled to old-age insurance benefits in January of 1961. Subsequent thereto, and on August 24, 1961, plaintiff filed an application for wife's insurance benefits pursuant to Social Security Act § 202(b), 42 U.S.C. § 402(b). The New York Payment Center, by letter dated April 18, 1962, determined that plaintiff is not legally married to the wage earner and that she does not qualify under the deemed marriage provision of the Act (Social Security Act § 216(h)(1)(B), 42 U.S.C. § 416(h)(1)(B)). A request for reconsideration was then filed; and an affirmance of the former determination was issued February 7, 1964. Plaintiff thereupon requested a hearing and such hearing was scheduled and held on June 17, 1964. The Hearing Examiner, after hearing the testimony and receiving exhibits into evidence, and on July 31, 1964, held that plaintiff is not entitled to wife's insurance benefits. On November 3, 1964, the Appeals Council denied plaintiff's request for review of the Hearing Examiner's action. Thereafter, and on December 2, 1964, the instant action was timely commenced with the filing of the complaint.

 Both parties have filed motions for summary judgment for the purpose of review.

 The undisputed facts are as follows:

 The wage earner's first marriage to Anna Shatz was terminated by the issuance of a final decree of divorce by Supreme Court, Kings County, State of New York on January 30, 1924. That decree prohibits the wage earner from again remarrying in the State of New York unless permission is first obtained from that Court. The wage earner married plaintiff in New Jersey on March 6, 1925, and they thereafter lived together as man and wife in the State of New York. On July 17, 1939, the wage earner was judicially declared an incompetent by a Justice of the Supreme Court, Queens County, State of New York. Plaintiff was appointed committee of the person and property of the wage earner and duly qualified as such committee. In the latter part of 1947, the wage earner left for Florida with the full knowledge and consent of plaintiff, as committee. After residing in Florida for approximately six months, and on February 4, 1948, the wage earner instituted an action for divorce in the Dade County Circuit Court. Constructive service by mail was effected upon plaintiff in New York. Upon receipt of the summons and complaint, plaintiff, by letter, advised the Florida court that the wage earner was an adjudicated incompetent; plaintiff, however, made no appearance and served no answer in that action. The Florida court granted an ex parte decree of divorce on April 20, 1948. Thereafter, and during a continued residence in Florida, the wage earner remarried twice, once to Esther Wolf and once to Esther Lane. Both marriages ended in divorce.

 Upon his arrival in Florida, the wage earner commenced operation of a repair shop for the jewelry trade and continued this business for four years. He next operated a concession in a Food Fair Store. Upon the termination of his lease, the wage earner leased a store adjacent to the prior location and operated his business at that establishment from 1950-1953; and he was engaged in business in Florida until 1956.

 Plaintiff, in 1957, moved, in Supreme Court, Queens County, for permission to institute an action against the wage earner for a judgment declaring the Florida divorce void. Such motion was granted. Matter of Zeldman, 1957, Sup.Ct., 9 Misc.2d 580, 170 N.Y.S.2d 117. Institution of the action, however, occurred subsequent to the filing of plaintiff's claim for wife's insurance benefits. Findings of Fact and Conclusions of Law were filed by Justice Margett, Supreme Court, Queens County, State of New York, on January 13, 1964, declaring the Florida divorce void on the grounds that the wage earner was an adjudicated incompetent at the time the Florida divorce decee was obtained; that, accordingly, the Florida court lacked jurisdiction of the parties and subject matter of such action; and, that the first marriage between the wage earner and plaintiff was valid and subsisting; and declaratory judgment to that effect was entered that same date.

 On February 26, 1958, the wage earner was duly adjudged competent to manage his affairs by a Justice of the Supreme Court, Queens County, State of New York.

 The wage earner returned to New York in 1960 and married plaintiff for the second time at the City Clerk's Office in Jamaica, New York, on May 17, 1960. They separated by order of the Family Court of New York City in December 1960 and have not cohabited since.

 I. The Law Applicable in Determining Family Status

 The Social Security Act, unlike other Federal Acts, sets forth in unequivocal terms that state law is to be applied in determining family status; Social Security Act § 216(h), 42 U.S.C. § 416(h) (quoted in part infra at p. 170); Seidelson & Bowler, Determination of Family Status in the Administration of Federal Acts: A Choice of Law Problems for Federal Agencies and Courts, N.Y.L.J., August 12, 1965, p. 1, col. 4; and the applicable state law is that of the insured. 42 U.S.C. § 416(h)(1)(A); 20 C.F.R. § 404.1101(a); Broden, Law of Social Security and Unemployment Insurance § 7.13 (1962).

 Neither the Secretary nor his delegates made express findings as to the present domicile of the wage earner. Nevertheless, the administrative decisions in question uniformly apply New York law, and there is every indication throughout the record that New York was the wage earner's domicile at the time of the filing of the application in question. A finding of New York domicile is implicit in the administrative decisions, and this is sufficient to satisfy the requirements of section ...

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