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JAMES v. RICHARDSON

June 13, 1973

Ida JAMES, Plaintiff,
v.
Elliot RICHARDSON, Secretary of Health, Education and Welfare, Defendant


Brieant, District Judge.


The opinion of the court was delivered by: BRIEANT

MEMORANDUM AND ORDER

BRIEANT, District Judge.

 Plaintiff (hereinafter also "Claimant"), a resident of this District, brings this action pursuant to 42 U.S.C. § 405(g) to review an adverse decision upon her request for widow's benefits under 42 U.S.C. § 402(e) (3). She now moves for summary judgment pursuant to Rule 56, F.R. Civ. P., and defendant moves for an order pursuant to 42 U.S.C. § 405(g) and Rule 12(c), F.R. Civ. P., granting judgment on the pleadings.

 The Court has jurisdiction over the parties and the subject matter. All administrative remedies available to claimant have been exhausted.

 At issue here is whether claimant's status should be determined to be that of "widow" of Joseph James, who died May 13, 1959, a resident of North Carolina. Congress has directed, in 42 U.S.C. § 416(h) (1) (A), as follows:

 
" Determination of family status
 
An applicant is the . . . widow . . . 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 . . . would find that such applicant and such insured individual were validly married at the time such applicant filed such application or, if such insured individual is dead, at the time he died."

 Facts developed after a full hearing by the Secretary, as well as the inferences drawn therefrom, if supported by substantial evidence, are conclusive in this action. But we should not make findings which the Hearing Examiner has failed to make, particularly where, as here, he has stated, explicitly, his rationale for denying benefits.

 Plaintiff and the wage-earner, Joseph James, were lawfully married on January 13, 1925. In May, 1941, they separated, and Mrs. James moved from North Carolina, the marital domicile, to New York City.

 In the March, 1945 term, Joseph James obtained a divorce from a competent court of North Carolina, where he then resided. Jurisdiction was obtained over the absent wife, plaintiff here, by publication only, based on the allegedly false representation by Joseph James to that Court that he "is reliably informed and believes that she is now living out of the State of North Carolina and in some northern state, but her whereabouts is not known".

 On March 7, 1951, Mrs. James obtained a certified copy of the divorce decree. She used it to gain an advantage in connection with an application to the New York [City] Housing Authority. At no time thereafter, did she move to vacate the judgment of divorce. James had remarried on August 25, 1945, relying on the judgment.

 The Examiner made no specific finding that James' representation to the North Carolina court was false, and that he, in fact, then knew of plaintiff's New York City address. He held instead, apparently, but not specifically, that claimant was guilty of laches, although not so denominated, and possibly estopped, by reason of her possession, since 1951, and use at the Housing Authority, of a certified copy of the judgment of divorce, and also held that:

 
"Additionally, it must be borne in mind that the divorce decree of March 1945, issued by a Court of the sovereign State of North Carolina; until set aside by that tribunal or a higher authority, is a valid decree and therefore binding upon all the interested parties herein under the full faith and credit clause of our own constitution."

 The last quoted conclusion, which appears to be the principal basis for the determination, is clearly erroneous, as the "full faith and credit" to be given the judgment is only such faith and credit which the North Carolina Court would itself give. If it be found that the judgment was obtained by fraud on the Court, then the court granting the divorce ...


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