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May 25, 1984


The opinion of the court was delivered by: GLASSER


GLASSER, United States District Judge:

 Plaintiff appeals from the termination of her Widow's Insurance Benefits, as provided for under 42 U.S.C. § 402 of the Social Security Act. For the reasons set forth herein, the decision of the Secretary is affirmed.


 On November 1, 1977, plaintiff Juanita Boyd applied for Widow's Insurance Benefits. Having established that she had married the late Edward Boyd on October 31, 1951 in Baltimore, Maryland, and that Edward Boyd died in New York in 1968, plaintiff was awarded benefits effective with the month of December 1977. *fn1"

 On January 9, 1978, Jeanette T. Monroe filed an application for Widow's Insurance Benefits by virtue of her marriage to Edward Boyd on May 17, 1934 in New York. Mrs. Monroe testified at an administrative hearing that she lived with Edward Boyd in Philadelphia for an indeterminate period of time, that her marriage was thereafter repeatedly interrupted both by spousal disagreements and by Mr. Boyd's incarceration in prison for a number of years, and that the couple finally separated for the last time in 1963, with Mr. Boyd moving to New York.Tr. at 48-52, 128-34. According to Mrs. Monroe, she and Mr. Boyd remained good friends even after their final separation, and that Mr. Boyd's family continued to regard her as Mr. Boyd's wife. Tr. at 128-34.

 Mrs. Jeanette Jackson, the daughter of Edward Boyd and Jeanette Monroe, stated that after her parents separated, she met her father from time to time in New York and that Mr. Boyd never lived in Maryland. Tr. at 73-81, 136-37. Furthermore, she stated that prior to Mr. Boyd's death, she was not aware of his having remarried.Tr. at 138. Like her mother, Mrs. Jackson stated that to her knowledge the first marriage was never annulled. Tr. at 138. A subsequent search of the court records of New York and New Jersey revealed no divorce decree. Tr. at 173. No search was made of the county or state records other than court records in New York or New Jersey, however, nor was any search conducted in other states where Edward Boyd may have been domiciled.

 Juanita Boyd stated that she lived with Edward Boyd in New York for about sixteen months before separating for a year, then lived with him for less than a year before separating permanently. She claims to have no knowledge of Edward Boyd's prior marriage, let alone that he had any children. There were no children from the second marriage with Juanita Boyd. Tr. at 54-58.

 Based on this record, the Administrative Law Judge (ALJ) determined that Juanita Boyd was not entitled to the benefits she was receiving and that these benefits should be awarded to Jeanette Monroe instead. *fn2" In reaching this result, the ALJ recognized that under New York law, there is a presumption in favor of the validity of the second marriage, citing Steele v. Richardson, 472 F.2d 49 (2d Cir. 1972), but he argued that application of this presumption depended on the equities of the case. In this particular case, the ALJ found "no equities which would move a fact finder to conclude that there was any element of stability in the second of the two successive marriages." Tr. at 13.


 The Social Security system provides secondary benefits to the surviving spouses of deceased workers. An applicant can qualify for benefits "if the courts of the State in which [the] insured individual . . . was domiciled at the time of death . . . would find that such applicant and such insured individual were validly married . . . at the time he died." 42 U.S.C. § 416(h). Since Edward Boyd was domiciled in New York at the time of his death, it is to the laws of that State that this Court must look in order to determine whether the Secretary's decision should be affirmed insofar as she awarded benefits to Jeanette Monroe, and not Juanita Boyd.

 The Second Circuit most recently addressed the issue of the validity of marriages under New York law for purposes of widow's benefits in Steele v. Richardson, supra. The Court reversed a decision by the hearing examiner, which had found a marriage to be invalid when both the deceased husband and the second wife, who was seeking widow's benefits, had allegedly been married before. Although there was some evidence, relied on by the hearing examiner, to suggest the validity of the first marriage -- and consequently the invalidity of the second marriage -- there was also countervailing evidence to suggest that the claimant widow's first marriage was bigamous and that the decedent's first marriage was never formally entered into. Id. at 51-52. The court resolved these ambiguities in favor of the second wife, since the Secretary was more capable of investigating the validity of the prior marriages but did not. Id. Two lines of New York authority were citied in support of this holding: first, that the party seeking to rebut the presumption in favor of the validity of the second marriage must prove the validity of the first marriage; and second, that the presumption is stronger where the second marriage is attacked by the first wife or her children. Id. at 53.

 In reaching the result in Steele, the Court distinguished its prior holding in Dolan v. Celebrezze, 381 F.2d 231 (2d Cir. 1967), in which it found the presumption in favor of the validity of the second marriage to be weaker, based on a rather thorough survey of New York case law on the subject. Id. at 234-236. In Dolan, plaintiff and her son testified that there had never been a dissolution of plaintiff's first marriage to the deceased, even though she later married another individual and collected widow's benefits following the second husband's death. Id. at 233. Their testimony was considered bolstered by the fact that the first husband had made false statements that he was single or unmarried, which suggested to the Court that he was never divorced. Id. at 233-34. *fn3" Furthermore, a search of the records revealed no evidence of a divorce. Based on these facts, the court found the presumption to be rebutted. Id. at 233.

 According to Steele, the decisions in Dolan, and other cases in which the presumption regarding the second marriage was found rebutted in attributable to the fact that the equities weighed in favor of the surviving spouse of the first marriage. 472 F.2d at 53.This explanation is curious, however, since in Dolan the court suggested that the presumption of validity of the second ...

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