relying on Illinois law that party alleging that divorce was not obtained must present evidence sufficient to afford reasonable ground for presuming allegation is true, at which point “onus probandi will be thrown on his adversary”
How later courts described this case
- relying on Illinois law that party alleging that divorce was not obtained must present evidence sufficient to afford reasonable ground for presuming allegation is true, at which point “onus probandi will be thrown on his adversary”
- the Commissioner’s determination “cannot be upheld when it is based on an erroneous view of the law, or misapplication of the regulations, that disregards highly probative evidence”
- Court’s duty is to view the record as a whole and “to ensure claim has been fairly evaluated____”
- Van Graafeiland, /., dissenting
Written by the judges who cited it.
The opinion
VAN GRAAFEILAND, Circuit Judge,
dissenting:
In 1931, Herbert Hoover was President of the United States, and Adolph Hitler was a struggling German politician. Pearl Harbor was a decade away, as was also the advent of commercial television and jet-propelled aircraft. Four years were to elapse before the enactment of the Social Security Act, 49 Stat. 620 , and nine years would elapse before the benefits of the Act were made available to survivors, 53 Stat. 1362 .
It was in 1931 that Arthur Grey and his first wife, Mozell, separated. 1 During the forty-six years between the separation and Arthur’s death, he saw Mozell once, and that was at his father’s funeral in 1947.
On August 11, 1962, Arthur and Margaret Rushing were married by Bishop Luther B. Hylton in Chicago. At the time this occurred, the temporal laws of Illinois made bigamy a felony punishable by imprisonment for up to five years, 38 Smith-Hurd Ill.Ann.Stat. § 11-12, and adultery a Class A misdemeanor punishable by imprisonment for up to one year, id. § 11-7. Of greater significance to those who believe, was the spiritual law of Bishop Hylton’s church, which admonished in the words of the Commandment written with the finger of Divinity, “Thou shalt not commit adultery.”
Today, as a result of my colleagues’ decision, Arthur, deceased and unable to speak in his own defense, is branded as a criminal, and his bereaved helpmate, Margaret, who cared for him while he was alive and buried him when he died, is stigmatized as an adulteress. Henceforth, she will be denied the Social Security benefits for which she and Arthur alone made the necessary sacrifices, and she even may be forced to repay the benefits she has already received, 42 U.S.C. § 404 (a). Moreover, as an adjudicated adulteress, she may have to account for any other property she might have received as Arthur’s widow, see Parklane Hosiery Co. v. Shore, 439 U.S. 322 , 99 S.Ct. 645 , 58 L.Ed.2d 552 (1979). I don’t believe that either the Social Security Act or the law of Illinois requires me to concur in this result.
From, the early days of English common law, judicial decisions have reflected a societal preference for order over chaos, morality over immorality, and innocence over guilt. See Hynes v. McDermott, 91 N.Y. 451, 458-62 (1883); Yarbrough v. United States, 341 F.2d 621, 625 (Ct.Cl.1965); McCormick, Handbook of the Law of Evidence § 312 at 653 (1954); 9 Wigmore on Evidence § 2506 (1981). Finders of fact are permitted to make logical inferences of innocent behavior, because “[cjonformity to recognized standards of conduct is the usual and customary action of every member of the community.” Matter of Callahan, 142 Misc. 28, 34 , 254 N.Y.S. 46 (1931), aff’d, 236 A.D. 814 , 259 N.Y.S. 987 (1932), aff’d, 262 N.Y. 524, 188 N.E. 48 (1933).
In some instances, the likelihood of conformity is so strong a,s to warrant a presumption of morality and innocence. In Illinois, as in most other states, this presumption applies where the validity of a second marriage is challenged. Patton v. Railroad Retirement Bd., 313 F.2d 434, 437 (5th Cir.1963); Sparling v. Industrial Comm’n, 48 Ill.2d 332, 336 , 270 N.E.2d 411 (1971); Belluomini v. Belluomini, 73 Ill. App.3d 836, 841 , 30 Ill.Dec. 14 , 392 N.E.2d 669 (1979). This presumption is rebuttable, however, and my reading of the record satisfies me that the Secretary clearly understood this to be the law.
However, a presumption is not the same thing as an inference. An inference is a reasonable deduction from proven facts; a presumption is a deduction mandated by proven facts. Sewell v. United States, 406 F.2d 1289, 1294 (8th Cir.1969); see 1 Devitt & Blackmar, Federal Jury Practice and In *50 structions § 15.03 (1977). The mandate of a presumption may be removed from a ease by rebuttal evidence. The Secretary, as the trier of the facts, always may, and should, make such inferences from the evidence as are dictated by reason and common sense. Moreover, the finality which 42 U.S.C. § 405 (g) attaches to the Secretary’s findings of fact also attaches to the inferences reasonably drawn from those facts. Foss v. Gardner, 363 F.2d 25 , 26 (8th Cir.1966); Sabbagha v. Celebrezze, 345 F.2d 509, 510 (4th Cir.1965); Martlew v. Celebrezze, 320 F.2d 887, 889 (5th Cir.1963).
Where, as here, the parties to a marriage have been separated for a half-century, there has been no attempt at reconciliation by either party, there has been no contact or correspondence between them, the husband has remarried and lived with his second wife until his death sixteen years later, and the husband has told his sister that he had divorced his first wife, the Secretary as the trier of fact, might conclude logically that there had been a divorce.
With all due respect to my learned colleagues, I do not believe that it was their prerogative to decide this factual issue.
. The ALJ did not find that Arthur deserted Mozell. Echoing Mozell’s own words, the ALJ found that Arthur and Mozell “separated” about 1931, and that they never lived together thereafter. Indeed, based on the statement of Arthur’s sister, Julia, the ALJ could have found that the separation actually took place in 1923.