SSR 83-44c: SECTIONS 202(d)(1)(D) AND 204(a) AND (b) (42 U.S.C. 402(d)(1)(D) AND 404(a) AND (b)) TERMINATION OF ENTITLEMENT TO CHILD'S INSURANCE BENEFITS -- VOIDABLE MARRIAGE CONTRACTED IN TEXAS -- EFFECT OF ANNULMENT GRANTED IN ARIZONA

20 CFR 404.352(b)(2) and 404.507(b)

SSR 83-44c

Gartland v. Schweiker, 1A Unempl. Ins. Rep. (CCH) ¶ 14,379 (D.C., Arizona

1982)

BILBY , District Judge:

Report and Recommendation

This Social Security Appeal has been referred to the United States

Magistrate pursuant to the Rules of Practice of this Court. The two

actions were ordered consolidated on April 9, 1981.

Summary of the Case

This is an action pursuant to 42 U.S.C. § 405(g), to obtain judicial

review of a determination by the Secretary that each plaintiff was at

fault with respect to overpayments of child's insurance benefits.

The Administration found initially and on reconsideration that

plaintiff's mother was not without fault with respect to overpayment for

the period of February, 1972 through March, 1975. The Administration found

that plaintiff was not without fault with respect to the overpayment for

the period of January, 1976 through January, 1977. The Administration

found that plaintiff and her mother were not entitled to a waiver of

recovery of these overpayments.

Plaintiff, plaintiff's mother, and their attorney appeared before an

Administrative Law Judge who considered the case de novo . On March

6, 1980, the Administrative Law Judge determined that neither plaintiff

nor her mother [was] without fault with respect to the overpayments. He

further determined that recovery of the overpayments could not be waived.

This decision became the final decision of the Secretary when the Appeals

Council approved it on October 2, 1980.

Summary of the Facts

Plaintiff's mother, Jacqueline Gartland, filed an application for child's

insurance benefits on behalf of plaintiff, Patricia M. Harrell. This

application was filed on May 7, 1971. Benefits were awarded based on this

application.

On February 24, 1972, plaintiff was married in Fort Bend County, Texas.

Plaintiff's mother consented, in writing, to the marriage as was required

by the laws of Texas.

f's mother, Jacqueline Gartland, filed an application for child's

insurance benefits on behalf of plaintiff, Patricia M. Harrell. This

application was filed on May 7, 1971. Benefits were awarded based on this

application.

On February 24, 1972, plaintiff was married in Fort Bend County, Texas.

Plaintiff's mother consented, in writing, to the marriage as was required

by the laws of Texas.

Plaintiff's mother did not report the marriage to the Administration and

continued to receive child's benefits for plaintiff until plaintiff

attained age 18 in April, 1975.

On December 22, 1975, plaintiff filed an application for child's benefits

as a student between the age of eighteen and twenty-three. Plaintiff, in

the application, denied that she had ever been married. Plaintiff received

child's insurance benefits from January, 1976 through January, 1977.

On July 10, 1978, plaintiff again filed an application for child's

insurance benefits as a student. She again denied she had ever been

married. Benefits were denied due to the Administration's discovery of

plaintiff's marriage as revealed in her prison records.

Plaintiff filed a petition for annulment in the Arizona Superior Court in

November of 1978. On March 22, 1979, the court granted the petition for

annulment. On December 6, 1979, an amended decree was entered.

Issue

Is there substantial evidence to support the decision of the Secretary

that plaintiff and plaintiff's mother were not without fault as to the

overpayments and therefore the recovery of the overpayments cannot be

waived?

Discussion

The parties have filed cross motions for summary judgment.

A discussion of the consolidated cases must be in two parts:

, an amended decree was entered.

Issue

Is there substantial evidence to support the decision of the Secretary

that plaintiff and plaintiff's mother were not without fault as to the

overpayments and therefore the recovery of the overpayments cannot be

waived?

Discussion

The parties have filed cross motions for summary judgment.

A discussion of the consolidated cases must be in two parts:

Title 42, United States Code, § 402(d)(1)(D) provides that entitlement to

child's insurance benefits ends in the month preceding the month in which

a child was married. On February 24, 1972, plaintiffs entered into a

ceremonial marriage in Fort Bend County, Texas. Plaintiff's mother gave

her written consent to this marriage. It should be noted that the

application for license, the consent, and the marriage itself were all

dated February 24, 1972.

Plaintiffs contend that the marriage was void from its inception and

therefore no overpayment resulted. The Secretary's position is that the

marriage was merely voidable and that overpayment did result.

If there is substantial evidence to support the decision of the

Secretary, then the decision must be upheld, Torske v. Richardson ,

484 F.2d 59 (9th Cir., 1973), cert. denied, Torske v. Weinberger ,

417 U.S. 933 (1974). The Court should not mechanically accept the

Secretary's findings but should make a thorough and critical review of the

record, Day v. Weinberger , 522 F.2d 1154 (9th Cir. 1975).

The Administrative Law Judge found, in part, as follows:

* * *

* * *

4 Am. Jur. 2d, Annulment of Marriage, § 2, states, in part:

Restatement 2d, Conflict of Laws 2d, § 286 provides:

See also, 4 Am. Jur. 2d, Annulment of Marriage, § 62. Applying the

doctrine cited above results in Texas laws controlling the validity and

annulment of the marriage.

einberger , 522 F.2d 1154 (9th Cir. 1975).

The Administrative Law Judge found, in part, as follows:

* * *

* * *

4 Am. Jur. 2d, Annulment of Marriage, § 2, states, in part:

Restatement 2d, Conflict of Laws 2d, § 286 provides:

See also, 4 Am. Jur. 2d, Annulment of Marriage, § 62. Applying the

doctrine cited above results in Texas laws controlling the validity and

annulment of the marriage.

Plaintiffs and defendant agree that the validity of a marriage must be

determined by applicable state law as there is no federal law of domestic

relations, De Sylva v. Ballentine , 351 U.S. 570 (1956). Arizona

Revised Statutes, § 25-112(A), provides:

Plaintiff's marriage was annulled by the Arizona Superior Court, Pima

County, on March 22, 1979. The Court amended the decree on December 6,

1979. The amended decree stated that the marriage never validly existed.

The Court expressly ruled that the marriage was not voidable, as it was a

nullity from its inception.

The petition for annulment asserted eight reasons why the marriage should

be annulled. These can be summarized as follows:

1. The plaintiff was a minor at the time of the marriage;

2. Plaintiff and her husband only lived together for ten days and the

husband never supported plaintiff;

3. The marriage was never consummated;

4. Plaintiff was pregnant by another man and her husband concealed the

fact that he did not intend to support plaintiff and her child;

5. Plaintiff's husband threatened her life with a deadly weapon;

6. Plaintiff, until after the marriage, was unaware that her husband had

been released from prison after serving a sentence for killing his prior

wife;

7. Plaintiff's husband stole property from plaintiff's mother;

8. Plaintiff never used her married name and never considered herself to

be married.

Arizona Revised Statutes, § 25-301, provides for annulment as follows:

th a deadly weapon;

6. Plaintiff, until after the marriage, was unaware that her husband had

been released from prison after serving a sentence for killing his prior

wife;

7. Plaintiff's husband stole property from plaintiff's mother;

8. Plaintiff never used her married name and never considered herself to

be married.

Arizona Revised Statutes, § 25-301, provides for annulment as follows:

The Arizona courts have not distinguished between void and voidable

marriages. The Arizona courts have in fact ruled that annulment can be

granted on grounds which, by statute constitute a basis for a divorce, Means v. Industrial Commission , 110 Ariz. 72, 515 P.2d 19 (1971),

see also, Hodges v. Hodges , 119 Ariz. 572, 578 P.2d 1001 (Ariz.

App. 1978).

The law in Texas does recognize the difference between void and voidable

marriages. In Coulter v. Melday , 489 S.W.2d, 156 (Tex. Civ. App.

1972), the court discusses the Texas statutes and the distinction in Texas

between void and voidable marriages. The court stated at page 158, in

part, as follows:

The application of Texas' law to the petition for annulment would result

in plaintiff's marriage being voidable rather than void. Texas Family Code

Annotated, § 2.44, provides:

The plaintiff entered into marriage on February 24, 1972. This marriage

was valid until it was annulled by an order of the Superior Court, Pima

County, on March 22, 1979. 42 U.S.C. § 404(d)(1)(D) provides that

entitlement to child's insurance benefits ends in the month preceding the

month in which a child is married. Overpayments occurred in this case.

Title 42, United States Code, § 404, provides, in part, as follows:

iage on February 24, 1972. This marriage

was valid until it was annulled by an order of the Superior Court, Pima

County, on March 22, 1979. 42 U.S.C. § 404(d)(1)(D) provides that

entitlement to child's insurance benefits ends in the month preceding the

month in which a child is married. Overpayments occurred in this case.

Title 42, United States Code, § 404, provides, in part, as follows:

The burden of proving the lack of faults is on the recipient of

overpayment, Sierakowski v. Weinberger , 504 F.2d 831 (6th Cir.,

1974). It does not appear that either plaintiff or her mother sustained

this burden. The Administrative Law Judge rejected the contention of

plaintiff and her mother that they never considered that plaintiff was

married.

The Secretary, and not the Court, is charged with the duty to weigh the

evidence, resolve material conflicts therein and determine the case

accordingly, Richardson v. Perales , 402 U.S. 389 (1971). The

function of the Court is to determine if substantial evidence exists to

support the decision and not to try the case de novo, Beane v.

Richardson , 457 F.2d 758 (9th Cir., 1972) cert. denied , 409

U.S. 859 (1972).

Plaintiff's mother gave her consent to plaintiff's marriage. Plaintiff's

mother failed to notify the Administration of the fact of plaintiff's

marriage. Plaintiff's mother was not without fault in failing to furnish

this information which was material, 20 C.F.R. § 404.507(b).

Plaintiff also failed to furnish information which was material, 20

C.F.R. § 404.507(b). Plaintiff denied that she had ever been married when

she applied for benefits.

It is the function of the Secretary and not the Court to pass on the

credibility of witnesses, Richardson v. Perales , 402 U.S. 389

fault in failing to furnish

this information which was material, 20 C.F.R. § 404.507(b).

Plaintiff also failed to furnish information which was material, 20

C.F.R. § 404.507(b). Plaintiff denied that she had ever been married when

she applied for benefits.

It is the function of the Secretary and not the Court to pass on the

credibility of witnesses, Richardson v. Perales , 402 U.S. 389

(1971); Waters v. Gardner , 452 F.2d 855 (9th Cir., 1971). The

Administrative Law Judge found that plaintiff's and plaintiff's mother's

testimony was not credible.

The facts establish that plaintiff and plaintiff's mother were at fault

in creating their respective overpayments. This having been established

the waiver of overpayments is not permitted, Debusk v. Harris , CCH

UNEMPLOYMENT INSURANCE REPORTS (1980-1981) ¶ 17,202 (N.D. Cal., 1980); Brumfield v. Califano CCH UNEMPLOYMENT INSURANCE REPORTS 1978 ¶

15,842 (E.D. La., 1978); Knapczyk v. Ribiciff , 210 F.Supp. 283

(N.D. Ill., 1962).

If there is substantial evidence to support the decision of the Secretary

then this decision must be upheld, Torske v. Richardson , 484 F.2d

59 (9th Cir., 1973), cert. denied, Torske v. Weinberger , 417 U.S.

933 (1974). It is not appropriate for the Court to substitute its judgment

for that of the Secretary, Jacobs v. Finch , 421 F.2d 843 (9th Cir.,

1970).

It is submitted that, considering the record as a whole, defendant's

motion for summary judgment should be granted and plaintiffs' motion for

summary judgment should be denied.

The Magistrate recommends that the District Court, after its independent

review of the record herein, enter its Order granting defendant's motion

for summary judgment and denying plaintiffs' motion for summary

judgment.

Pursuant to 28 U.S.C. § 636(b), any party may file and serve written

objections within ten days after being served with a copy of this report

and recommendation. If objections are not filed, further appeal is

waived.

, after its independent

review of the record herein, enter its Order granting defendant's motion

for summary judgment and denying plaintiffs' motion for summary

judgment.

Pursuant to 28 U.S.C. § 636(b), any party may file and serve written

objections within ten days after being served with a copy of this report

and recommendation. If objections are not filed, further appeal is

waived.

The Clerk is directed to mail a copy of this report and recommendation to

the attorneys of record.

Order

Plaintiffs and defendant have filed cross motions for summary judgment in

this action. Pursuant to the Rules of Practice of this Court and to 28

U.S.C. § 636(b)(1) these motions were referred to the United States

Magistrate for recommendations. On March 25, 1982, the Magistrate filed

his Report and Recommendation, and copies were mailed to all parties.

The Court, having made an independent review of the record herein and no

objections having been filed by the plaintiffs, orders as follows:

It is ordered that the Magistrate's Report and Recommendation is accepted

and adopted as the Findings of Fact and Conclusions of Law of this

Court.

If is further ordered that plaintiffs' Motion for Summary Judgment is

denied and defendant's Motion for Summary Judgment is granted. The Clerk

is directed to enter judgment accordingly.