20 CFR 404.1101 and 404.1102

SSR 65-4

Where a worker remarried after obtaining a divorce from his first wife in Nevada, where the divorce decree recited that the jurisdictional requirements had been met and no jurisdictional deficiency appeared on the face of the decree, and where the worker died domiciled in Nevada, and under the law of Nevada the validity of such divorce decree cannot be attacked except in a direct proceeding for that purpose, held, the second wife is the lawful widow of the worker under the law of Nevada, and accordingly has the status as his widow under section 216(h)(1)(A) of the Social Security Act.

S filed application September 15, 1960, on behalf of her child, J, for child's insurance benefits and for mother's insurance benefits for herself as the legal widow of the deceased worker. She established that she married the worker, R, in South Carolina on December 18, 1954, and that they were living together in the same household in Nevada at the time of his death, September 5, 1960. Her application also indicated that R was divorced in Nevada from his first wife on November 2, 1954.

Subsequently, an application for the lump-sum death payment was filed in New York by L, the first wife, who alleged that her husband's divorce was invalid and that she was the lawful widow. She contended that at the time of the divorce, R was not a resident and domiciliary of Nevada, and therefore, the court was without jurisdiction to grant the divorce.

The evidence established that R and L were ceremonially married in June 1927, in New York City, where they maintained a home together for many years and where R's business interests were located. On September 8, 1954, R filed a petition for divorce in Clark County (Nevada), District Court and stated he had been a resident of that county for a period of more than 6 weeks preceding the complaint. A summons and a copy of R's complaint were personally served on L in New York on October 17, 1954; however, L did not appear in the proceedings either personally or through counsel. The court granted R a decree of divorce on November 2, 1954. Shortly after the divorce, R returned to New York. On December 18, 1954, R and S were ceremonially married in South Carolina. A week before this marriage R had executed a will in which he designated his brother, T, as executor and stated that his residence was 18 First Avenue, New York City, said location being a hotel of which he was part owner. Neither L nor S was named in this will. R and S resided in New York until April 1957, when they moved to Las Vegas, Nevada. Shortly after this move, R established a business, purchased a home, and qualified as a voter in that State. The child, J, was born to R and S on August 13, 1958, in Nevada.

R filed his Federal income tax returns for the years 1954 through 1957 in Brooklyn, New York. These returns were joint returns with L and showed R's address as 5 Main Street, Brooklyn, New York, which was the home he had formerly maintained with L. For the year 1958, R and S filed a joint Federal income tax return in Nevada. Upon the death of R, petitions on behalf of his estate were filed both in New York and Nevada. The court in Nevada found that R was a resident and domiciliary of Clark County, Nevada, at the time of his death and that S was lawfully married to R during his lifetime and was and is his widow, and that J, his child, should share in his estate.

Section 216(h)(1)(A) of the Social Security Act provides, insofar as pertinent to this case, that a claimant's status as the widow of a deceased individual shall be determined by applying the law of the State in which the individual was domiciled at the time of his death. Section 404.1102 of the Social Security Administration Regulations (20 CFR 404.1102) defines the term "domicile" as the place of an individual's true, fixed, and permanent home, and the place to which, whenever he is absent, he has the intention of returning. Evidence as to an individual's domicile may, among other things, include information as to where he owned property and paid property taxes, where he paid income taxes, voted, spent the most time if he maintained homes in two jurisdictions, and where he was buried.

R had business interests and owned property in both New York and Nevada and presumably he paid property taxes in both locations. Through the year 1957, he filed federal income tax returns in New York State and also paid State income taxes. For the year 1958, however, he filed his Federal income tax return in the State of Nevada. He also registered to vote in Nevada and during the last 2 years of his life he spent the majority of his time in the State of Nevada. Although R's intention with respect to his domicile cannot be stated with absolute certainty, the evidence reasonably supports the conclusion that R was domiciled in the State of Nevada at the time of this death. Thus the laws of that State are applicable in determining the relationship of the claimants to R. Since the status of the claimants depends upon the validity of the divorce decree, the issue presented is whether under the law of Nevada, the divorce decree in this case, rendered by a Nevada court, is valid. Under Nevada law, a district court has jurisdiction to grant a divorce if "* * * either the plaintiff or defendant shall have been a resident of the State for a period of not less than 6 weeks preceding the commencement of the action * * *." (Nevada Revised Statutes, Section 125.020). A Nevada divorce court may obtain jurisdiction over a nonresident defendant by substituted service (Nevada Rules of Civil Procedure, Rule 4(e)(1)).

The Nevada courts have held that the law of Nevada relating to residence necessary to confer jurisdiction in a divorce case requires that the plaintiff satisfy the court that his physical residence in the State was accompanied by the intent to make Nevada his home and to remain there permanently or at least for an indefinite time. Lamb v. Lamb, 65 P.2d 872 (1937); Walker v. Walker, 198 Pac. 433 (1921); Latterner v. Latterner, 274 Pac. 194 (1929).

Where, however, a decree of divorce recites that the jurisdictional requirements of the law have been satisfied, and a jurisdictional defect does not appear on the face of the record, the Nevada Supreme Court has held that the divorce decree in such case is not void on the face of the decree but is at the most voidable and valid until set aside in a direct proceeding for that purpose. Moore v. Moore, 75 Nev. 190, 336 P.2d 1073 (1959).

The divorce decree rendered by the district court of Clark County, Nevada recites that R had the requisite residence in Nevada, and reflects personal service of process on L, which satisfies the requirements of Rule 4(e)(1) of the Nevada Rules of Civil Procedure. Therefore, even if R's residence in Nevada was, in fact, insufficient to confer jurisdiction on the court, the decree, being valid on its face, is at the most voidable, and thus remains a valid decree unless and until it has been set aside by a court in a direct proceeding for that purpose.

Where (as here) no jurisdictional defect in a Nevada divorce proceeding appears on the face of the record of the proceeding, and where (as here) the only basis for setting the decree aside would be the lack of Nevada domicile of the plaintiff at the time of the divorce (intrinsic fraud as to this jurisdictional element), the only proceeding to set aside the decree which may be brought in Nevada is a motion filed in the original cause, pursuant to section 60(b) of the Nevada Rules of Civil Procedure, within 6 months after the entry of the decree. Colby v. Colby, 369 P.2d 1019 (1962); see also, Manville v. Manville, 387 P.2d 661 (1963). Accordingly, under the facts in this case, while the subject divorce decree was voidable when rendered under Nevada law, that is, it was immune from collateral attack but subject to being set aside in a direct proceeding for that purpose, the decree ultimately became immune even from such direct attack by the fact that a motion to set it aside, pursuant to section 60(b) of the Nevada Rules of Civil Procedure, was not instituted within the prescribed period.

Accordingly, it is found that under the law of Nevada, the divorce decree is valid, its validity never having been attacked timely in a direct action. It follows that the decree effectively terminated the marriage between R and L, and that S is the lawful widow of R. Therefore, it is held that S qualifies as the widow of the worker under Section 216(h)(1)(A) of the Social Security Act, and accordingly, her application for benefits must be allowed and the application filed by L must be disallowed.

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