EFFECTIVE/PUBLICATION DATE: 11/08/89
20 CFR 404.726
Olsen v. Bowen, 1A Unempl. Ins. Rep. CCH ¶ 14,629A (W.D.Mo., Jan. 12, 1989)
This is a proceeding under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. Claimant appeals the administrative denial of her claims pursuant to 42 U.S.C. § 405(g). The cause is presently pending before this court on cross motions for summary judgment.
Claimant Mary Ann Olsen, a/k/a Mary Ann Turner, filed her application for widow's insurance benefits on the account of the deceased wage earner, Chester Lee Turner, on December 20, 1985. Her claim was denied initially and on reconsideration.
On January 9, 1987, following a hearing at which claimant was represented by counsel, an Administrative Law Judge (ALJ) found that claimant was not the widow of the deceased wage earner within the meaning of the Social Security Act. On May 15, 1987, the Appeals Council of the Social Security Administration denied claimant's request for review. Thus, the decision of the ALJ stand as the final decision of the Secretary.
Claimant is a 55-year-old female who was born June 17, 1933. She has only a eighth grade education, and has not worked outside her home in the past fifteen years. Claimant's only source of income is $80.00 in monthly food stamps, Medicaid, and such aid as she can acquire from her son, her church, or Missouri's Division of Family Services. At the time of her hearing, claimant alleged that she was disabled due to severe pains in her legs, diabetes, emphysema, chronic pancreatitis, spinal arthritis, and recurring kidney problems.
In the spring of 1958, claimant alleges that she began living with deceased wage earner Chester Turner. From 1958 until 1967, the couple resided at 8230 North Oak, Kansas City North, Missouri. Therefore, they lived at 314 N.E. 82nd Terrace, Kansas City North, Missouri.
Although claimant uses the name Turner, she and Chester never had a "legal" marriage ceremony. The paid did, however, exchange wedding rings. Their checkbook and real property were titled in both names. The couple had one son, now 28 years old, who allegedly never knew that no formal marital relationship existed between his parents.
Claimant testified at her hearing that she and Chester believed that after living together for seven years they would be considered legally married. They were never formally married because each had been previously married and divorced, and they were afraid that to formalize their marriage with a document might spoil an otherwise good relationship. chester Turner died of a heart attack on November 27, 1985. His Last Will and Testament, dated November 17, 1975, states that as of the time of its execution Chester Lee Turner was single and unmarried.
In 1981, claimant alleges that she and Chester lived together in Kansas City, Kansas, for a period of two months while claimant's father was gravely ill. They lived with a cousin in the cousin's apartment across the street from the hospital where claimant's father lay ill.
Although claimant and Chester discussed selling their home in Missouri and moving in with claimant's mother after the father's death, claimant and Chester Turner made no attempt to sell their home in Missouri. Likewise, during their stay in Kansas they made no attempt to change their mailing address, their voter registration or their driver's licenses to Kansas. Chester Turner drove back and forth to their home in Missouri to obtain clean clothes and to check the mail. After her father's death, claimant's mother changed her mind about having claimant and Turner live with her, so the pair returned to their home in Missouri.
Judicial review of the Secretary's decision is narrow in scope. The Secretary's ruling is conclusive if it is supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971): McMillian v. Schweiker, 697 F.2d 215, 220 (8th Cir. 1983). Because substantial evidence means more than a scintilla, this standard of review is more than a mere rubber stamp approval of the Secretary's decision. McMillian, 697 F.2d at 220. the substantial evidence standard takes into account such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson. 402 U.S. at 401; McMillian, 697 F.2d at 220.
The sole issue in this case is whether claimant is the widow of the deceased wage earner, Chester Lee Turner. The Social Security Act provides that an individual is the widow of an insured individual if the courts of the state of the insured individual's domicile at his death would find that the applicant and the insured individual were validly married at that time, or if such courts would accord her the status of widow in determining devolution of the intestate property. 42 U.S.C. § 416(h)(1)(A). Claimant and decedent lived together in Missouri where he died. Thus, the laws of the State of Missouri determine whether claimant is the widow of Chester Lee Turner.
It is undisputed that claimant and Chester Lee Turner never proceeded through a formal marriage ceremony. It is also clear that Missouri does not recognize common law marriages. See RSMo § 451.040.5 Nevertheless, it is claimant's contention that during the couple's two month's stay in Kansas in 1981, she and Chester Turner established a common law marriage under Kansas law which should be recognized as valid in Missouri.
The flaw in claimant's argument is that there is no evidence that claimant and Turner entered into a common law marriage int he State of Kansas. Missouri courts have held:
McGrath v. McGrath, 387 S.W.2d 239, 242 (Mo. Ct. App. 1965). The evidence on the instant record indicates that claimant and Turner entered into their relationship in 1958 while residents of Missouri. They remained permanent and constant residents of Missouri until 1981, at which time they briefly stayed with a cousin in Kansas City, Kansas. There is no evidence that the couple then decided to enter into a new or even a renewed relationship. Therefore, even if claimant's argument that she and Turner became residents of Kansas for that two month period were accepted, Missouri would still view the couple's continuing relationship as meretricious.
As noted by the ALJ, the facts of the instant case fit squarely within the holdings of Stein v. Stein, 640 S.W.2d 824 (Mo. Ct. App. 1982). The Stein court, citing the previous case of Hesington, found that Missouri will not recognize a marriage in common law form between Missouri residents even though the marriage is alleged to have occurred during a sojourn into a state which recognizes common law marriage. To recognize such a marriage would violate the public policy of Missouri as expressed in RSMo § 451.040.5. Stein, 641 S.W.2d at 168; Hesington, 640 S.W.2d at 827.
Although claimant argues that her stay in Kansas City, Kansas, should be considered more than a mere sojourn, as set out in the Stein and Hesington cases, there is no evidence on the record that she and Turner became domiciliaries of Kansas during their two-month stay in that state. As noted by the ALJ:
To establish domicile in Kansas, "[t]here must be bodily presence at a location coupled with intent to remain there either permanently or for an indefinite period . . . ." Teter v. Corley, 584 P.2d 651 (Kan. Ct. App. 1978). There is nothing on the instant record to indicate that claimant and Turner had an intent to remain in Kansas permanently. Because there is substantial evidence on the instant record to support the Secretary's finding that claimant does not qualify as widow to the deceased wage earner, it is hereby
ORDERED that the decision of the Secretary must be AFFIRMED.
 Claimant's testimony indicates that it was her father who was ill. See Tr. 52
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