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)

: C was married in Texas in February 1972, but her mother, who was receiving child's insurance benefits on C's behalf, failed to report this event to the Social Security Administration (SSA). As a result, C's mother continued to receive benefits for her daughter until C attained age 18 in April 1975. C applied for child's insurance benefits as a student in December 1975 and indicated on her application that she had never been married. She received child's insurance benefits from January 1976 through January 1977. When C reapplied for child's insurance benefits as a student in July 1978, she again indicated that she had never been married. On this occasion, however, her application was denied because SSA had learned of her marriage. Subsequently, the marriage was annulled by an Arizona court which ruled that the marriage was void from its inception. When SSA determined that C's mother was at fault with respect to the overpayment of child's insurance benefits incurred from February 1972 through March 1975 and that C was at fault with respect to the overpayment of child's insurance benefits incurred from January 1976 through January 1977, an appeal was filed. C and her mother contended that C's marriage was void from its inception and therefore no overpayment had resulted. The district court found that the laws of Texas, the State where C's marriage was contracted, were controlling in determining the validity of her marriage. The court noted that while Arizona courts do not distinguish between void and voidable marriages, such a distinction is made under Texas law. Applying Texas law to the facts in C's petition for annulment, the court found that C's marriage was voidable rather than void. Accordingly, the district court concluded that C's marriage in February 1972 was valid under Texas law until it was annulled in March 1979 by the Arizona court. Consequently, the district court held, under 42 U.S.C. 402(d)(1)(D), that C's entitlement to child's insurance benefits should have ended in January 1972, the month preceding the month of her marriage. Therefore, the child's insurance benefits paid to C's mother on C's behalf from February 1972 through March 1975, as well as the child's insurance benefits paid to C from January 1976 through January 1977, were overpayments. The district court further held, under 20 CFR 404.507(b), that because C and her mother had failed to notify SSA of C's marriage they were both at fault in creating their respective overpayments. Therefore, waiver of recovery of these overpayments was not permitted.

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.

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:

: 1. Did overpayments occur?
: 2. Were plaintiff and her mother without fault as to the overpayments?

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:

: 1. The claimant [plaintiff] was married to Frederick D. Fowle on February 24, 1972, in the state of Texas. She was 14 years old at the time and her mother (the representative payee) signed the necessary consent form. The marriage was never consummated. They separated within ten to fifteen days after the ceremony and they never were in each other's company after that. The claimant had the marriage annulled on March 22, 1979, on voidable grounds.
: * * *
: 4. The payee [plaintiff's mother] used the payments from February 1972 through November 30, 1975 for the sole benefit of the claimant, but the payee was 'at fault' in the receipt of said payments because she knew that she was required to report the claimant's marriage of February 24, 1972, but she never did.
* * *
: 6. The claimant filed her own application for benefits, as a surviving child, on December 22, 1975. She was 18 years old at the time. She knew she had married on February 24, 1972 and was still legally married, but she reported on the December 22, 1975, application that she had never been married. She did not act until 1979 to annul the marriage. The claimant was 'at fault' as to the overpayment received from December 1, 1975 through January 1977 and said overpayment cannot be waived as to the claimant because of the claimant's fault.

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

: An invalid marriage may be either wholly void or merely voidable, depending upon the nature of its invalidity. A marriage which is voidable only because of legal imperfections is legally valid for all civil purposes until its nullity is pronounced in an annulment proceeding to obtain a judgment of a competent court declaring its invalidity, which must be brought during the lifetime of the parties.

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

: The law governing the right to a decree of nullity is the law which determines the validity of the marriage.

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:

: Marriages valid by the laws of the place where contracted are valid in this state.

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:

: Superior courts may dissolve a marriage, and may adjudge a marriage to be null and void when the cause alleged constitutes an impediment rendering the marriage void.

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:

: Void marriages are those prohibited by Texas Family Code Ann. Secs. 2.21 and 2.22 (1970). Voidable marriages are those that may be annulled under the provisions of Texas Family Code Ann. Secs. 2.41, 2.42, 2.43, 2.44, 2.45, and 2.46.

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:

: Fraud, Duress, Force. On the suit of a party to a marriage, the marriage is voidable and subject to annulment if: (1) the other party uses fraud, duress, or force to induce the petitioner to enter into the marriage; and (2) the petitioner has not voluntarily co-habited with the other party since learning of the fraud or since being released from the duress of force.

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:

: (a) Whenever the Secretary finds that more or less than the correct amount of payment has been made to any person under this subchapter, proper adjustment or recovery shall be made, under regulations prescribed by the Secretary, as follows:
: (1) With respect to payment to a person of more than the correct amount, the Secretary shall decrease any payment under this subchapter to which such overpaid person is entitled, or shall require such overpaid person . . . to refund the amount in excess of the correct amount. . . .
: (b) In any case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience.

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 (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.

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.

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