Page images
PDF
EPUB

SECTION THE VALIDITY OFON OF THE VALY THE SUBSEQ

SECTION 2(e) OF THE RAILROAD RETIREMENT ACT-SPOUSE'S

ANNUITY_VALIDITY OF A MEXICAN DIVORCE UNDER NEW YORK LAW-PRESUMPTION OF THE VALIDITY OF A SUBSEQUENT MARRIAGE-CHILD LEGITIMATED BY THE SUBSEQUENT MARRIAGE OF HIS PARENTS (NEW YORK AND CONNECTICUT

LAW) 20 CFR 232

L-60-21 Although a Mexican divorce dissolving first marriage, obtained by an annuitant domiciled in New York, is void, the presumption of the validity of a later marriage may be applied to annuitant's second marriage for the purposes of a spouse's annuity, and to find the child of the second marriage legitimate. Section 2(e) of the Act provides in part: "Spouse's Annuity.--The spouse of an individual, if

“(i) such individual has been awarded an annuity under subsection (a) or a pension under section 6 and has attained the age of 65, and

"(ii) such spouse has attained the age of 65 or in the case of a wife, has in her care (individually or jointly with her husband) a child who, if her husband were then to die, would be entitled to a child's annuity under sub

section (c) of section 5 of this Act, shall be entitled to a spouses annuity * • *.” A claimant, to be considered a "spouse” must, under 5(1) (1), meet the conditions for being a wife under section 216(h)(1) of the Social Security Act in effect before 1957, which is as follows:

In determining whether an applicant is the wife * * * of a fully insured or currently insured individual for purposes of this title, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, * * *. Applicants who according to such law would have the same status relative to taking inte state personal property as a wife, * * * shall be deemed such. The annuitant married M in 1918, and separated from her in 1930. In 1959 he went to Mexico and obtained a divorce from M, of whom he had heard nothing since 1930. The annuitant has been living with V since 1936, had a child by her in Connecticut on March 27, 1946, and after obtaining the Mexican divorce, was ceremonially “married” to her on August 3, 1959, at Greenwich, Connecticut. Annuitant acknowledged V's child as his.

Under New York law (where annuitant is domiciled) the Mexican divorce is null and void (In re Mark's Estate, 33 N.Y.S. (20) 267 (N.Y. 1941)). Under New York law, however, a presumption of the validity of a subsequent marriage applies even when one of the parties had secured a void Mexican divorce from an earlier marriage (Whittleton v. Whittleton, 152 N.Y.S. (2d) 117 (N.Y. 1956)). That rule should be applied in this case since almost 30 years have passed without word of the annuitant's first wife and since the legitimacy of a child is involved (In re Tuttle's Estate, 254 N.Y.S. 65 (N.Y. 1931)).

It is held that V may be considered the wife of the annuitant. Also the child born in Connecticut in 1946 may be considered legitimated by the valid marriage of the parents subsequent to his birth (General Statutes of Connecticut, Section 45–274 and McKinney's Consolidated Laws of New York, Book 14 Section 24). Accordingly, though V is not age 65, she may

York law, when one

hittleton

in this casete and sincev Y.

be awarded a spouse's annuity because of having in her care a child of her husband who, if the husband were to die, would be eligible for a child's annuity. SECTIONS 5(1), 2(e) and 3(e) OF THE RAILROAD RETIREMENT

ACT-RELATIONSHIP_VALIDITY OF MARRIAGE-STATUS OF

CHILDREN 20 CFR 232, 225.6

L-60-22 Since parties appeared to have acted in good faith in attempting to effect a marriage through a ceremony, even though it developed that an earlier mar. riage of annuitant was still undissolved at time of ceremony (the annuitant obtained a divorce after the ceremony), a binding marriage relationship was created under doctrine of estoppel which prevails in Tennessee. Child who was born before marriage ceremony was legitimated through operation of Tennessee statute. The first question is whether under the laws of Tennessee an effective mar. riage relationship was created by a marriage ceremony for the claimant of a spouse's annuity where an earlier marriage of the annuitant (whom the claimant asserted she married) was still undissolved at the time of the ceremony although he later secured a divorce. The second question is whether a child born to the parties before the marriage ceremony was performed was thereby legitimated. Section 2(e) of the Railroad Retirement Act provides: Spouse's Aunnity—The spouse of an individual, if

(i) such individual has been awarded an annuity under subsection (a) or a pension under section 6 and has attained the age of 65, and

(ii) such spouse has attained the age of 65 or in the case of a wife, has in her care (individually or jointly with her husband) a child who, if her husband were then to die, would be entitled to a child's annuity under sub

section (c) of section 5 of this Act, shall be entitled to a spouse's annuity equal to one-half of such individual's annuity or pension, but not more, with respect to any month, than 110 per centum of an amount equal to the maximum amount which could be paid to anyone, with respect to such month, as a wife's insurance benefit under section 202 (b) of the Social Security Act as amended from time to time; * * *. Section 5(1) of the Railroad Retirement Act provides:

* * * In determining for purposes of this section and subsection (f) of section 2 whether an applicant is the wife * * * [or] child, of an employee as claimed, the rules set forth in section 216(h) (1) of the Social Security

Act, as in effect prior to 1957, shall be applied. * * * Section 216(h) (1) of the Social Security Act as in effect before 1957 provides:

In determining whether an applicant is the wife, * * * [or] child, of a fully insured or currently insured individual for purposes of this title, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or if such insured individual is or was not so domiciled in any State by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a wife, * * * [or] child, * * * shall be deemed such

child of the qualify for a sp applied. If a singleining this q

The annuitant B, was domiciled in Tennessee at the time Mrs. B applied for a spouse's annuity. Therefore, whether she is the spouse of the annuitant must be determined by applying the laws of Tennessee. She was less than 65 years of age. Hence her rights to such an annuity depend on whether she has a child of the annuitant in her care who if the annuitant were to die would be entitled to a child's annuity under section 5(c) of the Act, on the basis of his employment. In determining this question the laws of Tennessee also must be applied. If a single child has necessary status, Mrs. B can qualify for a spouse's annuity. However, the status of the other child of theirs is material in the application of the so-called "social-security. minimum" provision of section 3(e) of the Act. This is because children of an old-age insurance beneficiary can qualify for a child's insurance benefit under the Social Security Act. There is no comparable benefit under the Railroad Retirement Act but in applying the “social-security-minimum" provision the child's benefit is taken into account. Section 3(e) of the Railroad Retirement Act provides:

* * * That if for any entire month in which an annuity accrues and is pay. able under this Act the annuity to which an employee is entitled under this Act * * *, together with his or her spouse's annuity, if any, or the total of survivor annuities under this Act deriving from the same employee, is less than 110 per centum of the amount, or 110 per centum of the additional amount which would have been payable to all persons for such month under the Social Security Act * * * if such employee's service as an employee after December 31, 1936, were included in the term "employment" as defined in that Act * * * such annuity or annuities, shall be increased proportionately to a total of 110 per centum of such amount or 110 per centum of such additional amount. It appears that B, the annuitant, was married to J about 1923. They separated about 1943 and apparently never thereafter cohabited. Sometime in or about 1956 the annuitant began living with Mrs. B and a ceremony purportedly solemnizing their marriage was entered into on May 8, 1958. They apparently have lived together in Tennessee throughout. A final divorce from J was granted May 14, 1959. In March 1957, C was born to them and in July 1958, N was born, both of whom the annuitant has acknowledged in writing as his children.

There is no indication that Mrs. B knew that B had a living wife at the time their relationship commenced or even at the time of their ceremonial marriage. This plus his long separation from J whom he may not have known to be alive at the time he commenced living with Mrs. B (he has stated in 1959 he did not know but rather thought she was alive, and in his annuity application in April 1958 he stated that J was his wife) together with the fact that he secured a divorce from her (service apparently was by publication) indicate, it is believed, enough good faith on their part as to their relationship to warrant the conclusion that the marriage in 1958 became effective under the Tennessee doctrine of estoppel at least after his divorce in 1959 Crawford v. Crawford 277 S.W. 2d 389 (Tenn. 1959); Johnson y. Johnson, 41 Tenn. 626 (Tenn., 1860); cf. Jones v. General Motors Corporation, 17 N.W. 2d 770 (Mich., 1945); Associate General Counsel's opinion L-59–358.

Since the couple had a ceremonial "marriage,” by operation of section 36-307 of the Tennessee Code (1956) C and N are legitimated through the marriage. It is clear from the terms of this statute that it applies to legitimate children even where the marriage is void and the children were born before the ceremony. N was born after the ceremony. Section 36–307 of the Tennessee Code provides:

Legitimation by marriage of parents.—All illegitimate children whose parents have heretofore intermarried or who shall hereafter intermarry shall thereby become legitimatized and shall become legitimate for all purposes and entitled to all the rights and privileges of legitimate children, without the necessity of any proceedings under this and preceding sections of the Code, • • *. This section shall be applicable in all cases where the father of an illegitimate child has married or shall marry the mother of such child, including such marriages later found to have been illegal, void or voidable, and the father recognizes or holds said child out as being his. This section shall be applicable to residents of Tennessee whether the marriage ceremony was or shall be performed in this state or elsewhere; however, nothing in this section shall be construed to

legalize illegal, void or voidable marriages. Accordingly, it is held that for the purposes of the Act Mrs. B and the annuitant were validly married in May 1958 and that C and N are their children.

SECTION 2(e) OF THE RAILROAD RETIREMENT ACT

RELATIONSHIP_VALIDITY OF MARRIAGE 20 CFR 232

L-60-29 Ceremonial marriage claimant and annuitant attempted in Illinois în 1919 before annuitant's Nebraska divorce became operative, although after the decree was issued, did not effect a valid marriage.

The annuitant M was divorced by A in the District Court of Platte County, Nebraska, on May 24, 1919, and married the claimant for a spouse's annuity, C, in Chicago, Illinois on September 10, 1919. While the decree is in terms of the relations of the parties being "hereby set aside, annulled and said parties forever released therefrom” the decree is one of divorce and not of annulment (as is shown also by the statements in the petition and other findings in the decree).

At the time the Nebraska divorce decree was entered the laws of that State provided that a decree of divorce shall not become operative for six months after trial and decision, except for the purpose of appeal and review, so that parties to a divorce action could not legally remarry within this sixmonth-period from the date of the decree. Chapter 45, Laws of Nebraska 1909, Section 5369, Cobbey's Annotated Statutes 1909; Section 1606 Revised Statutes of Nebraska 1913; State v. Marsh, 184 N.W. 134 (Nebr. 1921). This provision, would, of course, have the effect of making void any marriage entered into by the divorced parties in Nebraska or any other jurisdiction during the six-month-period since their prior marriage would not be dissolved until the end of the period. Scott v. Scott, 46 N.W. 2d 631 (Nebr. 1951), Shinn v. Shinn, 29 N.W. 2d 629 (Nebr. 1947). There is no evidence to indicate whether or not M and the claimant C returned to live in Nebraska or took up their residence in another State after their “marriage" in Illinois on September 10, 1919.

1909, Section Sof Nebraska 12, of course, barties in Nebraska eriage would

Section 2(e) of the Railroad Retirement Act provides:
Spouse's Annuity.—The spouse of an individual, if-

(i) such individual has been awarded an annuity under subsection (a) or a pension under section 6 and has attained the age of 65, and

(ii) such spouse has attained the age of 65 or in the case of a wife, has în her care (individually or jointly with her husband) a child who, if her husband were then to die, would be entitled to a child's annuity under

subsection (c) of section 5 of this Act, shall be entitled to a spouse's annuity equal to one-half of such individual's annuity or pension, but not more, with respect to any month, than 110 per centum of an amount equal to the maximum amount which could be paid to anyone, with respect to such month, as a wife's insurance benefit under section

202(b) of the Social Security Act as amended from time to time: *** Section 5(1) (1) of the Act provides:

* * * In determining for purposes of * * * subsection (f) of section 2 whether an applicant is the wife * * * of an employee as claimed, the rules set forth in section 216(h) (1) of the Social Security Act, as in effect prior to 1957, shall be applied. ***

Section 216(h) (1) of the Social Security Act, as in effect before 1957, provides:

In determining whether an applicant is the wife * * * of a fully insured or currently insured individual for purposes of this title, the Secretary shall apply such law as would be applied in determining the devolution of intestate per. sonal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or if such insured individual is or was not so domiciled in any State by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal

property as a wife * * * shall be deemed such. Since the annuitant was domiciled in California at the time C applied for a spouse's annuity the laws of that State must be applied in determining whether she can qualify as his wife, which is the question involved.

In view of the foregoing and based on the evidence now at hand, it is held that the marriage of the employee and C in Illinois on September 10, 1919 was void because of the impediment on M and that, accordingly, the claimant C does not qualify as the employee's "spouse" for the purpose of receiving a spouse's annuity unless she can establish that they entered into a common-law marriage at least six months after the Nebraska divorce decree was entered.

While common-law marriages have not been recognized as valid in Illinois since July 1, 1905 (Associate General Counsel's opinion L-45–569) nor in the State of California since May 26, 1895 (Associate General Counsel's opinion L-45–569) where the cohabitation and holding out is based on residence in either State, such marriages were recognized as valid in the State of Nebraska until August 3, 1923. See In re Widner's Estate, 219 P. 2d 18 (Calif. 1950). It is suggested, accordingly, that a further investigation be conducted in this matter to determine whether at any time after November 24, 1919, the annuitant and the claimant ever lived together as husband and wife in the State of Nebraska or some other State recognizing common-law marriages at the time of their residence. If it is so found, it might be found that they established a good common-law marriage and in

« PreviousContinue »