20 CFR 404.352(b)(2) and 404.507(b)
Gartland v. Schweiker, 1A Unempl. Ins. Rep. (CCH) ¶ 14,379 (D.C., Arizona 1982)
BILBY, District Judge:
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.
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.
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.
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?
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:
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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:
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:
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.
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.