20 CFR 404.726
Mares v. Heckler, 1A Unempl. Ins. Rep. (CCH) ¶ 16,144 (U.S.D.C., N.D. Ind., Hammond Div. 1985)
MOODY, District Judge:
Claimant-plaintiff, Margarita Mares, brings this action pursuant to Section 205(g) of the Social Security Act (Act), 42 U.S.C. § 405(g), for judicial review of the Secretary of Health and Human Services' (Secretary) final decision denying her wife's insurance benefits.
Claimant filed an application for wife's insurance benefits based on the earnings record of Jose H. Mares on May 16, 1977. On June 15, 1977, she filed an application for retirement benefits on her own record. On December 1, 1978, after Jose Mares' death, claimant filed an application for widow's insurance benefits, also based on Jose Mares' earnings record. Claimant's application for retirement benefits was granted. The widow's and wife's benefits applications were denied initially and on reconsideration by the Social Security Administration. On November 27, 1979, an Administrative Law Judge (ALJ) conducted a hearing de novo at which claimant appeared, testified with the aid of a Spanish interpreter, and was represented by a paralegal. Claimant's daughter also testified on claimant's behalf. On January 25, 1980, the ALJ found that the necessary marital relationship did not exist between Jose and Margarita Mares after August 19, 1955, and thus claimant was not entitled to wife's or widow's benefits based on Jose's earnings record. However, the Secretary did award claimant surviving divorced spouse benefits beginning January, 1979. The ALJ's decision became the Secretary's final decision upon approval by the Appeals Council on April 11, 1980. Having thus exhausted her administrative remedies, claimant filed her Complaint for judicial review on June 16, 1980.
Margarita Mares is 71 years old. She was born in Mexico on January 22, 1913 and speaks little English. She married Jose Mares on April 14, 1940, and lived with him in Los Fresnos, Texas, until June 1960, when they separated and Mrs. Mares moved to Indiana with some of the Couple's four children. In 1955, however, Mrs. Mares filed a petition for divorce from Jose. An unsigned entry on the Court docket shows that a divorce was granted on August 19, 1955, but no formal decree was ever signed by the Judge or entered into the Court minutes and claimant never received formal divorce papers.
Claimant testified that until 1960 she and Jose never separated, owned a home together, and she did not think they were divorced because no paper were signed. claimant also testified that she remembered going with her attorney to talk to the Judge, but the Judge, who did not speak Spanish, spoke in English with her attorney, and claimant did not know whether it "was a Court or it wasn't a Court." It is unclear from the record whether claimant was referring to an official hearing on the divorce or a later attempt to obtain a signed decree from the Judge. It is undisputed, however, that Jose and Margarita continued to live together after August 19, 1955, and held themselves out to the public as man and wife at least until 1960. There are numerous statements in the record from neighbors and children of Mr. and Mrs. Mares indicating that they never viewed the couple as anything other than husband and wife during the time they lived together.
There is no evidence in the record to indicate that either spouse inquired as to the status of the divorce proceedings until their separation in 1960. The two applications for benefits Mrs. Mares filed in 1977 indicate that her marriage to Jose had not ended. Her 1978 application for window's benefits, refers to a separation or divorce. Letters from Texas court personnel to Jose Mares dated July 10, 1961, to Attorney Dobbins, January 5, 1962, and to Attorney Green, September 30, 1968, raise questions as to the validity of the 1955 divorce. In a letter to the Secretary dated June 3, 1977, shortly after claimant applied for wife's benefits, Attorney Green advised that Jose "should not sign any husband certification" because in his opinion the 1955 docket entry constituted a valid divorce order. On a 1972 application for retirement benefits Jose had stated that he was divorced.
The ALJ made the following findings:
It was the ALJ's decision, based upon the application filed on May 16, 1977, that claimant is not entitled to benefits as the wife of the wage earner under Section 216(b) of the Act, as amended, and based upon the application filed on December 1, 1978, the claimant is not entitled to benefits as the widow of the wage earner under section 216(c) of the Act, as amended.
Judicial review of a decision of the Secretary is not de novo. A court is ordinarily limited to a determination of whether the Secretary's findings are supported by substantial evidence based on the record as a whole. Schmoll v. Harris, 636 F.2d 1146, 1149 (7th Cir. 1980); Carver v. Harris, 534 F.2d 363, 364 (7th Cir. 1980). The reviewing court, however, must also determine whether the Secretary applied the proper legal standard, if not, the substantial evidence rule is inapplicable. Carroll v. Social Security Board, 128 F.2d 876 (7th Cir. 1942); Kelley v. Weinberger, 391 F. Supp. 1337 (D.C. Ind. 1974). In the instant case, claimant contends that the Secretary used an incorrect legal standard in determining that claimant was not the common-law wife of Jose Mares from August 19, 1955 until Jose's death in 1977.
Under the Act, an applicant is the wife or widow of an insured individual for purposes of benefits under Title II if the courts of the State in which such insured individual is domiciled at the time the applicant files the application or, if such insured individual is dead, the courts of the state in which he was domiciled at the time of his death, would find that such applicant and the insured individual were validly married at the applicable time. 42 U.S.C. § 416(h)(1)(A).
Claimant does not dispute that Texas courts would recognize the unsigned, oral entry of judgment in her divorce proceedings in 1955 as a valid divorce order, absent some action to have the order set aside. See, Louwien v. Howell, Civ. App. 1974). Thus no ceremonial marriage existed between claimant and Jose after August 19, 1955, despite the parties' apparent confusion about the status of the divorce proceedings. Nor had claimant's ceremonial marriage endured for twenty years immediately prior to the divorce as required under Section 216(d)(1) of the Act for benefits as a divorced surviving spouse payable prior to January, 1979. Thus the question before the ALJ was whether or not a common-law marriage exited between Jose and Margarita at the time of the claimant's applications for benefits.
Texas recognizes common-law marriages where three elements are present. First, there must be a present agreement to become husband and wife. Second, they must be living together as husband and wife pursuant to that agreement. Third, the parties must hold themselves out to the public to be husband and wife. Tex. Fam. Code § 1.91; Estate of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981); Collora v. Navarro, 574 S.W.2d 65, 68 (Tex. 1978); Humphreys v. Humphreys, 364 S.W.2d 177 (Tex. 1963). The ALJ found that claimant had established the second and third elements of common-law marriage. Margarita and Jose lived together uninterrupted and held themselves out to the public to be man and wife from August 19, 1955 until 1960. The ALJ assumed, however, that Texas courts would not infer the first element of a common-law marriage, a present agreement to live as husband and wife, from the facts in claimant's case.
As the Texas Supreme Court has made clear, a present agreement to be husband and wife can be applied and inferred from evidence that establishes elements of cohabitation and holding out to the public as husband and wife. Claveria, supra at 167; Collora, supra at 69; Humphreys, supra at 178; Consolidated Underwriters v. Kelley 15 S.W.2d 229, 230 (Tex. Comm. App. 1929, judgment adopted); Common-Law Marriages in Texas, 13 Baylor L. Rev. 168 (1961). This "liberal rule" is now codified. Tex. Fam. Code § 1.91(b). See also Tatum v. Tatum, 241 F.2d 401, 409 (9th Cir. 1957) (mere continuance of marital relations sufficient to show agreement); Chatman v. Ribicoff, 196 F. Supp. 931 (N.D. Cal. 1961). Each case is to be determined on its own facts. Collora, supra at 70; Rush v. Travelers Insurance Company, 347 S.W.2d 758 (Tex. Civ. app. 1961); Gary v. Gary, 490 S.W.2d 929 (Tex. Civ. App. 1973) (reh. denied. 3-1-73).
The ALJ relied on three prior cases from the Texas Court of Appeals to support his decision, Clark v. Williams, 189 S.W.2d 503 (Tex. Civ. App. 1945); Rush, supra; Gary, supra. In Clark, Melvin and Iona Williams were married in 1918. On January 30, 1943 they were divorced. Melvin Williams contended that he and Iona Williams were husband and wife at the time of her death by reason of a marriage recognized as valid under the common law. The court recognized that an agreement to marry may be inferred from surrounding facts and circumstances which point to an actual agreement having been made. But the court went on to state that the inference of the existence of a marriage agreement cannot be drawn from circumstances contrary to the direct testimony of a litigant. Id. at 505. In Clark, Melvin Williams testified that he never knew a divorce was granted to Iona Williams. The court was convinced that this showed there could never have been an agreement to enter into a common-law marriage. The Court reasoned that if a man never knew he was divorced from his wife, there is no way he could agree to remarry. More specifically, the court reasoned:
Id. at 504.
This doctrine was reiterated in Rush v. Travelers Insurance Company, supra, in which the facts are also quite similar to the instant case. The couple in Rush were divorced on January 30, 1943, but continued to live together as husband and wife and held themselves out as such. The court found that this "continuation" of the marriage was direct evidence that the required agreement did not exist and, therefore, neither did a common-law marriage.
In 1973, the Court of civil Appeals of Texas addressed the issue of the existence of a common-law marriage when a couple resumed living together after a divorce form each other. In Gary v. Gary, supra, one of the litigants testified that they "just went back together." The court stated that "an inference of an implied agreement cannot be drawn under the evidence because the direct testimony of the litigant negatives the argument as a matter of law." 490 S.W.2d at 934.
Claimant believes that it is clear that both she and Jose intended to live as man and wife after the date their divorce was entered on the court's docket. Claimant testified that she continued to cohabit with Jose because "He asked me to give him a chance . . . and I, thinking of my family, I didn't want my family to be without a father . . ." (". . . I still was willing to give him a chance because I didn't want my children to be without a father."). Claimant attempts to distinguish Clark by relying on the fact that in Clark only the wife knew the ceremonial marriage had been dissolved, and in the case sub judice the issue of divorce was confused for both parties. We believe this distinction only strengthens the Secretary's contention. If both parties believed that they were never divorced, this then buttresses the finding that there could not have been an agreement to remarry. In the instant case, claimant testified that she and the wage earner were not aware that they were ever divorced. In fact, claimant consistently alleged that she was still married in her earlier applications and her representative pointed out that claimant considered herself to be the wage earner's wife until his death in 1977. The facts of this case, like those recited in the cases cited above, refute the possibility of an agreement between claimant and wage earner to presently become husband and wife at any time after the divorce was granted. All of the evidence shows that they considered their marriage to have continued. A new agreement cannot be implied from these facts.
As the court in Clark stated:
189 S.W.2d at 505.
In deciding a motion for summary judgment, the court must take all inferences favorable to the non-moving party as true. Adickes v. Kress & Co., 398 U.S. 144, 158-59 (1979); Egger v. Phillips, 669 F.2d 497, 502 (7th Cir. 1980). This is especially true in cases involving questions of motive, intent, subjective feeling and reactions. Ness v. Marhsall, 660 F.2d 517 (3d Cir. 1981); Cross v. U.S., 336 F.3d 431 (2d Cir. 1964) on remand 250 F. Supp. 609. If any doubt remains as to the existence of a genuine issue of material fact, such doubt must be resolved against the movant of summary judgment. Wolston v. Readers Digest, 443 U.S. 157, 162 n.5 (1979); United States v. Diebold, 369 U.S. 654, 655 (1962). In the case sub judice, claimant as a matter of law was not married to Jose Mares at the time of his death. Thus, summary judgment in favor of the defendant Secretary is appropriate.
The evidence shows that claimant appeared with counsel before a judge in Cameron County, Texas and was granted a divorce from the wage earner on August 19, 1955. That decree was valid and was not set aside. Despite the divorce, claimant and the wage earner continued to live together until 1960. Claimant testified that she did not think she was actually divorced. The evidence refutes any suggestion of a new agreement to live as husband and wife, and negates the possibility of common-law marriage under Texas law. Claimant was not married to the wage earner at the time of his death. Thus, she is not entitled to wife's insurance benefits based on the application filed on May 16, 1977 or to surviving widow's insurance benefits. This is a "hard" (harsh, not difficult) case. Viewing the evidence in a light most favorable to the claimant, it is quite obvious she considered herself married to the wage-earner at the time of his death. Common-law marriages though, are regarded with suspicion. Middlebrook v. Wideman, 203 S.W.2d 686 (Tex. Civ. App. 1947). The law in Texas is clear. All three elements of a common-law marriage must be proved by clear and convincing evidence. Claimant has not met this burden. Thus, there is no remedy fairly within our power for the relief that she asks.
* * * * *
It is therefore ORDERED that Plaintiff's September 17, 1984 Motion for Summary Judgment be and it is hereby DENIED. It is further ORDERED that the Defendant's final decision is AFFIRMED. Consequently, it is further ORDERED that Judgment be and it is hereby entered in favor of the Defendant.
 As of March 13, 1979, claimant was receiving $107.80 per month retirement benefits.
 § 1.91 Proof of Certain Informal Marriages
(a) In any judicial, administrative, or other proceeding, the marriage of a man and woman may be proved on evidence that:
(b) In any proceeding in which a marriage is to be proved under Subsection (a)(2) of this section, the agreement of the parties to marry may be inferred if it is proved that they lived together as husband and wife and represented to others that they were married. Tex. Fam. Code § 1.91(b).
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