PR 01315.034 New Mexico

A. PR 02-098 Effective Date of Relationship Based Upon a New Mexico Decree of Adoption Nunc Pro Tunc (Gary W~, SSN ~) - REPLY

DATE: June 7, 2002

1. SYLLABUS

A nunc pro tunc order of an adoption in New Mexico cannot serve to bring into existence an adoption when no adoption could have existed. Such an order may only supply an omission in the record of something really done but omitted from an order through mistake. Therefore, the adoptive relationship between the NH and the child claimant existed only from the date of the adoption, not from the earlier date stated in the nunc pro tunc decree.

2. OPINION

You have asked whether the adoption relationship between the number holder Gary W~ and Matthew S. C~ existed from December 10, 1986, or from April 4, 2001. It is our opinion that the adoption relationship between Mr. W~ and Matthew existed only from April 4, 2001.

Mary and Gary W~ were married on November 17, 1970. On December 10, 1986, Mary W~ successfully petitioned in New Mexico district court for the adoption of Matthew S. C~. The adoption decree specifically stated in paragraph nine that Mary W~ was married, “without her spouse joining in as a petitioner.” Furthermore, paragraph ten of the decree stated that the non-joining spouse was excused from joining the petition “under the circumstances.” Finally, the adoption order stated that Matthew was the child of Mary W~. No explanation has been provided to date explaining why Gary W~ was not a petitioner in the December 1986 adoption.

On June 29, 2000, Gary W~ filed for disability insurance benefits under Title II of the Social Security Act. The claim was allowed as of September 2000. Mr. W~ listed Matthew as his son on the disability application. On or about January 29, 2001, Matthew filed his own claim for child's insurance benefits on the record of Gary W~. This claim was denied since no parental relationship existed between the number holder and Matthew. According to your request for legal opinion, Matthew was already receiving benefits on the Title II disability record of his adopted mother, Mary W~, with a month of entitlement of February 1996. On April 4, 2001, Mary and Gary W~ sought and obtained the decree of adoption nunc pro tunc in New Mexico stating that Matthew had been the child of both individuals since December 10, 1986. On April 23, 2001, Matthew again filed for child's insurance benefits on the record of Gary W~.

New Mexico law governs the determination by the Social Security Administration (SSA) as to whether Matthew should be regarded as the adopted child of Gary W~. 42 U.S.C. § 416(e)(1). Moreover, the Act requires that Matthew be the child of Mr. W~ in order for him to qualify for child's insurance benefits. 42 U.S.C. § 416(h)(2)(A).

The term nunc pro tunc is a Latin phrase meaning “now for then.” See Black's Law Dictionary at 1097 (7th ed. 1999). A court's entry of an order nunc pro tunc is used to correct a clerical error in the record. Id. New Mexico jurisprudence has further defined the limits and proper use of orders nunc pro tunc. Nunc pro tunc orders are not to be used to supply some omitted action of the court, but may be utilized to supply an omission in the record of something really done but omitted from an order through mistake. See Mora v. Matinez, 451 P.2d 992, 993 (N.M. 1969); State v. Hatley, 384 P.2d 252, 254 (N.M. 1963). While an order of adoption may be entered nunc pro tunc to cure irregularities that do not effect the jurisdiction of the court, it cannot serve to bring into existence an adoption when no adoption could have existed. See Smith v. Bradfield, 642 P.2d 214, 218 (N.M. Ct. App. 1982).

SSA policy states that while the Commissioner is not bound by a decision of a state trial court where the Agency is not a party, the Commissioner must still recognize a state court adjudication where all of the following prerequisites are found: (1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; (2) this issue was genuinely contested before the State court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State. See Social Security Ruling 83-37c (SSR); Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973).

Under the facts of this case, we conclude that the Agency is not bound by that part of the April 4, 2001, New Mexico nunc pro tunc order providing retroactive effect to the adoption. Our conclusion is based upon the fact that there is no credible evidence the number holder intended to adopt Matthew as of December 1986. As previously indicated in our opinion, the December 10, 1986, New Mexico adoption order specifically indicated that Mary W~ was the sole petitioner in the proceeding and that her spouse (Gary W~) was excused from joining the petition. The 1986 judgment clearly evidenced a purposeful, affirmative act on the court's behalf to exclude Gary W~ from the adoption proceeding and cannot be characterized as creating a clerical error in the record. Therefore, there was no inadvertent omission for the April 4, 2001, nunc pro tunc order to correct. For this reason the fourth prong of SSR 83-37c was not met, in our view, because the order was not in compliance with the law as enunciated by the highest court in New Mexico.

In addition, while the nun pro tunc adoption issue in this case falls within the category of a domestic relations law, there is reason to believe the issue was not genuinely contested in state court by parties with opposing interests. The only parties to the April 4, 2001, adoption proceeding were Mary and Gary W~, and Matthew. Each of these parties had the same interest; to ensure that the 1986 decree created an adoption relationship between the number holder and Matthew as of December 10, 1986. For this reason, the second prong of SSR 83-37c was also not met because parties with opposing interests did not genuinely contest the adoption before the State court.

In conclusion, it is our opinion that the adoption relationship between the number holder and Matthew existed only from April 4, 2001.

Tina M. W~
Regional Chief Counsel

By: _________________________
Thomas C. S~
Assistant Regional Counsel


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PR 01315.034 - New Mexico - 05/13/2011
Batch run: 05/13/2011
Rev:05/13/2011