BASIC (10-04)

PR 06205.035 New York

A. PR 04-278 Claim for Widow's Insurance Benefits - Survivor Claim on account of wage earner Anthony W. P~, SSN ~, by Susan P~, SSN ~

DATE: June 29, 2004

1. SYLLABUS

New York courts would recognize a California Superior Court's nunc pro tunc judgment of dissolution of the claimant's marriage to the NH. The claimant is bound by the provisions of the final judgment of dissolution of marriage, and therefore does not meet the 10-year duration-of-marriage requirement for surviving divorced spouse's benefits.

2. OPINION

QUESTION

You have requested an opinion regarding whether Susan P~ ("claimant") is entitled to widow's insurance benefits on the account of the deceased wage earner Anthony P~ (the "wage earner") under sections 202(e) and 216 (d) of the Social Security Act ('the Act"), 42 U.S.C. sections 402(e), 416(d).

ANSWER

It is our opinion that the claimant does not qualify as the wage earner's widow, because she was not legally married to the wage earner at the time of his death and her marriage to the wage earner did not last ten years.

SUMMARY OF EVIDENCE

Claimant married the wage earner on August 25, 1964, in New York State. Claimant filed for divorce from the wage earner in the Superior Court of California, County of Los Angeles. On January 30, 1973, the Superior Court entered an interlocutory judgment of divorce. The wage earner died in Costa Rica on December 21, 1978. The Costa Rican certificate of death, provided by the City of New York Department of Health Bureau of Vital Statistics, indicates in Spanish that the wage earner was a permanent resident ("residencia habitual") of New York at the time of his death. On June 29, 1979, claimant obtained a final judgment of dissolution of her marriage to the wage earner from the California Superior Court in Los Angeles. The Superior Court entered its judgment of dissolution nunc pro tunc as of January 1, 1974._11

Claimant has stated that the purpose of the nunc pro tunc divorce decree was to shield her from liability for the wage earner's debts. She stated that the wage earner had made his living by buying merchandise on credit, selling the merchandise, and then absconding before his creditors could present him with their bills. Claimant reported that she had separated from the wage earner after eight years of marriage but had been unable to secure a final divorce decree from him prior to his death due to his skill in avoiding the court's efforts to locate him. She also reported that the nunc pro tunc divorce decree had not served its intended purpose, because she had paid most of the wage earner's debts after his death.

The California Superior Court's final judgment of dissolution gave no reason for entry of the judgment nunc pro tunc. The only statutory provision the Superior Court cited was California Civil Code section 4506(1), which has been replaced without substantive change by California Family Code section 2310. Family Code section 2310 states that the two grounds for dissolution of a marriage or legal separation are: (a) irreconcilable differences, or (b) incurable insanity. Former Civil Code section 4506(1) was the provision for dissolution due to irreconcilable differences. Walton v. Walton, 28 Cal.App.3d 108, 111, 115, 104 Cal.Rptr. 472, 475, 478 (1972). Thus, the ground cited in the Superior Court's judgment of dissolution was irreconcilable differences.

ANALYSIS

To qualify for widow's insurance benefits under section 216(c) of the Act, claimant would have to have been married to the wage earner during the nine months immediately preceding his death, assuming the provisions of section 216(c) regarding children do not apply. To qualify as the surviving divorced wife of the wage earner under section 216(d) of the Act, claimant would have to have been married to the wage earner for at least ten years prior to the date on which the divorce became effective. According to the California Superior Court's nunc pro tunc judgment of dissolution, claimant's divorce from the wage earner became effective on January 1, 1974, less than ten years after commencement of the marriage on August 25, 1964. If this Superior Court's nunc pro tunc judgment controls, then claimant was not married to the wage earner either during the nine months immediately preceding his death or for a period of at least ten years and does not qualify for widow's or surviving divorced wife's benefits under section 216(c) or section 216(d) of the Act.

New York Law

SSA must look to the law of the state where the wage earner was domiciled at the time of his death to determine whether claimant qualifies as the wage earner's widow. Social Security Act § 216(h)(1)(A), 42 U.S.C. § 416(h)(1)(A). The wage earner apparently was domiciled in New York at the time of his death. The question therefore is whether New York would recognize the nunc pro tunc divorce decree entered by the California Superior Court.

The Full Faith and Credit Clause, Article IV, Section 1, of the United States Constitution provides that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Barber v. Barber, 323 U.S. 77, 79, 65 S.Ct. 137, 138, 89 L.Ed.2d 82 (1944). The Full Faith and Credit Clause further provides that Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved and the effect thereof. Id. Congress has provided that judgments "shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken." Id. (quoting 28 U.S.C. § 687).

"The judgment of a court of general jurisdiction of a sister state duly authenticated is prima facie evidence of the jurisdiction of the court to render it and of the right which it purports to adjudicate. Barber v. Barber, 323 U.S. at 86, 65 S.Ct. at 141. To overcome the prima facie effect of the California Superior Court's June 1979 final judgment of dissolution, there must be some persuasive indication that California law "subjects the judgment to the infirmity of modification or recall." Id. As discussed below, no such persuasive indication exists. Thus, New York courts would recognize the California Superior Court's nunc pro tunc judgment of dissolution under the Full Faith and Credit Clause. See Carbone v. Alverio, 452 N.Y.2d 121, 122, 89 A.D.2d 553 (1982) (holding that California divorce judgment had to be accorded full faith and credit by New York as to any arrears).

California Law

Under California law, a judgment of dissolution of marriage may be entered nunc pro tunc as of the date on which the judgment originally could have been signed, filed and entered but was not signed, filed and entered due to "mistake, negligence, or inadvertence." California Family Code § 2436(a). The California Superior Court had the power under California law to enter its June 1979 judgment of dissolution nunc pro tunc even though one of the parties to the marriage was deceased at the time of the final judgment. Kern v. Kern, 261 Cal.App.2d 325, 333, 67 Cal.Rptr. 802, 807 (1968) (construing former California Civil Code sections 132 and 133).

Claimant stated that her efforts to obtain a final judgment dissolving her marriage before June 1979 were complicated by the wage earner's skill in avoiding the court's efforts to locate him. This explanation suggests that the delay in securing the final judgment of dissolution was caused, at least in part, by the wage earner's efforts to avoid entry of a final judgment of dissolution by the California Superior Court rather than by the "mistake, negligence, or inadvertence" contemplated by California Family Code section 2436(a). This explanation for the delay seems questionable, however, inasmuch as personal service on an absent spouse is not a jurisdictional requirement if, as in this case, the action is brought in the state of domicile of the complainant. Rediker v. Rediker, 35 Cal.2d 796, 804, 221 P.2d 1 (1950). Thus, it seems more likely that the California Superior Court entered the final judgment of dissolution nunc pro tunc due to mistake, negligence, or inadvertence. In any event, the California Superior Court concluded that the grounds for entry of a nunc pro tunc judgment had been satisfied. "In reality the purpose of a nunc pro tunc order is to avoid injustice to a person whose rights are threatened by a delay which is not his fault." Hurst v. Hurst, 227 Cal.App.2d 859, 868, 39 Cal.Rptr. 162, 168-69 (1964). This purpose was served by entry of the nunc pro tunc final judgment of dissolution even if, as claimant asserts, the wage earner caused or contributed to the delay in entry of the final judgment by his skill in avoiding the Superior Court's efforts to locate him.

Claimant's assertion that she paid most of the wage earner's debts and that the nunc pro tunc divorce decree therefore had not served its intended purpose is immaterial. "The validity of a divorce decree cannot be contested y a party who has procured the decree." Rediker v. Rediker, 35 Cal.App.3d at 805. Thus, claimant is bound by the provisions of the June 1979 final judgment of dissolution of her marriage to the wage earner and is not entitled to widow's benefits on the wage earner's account.

CONCLUSION

_11 Nunc pro tunc means "now for then" in Latin. It is a phrase applied to acts allowed to be done after the time when they should have been done, with a retroactive effect, i.e., with the same effect as if regularly done. Black's Law Dictionary (4th ed.1976).


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PR 06205.035 - New York - 09/09/2008
Batch run: 01/27/2009
Rev:09/09/2008