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United States v. Smith

decided: July 11, 1968.


Kalodner, Freedman and Seitz, Circuit Judges.

Author: Freedman


FREEDMAN, Circuit Judge.

The United States, after paying a survivor's annuity of $83 monthly under the Civil Service Retirement Benefits Act*fn1 to Mrs. Floretta G. Smith as the surviving wife of James Smith, a deceased federal employee, brought this action to recover $1,845.10, the amount it had paid out, claiming that she was not Smith's legal widow because they had been divorced. Mrs. Smith counter-claimed for subsequent payments which the United States had withheld and sought a declaratory judgment that she was entitled to continued benefits under the Act. The district court after a nonjury trial rendered judgment for the United States,*fn2 and Mrs. Smith has appealed.

The Smiths were married in 1952 and lived together in Woodbury, New Jersey, until December, 1956, when Smith moved to Florida, where he resided until his death in 1962. Mrs. Smith did not follow her husband to Florida, but continued to live in Woodbury and apparently never saw him after his removal.

On January 28, 1960, Smith instituted an action for divorce in Pinellas County, Florida, on the ground of desertion. Mrs. Smith did not appear and an ex parte decree of divorce was entered against her on April 27, 1960.

On February 9, 1962, two years after the divorce decree was entered, James Smith died. He had been receiving annuity payments under the Act,*fn3 and when Mrs. Smith learned later that year of his death she applied for a survivor's annuity.*fn4 Her application was approved and she was paid benefits for the period from Smith's death in February, 1962 through November, 1963. The United States then decided that she was not qualified to receive the benefits as Smith's surviving wife and stopped payments to her. More than a year and a half later, on June 21, 1965, it brought the present action to recover the payments already made.

The Act provides:

"(1) If an employee * * * dies after having retired * * * and is survived by a wife or husband to whom the employee * * * was married at the time of retirement, such wife or husband shall be paid an annuity * * * unless the employee * * * has notified the [Civil Service] Commission in writing at the time of retirement that he does not desire his wife or husband to receive such annuity.

"(2) An annuity computed under this subsection shall commence on the day after the retired employee * * * dies * * *."*fn5

The record does not show the date of Smith's retirement, but the United States makes no claim that Mrs. Smith was not his wife at that time; it asserts only that she was not his wife on the date of his death. Although the Act may perhaps seem literally ambiguous, its clear meaning is that to obtain a survivor's annuity a spouse to whom a retired employee was married at the time of his retirement must also be his wife at the time of his death.*fn6

We need not here decide whether Mrs. Smith's status as the surviving spouse of James Smith is to be determined by the law of New Jersey, the place of her domicil at the time of his death, or by the law of Florida, the place of his domicil. For as the case has been presented to us Mrs. Smith attacks the divorce on the ground that it is not entitled to full faith and credit because she did not receive actual notice of the divorce proceedings and that the attempts made to notify her fell below the standard of due process, an argument which presents questions of federal and not state law.

Florida law authorizes service on nonresident individuals to be made by publication once a week for four weeks in a newspaper published in the county where the suit is brought.*fn7 Its statute requires that before such service is effected the plaintiff must file a sworn statement setting forth the reasons why personal service could not be made, and stating that diligent search and inquiry have been made to discover the residence of the person to be served.*fn8 After the statement is filed the judge or clerk of court is required to mail notice of the action to the defendant at the address given in the sworn statement and to note the date of mailing on the docket sheet.*fn9

The facts relating to service on Mrs. Smith have the unusual quality which stirs litigation. On January 18, 1960, ten days before he filed his complaint in divorce in Florida, Smith mailed a letter to Mrs. Smith by registered mail with return receipt requested stating that he required her correct mailing address for certain legal matters which he did not disclose. She received this letter and acknowledged its receipt by signing the return receipt card on January 20, 1960. The letter was addressed to her "c/o American Apts., Myrtle Ave., Woodbury, N.J. " Eight days later, on January 28, Smith filed his complaint in divorce and therein alleged that he had made diligent ...

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