to the various places where Mr. Dixon worked between 1937 and 1944. That information was obtained from the earnings record which was in the sole possession of the Social Security Administration. Concededly claimant was not familiar with the comings and goings of wage earner after their separation. Without the information upon which the Secretary now relies as potential places of divorce, claimant was saddled with the virtually impossible task of establishing the negative, i.e. that no divorce had been obtained in any county of any of the States and perhaps some foreign countries as well. If the Secretary intended to rely on the information in his possession as establishing other counties where a divorce might have been granted, claimant should have been given the opportunity to introduce evidence that in fact no divorce had been granted in those counties.
When balanced against the evidence produced by claimant, was the record of the subsequent marriage substantial evidence upon which the Secretary could conclude that claimant had not proved that she had not been divorced? In other words, on the evidence contained in this record would the courts of North Carolina have concluded that claimant's marriage was no longer in effect at the time of the subsequent marriage? On substantially similar facts, two federal courts interpreting North Carolina law concluded that the moving party had met its burden of proving that the "first marriage" was still in effect at the time the "second marriage" was contracted. Both cases involved the determination of which of two women was the wife of the insured, and therefore the beneficiary, under a National Service Life policy.
In Page v. United States, 193 F.2d 936 (4th Cir. 1952), the insured was first married in 1926. He and his first wife separated in 1934 and he married the plaintiff (second wife) in 1941. They lived together until 1942 when the insured entered the service, where he was killed. The first wife testified that she neither sued for divorce nor had she any knowledge that a divorce had been granted. The insured's brother testified that he lived near the insured for a time between 1934 and 1941, that he had no knowledge of any divorce and that the insured had told him that he had not gotten a divorce. In addition certificates were produced from the clerks of court of six counties where the insured had resided, stating that there was no record of divorce in those counties between 1925 and 1941. The trial judge instructed the jury that the burden was on defendant first wife to show that the first marriage had not terminated by the time the second marriage was entered into. The jury found for the defendant first wife. The Circuit Court affirmed, stating that the lack of record evidence of divorce "in any of the counties in which suit for divorce would most likely had been brought, if one had been filed, " coupled with the above mentioned testimony, constituted substantial proof of no divorce. Page, supra, at 937.
In Batts v. United States, 120 F. Supp. 26 (E.D.N.C.1954) the Veterans Administration awarded payments to the insured's first wife as beneficiary of a National Service Life policy. The insured was first married in 1936 in North Carolina. Four years later he abandoned his first wife and in 1941 a marriage ceremony was performed in South Carolina between the insured and a second woman, the plaintiff. The evidence showed (1) no action for divorce was brought by the first wife and no papers in a divorce action were filed against her, (2) no knowledge on the part of the second wife of a prior marriage or divorce, (3) records of the only two counties where the insured and his first wife had resided during their marriage and after their separation, and (4) no knowledge of divorce between the insured and his first wife on the part of the insured's sister. The court as fact finder concluded that the first wife had satisfied her burden of proof as to the continued existence of the first marriage and found her to be the legal widow of the insured.
The teaching of Page and Batts is that evidence of the kind and quality produced by claimant in the instant action is, at the least, substantial evidence that the first marriage was valid and subsisting. In the face of such substantial evidence, the presumption of the validity of the second marriage must fall, and with it falls virtually all that the Secretary relies on to deny the claim of the first wife. The Secretary's finding is not supported by substantial evidence and must be set aside. It would appear appropriate then, to grant plaintiff's motion for summary judgment in her favor, but since this record discloses that the Secretary had information concerning other counties where the wage earner worked and might have obtained a divorce from plaintiff, opportunity will be afforded to the Secretary to supplement the record to establish whether in fact wage earner obtained a divorce in any such counties.
The record will be remanded to the Secretary to proceed in accordance with this Opinion.