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January 14, 1972

Elsie B. PERRY
Elliott RICHARDSON, Secretary of Health, Education and Welfare

Masterson, District Judge.

The opinion of the court was delivered by: MASTERSON

MASTERSON, District Judge.

 This is an action under the Social Security Act *fn1" to review the decision of a hearing examiner *fn2" holding that the plaintiff, Elsie B. Perry, is not entitled to either widow's insurance benefits or surviving divorced wife's insurance benefits based upon her application filed with the Social Security Administration on February 3, 1969. The hearing examiner predicated denial of widow's insurance benefits upon his finding that the marriage between plaintiff and George L. Perry, the decedent wage earner, was terminated on December 20, 1939 by a valid divorce. *fn3" He denied plaintiff's claim for surviving divorced wife's insurance benefits after finding that prior to the New Hampshire divorce, the plaintiff and her husband had not been married for twenty (20) years as required by the Act, 42 U.S.C. § 416(d)(2). *fn4"

 In this appeal, plaintiff asserts that she is entitled to widow's benefits because the finding that she and her husband were validly divorced is not supported by substantial evidence. Alternatively, plaintiff argues that if the evidence supports such a conclusion, then to deny her these Social Security benefits violates her due process rights under the Fifth Amendment. On the other hand, her claim for surviving divorced wife's benefits is virtually abandoned on appeal, probably because the facts do not support such a claim. In addition, it seems inconsistent with her principal assertion that she never received a valid divorce. At any rate, cross-motions for summary judgment are presently before this court.

 Without question, this has been a very difficult case to decide. But after careful consideration we have concluded that the absence of a crucial finding of fact by the hearing examiner prevents us from determining whether the plaintiff and her husband were validly divorced in 1939. And since the absence of a valid divorce would obviate the need to decide the constitutional question, we can do no more at this stage of the litigation except issue instructions to the hearing examiner concerning our interpretation of the law which he must apply on remand.


 With one important exception, the essential facts are not in dispute. Plaintiff married the deceased wage-earner on November 25, 1929, and two children were born of their marriage. During this time, the family resided in New York City. However, sometime in 1935, Mr. Perry left the plaintiff and their children and went to live with his mother, who also lived in New York City. According to Mrs. Perry, her husband then moved to New Hampshire in 1937 or 1938 and continued to live there until he died in 1967.

 Official court records from the State of New Hampshire indicate that Mr. Perry filed a divorce libel on August 2, 1939, and stated in paragraph 3 of that libel that he "came to New Hampshire on . . . January 5, 1938, and has ever since been continuously domiciled in . . . Concord." *fn5" Curiously, Mr. Perry later amended his complaint stating "that on account of a stenographic error paragraph 3 should be amended by striking out January 5, 1938 and substituting in place thereof June 5, 1936." *fn6"

 The hearing examiner never resolved the sharp dispute concerning the date of Perry's change of domicile. Apparently, he did not consider it necessary for a decision. But under our analysis of the applicable federal and state law (an exposition of which appears below) we respectfully disagree. We consider resolution of the fact crucial.

 Having filed a libel for divorce, Mr. Perry was ordered by the New Hampshire Superior Court to serve notice on the plaintiff that she had until the fourth Tuesday in October, 1939 to appear and show cause why the divorce should not be granted. The order specified that notice should be left at the abode of his wife.

 Despite the terms of this order, official court records indicate that a copy of the original libel and order were left at the abode of plaintiff's mother. *fn7" Moreover, instead of informing her daughter of the pending divorce action, plaintiff's mother tore up the summons and said nothing. Consequently Mrs. Perry first became aware of the divorce proceeding through a woman friend of hers sometime in November, 1939.

 On November 23, 1939, Mrs. Perry wrote to the court in New Hampshire asking about the case. Of course, her inquiry arrived too late since she had only until the fourth Tuesday in October to appear and voice opposition. Indeed the court's records show that the divorce was granted on that date (the fourth Tuesday in October) on the grounds of abandonment, and that it became final on December 20, 1939. Accordingly, a reply was forwarded to the plaintiff by a Clerk of the New Hampshire Court informing her of these facts.

 Plaintiff then consulted a Clerk in the Domestic Relations Court of New York, a Mr. Coffee, who advised her that the New Hampshire divorce had no legal effect in New York State. Thereafter, Mrs. Perry did nothing. She did not appeal from the divorce decree; she took no legal steps in the courts of her domicile; and she did not consult an attorney. She simply relied upon Mr. Coffee's assessment.

 After the divorce, Mr. Perry remarried, but that marriage, too, ended in divorce. Although no children were born, Mr. Perry did adopt his second wife's daughter from a previous marriage. Subsequently, Mr. Perry's second wife died, and on October 28, 1967, Mr. Perry also died in Concord, New Hampshire.

 Plaintiff's claim for widow's or surviving divorced wife's benefits is governed by section 202(e) of the Social Security Act, 42 U.S.C. § 402(e). ...

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