This case is before the Appeals Council on its own motion to review the decision of the hearing examiner issued on February 28, 1964. The claimant and her attorney were advised of such action by the Appeals Council and informed of the claimant's rights with respect thereto.
In his decision, the hearing examiner found that the claimant was not entitled to reinstatement of mother's insurance benefits on the earnings record of [H-1, her deceased husband] following the annulment of her remarriage to [H-2].
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The general issue before the Appeals Council is whether the claimant's entitlement to mother's insurance benefits on the earnings record of [H-1] may be reinstated and, if so, the month in which such reinstatement is effective. Specific issues are whether the court decree obtained by the claimant * * * operates to annul the marriage from its inception or merely prospectively from the date of the decree and whether the court which issued the annulment decree without awarding permanent alimony to the claimant retained jurisdiction to grant such alimony at some later date.
The evidence of record establishes that the claimant became entitled to mother's insurance benefits on the earnings record of [H-1], effective September 1957. On December 25, 1961, the claimant married [H-2] in Connecticut. Section 202(g)(1) of the Social Security Act, as pertinent here, provides for termination of mother's insurance benefits effective with the month in which the claimant remarries, and, consequently, payment of these benefits to the claimant ceased effective December 1961.
On December 14, 1962, the Superior Court of the County of Hartford, State of Connecticut, issued a decree declaring the marriage of the claimant to [H-2] to be "null and void" and the claimant "single and unmarried." The annulment decree made no provision for the granting of alimony to the claimant.
Section 46-28, Connecticut General Statutes Annotated provides, in pertinent part:
The Appeals Council believes and finds that under the applicable law of Connecticut, the annulment decree of December 14, 1962, annulled the claimant's marriage to [H-2] from its inception.
In the case of Nott v. Flemming, 272 F.2d 380, the United States Court of Appeals for the Second Circuit, dealing with a factual situation similar to that in the instant case, held that a woman who, under the applicable State law, still had recourse to the court to obtain permanent alimony from her second husband after their voidable marriage had been annulled, was not entitled to widow's insurance benefits on the earnings record of her deceased first husband. The court pointed out that although no alimony had been awarded to the claimant, it was still possible for her to obtain an order for such alimony under the applicable New York statute. The Court thus distinguished the case from other decisions in which title II benefits were reinstated following the annulment of the claimant's remarriage. As to these decisions the court stated:
It appears, therefore, that it was the continuing possibility of the claimant's being awarded alimony under appropriate State law which was the basis of the decision in the Nott case.
While the Connecticut court could have ordered the payment of alimony to the claimant it did not do so in the annulment decree of December 14, 1962 and Connecticut has no statute which permits a court to modify a divorce decree (or, by implication, an annulment decree), silent as to alimony, so as to provide alimony after the decree has become final. The initial lack of any provision for payment of alimony in the decree has been held, in effect, to preclude later modification of the decree to provide for alimony. Maxwell v. Maxwell, 11 Conn. Supp. 205 (Conn. Super. 1942); see also, Ingraham v. Commissioner of Internal Revenue, 119 F.2d 223 (9th Cir. 1941). Thus, the Connecticut Court having issued a decree which, under Connecticut law, rendered the claimant's marriage to [H-2] null and void and the court having failed to grant permanent alimony to the claimant, it is the opinion of the Appeals Council that the court lost jurisdiction to award such alimony.
It is the further opinion of the Appeals Council that, based on the reasoning in Nott v. Flemming, supra, the mother's insurance benefits of the claimant may be reinstated. Reinstatement, however, can be effective only with the month of issuance of the annulment decree since, until the decree was issued, the voidable marriage remained in effect and the wife had a legally enforceable right to receive support from her husband.
It is the decision of the Appeals Council that the claimant's entitlement to mother's insurance benefits on the earnings record of [H-1] should be reinstated effective December 1962, the month in which the annulment decree voiding her marriage to [H-2] was issued. The decision of the hearing examiner is reversed.
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