20 CFR 404.335(a)
R married W in New York in 1934. In June 1957, R obtained a Mexican divorce from W, the decree reciting that R had appeared by attorney but that W neither appeared nor filed a pleading. In July 1958, W secured from the Supreme Court of New York State, Queens County, an order of separation from R based on R's abandonment of her. R appeared in this action and was directed by the court to pay W $125 per week for life for her support and maintenance and for the support and maintenance of their child. In October 1961, R obtained an absolute divorce from W in Texas, the decree expressly noting that permanent alimony is not authorized under Texas law. The decree held:
W, who had continued to reside in New York, was personally served with process in that State but did not file pleadings or appear in the Texas divorce proceedings. R was domiciled in Texas at the time of the divorce. Subsequently, in January 1968, W secured through the Supreme Court of New York, Queens County, a money judgment for alimony, support, and counsel fees in the amount of $61,933. R, who died on April 9, 1968, domiciled in Texas, was not contributing to W's support at that time nor had he done so for several years prior thereto. W filed application in June 1968 for surviving divorced mother's insurance benefits.
The issues to be decided are whether at the time of R's death there was a court order requiring him to make substantial contributions to W's support, and whether W had in her care an entitled child of the worker. Ancillary to these issues are whether the court order issued by the New York Supreme Court in July 1958 was a valid order and whether it survived the Texas divorce decree obtained by R in 1961.
Section 202 of the Social Security Act, as here pertinent, provides:
Section 216(d)(3) of the Act defines "surviving divorced mother" as a woman divorced from an individual who has died, if she is the mother of his son or daughter. In addition, section 404.342 of Regulations No. 4 of the Social Security Administration provides, as here pertinent, that a former wife divorced has a child in her care if she exercises parental control and responsibility for a child age 18 or older who is mentally incompetent.
R's Mexican divorce decree of June 1957 recites that he appeared by attorney in the action but that W neither appeared nor filed a pleading. The courts of New York would not recognize the divorce as valid because neither party was domiciled in Mexico or appeared personally before the court. Rosenbaum v. Rosenbaum, 130 N.E.2d 902 (N.Y. 1955); Rosenstiel v. Rosenstiel, 209 N.E.2d 709 (N.Y. 1965), cert. den. 384 U.S. 971 (1966).
The Supreme Court of New York has jurisdiction to award legal separation to a wife on the ground of abandonment and to award alimony to the plaintiff in such an action (see N.Y. Domestic Relations law, sec. 200 and 236). The New York courts would also recognize the validity of the Texas divorce decree as to W's marital status because R was domiciled in Texas when the decree was granted. (Williams v. North Carolina, (I) 317 U.S. 287 (1942)). The question remains as to whether the New York courts are compelled to give "full faith and credit" to the Texas court's ruling insofar as it attempts to terminate R's obligations to support W. The rule applicable under these circumstances is the "divisible divorce" doctrine established by the U.S. Supreme Court in Estin v. Estin, 334 U.S. 541 (1948).
In Estin, the husband, after being directed by a New York court to pay alimony to his wife, established his domicile in Nevada and obtained a divorce from her there. The U.S. Supreme Court held that to the extent the divorce decree had dissolved the marriage it must be given "full faith and credit" in other States but that the Nevada court, lacking personal jurisdiction over the defendant wife, had no power to affect her right to alimony under the New York separation judgment. The court stated (at pp. 548, 549):
For the exercise by the courts of a State of in personam jurisdiction over a non-resident, due process demands either the physical presence of the defendant within the jurisdiction or that the defendant have established certain "minimum contacts" with the forum such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." International Shoe Company v. State of Washington, 326 U.S. 310, 316 (1945). In the present case, there was no evidence to suggest that W had any contacts with the State of Texas.
New York courts have held that a New York judgment requiring a husband to support his wife will survive a valid foreign divorce if the wife was not a resident of the State granting the divorce and the divorcing court's jurisdiction was based only on personal service outside the forum State. Eldredge v. Eldredge, 280 N.Y. #.2d 227 (N.Y. Sup. Ct. App. Div., 1967); Vanderbilt v. Vanderbilt, 135 N.E.2d 553 (N.Y. 1956).
Since the 1958 separation decree directing R to contribute to W's support continued to be in effect until R's death, it satisfies the dependency requirement of section 202(g)(1) of the Act pertaining to surviving divorced mother's benefits.
Under the facts here presented, W is a "surviving divorced mother," as defined in the Act; the support order issued by the New York Supreme Court, Queens County, in July 1958 was a valid order and was not extinguished by the Texas divorce decree of 1961; at the time of R's death, there was a court order for substantial contributions to W's support from R; and W had in her care a child of R entitled to child's insurance benefits. Accordingly, the Appeals Council held that W is entitled to mother's insurance benefits based on her application of June 1968.
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