SSR 68-2

Where the worker, who was the plaintiff in a California action, was designated in the proceedings by the name he was then using rather than by the name he was given at birth, and where there was a possible misnomer of the worker's wife, the defendant in the divorce action, in the interlocutory and final decrees, but the wife raised no objection to the possible misnomer, held, the divorce is not invalidated under California law by reason of such factors.

J, a fully insured worker, became entitled to old-age insurance benefits effective October 1958. His wife, A, became entitled at age 65 to wife's insurance benefits effective February 1959. In April 1962, the worker who was named "John Doe Smith" at birth, began using the name "John Smith Doe." Thereafter, in July 1963, after a marriage of some 40 years, J brought suit for a divorce in the State of California. In the pleadings and other documents filed in the action, the worker is designated as "John Doe" and "John Doe, also known as John Doe Smith." The interlocutory decree of divorce, granted in May 1964, designated him as "John Doe" and the final divorce decree identified him as "John Doe (John Doe Smith)." His wife was identified as "Alice Jones Doe" in the pleadings and ancillary documents although she signed "Alice Jones Smith" to the documents she filed in the divorce action.

The divorce became final in June 1965; accordingly, A's entitlement to wife's insurance benefits was terminated effective May 1965, the month preceding the month in which the divorce became final, as provided in section 202(b)(1) of the Social Security Act then in effect. A protested the termination of her benefits on the grounds, first, that J was designated in the interlocutory decree by a name he was then using rather than the name given to him at birth, and secondly, that she was designated in the interlocutory and final divorce decrees by a name she was not then using.

The question thus presented is whether use of a name other than the name given at birth by one of the parties and possible misnomer of the other party in an interlocutory and final decree of divorce would render the divorce invalid under California law.

In this case there was no misnomer as to J in the divorce decrees. At the time of the divorce proceedings and thereafter he was using the name "John Smith Doe." Moreover, despite A's later protestations to the contrary, it appears from the documents filed in the divorce action that A must necessarily have been aware that J was bringing suit for divorce under the name he was then using and that she was not misled thereby.

As to A, there was no such misnomer as to render the decree invalid under California law. Although she was well aware that J had brought suit for divorce against her as "Alice Jones Doe" and filed an answer therein, she raised no objection to this particular designation of her as such in the proceeding. Had A not actually received notice of the action pending against her and not appeared therein, or had she shown that she was in some manner materially prejudiced by the designation, a different result might be indicated.

In support of this position, it is stated generally in 42 American Jurisprudence, Process, section 18, that:

As a general rule, an objection that the defendant was sued by the wrong name is a matter of abatement only, and will not avoid a judgment against him if he has been actually served. It is true there are some cases which hold that one sued and served by a wrong name may disregard the summons, but the better view is that one summoned by the wrong name, being thus informed that he is sued, although not correctly described by his true name, who does not avail himself of the opportunity to object, whereby the true name would be inserted in the proceedings, is precluded from afterward doing so * * *. The test in such cases appears to be whether the defendant could have been misled by the error in his name.

In Brum v. Ivins, 96 Pac. 876, 877 (Calif. 1908), the Supreme Court of California accepted this view, stating:

The weight of authority is to the effect that a judgment is binding upon the party served, even though he may have been sued or served by a false or fictitious name; that a party regularly served with summons, although under a name not his own, must come in and set up the misnomer and whatever defense he may have, or else be concluded by the judgment. * * * The presumption is that different names designate different persons. * * * But if on proper proceedings it is shown that a person was served by process in an action brought against him, the judgment will bind him, although he may have been wrongly named.

In Howton v. Gilpin, 69 S.W. 766 (Ky. 1902), it was contended that the divorce decree there under consideration was void because the defendant in the action, whose name actually was Sarah J. Herron, was erroneously designated in the decree variously as "Ira J. Herron" and "Ira Ann Herron." The Court of Appeals of Kentucky, however, rejected that contention. The court reasoned that it was clear enough from the decree itself that it was intended to grant the plaintiff a divorce from his wife, who was Sarah J. Herron, and that, accordingly, the erroneous description of her was not a factor which would invalidate the decree. The Kentucky court's reasoning is persuasive and considering the holding in Brum v. Ivins, supra, it is believed that California courts would reach the same conclusion as the Kentucky court as to the effect of misnomer under these circumstances, on the validity of a divorce decree.

While the divorce terminated A's entitlement to wife's benefits, A may upon filing a new application become entitled to wife's insurance benefits as the divorced wife of J under the Act as amended in 1965. Section 202(b)(1)(H) of the Act now provides that the entitlement of a wife-beneficiary will not terminate where at the time of a divorce she is age 62 or over and has been married to the insured worker for at least 20 years immediately prior thereto. Where entitlement of such a wife-beneficiary terminated prior to the effective date of this new provision, her benefits may be reinstated irrespective of whether she meets the conditions of support for initial entitlement as a divorced wife, required by section 202(b)(1)(D) of the Act. However, benefits will be reinstated no earlier than September 1965 on the basis of a new application. (See SSR 67-1, C.B. 1967, p.2, for a ruling illustrating this provision of the Act.)

Accordingly, it is held that the divorce between J and A is not invalidated by California law under the circumstances of this case. Benefits were therefore properly terminated under the law in effect at the time the divorce became final in June 1965. Upon filing a new application, A may again be entitled to wife's insurance benefits, subject to the usual retroactive period of 12 months.

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