20 CFR 404.1104

SSR 70-21

Claimant filed for widow's insurance benefits. The evidence established that a Texas trial (divorce) court had orally granted claimant a divorce from the worker and the divorce was so entered on the court docket. However, before such judgment was reduced to writing and signed by the court, the worker died. Subsequently, upon motion of the claimant, a Court of Civil Appeals dismissed the divorce action and set aside the docket entry. Held, under Texas law (1) the divorce was effective from the time it was orally granted and (2) the order of dismissal of the divorce action obtained after the insured's death is of no force and effect. Accordingly, claimant is not the widow of the insured and is not entitled to widow's benefits.

Claimant, W, filed an application for widow's insurance benefits as the widow of R, the worker. The evidence established that on February 10, 1967, a Texas trial (divorce) court orally granted W a divorce from R, and so entered it on the court docket. The worker died in June 1967. The judgment of divorce had never been reduced to writing and signed by the court. In August 1969 a Texas Court of Civil Appeals, pursuant to a motion of the claimant dismissed the divorce action and set aside the docket entry of February 10, 1967, on the basis that no written judgement had been entered in the action.

The question of whether W is entitled to widow's insurance benefits depends on whether her marriage to R was terminated by a divorce before his death. (Under certain circumstances, not pertinent here, a surviving divorced wife may qualify for widow's insurance benefits. See SSR's 67-18, C.B. 1967, p.33 and 67-55, C.B. 1967, p.39.)

The pertinent part of Vernon's Annotated Texas Rules of Civil Procedure, rule 306a, provides:

Judges are directed to cause * * * all judgments, decisions, and order of any kind to be reduced to writing and signed by the trial judge and the date of signing stated therein; but absence of any such showing shall not invalidate any judgment or order. (Emphasis supplied.)

Furthermore, rule 164 of the Rules of Civil Procedure, supra, provides:

At any time before the jury has retired, the plaintiff may take a non-suit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief. When the case is tried by the judge, such non-suit may be taken at any time before the decision is announced.

A situation, similar to the facts in the instant claim, was considered by the Supreme Court of Texas in Dunn v. Dunn, 439 S.W.2d 830, 833, 834 (Tex. 1969. There the wife sought a divorce, the matter was heard, an oral pronouncement made by the court, and the defendant husband died prior to the signing of the judgment. The court stated:

The . . . oral judgment by the trial court is held to be a final judgment, dispositive of the issues before the court. After the announcement of this final judgment, the respondent was not subsequently entitled to dismiss the action, as such a dismissal would conflict with Rule 164, T.R.C.P.

Turning to the question of whether the matter before the trial (divorce) court had become moot due to the death of a party, thereby justifying dismissal, the court said:

. . . the property right of the parties would be significantly affected depending upon whether the marriage was held to have been terminated by divorce decree or by death. The instant case, then, was not moot, and the Court of Civil Appeals was in error in ordering the trial court to grant a motion to dismiss the cause because of a litigant's death subsequent to the rendition of judgment.

Since it thus appears that the order of dismissal of the Court of Civil Appeals was not supported by Texas law and was contrary to the holding of the Texas Supreme Court in a similar case, it was ineffective to restore W's marital status. Accordingly, W was granted an effective divorce from the date noted on the docket sheet of the trial court; therefore, it is held that W's relationship as R's wife was terminated on such date and she is not entitled to widow's insurance benefits.

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