actually telephoned the Social Security District Office and informed them that Alice was no longer in regular school attendance. She stated that she was told by an individual to whom she talked on the telephone at the district office not to bother them with this information because they automatically adjust payments to children when they attain age 18, or when they stop going to school after age 18. She could not explain how anyone could expect the Social Security Administration to know that a child had discontinued school attendance, unless notification was given. In a questionnaire dated August 3, 1973, the appellant stated "I thought the Social Security Office made the adjustments themselves when a child reached 18 or finished school, as they did with the other children." Thus, the appellant's statements on August 3, 1973 and during the course of the hearing are to the effect that she believed that she was not required to notify the Social Security Administration that Alice was no longer in school attendance after June 1972. The fact remains, however, that Mrs. Munce did send a notice in March of 1971 with respect to the school year ending June 1971. On that notice, she indicated that Alice was still in full time school attendance; that Alice intended to continue full time school attendance; and that she intended to continue in full time school attendance through the next school year ending June 1972. The next notice sent by Mrs. Munce to the Administration contains no dates and was received by the Administration in April 1973. It shows that Alice is not attending school and that she does not intend to attend school. Upon further inquiry, it developed that June 1972 was the last month in which Alice attended school, and that, therefore, she obtained a job. On the basis of a refund questionnaire completed by Mrs. Munce, it is apparent that recovery of the overpayment of $1,255.70 would result in some financial hardship. However, I cannot, under the circumstances of this case, find that the appellant was without fault in causing the overpayment. On the contrary, I specifically find that the appellant knew of her obligation to notify the Administration that Alice discontinued regular school attendance after June 1972. I assign no credibility to her assertion that she was informed by employees of the District Office not to bother them with such information because they automatically took the proper action in such cases. The fact that she actually did send notices with respect to Alice's school attendance in March 1971 and in April 1973 clearly indicates that she knew of her obligation to report this event, and that she actually did report the events, but not in time to avoid the overpayment. Consequently, I am persuaded, and I so find, that the appellant was not without fault in this matter. By reason of the foregoing, it is my decision that adjustment or recovery of the overpayment in this case may not be waived. Under the provisions of 20 C.F.R. §404.506 the Secretary will waive recovery of an overpayment if the recipient was "without fault" and the recovery would either "(1) Defeat the purpose of Title II of the Act of (2) Be against equity in good conscience." Fault is defined in 20 C.F.R. $404.507: "Fault" as used in "without fault"... applies only to the in- (a) An incorrect statement made by the individual which he (b) failure to furnish information which he knew or should (c) with respect to the overpaid individual only, accept- The administrative law judge's determination that plaintiff was not without fault is supported by substantial evidence. Plaintiff's theory is that she thought the Social Security Administration would make the adjustments to the social security payments when the child reached age 18 or finished school. She further states that she was so informed by a local social security administration office. Assuming these facts to be true, plaintiff knew that her daughter's benefits should have been terminated in June, 1972 when she quit school. She was merely under the belief that the Social Security Administration would automatically terminate the payments. When the administration did not, plaintiff then, of necessity, knew that she had received an overpayment of social security benefits. Plaintiff, therefore, accepted, the payment on behalf of her daughter knowing it to have been incorrect. WHEREUPON, the Court HOLDS that plaintiff's motion for summary judgment is without merit, and therefore it is DENIED. The decision of the Secretary of Health, Education and Welfare is AFFIRMED. WIDOW'S INSURANCE BENEFITS SECTIONS-202(e), 216(h) (1) (A), and 216(h) (1) (B) (42 U.S.C. 402(e), 416(h) (1) (A), and 416(h) (1) (B)) WIDOW'S INSURANCE BENEFITS - REQUIREMENTS FOR ENTITLEMENT-DEEMED VALID MARRIAGE 20 CFR 404.1101(c)(3) SSR 80-1a The claimant and the wage earner were first cousins who were married in lowa. Under lowa law a marriage between first cousins is void. When the wage earner died domiciled in Nebraska, the claimant applied for widow's benefits. Because the courts of Nebraska will not recognize a marriage between first cousins, or a marriage which is void in the State where it was entered into, the claimant does not have the status of a widow under subparagraph (A) of section 216(h) (1) of the Social Security Act (the Act). Subparagraph (B) of section 216(h) (1) of the Act provides that an applicant for widow's benefits may be deemed to be a widow if she in good faith went through a marriage ceremony with the wage earner which, except for a "legel impediment" not known to her at the time of the ceremony, would have resulted in a valid marriage. Subparagraph (B) further provides that a "legel impediment" includes only an impediment "(i) resulting from the lack of dissolution of a previous marriage or otherwise arising out of such a previous marriage or its dissolution, or (ii) resulting from a defect in the procedure followed in connection with such purported marriage." Neither the claimant nor the deceased wage earner had entered into a previous marriage. Held: When a marriage is void under applicable State law because it is within a prohibited degree of affinity, a "legal impediment" resulting from a defect in procedures has not occurred and, therefore, the claimant does not have the status of a widow under the deemed marriage provisions of section 216(h) (1) (B) of the Act. This case came before the Appeals Council under authority of section 404.957 of Social Security Administration Regulations No. 4, to reopen and revise a hearing decision. In his decision, the administrative law judge found, in effect, that the claimant had status as a widow pursuant to section 216(h) (1) (B) of the Social Security Act and that she was, therefore, entitled to widow's insurance benefits. Section 216(h) (1) (B) provides that an applicant for widow's benefits may be deemed to be a widow if she in good faith went through a marriage ceremony which, except for a "legal impediment" not known to her at the time of the ceremony, would have resulted in a valid marriage. This section of the Act further provides that a "legal impediment" includes only an impediment "(i) resulting from the lack of dissolution of a previous marriage or otherwise arising out of such previous marriage or its dissolution, or (ii) resulting from a defect in the procedure followed in connection with such purported marriage.” The general issue before the Appeals Council is whether the claimant is entitled to widow's insurance benefits. Specifically at issue is whether she has status as the widow of the wage earner. The wage earner died on February 22, 1978, domiciled in Nebraska. The claimant ceremonially married the wage earner on May 20, 1930, in lowa. The claimant and wage earner are first cousins because their fathers were brothers. Under both the law of Nebraska (Neb. Rev. Stat. § 42-103) and the law of lowa (lowa Code Ann. § 595.19) the marriage of first cousins is prohibited and any such marriage is void. Accordingly, the claimant would not be recognized as the widow of the wage earner by the courts of Nebraska because the lowa marriage was void. (Neb. Rev. Stat. § 42-117). Therefore, she cannot acquire the necessary status as a widow under section 216(h) (1) (A) of the Act. This section provides that an applicant will have the status of a widow if the courts of the State where the wage earner was domiciled at the time of his death would find that she and the wage earner were validly married at the time of his death or that she could inherit his intestate personal property as his widow. The administrative law judge found that the claimant's marriage was invalid because of a legal impediment caused by a defect in the procedure followed in connection with the ceremony. He reasoned that if the proper procedures had been followed a license would not have been issued and a ceremony would not have taken place. The Appeals Council does not agree with the administrative law judge's reasoning. The claimant's marriage to the wage earner could never have been a valid marriage under lowa law. She did not go through a marriage ceremony with the wage earner which, but for a specified legal impediment "would have been a valid marriage." The legal impediments specified in section 216(h) (1) (B) of the Act are only those arising out of a prior marriage or a defect in procedure. There is no prior marriage in this case and even if the procedure followed in connection with the marriage was correct, it could still not be a valid marriage under lowa or Nebraska law. The defect is one of substance and not procedure. The Appeals Council concludes that the deemed marriage provisions of section 216(h) (1) (B) of the Act do not apply to marriages which are void because they are within prohibited bounds of affinity. The two parties to such a marriage could never be legally married under State law even if the legal impediments specified were not present. Accordingly, the Appeals Council finds that the claimant cannot acquire the status of widow pursuant to section 216(h) (1) (B) of the Act and is, therefore, not entitled to widow's benefits under section 202(e) of the Act. SECTIONS 216(h) (1) (A) (42 U.S.C. 416(h) (1) (A) WIDOW'S INSURANCE BENEFITS ENTITLEMENT — VALIDITY OF MARRIAGE OF MENTALLY RETARDED INDIVIDUAL-NEW YORK 20 CFR 404.345 SSR 80-8 Held, a marriage entered into by a severely retarded individual, incapable of understanding, is voidable by a court of competent jurisdiction only and not void ab initio under New York law. A and L were married in New York State on September 30, 1942. Shortly thereafter L gave birth to a son who was placed in a foster home and L herself was institutionalized, both actions being taken due to her severe mental retardation. L has remained institutionalized, save for one short period, to date. On May 24, 1944, A instituted divorce proceedings. However, it does not appear that such proceedings were ever concluded or that a divorce was ever finalized. He died in January 1970 and on May 31, 1978 the institution filed an application on L's behalf for widow's insurance benefits. A question has been raised as to whether under New York law a marriage entered into by a severely retarded individual incapable of understanding the nature of her action, as herein, is void ab initio, or, on the facts as stated, was voided at any time prior to the death of the wage earner, A. A marriage entered into by a severely retarded individual, incapable of understanding, is voidable by a court of competent jurisdiction only and not void ab initio under New York State law. New York Dom. Rel. Law §7 (McKinney 1977). Remlein v. Remlein, 54 N.Y.S. 2d 323 (1945); Weinberg v. Weinberg, 255 App. Div. 366, 8 N.Y.S. 2d 341 (1938). Thus, L remains the lawful widow of A unless the marriage was dissolved by a court of competent jurisdiction. It appears from the facts herein that while proceedings to terminate the marriage were commenced by A, such proceedings were never concluded and, therefore, no order of a court of competent jurisdiction dissolving this marriage is existant. Assuming this to be the fact, L must be considered A's legal widow for benefit purposes. |