UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 97-60436
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ANNIE LEE BROWN,
Plaintiff-Appellant,
VERSUS
KENNETH S. APFEL,
Commissioner of Social Security,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Mississippi
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January 6, 1999
Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:
Annie Lee Brown was denied widow's Social Security benefits
administratively and this denial was affirmed by the district
court. The Commissioner denied benefits based on a determination
that, under Mississippi law, Annie Lee Brown was never legally
married to Amos Brown because Amos Brown had been previously
married to Curly Mae Brown and their marriage was never terminated
by divorce, annulment, or death.
The issue on appeal is whether the Social Security
Administration satisfied the strenuous proof Mississippi requires
to establish the invalidity of a second marriage.
Under Mississippi law, a subsequent marriage raises a strong
presumption that the former marriage has been terminated by divorce
or death of the previous spouse. See, e.g., Erwin v. Hodge, 317
So. 2d 55, 57 (Miss. 1975) (presumption is “one of the strongest
known to the law”). In order to rebut this strong presumption, a
party challenging the validity of a second marriage must “show
where each party to the prior marriage had resided up to the time
of the second marriage, and then [] procure from the clerk of the
proper court in each such county a certificate of search showing
that no divorce or annulment had been granted by the court of which
he is clerk.” Pigford Bros. Construction Co. v. Evans, 83 So. 2d
622, 625 (Miss. 1955); see also Smith v. Weir, 387 So. 2d 761, 764
(Miss. 1980); Erwin, 317 So. 2d at 57.
In the administrative hearing, the Social Security
Administration did not present records from all the counties in
which Amos and Curly Mae Brown lived subsequent to their marriage
and prior to the marriage of Amos and Annie Lee Brown.
Specifically, they did not present records from Cook County,
Illinois and LeFlore County, Mississippi. Therefore, under
Mississippi law, the presumption in favor of the second marriage
was not rebutted. The district court therefore erred in affirming
the Commissioner's determination that Annie Lee Brown's marriage to
Amos Brown was a nullity.
The judgment of the district court is reversed and the case is
remanded to the Commissioner with directions to recognize Appellant
Annie Lee Brown as the surviving widow of Amos Brown and to pay
benefits accordingly.
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REVERSED and REMANDED.
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