Sharon Everetts v. Kenneth S. Apfel, Commissioner, Social Security Administration

HEANEY, Circuit Judge,

dissenting.

With all due respect, the majority errs when it concludes that “[i]t is undisputed that the plaintiff had gone through a marriage ceremony with Mr. Everett....” To the contrary, there is no evidence in the record to support the view that plaintiff married Joseph Everett; thus, the question of whether the alleged marriage was annulled is irrelevant. Accordingly, I respectfully dissent.

The plaintiff testified, without contradiction, that no marriage ceremony was ever performed between her and Mr. Everett. At the administrative hearing, the following colloquy occurred:

Q So were you finally — were you married to Mr. Everett, then, after that? Was there a ceremony?
A No.
Q Did you go before a justice of the peace?
A No.
Q Did you go down to city hall?
A No, they released him from the police station at 12th and Clark. They brought him over to the city hall, and the police then taken the handcuffs off him, and told my mom that he was all hers, and my mom signed some papers with him signing and her signing.

(AdmimR. at 42-43.)

The administrative law judge (ALJ), whose responsibility it was to develop the record, made no further inquiry of plaintiff or any other witnesses to determine whether a marriage ceremony was performed. Rather, the ALJ apparently operated under the erroneous assumption *994that because plaintiff and Mr. Everett signed a marriage license application, a marriage ceremony took place. Under Missouri law, a marriage license alone is insufficient to constitute a marriage. See Mo.Rev.Stat. § 451.040(1) (2000) (“[N]o marriage hereafter contracted shall be recognized as valid unless the license has been previously obtained, and unless the marriage is solemnized by a person authorized by law to solemnize marriages.”) (emphasis added).

In addition, plaintiff and Mr. Everett applied for the marriage license on September 10, 1953. The license was issued the same day. However, the license application notes: “Said License not to be issued prior to three days from date of application unless authorized by Court Order.” (Admin.R. at 71); see also Mo.Rev. Stat. § 451.040 (1949) (requiring a three-day waiting period between the application and issuance of a marriage license, unless court orders otherwise). While the license application contains the handwritten words “Court Waiver,” there is no evidence in the record of a court order permitting the license to be issued within the three-day period. Moreover, as the majority states in its opinion, Mr. Everett left town the following day never to be seen or heard from again.

Although the majority correctly concludes that Missouri distinguishes between “void” and “voidable” marriages, this discussion, as previously noted, is irrelevant. There is no evidence in the record supporting the position that plaintiff married Mr. Everett, and thus her marriage to Mitchell Reid was valid. For this reason, the plaintiff is entitled to benefits under the Social Security Act.