the wage-earner then proceeded immediately to California. Plaintiff indicated that the complaint in the divorce action was signed by "Charles B. Mott" rather than Maurice B. Mott, the correct name of her then husband, and she contended that this misnomer evidenced that her then husband was not present at the divorce hearing.
With respect to the Post-Marital Property Settlement Agreement of February 6, 1953, plaintiff contended before the Hearing Examiner that the property settlement evidenced thereby was obtained under duress in that the settlement was delayed for a year during which she had been temporarily residing in California, and that she was then without funds and anxious to return to New Jersey to care for her ill son. Plaintiff also testified that, despite the recital in the Agreement, she had no legal advice in connection therewith and that no legal fees were paid to any one in her behalf. Nevertheless, she made no attack upon the divorce until after she had filed her claim for benefits in this Social Security proceeding, at which time the domicile of the wage-earner was in California.
The single question posed by defendant's motion for summary judgment is whether the courts of the State of California, wherein the wage-earner was domiciled at the time the plaintiff filed her application for Social Security benefits, would find that the plaintiff and the wage-earner were validly married at the time the plaintiff filed her application. The determination of this question is governed by 42 U.S.C. § 416(h)(1)(A) which provides in pertinent part that an applicant is the wife of a fully and currently insured individual "* * * if the courts of the State in which such insured individual is domiciled at the time such applicant files an application * * * would find that such applicant and such insured individual were validly married at the time such applicant files such application * * *". Thus, "* * * a determination [must] be made as to the domicile of the insured at the time the claimant filed her application. Then, in accordance with the law of that domicile, it [is] necessary to decide whether the claimant would be considered the 'wife' of the insured at the time she filed for benefits." Rocker v. Celebrezze, 358 F.2d 119, 121 (2nd Cir. 1966).
The parties concede that on December 28, 1964, when the plaintiff filed her claim for benefits, the wage-earner's domicile was in the State of California.
The Hearing Examiner was therefore required to determine the status of the marital relationship between the plaintiff and the wage-earner under the law of California. It is significant that the Hearing Examiner made no specific finding as to the State of the wage-earner's domicile at the time plaintiff made her application of December 28, 1964. Such a finding is necessary in accord with the two-fold determination required by 42 U.S.C. § 416(h)(1)(A). See Rocker v. Celebrezze, Ibid. See also Rocker at p. 125, where Circuit Judge Moore, in a Concurring Opinion, disapproves of an "implicit" finding in this regard. That there was no such specific finding becomes unimportant here only because the parties conceded that the wage-earner was domiciled in California on December 28, 1964.
Defendant contends that the California courts would estop the plaintiff from asserting the invalidity of this Nevada divorce decree on the theory that the plaintiff had acquiesced in such decree and had recognized its validity by acts or conduct which are inconsistent with an assertion of invalidity. With this, I agree. See Smith v. Smith, 157 Cal.App.2d 46, 320 P.2d 100 (1958); Spellens v. Spellens, 49 Cal.2d 210, 317 P.2d 613 (1957). However, before it can be determined that the state of the California law concludes the issue, the legal effect of estoppel in the California courts must be ascertained. In Harlan v. Harlan, 70 Cal.App.2d 657, 161 P.2d 490, 493 (1945) the Court held:
"* * * not that the act is valid, for it may not be, and estoppel does not make valid the thing complained of but merely closes the mouth of the complainant.
* * *