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March 14, 1967

Amy C. MOTT, Plaintiff,

The opinion of the court was delivered by: WORTENDYKE

 This action is brought under the Social Security Act, 42 U.S.C. § 405(g), to review the final determination of the Secretary of Health, Education and Welfare that plaintiff is not entitled to wife's benefits under the Social Security Act based on the earnings record of Maurice B. Mott. The defendant has moved for summary judgment.


 Application by the plaintiff for such benefits was filed on August 27, 1962. The application was denied October 12, 1962 upon the finding that no benefits could be paid to plaintiff at that time because Maurice Mott was not entitled to old-age or disability benefits. A second application was filed by the plaintiff on December 28, 1964, following the award to Maurice Mott of old-age retirement benefits on December 11, 1964. Plaintiff's second application was denied by the District Office on February 5, 1965 upon the determination that the plaintiff was not the wife of Maurice Mott (hereinafter wage-earner) within the meaning of 42 U.S.C. § 416(b) and that plaintiff had accepted a post-marital property settlement with the wage-earner which estopped her to contest the wage-earner's divorce from her in the State of Nevada in April 1950. Plaintiff's request for reconsideration, filed August 10, 1965, was denied upon such reconsideration on September 29, 1965. After a Hearing held November 19, 1965 in compliance with plaintiff's request, the Hearing Examiner rendered his decision that the plaintiff and wage-earner were divorced; that she ceased to be entitled to support from him as of February 6, 1953 the date of execution of the post-marital property settlement; and that plaintiff was "* * * not entitled to wife's or divorced wife's benefits on the earnings record of Maurice Mott * * *". Plaintiff's request for review was denied by the Appeals Council; thus rendering the decision of the Hearing Examiner the final decision of the Secretary, subject to review by this Court.


 Plaintiff was married to the wage-earner on March 24, 1923. On September 22, 1944, the wage-earner left the New Jersey residence which he then shared with the plaintiff and their two children. On May 7, 1945, the Essex County (New Jersey) Domestic Relations Court awarded to the plaintiff against her husband the sum of $22 per week as support for herself and her minor daughter. That award was reduced to $20 in January 1946, and in June 1948 was further reduced to $15 per week. The evidence before the Hearing Examiner disclosed that the wage-earner never fully complied with any of the foregoing support orders. The record further discloses that on or about November 19, 1949 the wage-earner left the State of New Jersey and established a permanent residence in Los Angeles, California, travelling by way of Las Vegas, Nevada.

 In divorce proceedings instituted by the wage-earner in Nevada in February 1950, plaintiff was personally served with process in Essex County, New Jersey but did not appear in the divorce action. Upon being served, plaintiff advised the Nevada Court by letter that she believed the wage-earner was not a Nevada resident, and that in representing to the contrary the wage-earner was committing a fraud upon the Nevada court. The letter further informed that court that plaintiff was without financial means to employ a lawyer to contest the divorce action. She was advised by the Nevada court that unless she appeared in the action through an attorney, it could not take cognizance of her charge of fraud. A divorce was granted to the wage-earner on April 10, 1950.

 After his divorce from the plaintiff, the wage-earner remarried and was living in California with his second wife. On February 6, 1953, plaintiff and the wage-earner entered into a written Post-Marital Property Settlement Agreement in Los Angeles, California which recited and provided as follows:

(1) The wage-earner was divorced from plaintiff on April 10, 1950 after personal service of the complaint in the divorce proceedings upon the plaintiff;
(2) Plaintiff and her divorced husband desired to settle their mutual claims;
(3) Each of the parties released and absolved the other of all obligations, claims and demands, including rights in the estate of the other;
(4) The parties thereto stipulated that the agreement "may be introduced by either party hereto in full satisfaction of the order of any Court involving the marital rights and obligations of the parties hereto * * *";
(5) The wage-earner agreed to pay to the plaintiff $1227 and to transfer to her as beneficiary a life insurance ...

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