* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for

John J. Callahan, former Acting Commissioner of the Social Security Administration, as the defendant in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 7 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

NIKE C. JEGART,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner, Social Security Administration, *

Defendant-Appellee. No. 97-2381 (D.C. No. CIV-91-981-SC/DJS)

(D. N.M.)

ORDER AND JUDGMENT **

Before KELLY , BARRETT , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff appeals the district court’s decision uph olding the Commissioner’s refusal to reentitle her to child disability benefi ts. See 42 U.S.C. § 402(d)(6); 20 C.F.R. § 404.351. Plaintiff began receiving chi ld disability benefits in 1983. Pursuant to the Social Security Act, however, her b enefits ceased in September 1986, upon her marriage, which occurred in Maryland . See 42 U.S.C. § 402(d)(1)(D); see also 20 C.F.R. § 404.352(b)(2). Plaintiff and her husb and separated three months later and obtained a divorce in a Maryland state court in 1988. Under § 402(d)(6), “a person who is entitled to chi ld’s insurance benefits and whose entitlement is terminated because of marr iage . . . may not be reentitled to those benefits when the marriage ends by reason of divorce . . . .” Soc. Sec. R. 84-1; see also McMahon v. Califano , 605 F.2d 49, 53 (2d Cir. 1979). “A void marriage[, however,] will not preclude reen titlement[, and if] a voidable marriage is annulled by court action, . . . reentit lement to child’s . . . benefits is ordinarily permitted.” Soc. Sec. R. 84-1; see also McMahon , 605 F.2d at 54 n.8. Although plaintiff could not obtain an annulment un der Maryland law, during the course of these reentitlement proceeding s she did obtain a New Mexico state court order annulling her marriage. The Comm issioner determined,-3-

however, that he was not bound by the New Mexico an nulment because that proceeding was not contested and the annulment orde r was inconsistent with New Mexico law. This court reviews the Commissioner’s decision onlyto determine whether he applied the law correctly and whether substantia l evidence supported his decision. See Bean v. Chater , 77 F.3d 1210, 1213 (10th Cir. 1995). On appeal, plaintiff argues that the district court erred in d etermining that the New Mexico court did not have personal jurisdiction over plain tiff’s former husband; substantial evidence did not support the Commission er’s determination that the New Mexico proceeding was uncontested; and the district court erred in allowing the Commissioner to raise issues that he had previo usly waived. Upon consideration of the appellate record and the parti es’ arguments, we affirm. Although questioning the existence of the New Mexic o state court’s personal jurisdiction over the former husband, the district court, in affirming the Commissioner, assumed the state court had personal jurisdiction. The lack of personal jurisdiction, therefore, was not the basis for the district court’s decision and plaintiff’s arguments in that regard are unavai ling. So, too, is plaintiff’s assertion that the Commissioner waived any argumentother than those addressing the lack of personal jurisdiction.-4-

Further, regardless of whether substantial evidence supported the Commissioner’s determination that the New Mexico pr oceeding was uncontested, the Commissioner is not bound by an annulment decre e that was inconsistent with New Mexico law. See Cairns v. Richardson , 457 F.2d 1145, 1148-50 (10th Cir. 1972) (agency not bound by state court’s annulment order entered contrary to Kansas law). In concluding that the annulment was contrary to New Mexico law, the Commissioner and the district court relied uponthe New Mexico Supreme Court’s decision in Gullo v. Brown , 483 P.2d 293, 294-96 (N.M. 1971), that a Virginia court’s denial of an annulment and entryof a divorce decree precluded a subsequent annulment action in New Mexico based upon res judicata principles. Plaintiff does not challenge this statement of New Mexico law. The judgment of the United States District Court fo r the District of New Mexico is, therefore, AFFIRMED.

Entered for the Court

Robert H. Henry Circuit Judge