SSR 65-36c: SECTIONS 202(d) and 216(h)(2)(A). -- RELATIONSHIP -- LEGITIMATION UNDER CALIFORNIA LAW

20 CFR 404.1101 and 404.1109(c)

SSR 65-36c

PINKELMAN v. SECRETARY OF HEALTH, EDUCATION, AND WELFARE, CCH

U.I.R. Fed. Para. 16.232 (U.S.D.C., N. Cal., 4/24/64)

MacBRIDE, District Judge :

This is an action, under the Social Security Act, to review a decision of

the Secretary of Health, Education, and Welfare denying the application of

[M], made on behalf of [her son, C], for child's insurance benefits. 42

U.S.C. §§ 402(d)(1) and

405(g). [1]

Both sides have moved, on the basis of the present record, for summary

judgment. 42 U.S.C. § 405(g).

The only question presented by the motions is one of law: Was [C], the

illegitimate child of [M] and [R, the deceased worker], legitimized by

[R], in accordance with California Civil Code § 230, so as to entitle him

to survivor's insurance benefits, as the child of [R], under the Social

Security Act (42 U.S.C. §§ 402(d)(1) and 416(e) and (h)(2))?[ ]

California Civil Code §234 provides:

It may be assumed, for present purposes, that the facts are,

substantially, as follows: [R] married [his wife, W] February 4, 1940. he

met [M] in June, 1954. [M] gave birth to [C] September 18, 1955. [R] was

the biological father of [C]. [R] and [W] lived together until August 20,

1958, when they separated, and [R] moved to a cottage behind [M's] house.

On January 6, 1959, [W] obtained an interlocutory decree of divorce in a

California court. [R] died August 31, 1959, before the divorce had become

final. At the time of his death, he was domiciled in California. During

his lifetime, [R] publicly acknowledged paternity of [C] and contributed

to his support. But, prior to the entry of the interlocutory decree of

divorce, he concealed the fact of paternity from [W], and she at no time

consented to the reception of [C] into the family of [R].

ust 31, 1959, before the divorce had become

final. At the time of his death, he was domiciled in California. During

his lifetime, [R] publicly acknowledged paternity of [C] and contributed

to his support. But, prior to the entry of the interlocutory decree of

divorce, he concealed the fact of paternity from [W], and she at no time

consented to the reception of [C] into the family of [R].

It is thus clear that the element of "reception into his family with the

consent of his wife," which is required for legitimation under California

Civil Code § 230, is not present herein. [W] did not give her consent; and

it is clear, under California law that, despite the entry of the

interlocutory divorce, she was the wife of [R] until his death. Calif.

Civ. C. §§ 131 and 132. Paulus v. Bauder , 106 Cal. App. 2d 589

(1951).

Plaintiff argues that the element of consent may be excused in this case

because the other elements are present and [R] was legally separated from

[W] pursuant to the interlocutory decree of divorce and, arguably, had

established a new "family," consisting of [M] and [C]. This argument may

have some merit as a matter of abstract logic. See 2 Armstrong, California

Family Law, p. 939 (1953). But this Court is bound to accept the

construction placed on California Civil Code § 230 by the California

courts. 28 U.S.C. §1652. Davis v. Ribicoff , 203 F. Supp. 277, 279

(D.C. Calif. 1962). And the rule, as declared by the California courts, is

that even where the father of a child has lived separate and apart from

his lawful wife and lived continuously with another woman, he cannot

legitimate the issue of the meretricious relationship under §230 by

receiving the child into his family without the consent of his lawful

wife. Adoption of Graham , 58 Cal. 2d 899 (1962); Darwin v.

Ganger , 174 Cal. App. 2d 63 (1959); Laugenour v. Fogg , 48 Cal.

App. 2d 848 (1942). See Davis v. Ribicoff, supra . Compare McDaniel v. Flemming , 172 F. Supp. 153 (D.C. Calif. 1959).

e cannot

legitimate the issue of the meretricious relationship under §230 by

receiving the child into his family without the consent of his lawful

wife. Adoption of Graham , 58 Cal. 2d 899 (1962); Darwin v.

Ganger , 174 Cal. App. 2d 63 (1959); Laugenour v. Fogg , 48 Cal.

App. 2d 848 (1942). See Davis v. Ribicoff, supra . Compare McDaniel v. Flemming , 172 F. Supp. 153 (D.C. Calif. 1959).

The above rule is not rendered inapplicable merely because the lawful

wife has obtained an interlocutory decree of divorce. Adoption of

Graham, supra . Compare Stauter v. Carithers , 185 Cal. 160

(1921). [2] For, under

California law, the marital bonds are not severed by an interlocutory

decree, and the parties continue to occupy the relationship of husband and

wife until the final decree is entered. Calif. Civ. C. §§ 131 and 132. Paulus v. Bauder, supra . Plaintiff has advanced a number of

arguments as to why California Civil Code § 230 should be interpreted as

not requiring consent of the lawful wife where she has obtained an

interlocutory decree of divorce. The arguments need not be considered

because the language of § 230 "does not leave room for judicial

modification." ( Adoption of Graham, supra , 906), and this Court may

not, in order to avoid an apparently harsh result, read the consent

requirement out of § 230 and thereby construe the section in a manner

inconsistent with the construction placed on it by the California courts

in the cases cited above involving facts not substantially different from

those present in this case. Davis v. Ribicoff, supra.

In view of the foregoing, and having carefully examined the records and

the arguments of the parties, the Court concludes that the decision of the

Secretary must be affirmed, and it is so ordered. Defendant's motion for

summary judgment is granted. Plaintiff's motion for summary judgment is

denied. Present judgment accordingly.

from

those present in this case. Davis v. Ribicoff, supra.

In view of the foregoing, and having carefully examined the records and

the arguments of the parties, the Court concludes that the decision of the

Secretary must be affirmed, and it is so ordered. Defendant's motion for

summary judgment is granted. Plaintiff's motion for summary judgment is

denied. Present judgment accordingly.

[1] The application was

originally denied by the Bureau of Old-Age and Survivors Insurance of the

Social Security Administration. Plaintiff requested a hearing, and the

hearing examiner reversed the Bureau. The decision of the hearing examiner

was subsequently reversed by the Appeals Council of the Bureau of Hearings

and Appeals.

[2] The Stauter case is

clearly distinguishable from the present case, because it involved

California Civil Code § 223, which, unlike § 230, refers specifically to a

"married man, not lawfully separated from his wife ." (Emphasis

added.)