SSR 67-32c: SECTIONS 202(d)(1), 216(e), and 216(h)(2)(A). -- CHILD'S INSURANCE BENEFITS -- EFFECT OF STATE COURT ORDER OF PATERNITY ON SECRETARY'S DETERMINATION OF STATUS OF CHILD

20 CFR 404.1101, 404.1102, and 404.1109

SSR 67-32c

SCHULTZ v. CELEBREZZE, 267 Fed. Supp. 880 (7-29-67)

BEAMER, District Judge:

This is a suit to review a final decision of the Secretary, denying the

plaintiff's claim on behalf of her daughter for child's insurance benefits

under Section 202(d) of the Social Security Act, 42 U.S.C. § 402(d).

The only issue before the Court is whether the Secretary was correct in

determining that plaintiff's daughter did not have the status of a "child"

relative to inheritance of the deceased wage earner's intestate personal

property under the law of the State where the wage earner died as required

by 42 U.S.C. § 416(h)(2).

* * * * * *

Title 42 U.S.C. § 402(d)(1) concerns child's insurance benefits and

provides in pertinent part:

"Every child (as defined in 42 U.S.C. § 416(e)) . . . of an individual

who dies as a fully insured individual . . . shall be entitled to child's

insurance benefits."

Title 42 U.S.C. § 416(e) provides:

"The term 'child' means, (1) the child or legally adopted child of an

individual . . ."

Title 42 U.S.C. § 416(h)(2)(A) provides:

"In determining whether an applicant is a child . . . for purposes of

this title, the Secretary shall apply such law as would be applied in

determining the devolution of intestate personal property . . . if such

insured individual is dead, by the Courts of the State in which he was

domiciled at the time of his death. . . . Applicants who according to such

law would have the same status relative to taking intestate personal

property as a child . . . shall be deemed such."

Secretary shall apply such law as would be applied in

determining the devolution of intestate personal property . . . if such

insured individual is dead, by the Courts of the State in which he was

domiciled at the time of his death. . . . Applicants who according to such

law would have the same status relative to taking intestate personal

property as a child . . . shall be deemed such."

The wage earner in this case was Martin Trask, Jr., who died July 22,

1962, while domiciled in Indiana as a result of an auto collision. Martin

Trask and Sharon Schultz, plaintiff herein, were never married

ceremonially. They started seeing each other, according to the transcript,

in June, 1961. In September, 1961, they took a trip to California "to

elope and get married." they lived together while in California but never

did actually get married. They then came back to Indiana and lived

together until Martin's death in July, 1962. Diana Trask, for whose

benefit this action is brought, was born about three months after his

death, in October, 1962.

On December 18, 1962, a petition was filed in the Juvenile Court of Lake

County to establish the paternity of Diana Lynn Trask and the Court

entered judgment on the same date declaring Martin Trask to be the father

of Diana.

Theodore Schultz, plaintiff's father and administrator of Martin Trask's

estate, filed a petition in Lake Superior Court for a determination of

heirship and an order was entered in the probate proceedings dated June 9,

1964. The order states in part as follows:

"That the paternity of Diana Lynn Trask has been established as required

under Burns 6-207; that Diana Lynn Trask is the child of Martin L. Trask

and entitled to inherit from her father, the aforementioned Martin L.

Trask, deceased; and that said child is the sole heir of Martin L.

Trask."

Martin L. Trask's estate had no assets in it.

June 9,

1964. The order states in part as follows:

"That the paternity of Diana Lynn Trask has been established as required

under Burns 6-207; that Diana Lynn Trask is the child of Martin L. Trask

and entitled to inherit from her father, the aforementioned Martin L.

Trask, deceased; and that said child is the sole heir of Martin L.

Trask."

Martin L. Trask's estate had no assets in it.

Plaintiff argues that the Secretary and this Court are bound by the

decision entered in the probate court determining that Diana Trask was the

child and sole heir of decedent. Plaintiff's argument, in this respect, is

apparently two-fold. Plaintiff contends the probate court determination is

conclusive and binding under the doctrines of res judicata and under the

full faith and credit clause of the Constitution. Secondly, plaintiff

contends that the probate court's decision is binding on this court under

the Erie doctrine under principles of stare decisis. Plaintiff also

contended at the hearing before the Secretary that Sharon Schultz and the

decedent had entered into a valid common law marriage.

Defendant contends that there was no valid common law marriage nor could

there be since such marriages are outlawed by statute in this state.

Defendant further contends that the Secretary and this Court are not bound

by the probate court decision establishing Diana Trask as sole heir of the

decedent.

As far as common law marriage is concerned, it is quite clear from the

transcript that no common law marriage existed in this case. Burns 44-111,

effective January 1, 1958, provides:

"All marriages known as 'common law' marriages entered into subsequent to

the effective date of this Act shall be and the same are hereby declared

null and void."

Diana Trask as sole heir of the

decedent.

As far as common law marriage is concerned, it is quite clear from the

transcript that no common law marriage existed in this case. Burns 44-111,

effective January 1, 1958, provides:

"All marriages known as 'common law' marriages entered into subsequent to

the effective date of this Act shall be and the same are hereby declared

null and void."

Sharon Schultz testified that her "relationship" with the decedent

commenced in June, 1961. Their "elopement" occurred in September, 1961.

Therefore, it is clear that no valid common law marriage could have

resulted. Plaintiff argued below that the case of In Re Sutherland

Estate, 195 N.E. 2d 778 (Ind. App. 1964) validated common law

marriages despite Burns 44-111. This contention is without merit for the Sutherland case merely held that a common law marriage contracted

prior to the effective date of the above statute was valid. Finally, even

without considering the above statute, the evidence below clearly shows

that the inception of the relationship below was purely sexual and that

neither party ever considered himself married. Everything was in futuro

rather than in praesenti. They planned to get married in the future but

never did.

Plaintiff's primary contention is that the probate court order

establishing Diana Trask as sole heir of decedent must be recognized in

these proceedings. Plaintiff argues in the first instance that this order

is conclusive under the full faith and credit clause of the Constitution.

Plaintiff asserts that the Social Security Administration received "proper

notice" under Burns 6-606 and is therefore bound by the probate court

determination and may appeal the probate court determination by virtue of

Burns 6-606.

Plaintiff is in error for several reasons. Burns 6-606 relates to the

procedure for determining heirship and states in pertinent part as

follows:

titution.

Plaintiff asserts that the Social Security Administration received "proper

notice" under Burns 6-606 and is therefore bound by the probate court

determination and may appeal the probate court determination by virtue of

Burns 6-606.

Plaintiff is in error for several reasons. Burns 6-606 relates to the

procedure for determining heirship and states in pertinent part as

follows:

"(d) The decree of the Court (determining heirship) shall be conclusive

of the facts determined therein on any interested person who has been

notified personally or by mail in accordance with the provisions of

this code, subject to the right of appeal." (Italics added.)

Subsection (a) provides as follows:

"Upon filing of the petition, the court shall fix the time of hearing

thereof, notice of which shall be given to all persons known or believed

to have any interest in the estate or any part thereof as heir or

through an heir of decedent. In addition, notice by publication shall

be given to all unknown heirs." (Italics added.)

Plaintiff states in its brief at page 3, that the Social Security

Administration received notice of the order of the probate court

determining Diana to be the sole heir. Obviously this does not comply with

the notice of hearing requirement noted above. Furthermore, the

Social Security Administration is obviously not a "person having an

interest in the estate as heir or through an heir of decedent." Therefore,

the probate court determination is not conclusive even under Indiana

law.

f the order of the probate court

determining Diana to be the sole heir. Obviously this does not comply with

the notice of hearing requirement noted above. Furthermore, the

Social Security Administration is obviously not a "person having an

interest in the estate as heir or through an heir of decedent." Therefore,

the probate court determination is not conclusive even under Indiana

law.

Nor is the probate court determination conclusive under the full faith

and credit clause or under principles of res judicata as enunciated

in the case law which has evolved in connection with claims for Social

Security benefits. Plaintiff attempts to distinguish two of the cases

cited by the government which state that ex parte probate court orders are

not binding upon the Secretary. See Pattern v. Fleming, CCH

UNEMPLOYMENT INSURANCE REPORTER Vol. 1A, Fed. Para. 8985 (D.C. Conn.

1960); Miller v. Ribicoff, 198 F.Supp. 819 (Mich. 1961), SSR 62-62c , C.B. 1962, p. 88.

Plaintiff distinguishes these cases on the ground that they did not

involve an order by a probate court of record as in the instant case nor

did they involve a probate court order entered in the state where the

decedent was domiciled applying the law of the state of domicile. However,

plaintiff does not even attempt to distinguish the cases of Marek v.

Fleming, 192 F.Supp. 528 (D. Tex. 1961) and Nigro v. Hobby, 120

F.Supp. 16 (D. Neb. 1954). In the Marek case, claimant contended

that a state probate court order was entitled to full faith and credit

where the probate court had found claimant to be the widow of the deceased

wage earner. The case holds that the probate court order was not entitled

to full faith and credit and the following appears at page 533:

28 (D. Tex. 1961) and Nigro v. Hobby, 120

F.Supp. 16 (D. Neb. 1954). In the Marek case, claimant contended

that a state probate court order was entitled to full faith and credit

where the probate court had found claimant to be the widow of the deceased

wage earner. The case holds that the probate court order was not entitled

to full faith and credit and the following appears at page 533:

"Such orders, however, are in no way controlling in the present

proceedings. The Secretary neither was, nor properly could have been made,

a party to the probate court proceedings. The Secretary had no opportunity

to contest claimant's statement that she was wage earner's lawful widow.

Manifestly, the Secretary is not bound by such an ex parte incidental

finding."

The Nigro case involved the issue of whether a finding by a state

probate court as to the time of death of wage earner was binding upon the

Secretary. The Court stated:

"The finding of the probate court does not under principles of res

judicata or collateral estoppel prevent the issue of the time of

decedent's death from being considered and determined in this actin. The

Secretary was not a party to the Nebraska proceeding and the money

sought to be recovered in this action was not part of the res over

which the probate court exercised jurisdiction." (Citations omitted.)

The cases of Fennel v. United States, 67 F.2d 768 (5th Cir. 1933)

and Ramsey v. United States, 61 F.2d 644 also support the

government on this issue. So do the U.S. Supreme Court cases of Hilton

v. Guvot, 159 U.S. 113 (1895); May v. Anderson, 345 U.S. 528

ght to be recovered in this action was not part of the res over

which the probate court exercised jurisdiction." (Citations omitted.)

The cases of Fennel v. United States, 67 F.2d 768 (5th Cir. 1933)

and Ramsey v. United States, 61 F.2d 644 also support the

government on this issue. So do the U.S. Supreme Court cases of Hilton

v. Guvot, 159 U.S. 113 (1895); May v. Anderson, 345 U.S. 528

(1953) and Hansberry v. Lee, 311 U.S. 32 (1940) for these cases

indicate that a judgment against a non-party rendered without jurisdiction

over the subject matter is not binding as against such party.

Plaintiff also contends that the state probate court order is in accord

with Indiana law and is binding on this court as a precedent and

application of Indiana law by a court of this state. As a precedent the

"order" below is of little value since it appears to have been rendered in

a non-adversarial proceeding. The order * * * states that the paternity of

Diana Trask has been established as required under Burns 6-207.

Burns 6-207 deals with the rights of illegitimate children as to

intestate property. It should be noted that this is also the criterion for

determining whether a claimant is a "child" entitled to child's insurance

benefits under the Social Security Act. Burns 6-207 provides in pertinent

part as follows:

"(b) For the purpose of inheritance to, through and from an illegitimate

child, such child shall be treated the same as if he were the legitimate

child of his father, if but only if : (1) the paternity of such

child has been established by law, during the father's lifetime; or (2) if the putative father marries the mother of the

child and acknowledges the child as his own.

"The testimony of the mother may be received in evidence to establish

such paternity and acknowledgment but no judgment shall be made on the

evidence of the mother alone. The evidence of the mother must be supported

by corroborative evidence or circumstances." (Italics added.)

's lifetime; or (2) if the putative father marries the mother of the

child and acknowledges the child as his own.

"The testimony of the mother may be received in evidence to establish

such paternity and acknowledgment but no judgment shall be made on the

evidence of the mother alone. The evidence of the mother must be supported

by corroborative evidence or circumstances." (Italics added.)

The commission comments to this section quite clearly indicate that an

illegitimate child may inherit from his father only if the above two enumerated conditions are met. The case of Thacker v.

Butler, 184 N.E. 2d 894 (Ind. App. 1962) also is quite clear that

these are the only two ways an illegitimate child can inherit.

In the case at bar, neither of these conditions has been fulfilled.

Sharon Schultz never married decedent so condition two is not applicable.

Nor was the paternity of Diana Trask established during the lifetime of

the decedent. This is the law of Indiana as unequivocally stated in the

statute and cases. Therefore, the probate court order below is certainly

not binding as a precedent in this case.

Plaintiff does argue that Burns 3-639 should be read in pari

materia with Burns 6-207. Burns 3-639 relates to suits by children

born out of wedlock against a putative father to obtain support, care, and

maintenance. Burns 3-639 provides that if the defendant putative father

dies after the filing of the complaint the action may still be maintained

against the putative father's estate and that no judgment may be rendered

on the basis of the mother's testimony alone.

s 6-207. Burns 3-639 relates to suits by children

born out of wedlock against a putative father to obtain support, care, and

maintenance. Burns 3-639 provides that if the defendant putative father

dies after the filing of the complaint the action may still be maintained

against the putative father's estate and that no judgment may be rendered

on the basis of the mother's testimony alone.

Plaintiff argues that if paternity is established under 3- 639, this is

sufficient under Burns 6-207 if one reads the statutes together. Again,

plaintiff is in error. Burns 3-639 has nothing to do with inheritance

rights. To do what plaintiff asks would be to erase the first requirement

under Burns 6-207 which does deal with inheritance rights and does require

the paternity to be established during the lifetime of the father. There

is a very obvious reason why the inheritance statute differs from the

paternity statute in this respect. If an illegitimate child can wait until

after the death of the putative father to establish his inheritance

rights, this would work havoc on the administration of estates for those

heirs whose rights are determined as of the death of decedent would be

subjected to either delay or a later claim by the illegitimate child who

later establishes paternity.

One additional point should be noted: Not even Burns 3-639 was complied

with here for the complaint to establish paternity was not filed before

the death of decedent since the child had not even been born at the time

of decedent's death. The paternity action under 3-639 only survives if the

defendant putative father dies after the filing of the

complaint.

* * * * * *

For these reasons, this Court is compelled to affirm the decision of the

Secretary. * * *