SSR 73-26c: SECTION 202(d)(1) (42 U.S.C. 402(d)(1)). -- CHILD'S INSURANCE BENEFITS -- STEPCHILD -- TERMINATION OF ENTITLEMENT

20 CFR 404.321(b)

SSR 73-26c

Florio v. Richardson, 469 F.2d 803 (2d Cir., 1972)

MANSFIELD, Circuit Judge: This appeal raises a rather narrow question of

statutory interpretation: whether insurance benefits periodically paid to

a stepchild pursuant to the Social Security Act, 42 U.S.C. § 402(d) (1969)

(the "Act"), as the result of dependency upon his stepfather, the wage

earner, must be terminated upon the stepfather's divorce. The district

court held that the divorce did not terminate the benefits, a conclusion

with which we agree. However, it further concluded that the benefits were

terminated by reason of the child's relationship with his natural father,

which was found to be an "adoption" under the Act. We disagree and

reverse.

On March 9, 1965, Salvatore E. Florio ("Florio"), a wage earner who had

been awarded old-age insurance benefit payments pursuant to the Act, 42

U.S.C. § 402 (1969), filed an application for continuation of child's

insurance benefit payments for his natural daughter, Sally Mae, and, in

addition, for the payment of benefits to three stepchildren whom he had

acquired as the result of his earlier marriage to Avis Sibblies ("Avis"),

one of whom was Enos S. Williams, II ("Enos"), born of Avis' earlier

marriage to one Sidney Williams. The application was granted and

thereafter the amount of child's insurance benefits payable upon Florio's

earnings record, which was limited by §§ 203(a) and 215(a) of the Act, 42

U.S.C. §§ 403(a) and 415(a) (Supp. 1972) was distributed in equal shares

to Sally Mae and the three stepchildren.

f whom was Enos S. Williams, II ("Enos"), born of Avis' earlier

marriage to one Sidney Williams. The application was granted and

thereafter the amount of child's insurance benefits payable upon Florio's

earnings record, which was limited by §§ 203(a) and 215(a) of the Act, 42

U.S.C. §§ 403(a) and 415(a) (Supp. 1972) was distributed in equal shares

to Sally Mae and the three stepchildren.

In April 1966 Florio and his wife, Avis, were separated. Following the

separation Florio sought unsuccessfully to terminate the payment of

benefits to the three stepchildren so that Sally Mae, his natural child,

would enjoy the full child's benefit rather than share it on a pro rata

basis with each of the stepchildren. Participation by two of the

stepchildren was terminated pursuant to applicable law, 42 U.S.C. §

402(d)(1) upon their reaching the age of 18, one in 1966 and the other in

1968. Thereafter the maximum amount of child's benefits payable upon

Florio's earnings record was shared equally by Sally Mae and the stepson

Enos. Although the record is not entirely clear, it further appears that

following the separation of Florio and Avis the stepson Enos took up

residence elsewhere and, in addition to the insurance benefits, may have

received support from his natural father, Sidney Williams, who had in

December 1956 entered into a separation agreement with Avis, then his

wife, obligating him to pay $15 per week for Enos' support. In 1969 that

agreement was the subject of an order of enforcement by the Bronx County

Family Court after Avis had filed a non-support petition.

n addition to the insurance benefits, may have

received support from his natural father, Sidney Williams, who had in

December 1956 entered into a separation agreement with Avis, then his

wife, obligating him to pay $15 per week for Enos' support. In 1969 that

agreement was the subject of an order of enforcement by the Bronx County

Family Court after Avis had filed a non-support petition.

In February 1970 Florio was divorced from Avis. Following a denial by the

Social Security Regional Representative of Florio's request for

reconsideration of the Administration's decision refusing to terminate

payment of benefits to his former stepson Enos, a hearing was held on

August 10, 1970, before a Hearing Examiner which resulted in a written

decision by the Examiner, filed on August 28, 1970, concluding as

follows:

On January 29, 1971, the Examiner's decision was affirmed by the Appeals

Council. On March 12, 1971, Florio commenced the present action pursuant

to § 205(g) of the Act, 42 U.S.C. § 405(g) (1969), for review of the

decision of the Secretary of Health, Education and Welfare denying his

request that insurance payments to his daughter Sally Mae be increased by

the amount paid to Enos. Although Avis was joined as a defendant, she had

not appeared.

A "child," as that term is used in § 202(d)(1) includes "a stepchild who

has been such stepchild for not less than one year immediately preceding

the day on which application for child's insurance benefits is filed . . .

." § 216(e), 42 U.S.C. § 416(e), and such a child is deemed dependent upon

his stepfather within the meaning of § 202(d)(1) if, at the time when the

application for benefits was filed, he was living with or receiving

one-half of his support from the stepfather. § 202(d)(4), 42 U.S.C. §

402(d)(4).

ately preceding

the day on which application for child's insurance benefits is filed . . .

." § 216(e), 42 U.S.C. § 416(e), and such a child is deemed dependent upon

his stepfather within the meaning of § 202(d)(1) if, at the time when the

application for benefits was filed, he was living with or receiving

one-half of his support from the stepfather. § 202(d)(4), 42 U.S.C. §

402(d)(4).

Furthermore, once a child becomes entitled to benefits under § 202(d)(1),

his entitlement terminates the month preceding the month the child dies,

marries or is adopted, or the month in which he has attained age 18, but

then only if he is not disable and not a full-time student.

The issue before the district court and now before us is clearcut:

whether the Social Security Act requires that payment of child's insurance

benefits be continued to a former stepchild of the insured wage earner.

The controlling sections of the Act are § 202(d) and §216(e). 42 U.S.C. §§

402(d), 416(e). Section 202(d) provides in pertinent part:

* * * * * * * *

As Judge Gurfein recognized, the Congressional scheme embodied in the

foregoing statutes is clear. Congress could have provided that a child's

entitlement to insurance benefits would depend upon a demonstration of the

child's actual continuing dependency. However, the lawmakers recognized

that such a program might prove to be administratively unworkable, since

it would necessitate a continuing review of the child's relationship to

the wage earner and of the child's income from other sources, both of

which might change from time to time. Accordingly, they provided that the

entitlement to benefits would be determined by more easily ascertainable

events and by objective tests. To qualify for benefits the child need only

show the existence of a statutorily defined relationship to the wage

earner at the time of his application for benefits. 42 U.S.C. §§ 402(d),

416(e)

sources, both of

which might change from time to time. Accordingly, they provided that the

entitlement to benefits would be determined by more easily ascertainable

events and by objective tests. To qualify for benefits the child need only

show the existence of a statutorily defined relationship to the wage

earner at the time of his application for benefits. 42 U.S.C. §§ 402(d),

416(e). Monthly benefits would thereupon become payable on the theory of probable , as distinguished from actual, need which normally

occurs when a wage earner retires or dies. The child would continue to be

eligible for payment of benefits even though some of the circumstances

required to be shown at the time of application should change and even

though the child might not continue to meet the threshold requirements

prescribed by 42 U.S.C. § 416(e) for entitlement. Benefits would terminate

only upon the occurrence of any one of four events: (1) death, (2)

marriage, (3) adoption, or (4) attainment of the age of 18 (Provided the

child is not disabled and not a full-time student), 42 U.S.C. §

402(d)(1).

Applying the plain language of the foregoing provisions of the Act to the

present case, it is undisputed that Enos qualified as a dependent child at

the time of the application made on his behalf by his stepfather, Florio

on March 9, 1965. We further agree with the district court's conclusion

that he was not divested of his eligibility because of his mother's

divorce from his stepfather, Florio, since the wage earner's divorce is

not one of the four terminating events specified in § 202(d)(1). Appellee

argues that these events are descriptive rather than exhaustive. We

disagree. Congress knew how to prescribe divorce as a terminating event

and indeed did so in other sections of the Act. See, e.g., 42 U.S.C. §§

402(b)(1), 402(c)(1). For our purposes its decision not to do so in §

402(d)(1) is final

's divorce is

not one of the four terminating events specified in § 202(d)(1). Appellee

argues that these events are descriptive rather than exhaustive. We

disagree. Congress knew how to prescribe divorce as a terminating event

and indeed did so in other sections of the Act. See, e.g., 42 U.S.C. §§

402(b)(1), 402(c)(1). For our purposes its decision not to do so in §

402(d)(1) is final. The legislative scheme adopted by it operated to

relieve the Social Security Administration of the necessity of resolving

such difficult questions as the effect of a divorce upon the wage earner's

obligation to support his former stepchild, see, e.g., Department of

Welfare v. Siebel , 6 N.Y. 2d 536, 190 N.Y.S. 2d 683 (1959), appeal

dismissed, 361 U.S. 535 (1960).

Turning to the four terminating events specified by § 402(d)(1), however,

the district court found sua sponte that since Enos' natural father

had "reassumed" his duties of support he would be treated as having

constructively "adopted" his own son, Enos, thereby terminating the

latter's eligibility for continued benefits. The court's rationale was

summed up as follows:

Here we must part company with the learned district judge. In the first

place there is no record proof that the natural father "reassumed" his

obligation to support his son. Indeed it appears undisputed that both by

law and by separation agreement (the terms of which later became part of a

Family Court order) the relationship between Enos and his natural father

was at all relevant times, including the period of Enos' step-relationship

with the wage earner, unchanged. The natural father continued to be

primarily obligated to support his son, N.Y. Family Court Act § 413

( McKinney Supp. 1972), and no new obligation was assumed by him

after the stepfather's divorce from Enos' mother

Court order) the relationship between Enos and his natural father

was at all relevant times, including the period of Enos' step-relationship

with the wage earner, unchanged. The natural father continued to be

primarily obligated to support his son, N.Y. Family Court Act § 413

( McKinney Supp. 1972), and no new obligation was assumed by him

after the stepfather's divorce from Enos' mother. Furthermore, the

recognition by a father of his obligation to support his own child would

not in any event constitute an "adoption," which in New York is a

well-recognized legal procedure prescribed by its Domestic Relations Law

§§ 108, et seq. (McKinney Supp. 1972). See King v. Secretary of

Health, Education & Welfare, 224 F.Supp. 846 (E.D.N.Y), aff'd., 337 F.2d 859 (2nd Cir. 1964). While subscribing to the view

that the provisions of the Act should be interpreted liberally, Haberman v. Finch, 418 F.2d 664 (2nd Cir. 1969); Dvorak v.

Celebrezze, 345 F.2d 894, 897 (10th Cir. 1965), we cannot agree that

Williams' acknowledgement of his responsibility to support his own child

amounted to an "adoption" as that term is used in the Act.

The fundamental defect in the suggestion that the natural father's

"resumption" of support constitutes "adoption" lies in its departure from

the clearly defined Congressional scheme of providing that a child's

entitlement to and divestment of benefits will be determined by extrinsic

events and objective tests rather than through an administrative review

and finding of actual dependency. "Whether wisdom or unwisdom resides in

the scheme of benefits set forth in Title II, it is not for us to say. The

answer to such inquiries must come from Congress, not the courts. Our

concern here, as often, is with power, not with wisdom." Helvering v.

Davis, 301 U.S. 619, 644 (1937).

ents and objective tests rather than through an administrative review

and finding of actual dependency. "Whether wisdom or unwisdom resides in

the scheme of benefits set forth in Title II, it is not for us to say. The

answer to such inquiries must come from Congress, not the courts. Our

concern here, as often, is with power, not with wisdom." Helvering v.

Davis, 301 U.S. 619, 644 (1937).

We agree with the district court that this scheme may produce an

"anomalous situation" in some instances, such as the present, where the

ex-stepchild may well be receiving some support from the natural parent

(on this the record is unclear) and the former step-parent may have a

conditional obligation to support, albeit a subordinate one to that of the

natural parent. Department of Welfare of City of New York v. Sieble,

supra. But to stretch the terms of the Act to accommodate apparent

equities in a given case would be to rewrite both its language and

Congress' intent. Disregarding the serious factual issue raised as to

whether the natural father "reassumed" support, we would be confronted

with the question of whether the stepson would become re-entitled to

payment of benefits if his natural father should fail to continue

supporting him. This is the very type of continuing factual review and

redetermination which Congress sought to avoid. If, on the other hand, it

were decided that payment of benefits should depend upon the natural

father's legal relationship with his child, the latter would not

have qualified for benefits in the first place, since that relationship

was the same at the time of application as it is now.

. This is the very type of continuing factual review and

redetermination which Congress sought to avoid. If, on the other hand, it

were decided that payment of benefits should depend upon the natural

father's legal relationship with his child, the latter would not

have qualified for benefits in the first place, since that relationship

was the same at the time of application as it is now.

We find no merit in appellee's contention that the challenged provisions

of the Act violate the Fifth Amendment's Due Process Clause (which

appellee translates into a guarantee of equal protection, Bolling v.

Sharpe , 347 U.S. 497 (1954)) insofar as the effect is to treat

Florio's natural child. Sally Mae, less favorably than those whose

benefits do not happen to be reduced by the continued eligibility of a

parent's ex- stepchild. Aside from the doubtful existence of any definable

class allegedly the subject of discrimination, we hold that since the

Congressional scheme, for reasons already detailed, is rationally based,

it meets constitutional requirements. See Dandridge v. Williams, 397 U.S. 471 (1970); Flemming v. Nestor, 363 U.S. 603 (1960).

Step-parents are legally obligated, albeit on a secondary and conditional

basis, to support their stepchildren, as Florio apparently recognized in

applying for insurance benefits for Enos. The Act's provisions for

continuation of such benefits after divorce is neither arbitrary nor

irrational since in many, if not most, instances the change in marital

relationship does not create a new source of support for the stepchild. To

strip the latter of benefits would be to discriminate in favor of the

natural child.

The judgment of the district court is reversed and the case remanded with

directions that the complaint be dismissed.