Where a worker and his wife were divorced in Ohio, the final decree of divorce provided for payment of alimony of $100 per month to the divorced wife "until further order of the court," and the order was subsequently suspended and held in abeyance and there was no further court order prior to the worker's death, held, there was not in effect at the time the worker died a court order for substantial contributions to the divorced wife's support within the meaning of section 202(e)(1)(D) of the Act; therefore, the surviving divorced wife is not entitled to widow's insurance benefits.
A and B were divorced in Ohio in 1956. Under the terms of the divorce decree, A, the worker, was ordered to pay B alimony of $100 per month "until the further order of this court." In May 1958, the same court suspended and held in abeyance "all orders of the court heretofore made and entered herein relative to the payment of alimony by the defendant to the plaintiff * * * until further order of the court, effective as of July 10, 1957." A died in September 1958, without further action by the court. In October 1966, B filed an application for widow's insurance benefits as the surviving divorced wife of A.
Section 202(e)(1) of the Act provides in pertinent part that a surviving divorced wife (as defined in section 216(d)(2) of the Act) of a worker who died fully insured can become entitled to widow's benefits, if she meets, among other requirements, a dependency test as follows:
(D) in the case of a surviving divorced wife who was not entitled to wife's insurance benefits on the basis of the wages and self-employment income of such individual for the month preceding the month in which he died, was receiving at least one-half of her support, as determined in accordance with regulations prescribed by the Secretary, from such individual, or was receiving substantial contributions from such individual (pursuant to a written agreement) or there was in effect a court order for substantial contributions to her support from such individual—
(i) at the time of his death * * *. (Emphasis supplied).
Section 216(d)(2) of the Act provides that:
The term "surviving divorced wife" means a woman divorced from an individual who has died, but only if she had been married to the individual for a period of 20 years immediately before the date the divorce became effective.
B can qualify for widow's insurance benefits as the worker's surviving divorced wife if she satisfies the support requirement in section 202(e)(1)(D). A was not contributing to B's support at the time of his death and the alimony decree ($110 per month) had been suspended by the court. The issue, therefore, is whether there was in effect a court order for substantial contributions for B's support from A at the time of A's death.
Under the laws of Ohio, the Court of Common Pleas retains jurisdiction to modify or vacate a former decree of alimony upon a proper showing of a change in conditions or circumstances of the parties where, as in this case, the alimony previously decreed was not of a definite amount payable in installments or payable only for a limited number of installments, or was not based upon an agreement of the parties as to the division of property which was affirmed by the court and incorporated into the decree. Clelland v. Clelland, 166 N.E. 2d 428 (1959); Braund v. Braund, 183 N.E. 2d 641 (1962).
A procedure which may be utilized prior to vacating or modifying an order is set forth in section 2325.08. Ohio Revised Code, as follows:
Enforcement of judgment may be suspended. The party seeking to vacate or modify a judgment or order may have an injunction suspending proceedings on the whole or a part thereof, to be granted by the court or a judge thereof, when it is rendered probable, by affidavit, or by exhibition of the record, that such party is entitled to a vacation or modification of such judgement or order.
Under section 202(e)(1)(D) of the Social Security Act, a requirement is that "there was in effect a court order for substantial contributions to her support from such individual—(i) at the time of his death. . . ." In this case, the court suspended the order for the payment of alimony. Since no further action was taken by the court on this case, at the time of A's death the order for alimony payments was not in effect.
Accordingly, it is held that while B is the "surviving divorced wife" as defined in section 216(d)(2) of the Act, she is not entitled to widow's insurance benefits since at the time of A's death (1) he was not providing one-half her support, (2) she was not receiving substantial contributions from him for her support, and (3) there was no court order in effect for substantial contributions from A for her support, as required by section 202(e)(1)(D) of the Act.
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