20 CFR 404.1101 and 404.1109(c)

SSR 65-36c


The worker, while married and living with his wife, became the father of a child (the claimant) by another woman. He verbally acknowledged the child as his and contributed to the child's support; but his wife, not being aware of the child's existence, never consented to the reception of the child into the family. After his wife had been granted an interlocutory decree of divorce and before such decree could become final, the worker died domiciled in California. Held, (1) the worker could not, while married, legitimate the child under California Civil Code § 230 by publicly acknowledging it and receiving it into his family without the consent of his wife to such reception; (2) under California law, an interlocutory decree of divorce does not terminate a marriage, so that even after the worker's wife obtained such decree, her consent was still required for legitimation of the claimant; and (3) the Secretary's decision, that the claimant was not the child of the worker under applicable State law, as required by section 202(d) of the Social Security Act for entitlement to child's insurance benefits, must therefore be affirmed.[]

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:

"The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this Chapter do not apply to such an adoption."

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].

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).

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.

[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.)

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