Adair v. Finch, 105-69.
| Citation | 421 F.2d 652 |
| Decision Date | 29 January 1970 |
| Docket Number | No. 105-69.,105-69. |
| Parties | Ruby ADAIR, Appellant, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Arthur H. Coleman, Santa Fe, N. M., for appellant.
Judith S. Seplowitz, Civil Div., Dept. of Justice, Washington, D. C. (William D. Ruckelshaus, Asst. Atty. Gen., Victor R. Ortega, U. S. Atty., Kathryn H. Baldwin and Michael C. Farrar, Attys., Dept. of Justice, Washington, D. C., on the brief), for appellee.
Before MURRAH, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.
This appeal is from an Order of the District Court for the District of New Mexico granting defendant's Motion for Summary Judgment in a proceeding to review the Secretary's final decision that claimant, a divorced wife, is not entitled to wife's insurance benefits provided in the Social Security Act and particularly under 42 U.S.C. Section 402(b) (1) (D). Under this section of the Act a divorced wife may qualify for wife's insurance benefits if (1) she was receiving at least one-half of her support, as determined in accordance with regulations issued by the Secretary, from her former husband or (2) was receiving substantial contributions from her former husband pursuant to written agreement or (3) a court order was in effect for substantial contributions to her support from her former husband at the time that the former husband became entitled to benefits.1
The undisputed facts are that claimant, Mrs. Adair, and Mr. Marsh were divorced in November, 1963. The decree awarded her certain land with a residence and separate rental unit thereon, an automobile, household furniture and fixtures, a savings account and some bonds. The effect of the decree was to award claimant more than one-half of the parties' community property. Mrs. Adair attempts to bring herself within the coverage of 42 U.S.C. Section 402(b) (1) (D) by asserting that the divorce decree is a "court order for substantial contributions to her support" and that the income from the property awarded to her by the decree constituted a contribution from Mr. Marsh of more than one-half of her support. The proper disposition of this case is governed by our decision in Schroeder v. Hobby, 222 F.2d 713 (10th Cir.).
Schroeder involved the right of a divorced wife to receive mother's benefits pursuant to companion subsection (g) of 402. As subsection (g) of 402 was worded at the time of Schroeder, one of the requirements for entitlement to mother's benefits was that the divorced wife was receiving at the time of the death of the former husband at least one-half of her support from him pursuant to court order. Like Mrs. Adair in our case, Mrs. Schroeder was awarded certain residential property by the New Mexico divorce decree, and she contended that the money received from renting rooms in the residence constituted more than one-half of her support and was received from the former husband pursuant to court order.
The trial court rejected the claim, and we affirmed the judgment on the postulate that the purpose of Section 402(g) was "to extend mother's benefits to a former wife divorced whose economic relationship to the insured wage earner was such that she sustained economic loss arising out of his death." 222 F.2d 713 at 715. Inasmuch as a legal obligation of support did not survive the divorce decree, the former wife did not sustain an economic loss arising out of the death of the former husband. The court thus concluded that the decree was not a court order within the intent...
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Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor v. Ball, 86-2740
...economic loss arising out of his death." Schroeder v. Hobby, 222 F.2d 713, 715 (10th Cir.1955) (emphasis added); Adair v. Finch, 421 F.2d 652, 654 (10th Cir.1970). A district court considering the same social security provision also The purpose of widow's insurance benefits is to provide th......
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Marriage of Nizenkoff, In re
...of marital relationships by divorce and expressly set forth a method for protecting the interests of the divorced wife. In Adair v. Finch (10th Cir. 1970) 421 F.2d 652, the court, at page 654, rejected a contention that the denial of social security benefits to a divorced wife constituted d......
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Gershman v. Finch, 71-1052.
...case establishes that plaintiff suffered a complete loss of economic support when Mr. Gershman died. Similarly, we think Adair v. Finch, 421 F.2d 652 (10 Cir. 1970), inapposite. It, too, concerned a property settlement incident to divorce, undisturbed by the former husband's subsequent deat......
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Roop v. Richardson, Civ. A. No. 70-C-94-A.
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