Moorehead v. Bowen
| Decision Date | 12 March 1986 |
| Docket Number | No. 85-1627,85-1627 |
| Parties | , Unempl.Ins.Rep. CCH 16,726 Patricia MOOREHEAD, Plaintiff-Appellant, v. Otis BOWEN, Secretary of Health and Human Services, * Defendant-Appellee. Jibri O. Watkins, Real Party in Interest-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Glenn M. Clark, Withy, Miller, Gerstler & Clark, Berkeley, Cal., for plaintiff-appellant.
Joseph Stein, Asst. Reg. Atty., U.S. Dept. of Health & Human Serv., San Francisco, Cal., for defendant-appellee.
Appeal from the United States Court of Appeals for the Northern District of California.
Before GOODWIN, NELSON and CANBY, Circuit Judges.
Patricia Moorehead appeals the district court's affirmance of the denial of surviving child's social security benefits on behalf of Jibri Watkins, the minor child of herself and the decedent, Calvin Watkins. The district court had jurisdiction pursuant to 42 U.S.C. Sec. 405(g) (1982), providing for review of final decisions of the Secretary of Health and Human Services. This court has jurisdiction under 28 U.S.C. Sec. 1291 (1982) and 42 U.S.C. Sec. 405(g) (1982), which provides for review of the district court's decision as in other civil cases. We reverse.
Patricia Moorehead, the plaintiff-appellant, had a child, Jibri Watkins, by Calvin Watkins while they were living together in California. Moorehead and Calvin never married. Calvin and Moorehead continued to live together after Jibri's birth. The undisputed evidence tended to prove that Calvin described Jibri as his son, provided money for his support, and brought him presents. He subsequently left Moorehead and Jibri. He died domiciled in Texas.
Moorehead, who had continued to live in California with Jibri, filed a claim with the Social Security Administration for survivor's benefits for Jibri. An administrative law judge refused her claim on the grounds that Jibri was illegitimate under Texas law. Moorehead exhausted her administrative remedies and timely filed an action in the district court, advancing in both instances her claim that under California law, Jibri could claim benefits as Calvin's child. The district court ruled in favor of the Social Security Administration on cross-motions for summary judgment, holding that the administrative decision was supported by substantial evidence.
The parties agree that Jibri must satisfy the criteria set out in 42 U.S.C. Sec. 416(h)(2)(A) (1982) to collect benefits. The statute has not changed during the time relevant for this action. It states,
In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this subchapter, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property ... 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 or parent shall be deemed such.
The implementing regulations, 20 C.F.R. Secs. 404.354, 404.355 (1985), are also unchanged during the relevant period, and merely restate in less formal language the provisions of the statute. 1
These provisions make the payability of social security benefits turn on whether a party would be able to claim in intestate succession in a proceeding in the state where the decedent was domiciled. Because Calvin was domiciled in Texas, we must decide whether Jibri would take under the law of intestate succession as applied by the Texas courts. The facts and federal law are undisputed, so the only issue left is whether the Secretary correctly applied the law of Texas. We review questions of law de novo.
Texas Probate Code Ann. Sec. 38(a) (Vernon 1980) provides in pertinent part:
Where any person, having title to any estate, real, personal or mixed, shall die intestate, leaving no husband or wife, it shall descend and pass in parcenary to his kindred, male and female, in the following course:
1. To his children and their descendents.
Jibri would inherit under Texas law if he qualified as Calvin's child. Moorehead offers two arguments under Texas law. First, she claims that Texas law allows inheritance by an illegitimate but recognized child. Second, she claims that Texas would follow California law for determining legitimacy.
Initially, we agree with the Secretary that only a legitimate child can inherit under Texas law. Section 38(a)(1) defines the intestate descendents to include children, without any reference to legitimacy. Two sections in the Probate Code define "child." Texas Probate Code Ann. Sec. 3 (Vernon 1980) provides:
When used in this Code, unless otherwise apparent from the context:
....
(b) "Child" includes an adopted child, whether adopted by any existing or former statutory procedure or by acts of estoppel, but, unless expressly so stated herein, does not include an unrecognized, illegitimate child of the father.
The phrase "unrecognized, illegitimate child" has led one Texas court to conclude that recognized but illegitimate children could inherit. Johnson v. Mariscal, 620 S.W.2d 905, 908 (Tex.Civ.App.1981), writ refused, n.r.e., 626 S.W.2d 737, 738 (Tex.) (per curiam) (), cert. denied, 458 U.S. 1112, 102 S.Ct. 3496, 73 L.Ed.2d 1375 (1982). Moorehead argues that under Johnson, Calvin's recognition of Jibri allows Jibri to inherit.
However, Texas Probate Code Ann. Sec. 42(b) (Vernon 1980) provides:
For the purpose of inheritance, a child is the legitimate child of his father if the child is born or conceived before or during the marriage of his father and mother or is legitimated by a court decree as provided by Chapter 13 of the Family Code, or if the father executed a statement of paternity as provided by Section 13.22 of the Family Code, or a like statement properly executed in another jurisdiction, so that he and his issue shall inherit from his father and from his paternal kindred, both descendants, ascendants, and collaterals in all degrees, and they may inherit from him and his issue.
Four decisions, including the three most recent, conclude that Sec. 42(b)'s test for legitimacy is intended to apply to the definition of child in Sec. 38(a)(1), and so supersedes Sec. 3(b). In re Estate of Castaneda, 687 S.W.2d 465, 466 (Tex.Civ.App.1985); Mills v. Edwards, 665 S.W.2d 153, 155 (Tex.Civ.App.1983); Batchelor v. Batchelor, 634 S.W.2d 71, 73 (Tex.Civ.App.1982, writ ref'd n.r.e.); Bell v. Hinkle, 607 S.W.2d 936, 937 (Tex.Civ.App.1980, writ ref'd n.r.e.), cert. denied, 454 U.S. 826, 102 S.Ct. 115, 70 L.Ed.2d 100 (1981).
The latest decisions, Castaneda, Mills, and Batchelor, expressly reject Johnson. In view of Sec. 42(b)'s greater specificity, the weight of authority, and the express consideration and rejection of Johnson in the most recent decision, we agree with the Secretary that, under Texas law, a recognized but illegitimate child cannot inherit. That brings us to the question whether Texas or California law should govern the issue of legitimacy.
The parties disagree about the appropriate characterization of the issue. Moorehead contends that the issue is legitimacy, and that Texas courts would look to the law of California, as the jurisdiction where the parties resided when the events giving rise to Jibri's claim occurred, to determine legitimacy. The Secretary contends that the sole question is whether Sec. 42(b) is satisfied.
Plaintiff relies on Wickware v. Session, 538 S.W.2d 466 (Tex.Civ.App.1976, writ ref'd n.r.e.), which allowed a child to inherit pursuant to a finding of legitimation under California Probate Code Sec. 255 (West Supp.App.1986). Wickware was based on the California court's finding that the children were "duly acknowledged ... i.e. that they had been legitimated pursuant to California law" without further inquiry into the method of acknowledgment. Id. at 469 (emphasis in original). The Texas court allowed the children to inherit under Sec. 38, saying
Whether a person must be legitimate in order to inherit an interest in land upon intestacy is determined by the law of the situs.... Whether a person is legitimate is determined by the law of the state with the most significant relationship with that person.... This is usually the state where the child or parent was domiciled at the time of the act creating the status of legitimacy.
Wickware v. Session, 538 S.W.2d at 470 (). 2
The Secretary contends that Texas Probate Code Sec. 42(b) provides the sole means for the legitimation of a child in Texas, and that Jibri cannot be Calvin's child because he has not satisfied the provisions of Texas law. The Secretary believes that legitimacy is irrelevant because Texas Probate Code Sec. 42(b) speaks only in terms of specific methods for finding legitimacy, not legitimacy generally. He argues that the Wickware decision rested solely on the prior California judicial determination of legitimacy, which brought the case within the second clause of Sec. 42(b), providing for legitimation through a court decree.
This misreads Wickware. As the phrase "legitimated pursuant to California law," quoted above, suggests, Wickware was concerned with the foreign rules for determining legitimacy, not Sec. 42(b). The Wickware court did not merely refer to the judgment; it held that "the law of California determines the status of [the children]." 538 S.W.2d at 470. It relied on the California court decision only to preclude litigation over what those rules meant. Moreover, Wickware does not even cite Sec. 42(b), making the Secretary's argument that Wickware...
To continue reading
Request your trial
-
Campbell ex rel. Campbell v. Apfel
...are controlling. Campbell nevertheless argues that such a construction of the statute conflicts with Moorehead v. Bowen, 784 F.2d 978 (9th Cir.1986) (Moorehead ). Moorehead relies on Wickware v. Session, 538 S.W.2d 466, 470 (Tex.Civ.App.1976) (Wickware ), for its outcome. To understand Moor......
-
Mack on Behalf of Wesley v. Sullivan, 92-4105-R.
...humane, remedial and beneficial situation which the Social Security Act is supposed to promote." Plaintiff relies upon Moorehead v. Bowen, 784 F.2d 978 (9th Cir.1986) and Davis by Lane v. Schweiker, 553 F.Supp. 158 (D.Md.1982) for support of her position that Kansas law should be applied Th......