Schultz v. Celebrezze, 3973.

• Decision Date: 29 July 1967
• Docket Number: No. 3973.,3973.
• Citation: 267 F. Supp. 880
• Parties: Sharon SCHULTZ a/k/a Sharon Schultz Trask, for and on behalf of Diana Lynn Trask, a minor, v. Anthony CELEBREZZE, Secretary of Health, Education and Welfare.
• Court: U.S. District Court — Northern District of Indiana

267 F. Supp. 880

Sharon SCHULTZ a/k/a Sharon Schultz Trask, for and on behalf of Diana Lynn Trask, a minor, v. Anthony CELEBREZZE, Secretary of Health, Education and Welfare.

No. 3973.

United States District Court N. D. Indiana, Hammond Division.

July 29, 1967.

George McCain, Gary, Ind., for plaintiff.

Alfred W. Moellering, U. S. Atty., Fort Wayne, Ind., for defendant.

MEMORANDUM

BEAMER, District Judge.

This is a suit to review a final decision of the Secretary, denying the plaintiff's claim on behalf of her daughter for child's insurance benefits under Section 202(d) of the Social Security Act, 42 U.S.C. § 402(d).

The only issue before the Court is whether the Secretary was correct in determining that plaintiff's daughter did not have the status of a "child" relative to inheritance of the deceased wage earner's intestate personal property under the law of the State where the wage earner did as required by 42 U.S.C. § 416(h) (2).

This is an action to recover child's insurance benefits.

Title 42 U.S.C. § 402(d) (1) concerns child's insurance benefits and provides in pertinent part:

"Every child (as defined in 42 U.S.C. § 416(e)) * * * of an individual who dies as a fully insured individual * * * shall be entitled to child's insurance benefit".

Title 42 U.S.C. § 416(e) provides:

"The term `child' means, (1) the child or legally adopted child of an individual * * *"

Title 42 U.S.C. § 416(h) (2) (A) provides:

"In determining whether an applicant is a child * * * for purposes of this title, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property * * * if such insured individual is dead, 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 * * * shall be deemed such".

The wage earner in this case was Martin Trask, Jr., who died July 22, 1962, as a result of an auto collision, while domiciled in Indiana. Martin Trask and Sharon Schultz, plaintiff herein, were never married ceremonially. They started seeing each other, according to the transcript, in June, 1961. In September, 1961, they took a trip to California "to elope and get married." They lived together while in California but never actually married. They then came back to Indiana and lived together until Martin's death in July, 1962. Diana Trask, for whose benefit this action is brought, was born about three months after his death, in October, 1962.

On December 18, 1962, a petition was filed in the Juvenile Court of Lake County to establish the paternity of Diana Lynn Trask and the Court entered judgment on the same date declaring Martin Trask to be the father of Diana.

Theodore Schultz, plaintiff's father and administrator of Martin Trask's estate filed a petition in Lake Superior Court for a determination of heirship and an order was entered in the probate proceedings dated June 9, 1964. The order states in part as follows:

"That the paternity of Diana Lynn Trask has been established as required under Burns 6-207; that Diana Lynn Trask is the child of Martin L. Trask and entitled to inherit from her father, the aforementioned Martin L. Trask, deceased; and that said child is the sole heir of Martin L. Trask."

Martin L. Trask's estate had no assets.

Plaintiff argues that the Secretary and this Court are bound by the decision entered in the probate court determining that Diana Trask was the child and sole heir of decedent. Plaintiff's argument, in this respect, is apparently two-fold. Plaintiff contends the probate court determination is conclusive and binding under the doctrines of res judicata and under the full faith and credit clause of the Constitution. Secondly, plaintiff contends that the probate court's decision is binding on this court under the Erie doctrine under principles of stare decisis. Plaintiff also contended at the hearing before the Secretary that Sharon Schultz and the decedent had entered into a valid common law marriage.

Defendant contends that there was no valid common law marriage nor could there be since such marriages are outlawed by statute in this state. Defendant further contends that the Secretary and this Court are not bound by the probate court decision establishing Diana Trask as sole heir of the decedent.

As far as common law marriage is concerned, it is quite clear from the transcript that no common law marriage existed in this case. Burns 44-111, effective January 1, 1958, provides:

"All marriages known as `common law' marriages entered into subsequent to the effective date of this Act shall be and the same are hereby declared null and void."

Sharon Schultz testified that her "relationship" with the decedent commenced in June, 1961. Their "elopement" occurred in September, 1961. Therefore, it is clear that no valid common law marriage could have resulted. Plaintiff argued below that the case of In Re Sutherland's Estate, 195 N.E.2d 778 (Ind.App.1964) validated common law marriages despite Burns 44-111. This contention is without merit for the Sutherland case merely held that a common law marriage contracted prior to the effective date of the above statute was valid. Finally, even without considering the above statute, the evidence below clearly shows that the inception of the relationship below was purely sexual and that neither party ever considered himself married. Everything was in futuro rather than in praesenti. They planned to get married in the future but never did.

Plaintiff's primary contention is that the probate court order establishing Diana Trask as sole heir of decedent must be recognized in these proceedings. Plaintiff argues in the first instance that this order is conclusive under the full faith and credit clause of the Constitution. Plaintiff asserts that the Social Security Administration received "proper notice" under Burns 6-606 and is therefore bound by the probate court determination and may appeal the probate court determination by virtue of Burns 6-606.

Plaintiff is in error for several reasons. Burns 6-606 relates to the procedure for determining heirship and states in pertinent part as follows:

"(d) The decree of the Court (determining heirship) shall be conclusive of the facts determining therein on any interested person who has been notified personally or by mail in accordance with the provisions of this code, subject to the right of appeal." (Emphasis added).

Subsection (a) provides as follows:

"Upon the filing of the petition the court shall fix the time of hearing thereof, notice of which shall be given to all persons known or believed to claim or have any interest in the estate or any part thereof as heir or through an heir of the decedent. In addition, notice by publication shall be given to all unknown heirs." (Emphasis added).

Plaintiff states in its brief at page 3, that the Social Security Administration received notice of the order of the probate court determining Diana to be the sole heir. Obviously this does not comply with the notice of hearing requirement noted above. Furthermore, the Social Security Administration is obviously not a "person having an interest in the estate as heir or through an heir of decedent." Therefore, the probate court determination is not conclusive even under Indiana Law.

Nor is the probate court determination conclusive under the full faith and credit clause or under principles of res judicata as enunciated in the case law which has evolved in connection with claims for Social Security benefits. Plaintiff attempts to distinguish two of the cases cited by the government which state that ex parte probate court orders are not binding upon the Secretary. See Patten v. Fleming, CCH UIR Vol. 1A, Fed.Para. 8985 (D.C.Conn.1960); Miller v. Ribicoff, 198 F.Supp. 819 (D.C.Mich. 1961). Plaintiff distinguishes these cases on the ground that they did not involve an order by a probate court of record as in the instant case nor did they involve a probate court order entered in the state where the decedent was domiciled applying the law of the state of domicile. However, plaintiff does not even attempt to distinguish the cases of Marek v. Fleming, 192 F.Supp. 528 (D. Tex.1961) and Nigro v. Hobby, 120 F. Supp. 16 (D.Neb.1954). In the Marek case, claimant contended that a state probate court order was entitled to full faith and credit where the probate court had found claimant to be the widow of the deceased wage earner. The case holds that the probate court order was not entitled to full faith and credit and the following appears 192 F.Supp. at page 533:

"Such orders, however, are in no way controlling in the present proceedings. The Secretary-defendant neither was, nor could he properly have been a party to the Probate Court proceedings. The Secretary had no opportunity in those Arkansas

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