Stephens v. Federal Security Administrator, Civ. A. No. 841-D.

• Citation: 121 F. Supp. 120
• Decision Date: 02 August 1949
• Docket Number: Civ. A. No. 841-D.
• Parties: STEPHENS v. FEDERAL SECURITY ADMINISTRATOR.
• Court: U.S. District Court — Eastern District of Illinois

121 F. Supp. 120

STEPHENS v. FEDERAL SECURITY ADMINISTRATOR.

Civ. A. No. 841-D.

United States District Court E. D. Illinois.

August 2, 1949.

Harold A. Craig, Danville, Ill., for plaintiff.

William W. Hart, Benton, Ill., Ray M. Foreman, Danville, Ill., for Federal Sec. Adm'r LINDLEY, Judge.

The complaint in this case seeks a reversal of defendant's decision that plaintiff is not entitled to Child's Insurance Benefits under the Social Security Act, 42 U.S.C.A. § 401 et seq. The facts are not in dispute. Plaintiff is the child of Iris Ray Stephens and Mary Jane Osborn, who were married May 16, 1942, in Danville, Illinois, and divorced on October 14, 1946, at Fort Wayne, Indiana. The divorce decree granted custody of plaintiff, who was then only 3½ years old, to the mother, but ordered that Iris Ray Stephens "provide support for said minor child." Stephens did not comply with the order and, because she did not know where he might be found, the child's mother was unable to compel him to do so. Consequently, from the time of the divorce until her remarriage in December of 1947, plaintiff was supported by his mother, who returned to Danville and obtained employment in a candy factory. Since her marriage to Earl H. Osborn, plaintiff's mother has not been employed, and both she and plaintiff have lived with Mr. Osborn in a home provided by him.

On February 12, 1948, Iris Ray Stephens was killed, and Mrs. Osborn, after having been appointed guardian of plaintiff's estate, received, in August of that year, some $1,100 as plaintiff's share of his father's estate. In October, she procured a court order authorizing her, as guardian, to pay herself $5 each week, out of plaintiff's estate, for the support of plaintiff.

Meanwhile, Mrs. Osborn was notified that the claim filed by her on behalf of plaintiff, under Title II of the Social Security Act, based on the wages of the plaintiff's deceased father, had been disallowed by the Bureau of Old-Age and Survivors Insurance, because of its determination that the child was not dependent on his father at the time of the father's death. Mrs. Osborn then requested and obtained a hearing before a Referee of the Social Security Administration. The hearing was held November 23, 1948, and the Referee decided "that claimant is not entitled to benefits on behalf of the child James Ray Stephens for the reason that the child was not dependent on the wage earner Iris Ray Stephens at the time of the latter's death." The Appeals Council having refused a review of the referee's decision, this suit was begun pursuant to the provisions of section 205 (g) of the Social Security Act, 42 U.S. C.A. § 405(g).

Both plaintiff and defendant have filed motions for summary judgment in accord with Federal Rule of Procedure 56, 28 U.S.C.A., alleging that there are no issues of fact and that the only question is one of law — i. e., whether, upon the undisputed facts, plaintiff was or was not "dependent upon" Iris Ray Stephens, within the meaning of the Social Security Act, at the time of the latter's death. The Act, section 202(c)(3), provides that "A child shall be deemed dependent upon a father * * * or to have been dependent upon such individual * * * unless, at the time of * * * death * * * such individual was not living with or contributing to the support of such child and * * * (C) such child was living with and was chiefly supported by such child's stepfather." Here, at the time of his death, the father was not living with or contributing to the support of plaintiff, who was living with and being supported by his stepfather. In such a situation, the language of the Act would seem to demand a finding that plaintiff was not dependent upon his father so as to be entitled to monthly benefits based upon the latter's wages. However it is argued that the existence of a court order obligating the father to support the plaintiff, although never complied with, in combination with the absence of any legal duty on the part of the stepfather to provide such support, requires a different construction of the Act as to this plaintiff.

Even in the absence of the support order included in the divorce decree, there can be no doubt that the father was under a legal obligation to support his minor child and that plaintiff was a legal dependent of his father, but it does not follow that plaintiff was, in fact, dependent upon his father. Congress apparently used the language "dependent upon" because it contemplated that Survivor's Insurance benefits should be made available only to those children who had been, in fact, dependent upon a deceased wage earner, children who, as a result of the death of the wage earner, were deprived of one who had actually provided for them prior to his death. To construe now "dependent upon" as the equivalent of "a legal dependent of" would be to substitute a new legal concept for the practical test of dependency expressed by Congress. As a judge I am not justified...