Wigand v. State Dept. of Public Health and Welfare

• Decision Date: 26 May 1970
• Docket Number: No. 33559,33559
• Citation: 454 S.W.2d 951
• Parties: In the Matter of Jeannette E. Wigand, Old Age Assistance Claimant. Jeannette E. WIGAND, Appellant, v. STATE DEPARTMENT OF PUBLIC HEALTH AND WELFARE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 951

454 S.W.2d 951

In the Matter of Jeannette E. Wigand, Old Age Assistance Claimant Jeannette E. WIGAND, Appellant, v. STATE DEPARTMENT OF PUBLIC HEALTH AND WELFARE of Missouri, Respondent.

No. 33559.

St. Louis Court of Appeals, Missouri.

May 26, 1970.

John V. LaBarge, Jr., Kirkwood, for appellant.

Elmore G. Crowe, Edward D. Summers, Curtis J. Quimby, Dept. of Public Health and Welfare, Jefferson City, for respondent.

WEIER, Commissioner.

From a judgment of the Circuit Court of the City of St. Louis affirming the action of the Director of Public Health and Welfare which removed Jeannette Wigand from the old age assistance rolls, Mrs. Wigand has appealed. We affirm the judgment of the lower court.

Mrs. Wigand, a widow, was 78 years old and a resident of St. Louis, Missouri. She and her husband had owned and operated a small store. But after he became ill, they sold the store and had spent the money gained from the sale for medical and living expenses during the seven years of his illness. After her husband died, July 24, 1963, she cashed a United States Savings bond which they had saved and bought two $500.00 time certificates of deposit at American National Bank. These certificates were placed by Mrs. Wigand in her name and the name of her deceased husband's sister, Matilda Mae Sorrells. In form, they were issued: Jeannette Wigand 'or' Matilda Mae Sorrells. Both certificates were kept in a safe deposit box rented to Murrel E. Sorrells and his wife, Matilda, with no right of access by Mrs. Wigand. When asked as to her intentions concerning the placing of Mrs. Sorrell's name on the certificates, Mrs. Wigand said this was done so that if either one died the survivor would become the owner. According to Mrs. Wigand, one certificate was intended to be the property of Mr. and Mrs. Sorrells to repay them for money advanced even though it was placed in the names of Mrs. Wigand and Mrs. Sorrells. Interest from both certificates was paid to Mrs. Wigand.

Mr. Sorrells and his wife had advanced money from time to time to Mr. and Mrs. Wigand, but had never kept a record. He had taken Mr. Wigand to a clinic weekly but no charge was made for this service.

On May 1, 1968, the St. Louis City Welfare Office denied further Old Age Assistance to Mrs. Wigand and closed her file on the basis that she had resources in excess of $749.99, the statutory maximum of cash and securities. At that time her caseworker considered as resources the two certificates of deposit at $500.00 each, a checking account at the American National Bank also in the names of Jeannette Wigand or Matilda Mae Sorrells in the sum of $189.98 and the cash surrender value of a $500.00 insurance policy issued by John Hancock Mutual Life Insurance Company on the life of Mrs. Wigand which amounted to $380.20.

Mrs. Wigand applied for a hearing to appeal from the decision terminating her benefits. On July 23, 1968, this hearing was held before a referee appointed by the Director of the State Department of Public Health and Welfare of Missouri. At this hearing it appeared that Mrs. Wigand had cashed one of the certificates of deposit and had remaining at that time $200.00 from the proceeds. The other certificate, which she maintained had been given her former sister-in-law in payment of debt, was intact and still in the safe deposit box of Mr. and Mrs. Sorrells. The bank account had a balance of $137.06. No part of the cash surrender value of the insurance policy had been withdrawn.

On September 18, 1968, the director in his finding of facts determined that the testimony concerning advancements to claimant by Mr. Sorrells and the subsequent delivery of the $500.00 certificate to Mrs. Sorrells in payment of such debts was vague and not convincing. The director in support of his findings pointed out that Mrs. Wigand had declared she owed no debts in eligibility statements given the department in 1961 and 1963 and which were in evidence. He determined she owned the two certificates, one of which she had cashed and spent $300.00. He also determined that she owned the insurance policy with $380.00 cash surrender value. Based on such findings of fact the director decided that under the provisions of Section 208.010 RSMo 1959, V. A.M.S., ¹ the claimant had resources and was not in need. Assistance was denied.

Upon appeal, Mrs. Wigand contends that the court below erred in affirming the findings of the director because she did not receive a fair hearing in two respects. We will take them up in the order presented.

First, she charges that the director failed to follow the eligibility standards of Section 208.010(2)(3, 4) which allow an Old Age Assistance recipient to own certain property within prescribed limits, but rather the director applied a standard inconsistent with the statute and which would require the claimant to have no resources to be eligible. A review of the statutes concerning Old Age Assistance in effect at the time of this dispute is essential to understand the issue.

Section 208.030 affirmatively grants old age assistance to one 65 years of age or older who is incapacitated from earning a livelihood and who has 'not sufficient income or other resources, as described in Section 208.010, to provide a reasonable subsistence compatible with decency and health, and is without adequate means of support, * * *.'

Section, 208.010 provides that in determining the eligibility of a claimant, it is the duty of the division of welfare to consider and take into account all facts and circumstances surrounding the claimant, including, among other things, 'resources', and if from all these facts and circumstances he 'is not found to be in need, assistance shall be denied.' The statute then goes on to set up certain specific limitations on eligibility in subsection 2. This portion as it was written at the time of the hearing, read, so far as pertinent, as follows:

'2. Benefits shall not be payable to any claimant who:

(3) Owns or possesses cash or securities in the sum of seven hundred fifty dollars or more; * * *

(4) Owns or possesses property of any kind or character, or has an interest in property, of which he is the record or beneficial owner, the value of such property, as determined by the division of welfare, less encumbrances of record, exceeds seven thousand five hundred dollars, * * *.'

Before the hearing began to determine Mrs. Wigand's eligibility, the referee indicated that the only issue was whether or not she had resources in excess of the maximum set by statute. The director found that she owned resources and was not 'in need' as defined by law. This issue as to resources has been acquiesced in by claimant on appeal.

As is stated in Wallin v. State Department of Public Health and Welfare, Mo., 422 S.W.2d 345, 347(1--3), our review of this case is on the record of the hearing before the director. Only if the decision of the director is not based on substantial evidence can his findings of fact and the order based thereon be characterized as arbitrary or unreasonable, and thereby subject to reversal. This is not a review of the record de novo and an independent determination of the issues. Rather we consider the evidence most favorable to the decision of the director to determine whether there is substantial evidence to support it. And in such consideration we must bear in mind that the claimant has the burden of proving her eligibility. The director, rather than the court below, or this court, passes upon the credibility of witnesses. He may decide a claim solely upon a finding of lack of credibility of uncontradicted and unimpeached testimony given in support of the claim.

Eligibility shall be determined 'upon the record so made' (Section 208.080(3)) and this means the facts as they exist at the time of hearing before the referee, and not limited to those facts existing when the caseworker closed the file. Collins v. Division of Welfare of the State of Missouri, Mo. (en banc), 364 Mo. 1032, 270 S.W.2d 817, 819(3). Since there was a diminution of resources between the caseworker's determination and those in existence at the time of hearing we will test the validity of appellant's contentions in light of those found by the director to be in existence at the time of the hearing on July 23, 1968.

At that time the director found claimant was the owner of one $500.00 time certificate, that she had cashed the other and had spent $300.00, thus leaving $200.00 from its proceeds. Included in the finding was the cash surrender value of the life insurance policy of $380.00. In addition, claimant's testimony revealed $137.00 in her checking account. These items totalled $1217.00 and according to the Department of Public Health and Welfare these were resources which exceed the limitation of Section 208.010(2)(3), supra, of $749.99. Claimant asserts that the director made findings contrary to the evidence and the law in determining that Mrs. Wigand did not borrow money from Mrs. Sorrells. But the director is not obliged to believe any witness, even though uncontradicted and unimpeached, (Wallin v. State Department of Public Health and Welfare, supra), and the director chose not to believe the witnesses who vaguely testified to such an obligation which she had previously denied in 1961 and 1963.

Mrs. Wigand then contends that she was not the sole owner of the two time certificates for two alternate reasons: first, on the basis of the theory that she was a joint tenant in the certificates and hence had only an undivided one-half interest; or second,...