Zahradnik v. Sullivan

• Decision Date: 29 May 1992
• Docket Number: No. 91-1926,91-1926
• Citation: Zahradnik v. Sullivan, 966 F.2d 355 (8th Cir. 1992)
• Parties: , Unempl.Ins.Rep. (CCH) P 16763A Michael E. ZAHRADNIK, Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 355

966 F.2d 355

37 Soc.Sec.Rep.Ser. 481, Unempl.Ins.Rep. (CCH) P 16763A

Michael E. ZAHRADNIK, Appellant, v.Louis W. SULLIVAN, Secretary of Health and Human Services, Appellee.

No. 91-1926.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 13, 1991.

Decided May 29, 1992.

Timothy C. Harlan, Columbia, Mo., for appellant.

Eric Tyrone Tolen, St. Louis, Mo. (Joseph B. Moore, St. Louis, Mo., Frank V. Smith, III and Janet Braggs, Kansas City, Mo., on brief), for appellee.

Before LAY, ^*Chief Judge, WOLLMAN and HANSEN, Circuit Judges.

LAY, Chief Judge.

This appeal arises from an application for surviving child's insurance benefits under the Social Security Act, 42 U.S.C. § 402(1988).The application for insurance benefits was originally brought by Delores Brown, as the natural mother and next friend of her son, MichaelE. Zahradnik. ¹ The Secretary of Health and Human Services (Secretary) denied benefits to Zahradnik on the ground that he had not independently established paternity by the alleged father/wage earner, Aage Hansen, under Oregon law and was therefore barred from claiming entitlement to benefits under the Social Security Act.The magistrate recommended affirmation of this ruling and the district court adopted the magistrate's recommendation.

A request for benefits is to be evaluated under 42 U.S.C. § 416(h)(2)(A)(1988), which holds that when considering whether or not a child is to receive insurance benefits, "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 the insured individual ... was domiciled at the time of his death...."The administrative law judge (ALJ), on behalf of the Secretary, found that petitioner had failed to satisfy Oregon law on intestate succession because it had not been established by a court proceeding that Hansen was petitioner's natural father.The ALJ held that even if the evidence were satisfactory to show that Hansen was petitioner's father, benefits would be denied on the ground that the requirement under 42 U.S.C. § 416(h)(3)(C)(ii) that the wage earner had either acknowledged in writing that Zahradnik was his son or been ordered by a court to contribute to Zahradnik's support because Zahradnik was his child had not been fulfilled.On appeal, the petitioner limits his claim to a request for benefits under 42 U.S.C. § 416(h)(2)(A).²

We find that the ALJ misconstrued Oregon law and hold that under Oregon law petitioner may establish his right to inherit in a proceeding for social security benefits without having first had paternity established in an independent state paternity suit.We further find that Zahradnik has established that Hansen was his father for purposes of inheriting under Oregon law and that substantial evidence does not exist on the record as a whole to substantiate the Secretary's denial of benefits.We therefore vacate the judgment below and remand this claim to the Secretary with directions that judgment be entered in favor of the petitioner.

The ALJ recognized that under 42 U.S.C. § 416(h)(2)(A) the Secretary must apply the law that "would be applied in determining the devolution of intestate personal property by the courts of the State ... in which the insured individual was domiciled at the time of his death...."There exists no dispute that Oregon was Hansen's domicile on the date of his death.The ALJ then reviewed Oregon Revised Statutes section 112.105(1989), which reads in relevant part:

(1) For all purposes of intestate succession, full effect shall be given to all relationships as described in ORS 109.060, except as otherwise provided by law in the case of adoption.

(2) For all purposes of intestate succession and for those purposes only, before the relationship of father and child and other relationships dependent upon the establishment of paternity shall be given effect under Section 1 of the section:

(a) The paternity of the child shall have been established under ORS 109.070 during the lifetime of the child or;

(b)The father shall have acknowledged himself to be the father in a writing signed by him during the lifetime of the child.

The ALJ held that section 112.105(2)(b) was not satisfied on the ground that there was no evidence that Hansen had ever acknowledged that he was Zahradnik's father.The ALJ then turned to section 109.070(1989), which reads:

The paternity of a person may be established as follows:

(1) The child of a wife cohabitating with her husband who was not impotent or sterile at the time of the conception of the child, shall be conclusively presumed to be the child of her husband, whether or not the marriage of the husband and wife may be void.

(2) A child born in wedlock, there being no decree of separation from bed or board, shall be presumed to be the child of the mother's husband, whether or not the marriage of husband and wife may be void.This is a disputable presumption.

(3) By the marriage of the parents of the child after the birth of the child.

(4) By filiation proceedings.

(5) By joint declaration of paternity filed with the Vital Statistics Unit of the Health Division of the Department of Human Resources in the form approved by the state registrar and with the fee prescribed in ORS 432.145.The Vital Statistics Unit shall prepare a new birth certificate under the procedure established by ORS 432.420.

(6) By paternity being established or declared by other provision of law.

The ALJ viewed section 109.070(1)-(5) as clearly inapplicable in light of the evidence adduced.In his consideration of whether petitioner met the requirement of subsection (6), the ALJ found that petitioner failed to initiate any action under section 109.070 or any other Oregon statute to establish paternity.He therefore found that petitioner was precluded from claiming the right to lawful inheritance from the wage earner under Oregon law.

We conclude that the ALJ erred as a matter of law in requiring Zahradnik to have established paternity in an independent state court proceeding.The ALJ failed to follow settled Oregon case law construing sections 109.070(6)and112.105(2)(a).In Thom v. Bailey, 257 Or. 572, 481 P.2d 355(1970), the Oregon Supreme Court allowed establishment of paternity through a declaratory judgment action in a probate proceeding to revoke a decedent's will.The court found nothing that demonstrated a legislative intent

to require that the term "other provision(s) of law" by which paternity may be established was intended to be limited to provisions which included specific limitations upon the establishment of paternity relating to the manner of proof by which paternity could be established, either for purposes of inheritance or for any other purpose.The fact that specific limitations were included in ORS 109.125 to 109.230(providing for filiation proceedings) does not itself require such a result.Indeed, ... any reasonable inference of legislative intent would appear to be [to] the contrary.

Thom, 257 Or. at 589, 481 P.2d at 363-64(emphasis in original).More recently, the Oregon Court of Appeals rejected the argument that paternity can only be established under section 109.070 through a formal state trial limited to that claim.SeeAmos v. SAIF Corp., 72 Or.App. 145, 151, 694 P.2d 998, 1001(1985)(although paternity had not been established under section 109.070, the Workmen's Compensation Board could determine that an employee was the father of a child born out of wedlock to determine benefits for "a child" under workmen's compensation law).

Section 42 U.S.C. § 416(h)(2)(A) provides in relevant part:

(2)(A) 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 such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or, if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia.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.

42 U.S.C. 416(h)(2)(A)(emphasis added).³

The ALJ, district court, and this court are each empowered by Oregon law to determine paternity and heirship in the same proceeding.Oregon has expressly stated that the authority to deal with the question of paternity in an heirship proceeding is clearly implied by virtue of the fact that the resolution of that particular issue would necessarily be a prerequisite to a determination of heirship and that the availability of declaratory relief is merely an alternative to proceeding under the heirship statutes.SeeWolf v. Goin, 26 Or.App. 23, 25, 552 P.2d 258, 260(1976).Thus, we think it clear that the ALJ erred under Oregon law by rejecting out-of-hand petitioner's attempt to establish that the wage earner was his natural father in this proceeding.Under Oregon Revised Statutes section 112.105(2)(a, b), no predicate action in the state courts was necessary in order to establish petitioner's right to benefits.

We now turn to the evidentiary record and the controlling principles of Oregon law.

Danish-born Aage Hansen was married to Kirsten Hansen, also a native of Denmark.Mrs. Hansen and their three children resided in Salem, Oregon.Hansen was never married to Brown.Hansen died on June 23, 1979, in Great Falls, Montana.

Brown and Hansen first met in 1969 when she was an instructor to Hansen's mentally retarded son.In 1973 Hansen left his old employment and became the Coordinating Director for Disabled Citizens in Oregon.Brown left her teaching position and began working...