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April 6, 1955

Viola COLBERT, Plaintiff,
Oveta Culp HOBBY, Secretary of Health, Education and Welfare, Defendant

The opinion of the court was delivered by: EDELSTEIN

In an action by plaintiff to review a decision by a referee of the Social Security Administration, the defendant *fn1" has moved and the plaintiff has cross-moved for summary judgment. The basic facts are not in dispute. The referee's decision denied the plaintiff's application for a lump sum death payment on the ground that she was not 'living with' the wage earner at the time of his death in 1949, within the meaning of the former §§ 202(g) and 209(n) of the Act. *fn2" The payment was applied for and awarded to the decedent's sister, as the person equitably entitled to it under the former §§ 202(g), inasmuch as she had paid his burial expenses. The Appeals Council of the Social Security Administration denied plaintiff's request for review of the referee's decision, which thereupon became the final decision of the Administration, subject to judicial review under § 205(g), 42 U.S.C.A. § 405(g).

The former § 202(g) provided for lump sum death payments to the person determined to be 'the widow * * * of the deceased and to have been living with the deceased at the time of death.' 60 Stat. 987. And the former § 209(n) defined a widow to have been 'living with' her husband if, at the time of his death, they were both members of the same household, or if she was receiving regular contributions from him toward her support on such date, or if he had been ordered by any court to contribute to her support. The plaintiff was not a member of the same household as her husband, for he had wrongfully deserted her many years before his death. Nor was she receiving any regular contributions from him for her support. There is a dispute about whether the plaintiff fulfilled the third definition of 'living with' because in 1924 the Criminal Court of Atlanta, Georgia issued an order requiring the husband to make certain payments as a condition to probation in lieu of a 12-month sentence imposed upon him for the abandonment of a child of the marriage.

 But the plaintiff's major contention is that a deserted wife may not be deprived of any benefits under the Act and that Congress never intended to permit a wage earner, by his voluntary, unilateral misbehavior to accomplish such a result. Thus, she argues that a wife who has been wrongfully abandoned by her husband must nevertheless be regarded as 'living with' him, under a rule deeply rooted in our system of law that she is entitled to all the benefits that flow from the marital status. To deprive a wrongfully abandoned widow, and here one who is also impoverished and incapacitated, of a monetary payment growing out of her husband's death does indeed appear to be harsh. Certainly, it goes without saying that a husband ought to support his wife, and that a wife's right to support is a benefit that stems from her marital status. But the right to the lump sum payment under the Act is not, like support, a benefit flowing merely from the marital status. It is a benefit that flows from suffering a statutorily identifiable economic detriment, and is not necessarily or entirely dependent upon marital status. In discussing the former § 202(g), the report of the Senate Committee on Finance explained that the addition of the 'living with' requirement to the section (as it was already defined in former § 209(n), in application to other benefits containing the requirement), '* * * will prevent the payment of a lump sum to an estranged or deserted spouse while those who have assumed he cost of the last illness and burial receive nothing.' *fn3" Provision was also made in the former § 202(g) for the payment of the lump sum in the contingency that there was no spouse living with the deceased individual at the time of death, in which event the sum was directed to be paid to the person or persons equitably entitled to it in the proportion and to the extent that he or they shall have paid the burial expenses. This provision prevented the lump sum from becoming a windfall to persons who may have suffered no economic loss by reason of the wage earner's death. Report of the Senate Committee on Finance, supra.

 It seems clear, therefore, that the payment of the lump sum death benefit is dependent on more than marital status. It is dependent upon an economic loss suffered by the wage earner's death, and Congress has indicated those conditions of the marital status which must be held to give rise to the economic detriment contemplated by the legislation. The regulations promulgated under the statute do not provide for payment of the lump sum to a wrongfully deserted widow. *fn4" The regulations constitute a contemporaneous administrative construction and are entitled to great weight. United States v. American Trucking Ass'ns, 310 U.S. 534, 549, 60 S. Ct. 1059, 84 L. Ed. 1345; Fawcus Machine Corp. v. United States, 282 U.S. 375, 378, 51 S. Ct. 144, 75 L. Ed. 397. Moreover, inasmuch as Congress in 1950 re-enacted precisely the same definition of 'living with' in the case of a wage earner's wife or widow as it had originally enacted in 1939, without disapproval of the regulations promulgated thereunder, those regulations have added sanction. Commissioner of Internal Revenue v. Wheeler, 324 U.S. 542, footnote 10, at page 547, 65 S. Ct. 799, 89 L. Ed. 1166.

 But the plaintiff contends that in any event she qualifies under the 'living with' definition on the ground that her husband had, in 1924, been ordered by a criminal court in Atlanta, Georgia, to contribute to her support. It appears that her husband had been convicted of the abandonment of their minor child and given a 12 month jail sentence. He was placed on probation and the pertinent part of the order is quoted in the margin. *fn5" The plaintiff argues that the words requiring the probationer to pay 'family support * * * to Viola Colbert' mean that he was required by the order to support both his wife and child. But the referee found that the order was one for the support of the child, and there is substantial evidence to support his inference and conclusion. *fn6" A perusal of the order can leave little doubt of its intent. But even the provision for the support of the child was expressly limited to the period of probation, which was the same as the term of the sentence. Therefore, assuming the order to have been for the support of the plaintiff, it was not in effect on the date of the wage earner's death in 1949. It is true that the former § 209(n) does not explicitly require the court order to be in effect on the date of the wage earner's death, as it does for the conditions of membership in the same household and the receipt of regular contributions from his toward support. But § 403.834 of Regulations No. 3 *fn7" does require the order to be in effect at the time of death. *fn8" It appears to be quite reasonable under the terms of the statute and not inconsistent with its purposes. *fn9" And here again, the validity of the regulation is reinforced by the Congressional reenactment of the 'living with' definition without disapproval of the regulations previously promulgated.

 There is, therefore, substantial evidence on the record as a whole to sustain the administrative finding that the plaintiff was not 'living with' her husband at the time of his death, within the meaning of the Act, nor does such a finding, in my opinion, result from a misconstruction of the law. Accordingly, the defendant's motion for summary judgment will be granted and the plaintiff's denied.

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