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ROSTON v. FOLSOM

December 31, 1957

Dennis Paul ROSTON and Robert Ralph Roston by Josephine Roston, their next friend, Plaintiffs,
v.
Marion B. FOLSOM, Secretary of Health, Education and Welfare, Defendant



The opinion of the court was delivered by: BRUCHHAUSEN

The plaintiffs and the defendant move for summary judgment, pursuant to Rule 56 of the Rules of Civil Procedure, 28 U.S.C.A.

The action was brought by the plaintiffs, the alleged children of a deceased wage earner, for a review of the decision of the Federal Social Security Administrator, denying their application for children's insurance benefits, as provided by the Social Security Act, Section 205(g), 42 U.S.C.A. § 405(g).

 The facts herein are not in dispute. It appears that the wage earner, Meldrim Roston, married Ottolie Blaney on November 21, 1922, that they separated in or about the year 1937, but that the marriage was never legally dissolved, that the wage earner married Josephine Cepeda in New, York City on May 26, 1943, that the plaintiffs, Dennis and Robert Roston, were born of the latter union, that the wage earner knew that the said Ottolie Blany Roston was living and recognized an obligation toward her and contributed to her support up to the time of his death and that he died on June 22, 1955 and was then domiciled in New York State.

 The plaintiffs, the alleged children of the deceased wage earner claim they are entitled to insurance benefits under Section 216(h)(1) of the Act, 42 U.S.C.A. § 416(h)(1), which provides that in determining whether applicants are the children of such wage earner, the Administrator '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 * * * was domiciled at the time of his death.'

 It is conceded that the said individual was domiciled in the State of New York at the time of his death.

 Under New York law, children of an interstate, are entitled to share in his estate. The administrator was called upon to determine whether the infant plaintiffs were the children of the insured within the meaning of the act. The pertinent New York State law is subdivision 6 of Section 1135 of the Civil Practice Act of that State which is as follows:

 'The following provisions govern the effect of declaring a marriage void or annulling a voidable marriage upon the legitimacy of children of the marriage: * * * (6). If a marriage be declared a nullity or annulled upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, if it appears, and the judgment determines, that the subsequent marriage was contracted by at least one of the parties thereto in good faith, and with the full belief that the former husband or wife was dead or that the former marriage had been annulled or dissolved, or without any knowledge on the part of the innocent party of such former marriage, a child of such subsequent marriage is deemed the legitimate child of the parent who at the time of the marriages was competent to contract. If either or both parties to such subsequent marriage were incompetent to contract, the court by the judgment may decide that a child of the marriage is the legitimate child of such an incompetent.'

 The said Section 1135(6), Civil Practice Act, does not, by its terms, confer legitimacy upon the children of every void or voidable marriage. It specifies two categories for determining legitimacy. The first or mandatory portion of the statute provides that the Court, under the particular circumstances therein stated, must declare the legitimacy of a child or children of a void or voidable marriage such as is therein described. While the plaintiffs do not contend that the mandatory provision applies to them, it seems essential that we consider the entire statute in order to arrive at an understanding of the New York cases construing it.

 The Analysis and Consideration of the Mandatory Portion of Section 1135(6), Civil Practice Act.

 The mandatory portion of Section 1135(6), Civil Practice Act, provides in substance that in a proceeding wherein a court declares a marriage void or annuls a voidable marriage a child of such a marriage shall be deemed the legitimate child of the parent who at the time of such marriage was competent to enter into it, provided that the following elements exist, i.e.:

 1. That the said marriage be declared a nullity or annulled upon the ground that the former husband or wife of one of the parties was living.

 2. That the former marriage was then in force.

 3. That the judgment determine that the subsequent marriage was contracted by at least one of the parties thereto in good faith and with the full belief that the former husband or wife was dead or that the former marriage had been annulled or dissolved, or without any knowledge on the part of the innocent party of such former marriage.

 It is clear that this mandatory portion of the statute is inapplicable to the case at bar and that the plaintiffs could not claim that they were the lawful children of the wage earner thereunder for the reason that he was not competent to enter into the subsequent marriage.

 The Analysis and Consideration of the Discretionary Portion of Section 1135(6), Civil Practice Act.

 The discretionary portion of Section 1135(6), Civil Practice Act, being the last sentence thereof, provides that in a proceeding wherein a court declares a marriage void or annuls a voidable marriage, and wherein it appears that either or both parties to such marriage were incompetent to contract, such court may decide that a child of such marriage is the legitimate child of such an incompetent.

 The Plaintiffs' Contention.

 The plaintiffs contend that the Administrator erred in not exercising his discretion in their favor under the last sentence of the statute. An examination of the opinions of the Administrator and of the Appeal Board shows that the statute was considered.

 The Power of This Court Upon a Review of the Administrator's Determination Herein.

 This Court is limited upon such review and may only reverse the Administrator's determination if it concludes that there has been an abuse of discretion. Local Union No. 12, etc., v. National Labor Relations Board, 7 Cir., 189 F.2d 1, certiorari denied 342 U.S. 868, 72 S. Ct. 109, 96 L. Ed. 653. Furthermore, 'the finding of the Administrator as to any fact, if supported by substantial evidence shall be conclusive.' 42 U.S.C.A. § 405(g). Even though, upon a consideration of all of the evidence, this Court might reach a different conclusion, it is not ...


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