PARENT AND CHILD — FEDERAL DEFINITION OF "CHILD" — ACKNOWLEDGMENT OF PATERNITY — MASSACHUSETTS

Current Massachusetts statutory law provides that upon acknowledgment of paternity, an illegitimate child becomes an heir to the same extent as if he or she were the legitimate child. In a case where the father dies prior to the effective date of the current statutory provision, Massachusetts courts would hold that the prior statute requiring both intermarriage and written acknowledgment or a Court decree of paternity is violative of the State Constitution as amended by the Equal Rights Amendment enacted in 1976. Accordingly, where the father acknowledged paternity to his own mother and several other people and lived with the child and treated it as his own in the first two years of the child's life, this is sufficient to establish paternity and to find that the child has inheritance rights in the intestate personal property of the alleged father. (S~ Glen R., ~ — RAI (B~), to Deputy ARC, 04/13/82.)

The wage earner died domiciled in Massachusetts on February 11, 1980. The applicant, whose mother had never married the wage earner, is claiming child's insurance benefits on the wage earner's account. The applicant was born on August 20, 1966 in Bennington, Vermont.

It appears that the applicant lived with the wage earner in Williamstown, Massachusetts, for most of the first two years of her life. Sometime thereafter, the wage earner and the applicant's mother separated and the wage earner married another woman. The applicant and her mother returned to Vermont where the applicant presently resides.

At the time of his death, the wage earner was neither living with nor supporting the applicant. No court order regarding paternity or child support was ever obtained for the applicant and it appears that the wage earner had never made a written acknowledgement of paternity. However, the wage earner is listed on the child's birth certificate as her father. The wage earner's mother has submitted a signed statement to the effect that the wage earner and the applicant lived with her during the major portion of the applicant's first two years and that during that time the wage earner advised her that the applicant was his daughter. Four other people have also submitted statements to the effect that the wage earner freely acknowledged to them that the applicant was his daughter.

As the wage earner was a Massachusetts domiciliary at the time of his death, the applicant under the circumstances of this case, would not be qualified for child's insurance benefits on the wage earner's account unless a Massachusetts court would find that she had the same status relative to taking the wage earner's intestate personal property as would a child of the wage earner.

Section 7 of Massachusetts General Laws, Chapter 190, as amended by Section I of Chapter 396 of the Acts of 1980, provides in pertinent part that if a decedent has acknowledged paternity of an illegitimate person, that person becomes an heir of the decedent to the same extent as if he or she was the legitimate child of the decedent. However, those provisions did not become effective until 90 days after July 7, 1980 (the date they were enacted). As the wage earner died before the effective date of the amendment the applicant's status would have to be determined under prior law. Under Section 7 of Chapter 190, as it read prior to the amendment discussed above, an illegitimate child could inherit from the child's natural father only if the natural father had both married the child's mother and acknowledged paternity or had been adjudged to be the child's father in an appropriate Judicial proceeding brought during the father's lifetime. Otherwise the child could only inherit from his or her materna1 lineage.

Shortly before the enactment of the amendments to Section 7 of Chapter 190, the Supreme Judicial Court of Massachusetts had occasion to consider the constitutionality, under the State constitution as amended by the State Equal Rights Amendment ^[1] enacted in 1976, of Section 7 of Chapter 190 as it read prior to the 1980 amendment. 'In that case, Lowell v. Kowalski, 405 N.E. 2d 135 (1980), the court held that Section 7, to the extent it limited an illegitimate child's right to inherit from the child's natural father to the two circumstances discussed above, violated the State ERA prohibition against discrimination on the basis of sex. The court recognized that the State did have a compelling interest in imposing a stricter standard for establishing an illegitimate's right to inherit from its father than from its mother. That interest is the avoidance of fraudulent claims against the estate of a man who dies intestate. The court accepted a Judicial adjudication as one appropriate method of establishing inheritance rights, but concluded that if Judicial adjudication were the only permitted means of establishing those rights, the classification would be unconstitutionally restrictive because it would unnecessarily foreclose the rights of illegitimates who could convincingly establish their parentage.

The court then stated:

An. option limited to an adjudication of paternity would deny, for example, rights to a child whose natural father publicly and consistently acknowledged his child and did so in writing, perhaps even under oath.

In the case before us, it was established, based on a stipulation of the parties, that, on numerous occasions, the defendant's intestate acknowledged the paternity. of the plaintiff orally and in writing. Where paternity is conceded, we see no Justification for denying the right of a child to inherit from his or her natural father. The possibility of fraud is wholly absent. A statutory classification which denied an admitted illegitimate child of the deceased father any right to inherit from his estate would not serve the State's interest in avoiding fraudulent claims against the decedent's estate.

The effect of what we have decided is to strike down as unconstitutional the requirement of intermarriage expressed in §7 and to give effect to the separate statutory elements of acknowledgment of paternity and of adjudication of paternity. In this way, we preserve as much of the legislative intent as is possible in a fair application of constitutional principles. See 2 C. Sands, Sutherland Statutory Construction §44.18 (1973); Commonwealth v. Baird, 355 Mass. 746, 755-756, 247 N.E.2d 574 (1969), cert. denied, 396 U.S. 1029, 90 S.Ct. 580, 24 L.Ed.2d 524 (1970).

We leave to another case, if it should arise, the question whether, in a contested proceeding, proof of paternity may be made out in the absence of the father's written acknowledgment of his paternity (see for such an example, C.L.c. 273, §15, as amended through St.1979, c. 621, §2), his sworn testimony to the same effect, or an adjudication of paternity under G.L.c.273. See generally, Annot., 33 A.L.R.2d 705 (1954)." 405 N.E.2d 135, at 141.

The inheritance rights of the applicant in this claim, therefore, depend upon whether a Massachusetts court, applying the principles laid down in Lowell v. Kowalski would find that the wage earner had made a sufficient acknowledgement of the paternity of the child. ^[2] As the court in Lowell had specifically retained the acknowledgement requirement of Section 7 and struck down the intermarriage requirement the case of Houghton v. Dickinson, 196 Mass. 389, 82 N.E. 481 (1907) is specially relevant in resolving the issue in this claim. In that case the child's mother and natural father had intermarried after the birth of the child. The father had never acknowledged the child in writing. However, the evidence in that case indicated that prior to marrying the child's mother the natural father had consistently treated the child as his own, continued to do so after the marriage, and in testifying as a witness at a divorce trial he referred to the child as his "boy." In that case, the court noted that no formal acts are prescribed by the statute in order to constitute the required acknowledgment. While the recognition of parentage must be unambiguous, the court concluded that acknowledgment may be established by conduct.

It is our opinion that the oral acknowledgment of paternity made by the wage earner to his own mother and to several other people and his consistent treatment of the applicant as his child while he lived with her at his own mother's home are sufficient to warrant your finding that the child does have inheritance rights in the wage earner's estate under Massachusetts law and is consequently entitled to child's insurance benefits on the wage earner's account. ^[3]

You requested our comments on the question of whether the child of Judy E. C~ , the party in the above-captioned case, may qualify as the child of the deceased wage earner under section 216(h) of the Social Security Act (the Act) based on the findings in a Texas court decree of divorce obtained by the party against the wage earner. The divorce decree indicates the existence of a valid marriage between the party and the wage earner prior to the decree and indicates that the wage earner is the father of a child born during the marriage. You raise a number of questions which we believe can be resolved by addressing two general issues: (1) Does the divorce decree serve to qualify the child under section 216(h)(2)(A) of the Act by establishing the child's legitimacy for purposes of applying state intestacy laws? (2) By virtue of the divorce decree, has the wage earner been "decreed by a court to be the father of the [child]" so as to qualify the child under section 216(h)(3) of the Act?

Legitimacy Under Section 216(h) (2) (A)

In the opinion re Adjudications of Trial Courts as Binding on the Social Security Board, GC (C~) to RAVI, 9/8/43, we stated the rule regarding the conclusiveness of a divorce decree in determining status under title II of the Act as follows:

"Divorce proceedings, as we noted, are in rem insofar as the decree establishes the status of the parties from and after the date of the decree. Such decree, however, is not conclusive with respect to strangers to the divorce action, of the status of the parties prior to the entry of the decree. It follows, therefore, that in a proceeding under title II it would not be determinative of status prior to the rendition of the decree. Where, however, the decree is introduced to establish status subsequent to the date of the decree, the jurisdiction of the court rendering the decree is the sole determining factor as to its admissibility. Therefore, the Bureau would not be precluded from inquiring into the status of the parties, provided the issue related to their status prior to the decree. If the question to be resolved is their status subsequent to the decree, the validity of the decree becomes material."

We have indicated that this rule applies in cases in which the existence of a valid common-law marriage prior to the date of the divorce decree has a direct bearing on the legitimacy of a child born of the purported marriage, and that the Secretary, as a stranger to the divorce action, is not bound by the finding of a valid marriage in determining the child's status under title II of the Act. See our opinions re F~ , Michael, A/N ~ RA V (K~) to Reg. Rep., BRSI, Chicago Payment Center, 12/6/72;B~ , Caleb, A/N ~ , RAV (P~) to Reg. Rep., BRSI, Chicago Payment Center, 4/10/70; R~ , Mackey A., A/N ~ ,RA V (M~) to Hearing Examiner, Atlanta, Georgia, 5/18/64. Thus, in applying the intestacy laws of Vermont (the wage earner's domicile at death) under section 216(h)(2)(A) of the Act, the Secretary need not necessarily conclude that the child in question is a legitimate child born of a valid marriage between the party and the wage earner. The Secretary may inquire into the facts of the case to determine if an actual marriage existed. If the evidence fails to show that a marriage did in fact exist, the Secretary would not be precluded from finding that the child is illegitimate for purposes of applying the Vermont law of intestate succession in the absence of legitimation by some other means.

Under Vermont law, an illegitimate child cannot inherit from her natural father unless the father has been declared the child's putative father in a Vermont bastardy proceeding or the father has openly and notoriously claimed the child to be his own. Vt. Star. Ann. tit. 14, §553(b) (1974). In addition, an illegitimate child whose parents intermarry is considered legitimate and capable of inheriting if recognized by the father as his child. Vt. Star. Ann. tit. 14, §554 (1974).

The record fails to disclose any acts which would have legitimated the child under either Vermont or Texas law for purposes of inheritance in the absence of a valid marriage between the party and the wage earner. See Vt. Star. Ann. tit. 14, §§553 and 554 (1974); Tex. Prob. Code Ann. §42 (Vernon 1956); Tex. Fam. Code Ann. tit. 2, §§12.02 and 13.01 et. seq. (Vernon 1975). Thus, if it is determined that no marriage in fact existed, the child would not be entitled to inherit under the Vermont intestacy statutes and would not qualify under section 216(h)(2)(A).

Paternity Under Section 216{h),(3)

The remaining question is whether the finding in the divorce decree that the child was born of the marriage between the party and the wage earner constitutes a court decree of paternity for purposes of section 215(h)(3) of the Act. We have been unable to locate any prior opinions or Judicial decisions that have considered the question of whether a determination of paternity in a divorce decree would satisfy section 216(h) (3).

A judgment in a divorce action operates by way of collateral estoppel (or estoppel by Judgment) to preclude the parties thereto from relitigating issues actually and necessarily litigated and determined in the divorce action. 24 Am. Jut. 2d Divorce and Separation §§497 and 498 (1966). The determination of a fact essential to the rendition of a particular Judgment is also conclusive as between the parties to the suit even though the fact was not actually litigated. The determination of an issue which was not material to the judgment is not, however, conclusive upon the parties in a subsequent action. Id.

An adjudication by a divorce court that the husband is the father of the wife's child is generally binding upon the husband in a later action brought by the wife or child if the issue of paternity was properly before the divorce court. 24 Am. Jur. 2d Divorce and Separation §§876 and 877. However, a determination of paternity in a divorce proceeding is generally held not to be conclusive upon the child if the child was not made a party to the divorce action. Ryke v. Ream, 212 126, 234 N.W. 196 (1931). See Annot., 78 A.L.R. 3d 846, 854-856 (1977) and cases cited. The paternity of a child becomes an issue, for example, where the husband sues for a divorce on the ground that the wife, unknown to the husband, was pregnant by another man at the time of the marriage. Usually, the question of paternity arises in a divorce proceeding when the wife seeks an order for child support and the husband defends on the ground that he is not the father. Paternity also becomes material when the parties to the divorce action each seek custody of the child. 24 Am. Jut. 2d Divorce and Separation §§876 and 877. See Armor., 65 A.L.R. 2d 1381 (1959) and cases cited therein. A divorce court may also determine paternity as an independent matter in a marital action where state statutes empower the court to make provision for the care, custody and support of the children of the parties. Timmerman vs. Timmerman, 163 Neb. 704, 81 N.W. 2d 135 (1957). ^[4]

It was held in Byrd v. Travelers Ins. Co., 275 $.W. 2d 861 (Tex. Civ. App. 1955), that since under Texas law, Vernon's Ann. Civ. St. Art. 4639a, it was the duty of the divorce court to determine the names, age, and sex of all children born of the marriage and to provide for their care, custody and support, a finding by the court in the divorce decree that the wife's child was born of' the marriage, was res Judicata (collateral estoppel) as against the husband on the issue of paternity even though the finding was not material to the granting of the divorce. As in the present case, the divorce decree in Byrd made no provision for child support, but did award custody of the child to the wife. The appellate court in Byrd held that the finding in the divorce decree that the child was born of the marriage between the parties was equivalent to a finding that the husband was the father of the child, and that the husband would have been bound by the determination of paternity had the wife subsequently sought child support.

The Texas divorce proceedings at issue in the present case were similar to those in Byrd, supra. As in the Byrd case, the only potential controversy to which the issue of paternity may have been material in the divorce action was the question of child custody. The only reference to the issue of paternity in the divorce petition was the statement that the child was born of the marriage. Moreover, the appellate court in Byrd did not consider as material the fact that the defendant husband never actually litigated the issue of paternity or custody. However, the instant case is distinguishable from Byrd in one important regard.

The divorce court in Byrd had jurisdiction over the person of the defendant husband and thus had Jurisdiction to render an in personam judgment.. However, it is not apparent that the divorce court in the instant case had personal Jurisdiction over the wage earner who was residing in Vermont and who did not appear in the action. The recently enacted (1975) Texas long-arm statute, Tex. Fam. Code Ann. title, §3.26 (Vernon, Supp. 1980), by which a Texas court may exercise personal Jurisdiction over a nonresident defendant in a divorce action or in a suit affecting the parent-child relationship, was not in effect at the time of the divorce action in 1970. ^[5] The weight of authority is that an action to establish paternity requires in personam Jurisdiction over the defendant. A. Ehrenzweig, Conflict of Laws 399 (1962). See Hartford v. Superior Court, 47 Cal. 2d 450, 304 P. 2d 1 (1956). Moreover, it has been held under Texas law that a proceeding to determine the custody of a child (the only issue in the instant divorce action to which the determination of paternity was material) affects the personal rights of a parent and requires in personam Jurisdiction over the parent. Gunther v. Gunther, 418 S.W. 2d 821 (Tex. Civ. App. 1972). Therefore, it does not appear that the determination of paternity in the divorce proceeding would have been binding upon the wage earner since the divorce court seems to have lacked personal Jurisdiction over the wage earner. It would follow that the determination of paternity would not constitute a decree of paternity for purposes of section 216(h)(3).

We are returning the claims folder herewith.

James V. F~

Section Chief Cash Benefits Branch

By.___________

Richard S~

Attorney