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