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March 31, 1970

Louise COLLINS, Plaintiff,
Robert H. FINCH, Secretary of Health, Education, and Welfare of the United States of America, Defendant

Gourley, Senior District Judge.

The opinion of the court was delivered by: GOURLEY

Plaintiff brings this action under Section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), seeking a reversal of the denial by the Secretary of Health, Education and Welfare of an application for surviving divorced wife's insurance benefits.

 The parties have stated the issue to be -

 Is plaintiff entitled to a "surviving divorced wife's" benefits under Section 202(e)(1) of the Social Security Act, 42 U.S.C.A. § 402(e)(1)? More narrowly, was plaintiff receiving "substantial contributions" from the wage earner "pursuant to a written agreement" within the meaning of the above Section of the Social Security Act, her qualification in other regards being admitted, but in reality the issue is whether or not the final decision of the Secretary is supported by substantial evidence.

 The facts do not appear to be in dispute for all practical intents and purposes.

 The plaintiff filed her application for widow's insurance benefits as the surviving divorced wife of the wage earner on June 9, 1966. The claimant and the wage earner were married in West Virginia on November 14, 1925. The couple separated in 1947. For some time prior to 1954, the wage earner was under a court order requiring him to pay the plaintiff $400.00 a month for her support. On July 15, 1954, a written settlement agreement was executed whereby the wage earner obligated himself to pay plaintiff $100.00 a month, beginning with the month of July 1954, for her support and maintenance. The wage earner promised to pay plaintiff a $7500.00 lump sum and certain court and attorneys' fees, and he agreed to transfer two insurance policies, the house in fee simple and its furniture, and a lot in fee simple, upon which a gas station was located as lessee as well as all rents due under the lease due from the tenant. The lease was originally made by the wage earner and calls for a rent of $229.00 a month. It expired in September 1969. The commercial property was conveyed in January 1955. In August 1954, wage earner made the payment of $7500.00 required by the settlement.

 The plaintiff obtained an absolute divorce from the wage earner in the Court of Common Pleas, Allegheny County, Pennsylvania, on January 5, 1955. The decree makes no mention of the aforesaid settlement agreement and did not itself order any support or alimony payments to be made to plaintiff. The wage earner remarried on January 8, 1955. Wage earner died on May 2, 1957, at age 56 of a cerebral hemorrhage. The second wife, soon after, was awarded widow's insurance benefits on the wage earner's account. The wage earner made the $100.00 monthly support payments regularly from July 1954 up to the time of the divorce, January 1955, and thereafter for three months, February, March and April 1955.

 The monthly payments did not continue because her former husband became ill and was often hospitalized. Plaintiff did not press the wage earner prior to his death for arrears or future payments except once, in 1956, when she consulted her attorney.

 I believe it can be reasonably concluded that the suspension of such payments was occasioned solely by the wage earner's physical condition and his financial inability to make such payments. He became ill in April of 1955 and lingered on for two years, dying eventually on May 2, 1957 of a cardiovascular order. During such two year period the wage earner was in and out of hospitals and able to do very little work.

 Although the plaintiff does not contend she was receiving one-half her support from her former husband at the time of his death or that there was in existence at such time a court order for substantial contributions to her support, conclusion is required that under all the evidence she was receiving substantial contributions from him pursuant to a written agreement within the fair intendment of the Social Security Act and that the facts and circumstances of the present case dictate a conclusion that plaintiff fairly meets the substance of the statutory condition.

 In order to qualify for social security benefits as the surviving divorced wife of a deceased wage earner, it is necessary for an applicant to meet all the qualifications contained in section 202(e)(1) of the Act, 42 U.S.C.A. § 402(e)(1). One of the qualifications is that if claimant were not entitled to wife's insurance benefits in the month preceding her former husband's death, she must have been either receiving at least one-half her support from him, receiving substantial contributions from him pursuant to a written agreement, or there must have been in existence a court order for substantial contributions to her support from the wage earner. She must be the beneficiary of one of these alternatives either at the time of the wage earner's death or at the time he became entitled to old-age insurance benefits or disability insurance benefits. The burden of proof for sustaining a claim for survivor's benefits is on the claimant. McSweeney v. Celebrezze, 253 F. Supp. 100 (S.D.N.Y. 1966).

 The law is settled that plaintiff must meet one of the three above-mentioned requirements at the time of the insured individual's death.

 There was a court order for the support of the plaintiff by the wage earner in existence prior to the divorce in January 1955. However, under Pennsylvania law an absolute divorce terminates a husband's duty to support his wife. Commonwealth ex rel. McVay v. McVay, 177 Pa. Super. 623, 112 A. 2d 649 (1955), aff. 383 Pa. 70, 118 A. 2d 144, cert. denied, 350 U.S. 995, 76 S. Ct. 544, 100 L. Ed. 860; Commonwealth v. Elliott, 157 Pa. Super. 619, 43 A. 2d 630 (1945). Therefore, such divorce decree would also terminate an existing order for support of a wife. Commonwealth ex rel. Hopp v. Hopp, 30 Pa. Dist. & Co. R. 648 (1937). The divorce decree itself contained no mention of alimony nor did it incorporate the written separation agreement. It is quite obvious then that there was no court order as contemplated by the Act in existence at the time of plaintiff's death.

 Therefore, it cannot be said that wage earner provided one-half of plaintiff's support for 12 months prior to May 1957, the "reasonable period" of time allowed therefor by the social security regulations. Neither did she receive substantial contributions under the written separation agreement, for the appropriate regulation states that generally the ...

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