EFFECTIVE/PUBLICATION DATE: 11/01/89
20 CFR 404.354
Kenney v. Bowen, 1A Unempl. Ins. Rep. (CCH) ¶ 14,447A (E.D. of La., Feb. 29, 1988)
SCHWARTZ, JR., District Judge:
Plaintiff, Bessie Kenney, brings this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. Section 405(g), for a review of the final decision of the Secretary of Health and Human Services which found Edwin L. Kenney was entitled to child's benefits on the record of the wage earner, Gene Kenney, pursuant to Section 202(g)(1) of the Social Security Act.
On July 13, 1984, wage earner Gene Kenney passed away. Thereafter, on November 13, 1984, the deceased wage earner's second wife, Bessie Kenney, plaintiff herein, filed applications for mother's benefits and children's benefits for herself and on behalf of the couple's children. In her application, plaintiff stated that as a result of a previous marriage to Emelda Kenney, the deceased wage earner had one child, Constance Kenney. Plaintiff further stated that Emelda Kenney's second child, Edwin Kenney, was not the deceased wage earner's child even though he bore the same surname as the deceased wage earner.
On November 21, 1984, the deceased wage earner's first wife, Emelda Kenney, filed an application for child's benefits for Constance. No mention of any other child from this marriage to the deceased wage earner was made in that application. However, in a subsequent application for benefits made on June 12, 1985, Emelda Kenney stated that Edwin L. Kenney was also a child of the deceased wage earner. Those applications for benefits were granted.
Thereafter, the Social Security Administration notified plaintiff that her benefits would be reduced due to the entitlement of Edwin Kenney and, that as a result of Edwin's subsequent entitlement, plaintiff had received an overpayment of benefits.
On August 13, 1985, plaintiff filed an application for reconsideration of the determination that Edwin Kenney was the child of the deceased wage earner. When the Social Security Administration affirmed its decision, plaintiff filed a request for a hearing on November 7, 1985.
Pursuant to plaintiff's request, a hearing de novo before an administrative law judge (hereinafter "ALJ") was held on April 17, 1986. Both Bessie Kenney and Emelda Kenney were present at that hearing and both were represented by counsel.
On July 24, 1986, the ALJ issued a decision finding that Edwin Kenney was the child of the wage earner under Louisiana State law and within the meaning of section 216(h)(2)(A) of the Social Security Act. Further, the ALJ found that Emelda Kenney was the surviving divorced spouse of the wage earner who had in her care a child of the deceased wage earner entitled to child's benefits, and who met all further requirements set forth in Section 202(g)(1) of the Social Security Act and was therefore entitled to mother's benefits. The Appeals Council denied plaintiff's request for review of the ALJ's decision on October 23, 1986. Thereafter, the decision of the ALJ became the final decision of the Secretary.
The following documents were submitted into evidence for the determination of this matter: a marriage certificate for Gene Kenney and Emelda Williams, dated November 25, 1967; a birth certificate for Edwin Louis Kenney, naming Gene Kenney as the father of the child, dated January 7, 1972; and, a judgment of divorce entered on June 26, 1973, in favor of Gene Kenney and against Emelda Williams Kenney.
The record contains no evidence of a judgment of separation preceding the judgment of divorce for Gene Kenney and Emelda Williams. Additionally, there is no evidence that Gene Kenney successfully pursued court action to formally disavow Edwin Kenney under Louisiana State law.
The sole issue in this case is whether there is substantial evidence in the record to support the Secretary's decision that Edwin Kenney is a child of the deceased wage earner and eligible for surviving child's benefits and that Emelda Kenney is eligible for surviving divorced mother's insurance benefits within the meaning of the Social Security Act.
42 U.S.C. 416(h)(2)(A) provides as follows:
Pursuant to 42 U.SC. 416(h)(2)(A), since the deceased wage earner was domiciled in Louisiana at the time of his death, the law determining the devolution of intestate personal property by the courts of Louisiana must be followed.
Article 880 of the Louisiana Civil Code provides:
Act 430 of 1976 made significant amendments to the articles governing determination of paternity and disavowal actions. We note that all operative facts in the matter before us transpired before the effective date of that Act. Since Act 430 of 1976 affects substantive rights and is totally devoid of language indicative of legislative intent to make it retroactive, it is without application herein. Rather, we must decide the case at bar solely on the law and jurisprudence in effect at the time of Edwin Kenney's birth in 1972. Pounds v. Shori, 377 So. 2d 1195 (La. 1979).
Following are the provisions of the Louisiana Civil Code governing the determination of paternity and disavowal actions which were in effect at the time of Edwin Kenney's birth.
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It is indisputable under the facts of this case that Edwin Kenney was both conceived and born during the marriage of Emelda Williams Kenney and the deceased wage earner. Therefore, pursuant to Article 184, it is presumed that Edwin Kenney is the child of the deceased wage earner.
The burden is on the husband of the mother to rebut a presumption of paternity in an action of disavowal. Articles 191 and 192 govern the time limitations for the bringing of such an actin. Not only did the wage earner not meet the time limitations as set forth in Article 191, there is no evidence to support a claim that any action of disavowal was brought at any time during the wage earner's lifetime, which extended over a period of twelve years following the birth of Edwin Kenney.
Plaintiff argues that the deceased wage earner demonstrated intent to disavow paternity of Edwin, born on January 7, 1972, by inclusion in the petition for divorce filed on May 10, 1973, the declaration that only one minor child, Constance Kenney, was born of the deceased wage earner's marriage to Emelda Williams.
The courts have consistently held that illegitimacy must be supported by an action to disavow paternity, and legitimacy cannot be attacked in other proceedings. Murphy v. Houma Well Services,409 F.2d 804 (5th Cir. 1969); Ellis v. Henderson, 204 F.2d 173 (5th Cir. 1953), cert. denied, 346 U.S. 873, 74 S.Ct. 123, 98 L.Ed. 281 (1953); Favre v. Celotex Co., 139 So. 904 (La. App. 1st Cir. 1932); McNeely v. McNeely,17 So. 928 (La. 1895).
Moreover, the Louisiana courts have specifically held that a declaration in a divorce decree is not sufficient to disavow paternity. See Phillips v. Phillips, 467 So. 2d 132 (La. App. 3rd. Cir. 1985). The fact that no attorney was appointed to represent the child in the divorce proceeding and that the divorce decree did not grant a judgment of disavowal of paternity indicates that the trial judge did not consider it an action to determine paternity. Furthermore, a judgment of divorce which simply decrees that the mother is granted the care, custody and control of only one minor child born during the marriage does not constitute a final judicial determination that the husband of the mother is not the father of another child whose identity is not given in the divorce proceedings. Lyons v. Fontenot, 344 So. 2d 1068 (La. App. 3rd Cir. 1977).
Plaintiff also argues that Emelda Kenney admitted during a court proceeding to determine an award of child custody that Edwin Kenney was not the son of the deceased wage earner and has submitted a transcript of that hearing into evidence. However, it is well settled that the disavowal action, or "action en desaveau", is an exclusive action personal to the husband, and no one, including the mother, can assert it if the husband has not done so in the manner set forth in the Code. Boudreaux v. Matt, 370 S. 2d 139 (La. App. 3rd Cir. 1979); Burrell v. Burrell, 154 So. 2d 103 (La. App. 1st Cir. 1963); Favre v. Celotex Co., supra; Lambert v. Lambert, 164 So. 2d 661 (La. App. 3d Cir. 1964); Ezidore v. Cureau's Heirs, 37 So. 773 (La. 1904); Succession of Saley, 10 So. 872 (La. 1892). Furthermore, not even the husband can bring such action after the time periods set forth in the Code have expired. Ford v. Ford, 292 So. 2d 275 (La. App. 2d Cir. 1974); Succession of Verrett, 70 So. 29 89 (La. 1954).
No procedure to disavow Edwin Kenney was instituted by Gene A. Kenney or his heirs in accordance with Louisiana law. Therefore, the presumption of his paternity is exclusive. Accordingly, this Magistrate finds that there is substantial evidence in the record to support the Secretary's decision that Edwin Kenney is entitled to benefits based on the earnings of Gene A. Kenney and that Emelda Kenney is entitled to mother's benefits.
It is recommended that plaintiff's motion for summary judgment be DENIED, and that defendant's motion for summary judgment be GRANTED.
Failure to file written objections to the proposed findings and recommendation contained in this report within ten (10) days from the date of its service shall bar an aggrieved party from attacking the factual findings on appeal. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982).
The Court, having adopted the Magistrate's Finding and Recommendation, accordingly;
IT IS ORDERED, ADJUDGED, AND DECREED, that there be judgment in favor of defendant Otis R. Bowen, M.D., Secretary of Health and Human Services and against plaintiff Bessie Kenney, dismissing plaintiff's complaint.
 We note that regardless of whether the pre-1976 or post-1976 codal provisions are applied, the result is the same inasmuch as the deceased wage earner failed to institute the required proceedings necessary to disavowal under either set of law and jurisprudence.