his wife if there were a long-outstanding, but unobeyed court order for him to support her, the Act went beyond the ordinary meaning of the phrase. I would be going much further than that if I were to rule that it was enough for the plaintiff to show, in a separate proceeding, that though the court did not do so, it could have ordered such support.'(Emphasis supplied.)
In Colbert v. Hobby, D.C.S.D.N.Y.1955, 130 F.Supp. 65, affirmed Colbert v. Folsom, 2 Cir., 230 F.2d 846, the court denied recovery to a widow because she was not 'living with' the wage earner at the time of death and in that case the court had under consideration the fact that in 1924 the Criminal Court of Atlanta, Georgia issued an order requiring the husband to make certain payments as a condition to probation in lieu of a twelve month sentence imposed upon him for the abandonment of a child of the marriage.
And in Rosewall v. Folsom, 7 Cir., 1957, 239 F.2d 724, at page 727, the court denied relief to a widow who was attempting to receive rights under the Act whose deceased husband had been under a criminal Court order of probation and support in lieu of jail, which order had been in default for some time prior to the death of the husband. In that case the court said:
'It was the view of the District Court that it was not necessary for plaintiff to show a support order enforceable against the wage earner at the time of his death; that it was sufficient that a wage earner had been ordered to contribute to plaintiff's support during his life time. In holding this view, the District Court was clearly in error.'
'The District Court case of Richards v. Social Security Administration, 76 F.Supp. 12, does give support to the contentions of the plaintiff herein. However, we think Richards was wrongly decided. The conclusions we have reached are supported by Colbert v. Hobby, D.C., 130 F.Supp. 65, affirmed sub. nom. Colbert v. Folsom, 2 Cir., 230 F.2d 846, and Stuart v. Hobby, D.C., 128 F.Supp. 609.'
As this court reads Ferenz v. Hobby, D.C.W.D.Pa.1955, 138 F.Supp. 446, reversed 3 Cir., 1956, 237 F.2d 46, the factual situation of that case lends no assistance in making an analogy of the present facts.
In the present case there are no facts indicating any order of any sort by any court directing the deceased husband to support his wife. Merely the tenuous argument that for a certain limited time she had the right to apply to a court for such relief.
The court can assume that the members of Congress when they wrote the Act and its amendments covering the three methods for coming within the provisions of the term 'living with' were familiar with marital difficulties and litigation, and to this court it is quite clear that the first two provisions, namely, living in the same household or the husband giving the wife regular contribution for her support were meant to indicate upon the part of the wage earner husband a voluntary recognition of his moral and legal responsibilities toward his spouse. Short of that, and in the event of litigation between husband and wife regarding support, it would seem that Congress intended the decision concerning those rights to be decided by the proper tribunal having jurisdiction of the parties and the subject matter and it very definitely spoke of such disposition in the past tense when it used the words, 'or he had been ordered by any court to contribute to her support.'
Many divorce actions are the result of secret but none the less collusive agreements by parties wanting their mutual freedom from each other. The mere fact that here a divorce action had been instituted and was itself uncontested cannot give rise to the inference that if plaintiff-wife here started either a separate or ancillary support action that it likewise would be uncontested and to the further inference that she would ultimately be successful in such litigation. For the plaintiff to recover here the learned Referee would have had to found such inference upon inference and then relate it back to the date of death of the wage earner husband. Such a finding could not be supported by any substantial evidence in the record and any conclusion to such effect would be clearly erroneous.
The action of the Referee and the Administrative body was proper and the motion for summary judgment in behalf of defendant will be granted and the like motion in behalf of plaintiff will be denied.
Counsel will prepare an appropriate order.
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