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CARTER v. CLELAND

May 14, 1979

Estelle CARTER et al., Plaintiffs,
v.
Max CLELAND, Administrator of Veterans Affairs, Defendant



The opinion of the court was delivered by: FLANNERY

MEMORANDUM AND ORDER

This challenge to the Veterans Administration's "birth by another" rule comes before the court on cross-motions for partial summary judgment, and on the defendant's motion, opposed by the plaintiffs, to dismiss for want of subject matter jurisdiction. The court concludes that the nature of the plaintiffs' claims are such that the motion to dismiss must be denied as to the constitutional challenges to the "birth by another" rule, but that the defendant has a persuasive case on the merits. Partial summary judgment will be entered for the defendant.

 The plaintiffs' cause of action arises from a law that allows the surviving spouse of a deceased veteran to obtain a pension. Section 101(3) of Title 38, United States Code, provides:

 
The term "surviving spouse" means . . . a person of the opposite sex who was the spouse of a veteran at the time of the veteran's death, and who Lived with the veteran continuously from the date of marriage to the date of the veteran's death (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse) and who had not remarried . . . .

 (Emphasis added.) The Veterans Administration (VA) has interpreted the "continuous cohabitation" and "fault of the spouse" requirements to mean that even if a separation was initially the fault of the veteran (e.g., through cruelty or drunkenness), a spouse must not take any actions inconsistent with the marital relationship if the spouse is to obtain death benefits:

 
The requirement that there must be continuous cohabitation from the date of the marriage to the date of death of the veteran will be considered as having been met when the evidence shows there was no separation due to the fault of the surviving spouse. 38 C.F.R. § 3.53 (1978).

 Thus, any action by a spouse, even after an initial separation, which disrupts the "continuous cohabitation" requirement, such as seeking and obtaining a divorce, holding oneself out as the spouse of another, or having a child by another, will terminate the spouse's eligibility for benefits. *fn1" The "birth by another rule" has been set forth as an administrative guideline in VA Manuals:

 
(4) The birth of a child to the claimant as the result of relations with a person other than the veteran will be accepted as proof of lack of continuous cohabitation within the meaning of the law in the absence of evidence that the veteran condoned the claimant's conduct.

 Veterans Administration Department of Veterans Benefits Manual M21-1 § 8.11(c) (4).

 The rule operated in the present case as follows: Both plaintiffs were married to veterans of World War II. The veterans subsequently abused them, drank to excess, and deserted them. No divorce was ever obtained. Both of the plaintiffs eventually had children by other men, and applied for veterans' benefits. Neither plaintiff had seen the veteran for many years. Neither plaintiff established that a reconciliation occurred after the birth of children by another man. The Veterans Administration determined that the plaintiffs are not "surviving spouses" within the meaning of the Act, because although the separation was initially procured by the veteran, the spouse was subsequently deemed to be "at fault" in effectively treating the marriage as ended.

 It is apparent that the word "fault", as employed in the statute, does not imply a moral judgment about the impropriety of having a child by another. *fn2" Rather, the "birth by another" rule appears to reflect a fairly commonsensical proposition: if the spouse has a child by another person after being thrown out by the veteran, she is effectively considering the prior relationship terminated.

 JURISDICTION

 With certain exceptions not relevant here, 38 U.S.C. § 211(a) ...


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