ered full-time by the institution, he or she may be considered a full-time student. Thus, if there are no classes being conducted by an educational institution because of a strike, but the institution intends to resume classes when the strike is over, the inquiry should be whether the beneficiary would be considered by the institution to be registered or enrolled as a full-time student during the strike or whether, but for the strike, the beneficiary would have been in full-time attendance at the institution and whether, upon settlement of the labor dispute and the resumption of classes, the beneficiary either intends to, or actually does, continue to attend the institution as a full-time student.

SECTIONS 202(d) and 216(e) (42 U.S.C. 402(d) and 416(e)) CHILD'S INSURANCE BENEFITS-DEFINITION OF GRANDCHILD-ADOPTION AFTER WAGE EARNER'S DEATH BY SURVIVING SPOUSE

20 CFR 404.320 and 404.1109(a) and (c)

SSR 78-27

Held, Section 216(e) of the Social Security Act precludes entitlement of a child adopted by a surviving spouse if, at the time of the wage earner's death, the child was receiving regular contributions for support from someone other than the wage earner or the wage earner's spouse, including a public or a private welfare organization. However, a grandchild of the wage earner who is legally adopted after the wage earner's death by his surviving spouse may be entitled to benefits if, at the time of his death, the child's parents were not living in his household and making regular contributions toward the child's support and he was providing at least one-half of the child's support.

On July 19, 1976, "C", the widow of a wage earner who died fully insured, filed applications for mother's insurance benefits and child's insurance benefits on behalf of J. J is the grandson of the wage earner and of C, since he is the child of their daughter. The grandson lived at all times from his birth, and until the time of death of the wage earner in March 1976, with the wage earner and his wife. Neither the mother nor the father of J contributed to his support. The wage earner provided over one-half of the support for J at all times. In addition, the welfare department did provide sums ranging from $16.00 to $108.00 per month from January 1974 through November 1976.

In July 1976, C legally adopted J. J's natural parents were neither deceased nor disabled at the time the wage earner died. Neither parent of J was regularly living in the household of the wage earner through the year preceeding his death, and neither was contributing regularly (if at all) to the child's care.

The Social Security Act, section 216(e), provides three groups of persons who qualify as a child of the wage earner. The first group includes the natural or legally adopted child of the wage earner. Although J was not the natural or legally adopted child of the wage earner, J could qualify as a child within the meaning of the Act, since the term includes a child adopted by the surviving spouse within two years of the death of the wage earner. However, a child other than a grandchild adopted af

ter the death of the wage earner can qualify for benefits only if the child did not receive regular contributions toward his/her support (as was true in this case) from a public or private children's welfare organization. The second group of individuals who can qualify as a child includes step-children. This group is not pertinent to this case. The third group of individuals who can qualify as a child includes grandchildren (or stepgrandchildren) of either the wage earner, or the wage earner's wife. Under §216(e) there are two ways in which a grandchild may become entitled to benefits as a child of the wage earner. The first concerns a grandchild whose natural or adoptive parents were deceased, or under a disability. J's mother was neither deceased nor under a disability. The alternate way in which a person who is a grandchild may be entitled to child's benefits occurs if "such person was legally adopted after the death of such individual's surviving spouse in an adoption that was decreed by a court of competent jurisdiction within the U.S. and such person's natural or adopting parent or stepparent was not living in the same household and making regular contributions toward such person's support at the time such individual died." See §216(e) (3) (B).' In this case, I was legally adopted by the wage earner's surviving spouse in an adoption that was decreed by a court of competent jurisdiction. Neither J's mother nor father was living in the household, at least not regularly, and neither was making regular contributions toward J's support at the time the wage earner died, or at any time.

Under §216(e) requirements for entitlement of a grandchild who is adopted by a surviving spouse differ from the requirements which must be met by a non-grandchild who is adopted by a surviving spouse. For the non-grandchild, that section provides that such a child cannot qualify for benefits if regular contributions toward his support were received from someone other than the wage earner or his spouse, or from a public or private children's welfare organization. However, §216(e) does not contain the same provision for a grandchild. The dependency requirements for a grandchild are stated in §202(d) (9). J meets these requirements as he had lived with the wage earner since his birth and had received over one-half of his support from the wage earner.

Congress is establishing benefits for a grandchild, provided in section 216(e) (3) (B) a separate method by which such a child adopted by a surviving spouse could qualify for benefits, as summarized in the quotation above.

Since J is not merely a child adopted by the wage earner's surviving spouse but is also a grandchild of the wage earner, he is entitled to child's benefits if he meets the requirements for entitlement to child's benefits as a grandchild who has been legally adopted by a surviving spouse. Since he meets the requirements of §216(e) (3) (B) and the requirements of §202(d) (9), he qualifies for benefits. Accordingly, C, as the widow of a fully or currently insured individual, is entitled to monthly benefits, since she has a child in her care who is entitled to benefits.

'A grandchild who is legally adopted by a wage earner before his or her death may also be entitled to child's benefits. See §202(d) (8).

SECTON 202(d) and 216(h) (3) (C) (42 U.S.C. 402(d) and 416(h) (3) (C))-CHILD'S INSURANCE BENEFITS-RELATIONSHIP-STATE REQUIREMENTS AND EVIDENCE-CALIFORNIA

20 CFR 404.1101 and 404.1109

SSR 77-11

Judgment nunc pro tunc establishing paternity is void under California law if it was entered in an action commenced against a dead person. Judgment nunc pro tunc, under California law, is proper only to correct judicial error in entering of judgment or to enter judgment unjustly delayed in completed litigation.

A question is raised as to what effect, under California law, a judgment nunc pro tunc has on the establishment of paternity of the child in question for purposes of his eligibility for Surviving Child's Insurance Benefits on the earnings record of the deceased under Section 216(h) (3) (C) (i) (II) and (III) of the Social Security Act.

The facts involve an application for Surviving Child's Insurance Benefits for an illegitimate child born in December 1966. The alleged father at no time lived with the mother or the child or had the child in his household, and he never acknowledged the child as his own in writing. The alleged father died on June 3, 1972.

On June 18, 1975, the Superior Court for the County of Santa Clara, State of California, issued a Judgment of Paternity "Pursuant to Stipulation to be Entered Nunc Pro Tunc" in which the deceased was found to be the natural father of the child and was ordered to pay for his support and maintenance commencing on February 15, 1972. The Judgment was entered and deemed signed and filed as of February 4, 1972.

A judgment nunc pro tunc is a formal judgment which is made retroactively effective to avoid injustice. Generally, there are two types of cases in which such a judgment may be proper. The first is where litigation before the court is entirely completed and ready for determination, but the final decision is delayed through no fault of the parties. The second class of cases in which nunc pro tunc decrees are proper is composed of those in which judgment has been rendered, but due to the negligence or inadvertence of ministerial officers of the court, it has not been timely entered or placed on record. See, 28 Cal. Jur. 2d Judgments § 60; Leavitt v. Gibson, 3 C.2d 90, 43 P.2d 1091; Fox v. Hale & Norcross Silver Mining Co., 108 C. 478, 41 P. 328; see also Walter H. DeWolfe, D-1529, 7/15/53. In either case, the purpose of such a judgment is to avoid an unjust result injuring innocent parties. Young v. Gardner-Denver Co., 244 C.A. 2d. 915, 53 Cal. Rptr. 522.

Therefore, unless the particular judgment nunc pro tunc was entered either to correct a judicial error or to finalize completed litigation, it would be invalid under California law.

A final determination of the validity of the order on this basis may not be necessary, however, if it was entered in civil suit commenced against a deceased person. It is a settled principle of law that a judgment rendered against a party who was dead at the time the action was commenced is void. See 28 Cal. Jur. 2d Judgments § 61; LUNDBLADE v. Phoenix, 213 C.A. 2d 108, 28 Cal. Rptr. 660; Woolley v. Seijo, 224 C.A.

2d 615, 36 Cal. Rptr. 762. Thus, a judgment nunc pro tunc cannot be entered in an action commenced against a deceased defendant even though it would have taken retroactive effect during his lifetime. See, Boyd v. Lancaster, 32 C.A. 2d 574, 90 P.2d 317.

Therefore, under established California law, the judgment nunc pro tunc entered naming the deceased insured individual the natural father of the applicant here is void, unless it was entered, in an action commenced against the defendant before his death, to either correct a judicial error or to finalize completed litigation.

SECTION 202(d) (6) (42 U.S.C. 402(d) (6)) CHILD'S INSURANCE BENEFITS REENTITLEMENT-MARRIAGE AS A BAR TO REENTITLE

MENT-CONSTITUTIONALITY

20 CFR 404.320(b)

SSR 79-29c

MCMAHON v. CALIFANO, 1A Unempl. Ins. Rep. 16,012 (2nd Circuit 1979)

The claimant's entitlement to child's insurance benefits based on disability terminated, pursuant to section 202(d) (1) (D) of the Social Security Act, when she married a man not entitled to Social Security benefits. Following the death of her husband, the claimant reapplied on her father's earnings record for child's insurance benefits. The claim was denied under section 202(d) (6) of the Act which provides for reentitlement only if the claimant has not married or died. The claimant appealed the denial maintaining that the Act requires only that a claimant who applies for reentitlement be unmarried at the time of the application and that use of marriage as a bar to reentitlement is unconstitutional. Held, there is nothing in the language, the meaning, or the legislative history of section 202(d) of the Act to indicate that reentitlement on the same earnings record may be allowed where an intervening marriage occurs: and a marriage which occurs after entitlement and which terminates entitlement, also prevents reentitlement. Further held, this interpretation of the reentitlement provision is rational, consistent with the purpose of the Act and not unconstitutional.

TIMBERS, Circuit Judge:

On this appeal from an order entered in the Eastern District of New York, Jack B. Weinstein, District Judge, on remand from the Supreme Court for further consideration in light of the decision in Califano v. Jobst, 434 U.S. 47 (1977), the question presented is whether the Secretary of HEW has property construed §202(d) (6) of the Social Security Act, 42 U.S.C. §402(d) (6) (1976) (the Act), so as to bar appellant permanently from reentitlement to child's disability insurance benefits simply because her spouse, now deceased, was not entitled to receive social security benefits, and if so construed, whether the statute is constitutional. For the reasons set forth below, we hold that the district court properly adopted the Secretary's construction of the statute, and that the statute as construed is constitutional. We affirm.

Appellant is a 55 year old woman who has been severely and continuously disabled since before age 18.' In October 1961, after a disability determination by the Secretary of HEW, she was awarded child's disability insurance benefits2 based on the account of her father who was a fully insured wage earner. The benefits subsequently were converted to surviving child's insurance benefits upon the death of her father in 1962. On May 18, 1962, appellant married Peter McMahon. Although McMahon had been rated 100% disabled by the Veterans Administration based on injuries and illnesses incurred during his military service in World War II, he had been denied social security disability benefits because he never had been able to accumulate a sufficient number of quarters of work coverage to meet the special earnings requirements of the Act. As a consequence of her marriage to an individual not entitled to receive social security benefits, appellant's child's disability insurance benefits benefits were terminated by the Secretary pursuant to §§202(d) (1) (D)3 and (d) (5) of the Act. Thus, the only income received

'Plaintiff suffers from severe and permanent disabilities arising from serious birth defects. Her disabilities include a congenital cleft palate, a severe speech defect, congenital cataracts and glaucoma that have left her partially blind, a Laurence-Moon-Biedl syndrome marked by obesity and mental retardation, and a subnormal I.Q.

242 U.S.C. §402(d) (1) (1976) defines the eligibility requirements for child's insurance benefits as follows:

"(d) (1) Every child (as defined in section 416(e) of this title) of an individual entitled to old age or disability insurance benefits or of an individual who dies a fully or currently insured individual, if such child

(A) has filed application for child's insurance benefits,

(B) at the time such application was filed was unmarried an (i) either had not attained the age of 18 or was a full-time student and had not attained the age of 22, or (ii) is under a disability (as defined in section 423(d) of this title) which began before he attained the age of 22, and

(C) was dependent upon such individual —

(i) if such individual is living, at the time such application was filed,

(ii) If such individual has died, at the time of such death, or (iii) if such individual has a period of disability which continued until he became entitled to old-age or disability insurance benefits, or (if he has died) until the month of his death, at the beginning of such period of disability or at the time he became entitied to such benefits, shall be entitled to a child's insurance benefit for each month, beginning with the first month after August 1950 in which such child becomes so entitled to such insurance benefits and ending with the month preceding whichever of the following first occurs (D) the month in which such child dies or marries,

3ld.

"

*42 U.S.C. §402(d) (5) (1976) provides:

"(5) In the case of a child who has attained the age of eighteen and who marries —

(A) an individual entitled to benefits under subsection (a), (b), (e), (f), (g), or (h) of this section or under section 423(a) of this title, or

(B) another individual who has attained the age of eighteen and is entitled to benefits under this subsection,

such child's entitlement to benefits under this subsection shall, not withstanding the provisions of paragraph (1) of this subsection but subject to subsection (s) of this section, not be terminated by reason of such marriage; except that, in the case of such marriage to a male individual entitled to benefits under section 423(a) of this title or subsection, the preceding provisions of this paragraph shall not apply with respect to benefits for months after the last month for which such individual is entitled to such benefits under section