KAU V. BENNETT, 1977-NMCA-121, 91 N.M.
162, 571 P.2d 819 (Ct. App. 1977)
Leslie Anne KAU, Plaintiff-Appellee,
vs.
Ray BENNETT, d/b/a Bennett Tower Painting Company, and
Employers Insurance of Wausau, Defendants-Appellants.
COURT OF APPEALS OF NEW MEXICO
1977-NMCA-121, 91 N.M. 162, 571 P.2d 819
October 25, 1977, As Amended. October 31, 1977
R. E. Richards, Hobbs, for
defendants-appellants.
Joel M. Carson, Losee & Carson, P.A.,
Artesia, for plaintiff-appellee.
SUTIN, J., wrote the opinion. HERNANDEZ
and LOPEZ, JJ., concur.
{1} The trial court awarded
plaintiff, a widow, workmen's compensation benefits for the death of her
husband pursuant to § 59-10-12.10 N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 1).
Defendants appeal. We affirm.
{2} The only issue on this
appeal is whether Leslie Anne Kau (Leslie) was legally entitled to be supported
by Kenneth A. Kau (Kenneth), her deceased husband, at the time of his death.
{3} Leslie and Kenneth were
married in California on or about June 26, 1971. They were 18 and 19 years of
age, respectively. They lived together as husband and wife until March 26,
1973, at which time Kenneth disappeared. His whereabouts were thereafter
unknown until October of 1973 when Leslie was notified of his death. At the
time of his death, he was employed in New Mexico. Leslie and Kenneth were not
divorced, and Leslie did not abandon Kenneth nor remarry during his absence.
{4} Defendants challenged two
findings of fact:
16. That plaintiff and defendant were not... legally
separated at the time of decedent's death.
18. That plaintiff was dependent upon the decedent for her
support.
Section 59-10-12.10(B) reads:
As used in the Workmen's Compensation Act,... unless the
context otherwise requires, the following persons, and they only, shall be
deemed dependents and entitled to compensation under the provisions of the
Workmen's Compensation Act:
B. The widow or widower, only if living with the deceased at
the time of his death, or legally entitled to be supported by him,
including a divorced spouse entitled to alimony. [Emphasis added]
{5} Under this statute,
Leslie was held to be a dependent and entitled to compensation if she was
legally entitled to be supported by Kenneth.
{6} What is meant by
"legally entitled to be supported by him"?
{7} The trial court found:
That both the law of California and the law of New Mexico at
all times material to this cause required a husband to support his wife.
{8} This finding was not
challenged.
{9} The word
"legal" is defined in Black's Law Dictionary at 1038 (Rev. 4th ed.
1968):
LEGAL. 1. Conforming to the law; according to law; required
or permitted by law; not forbidden or discountenanced by law; good and
effectual in law. Freeman v. Fowler Packing Co., 135 Kan. 378, 11 P.2d
276, 277; General Motors Acceptance Corporation v. Schwartz, 118 N.J.L.
25, 190 A. 625, 627.
See also, Gates v. Gates, 120 Vt. 505, 144 A.2d 782
(1958); Lewis v. Holden, 118 Vt. 59, 99 A.2d 758 (1953); 52 A C.J.S.
Legal at 754 (1968).
{10} "Legally entitled
to support" means "entitled to support according to law."
Inasmuch as the laws of California and New Mexico required Kenneth to support
Leslie, Leslie was a dependent legally entitled to support.
{11} The trial court's
finding No. 18 "The plaintiff was dependent upon the decedent
{*164} for support" was superfluous. The
statute does not provide that a wife must be "actually dependent" on
her husband for support to recover compensation benefits. The version of the
present § 59-10-12.10(B), supra, that was in effect before 1973 (Ch. 113, §
12(j)(2), 1929 N.M. Laws; Ch. 92, § 6, 1937 N.M. Laws) read in pertinent part:
The following persons, and they only shall be deemed dependents
and entitled to compensation under the provisions of this act.
2. The widow, only if living with the deceased at the time of
his death, or legally entitled to be supported by him and actually dependent
.... [Emphasis added]
{12} The words "and
actually dependent" were deleted by the 1973 amendment. Under the prior
statute, "actually dependent" was an essential ingredient of recovery
of workmen's compensation as a dependent widow. "[T]he widow must have
been dependent in fact as well as in law."
Merrill v. Penasco Lumber
Co., 27 N.M. 632, 633,
204 P. 72 (1922). This concept was based upon the
theory that married women may not be entitled to support because they are not
actually dependent upon their husbands for support. The legislature desired to,
and did, remove this burden of proof from both the widow and the widower, and
it did intend to relieve the survivor of the marriage of the duty of proving
actual dependency.
{13} Defendants rely on
Lauderdale
v. Hydro-Conduit Corporation, 89 N.M. 579,
555 P.2d 700 (Ct. App.1976).
Here, there were three wives of a deceased employee. We are concerned only with
Pat, the first wife. "Pat never claimed compensation benefits as a widow;
there was no issue at trial concerning her purported common law marriage to
Leyba [after deceased left her]." [89 N.M. at 583, 555 P.2d at 704]. Pat
sought compensation for her children who were born of her marriage to the
deceased husband. The reasons she did not seek compensation as a widow are
stated in eloquent language and do not need a restatement.
Lauderdale
does not support defendants' claim that compensation benefits be denied Leslie.
{14} Defendants also claim
that Leslie and Kenneth were "legally separated" at the time of
Kenneth's death contrary to finding No. 16. For Leslie to be "legally
separated" from Kenneth means "separated according to law." The
word "separation" is defined in Black's Law Dictionary at 1530 (Rev.
4th ed. 1968):
SEPARATION. In matrimonial law, a cessation of cohabitation
of husband and wife by mutual agreement, or, in case of "judicial
separation," under the decree of a court. Woodruff v. Woodruff, 215
N.C. 685, 3 S.E.2d 5, 6.
{15} Leslie and Kenneth were
not "legally separated." "When a husband abandons his wife
without justifiable cause, or separates himself from her and refuses or
neglects to maintain and provide for her, a judgment of separate maintenance
may be entered...."
Weinkrantz v. Weinkrantz, 129 N.J. Super. 28,
322 A.2d 184, 187 (1974). Even a decree of separate maintenance does not
constitute a "legal separation,"
Rafal v. United States, 267
F. Supp. 61 (D. Del.1967), but a judgment of separation from bed and board does
constitute a "legal separation."
Ainsworth v. Association Life
Insurance Co., Inc., 325 So.2d 708 (La. App.1976).
{16} When Kenneth
disappeared, Leslie remained legally entitled to support. Leslie and Kenneth
were not legally separated.
HERNANDEZ and LOPEZ, JJ., concur.
{19} Having overlooked an
award of attorney fees to plaintiff for services rendered in this appeal by
plaintiff's attorney, the opinion rendered and filed is hereby amended to
include therein the following:
{20} {*165}
Plaintiff is awarded the sum of $1,750.00 for services rendered by her
attorney in the appeal to this Court.
HERNANDEZ and LOPEZ, JJ., concur.