DAVID W. SMITH et al., Petitioners, v. WORKMEN’S COMPENSATION APPEALS BOARD, HAROLD EUGENE SNOOK et al., Respondents.
Civ. No. 8184
Fourth Dist., Div. One.
Sept. 29, 1966.
petition for a rehearing was denied October 24, 1966
respondent’s petition for a hearing by the Supreme Court was denied November 30, 1966. Peters, J., and Tobriner, J., were of the opinion that the petition should be granted.
The judgment is reversed and the trial court is directed to enter judgment for defendants.
Friedman, J., and Began, J., concurred.
A petition for a rehearing was denied October 24, 1966, and respondent’s petition for a hearing by the Supreme Court was denied November 30, 1966. Peters, J., and Tobriner, J., were of the opinion that the petition should be granted.
Everett A. Corten, Edward A. Sarkisian, Romaine E. Harper and Donald C. Lieb for Respondents.
COUGHLIN, J.—Petitioners seek annulment of a workmen’s compensation award in favor of four minor children on account of the industrially caused death of their mother. The award was made by the Industrial Accident Commission, now known as the Workmen’s Compensation Appeals Board, which will be referred to herein as the Commission. The issue is whether at the time of injury resulting in death the children
The mother and father were divorced. Custody of the minor children was awarded the latter with the right of reasonable visitation granted the former. The custody order made no provision for support. The children lived with their father, but from time to time stayed with their mother overnight or longer.
The referee hearing the matter found the children were supported in part by their father and in part by their mother; the latter contributed $3,600 annually toward their support; and, for this reason, they were partially dependent upon her. The surviving father was not dependent upon the mother.
The evidence, under the elementary rule on review requiring acceptance of that version thereof which supports the award (Douglas Aircraft, Inc. v. Industrial Acc. Com., 47 Cal.2d 903, 905 [306 P.2d 425]), justifies the conclusion that while the mother and father were living together the mother’s income was used in part to maintain the children; the father, after separation, was able to provide them with the necessities of life, but was not able to maintain them in that standard of living to which they had been accustomed prior to separation; the mother’s contribution to their support after separation maintained them in that standard; and the amount of that contribution was as found by the referee.
Upon petition for reconsideration, the Commission, relying on the conclusive presumption prescribed by
Pertinent provisions of
By express terms of this statute, the conclusive presumption applies to children of a mother who died as a result of an industrial injury if they were living with her at the time of the injury, or if she was legally liable for their support at that time, providing their surviving father was not dependent upon their mother. (Douglas Aircraft Co. v. Industrial Acc. Com., 24 Cal.2d 340, 343 [149 P.2d 702].)
Evidence establishing facts to which the conclusive presumption of total dependency attaches as a matter of law need not show actual dependency, either total or partial, as a matter of fact. (Fireman’s Fund Indem. Co. v. Industrial Acc. Com., 24 Cal.2d 942 [149 P.2d 705]; Douglas Aircraft Co. v. Industrial Acc. Com., supra, 24 Cal.2d 340; Federal Mut. Liab. Ins. Co. v. Industrial Acc. Com., 195 Cal. 283, 289 [233 P. 335].)2
In substance,
In the ease at bench the Commission awarded compensation pursuant to
The duty of parents to support their children is prescribed statutorily by a number of sections in the Civil Code.
In 1955 California adopted the Uniform Civil Liability for Support Act which provides:
- “Every man shall support his wife, and his child; and his parent when in need” (
Civ. Code, § 242 ); - “Every woman shall support her child; and her husband and her parent when in need” (
Civ. Code, § 243 ); - A child “means a son or daughter under the age of 21 years” (
Civ. Code, § 241, subd. (d) ); - The duties thus imposed are “subject to” the provisions of sections 196, 206 and, respectively, 175 and 176 of the Civil Code (
Civ. Code, §§ 242 ,243 ); and - The child may enforce his “right to support” against the parent by action in the superior court. (
Civ. Code, § 248 .)
The act further provides: “The rights herein created are in addition to and not in substitution for any other rights.” (
Prior to adoption of the Uniform Civil Liability for Support Act, the courts of this state held it was the duty of both the father and mother to support their children (White v. White, 71 Cal.App.2d 390, 391 [163 P.2d 89]; In re Carboni, 46 Cal.App.2d 605, 613 [116 P.2d 453]; In re Keck, 100 Cal.App. 513, 514 [280 P. 387]); the duty of the father was primary (Newell v. Newell, 146 Cal.App.2d 166, 178 [303 P.2d 839]; Metson v. Metson, 56 Cal.App.2d 328, 333 [132 P.2d 513]; Fagan v. Fagan, 43 Cal.App.2d 189, 198 [110 P.2d 520]);
In 1951, by statute, a child was given the right to maintain an action “against the mother or father, or both,” to enforce their duty to provide for his support. (
The duty of a parent to support a child is not limited to furnishing the necessities of life but includes also maintenance in accord with the latter’s station in life and customary mode of living. (Bailey v. Superior Court, 215 Cal. 548, 555 [11 P.2d 865]; Newell v. Newell, supra, 146 Cal.App.2d 166, 178; Wong v. Young, 80 Cal.App.2d 391, 395 [181 P.2d 741].) A similarly stated rule applies to the determination of the issue of dependency as a matter of fact in workmen’s compensation eases. (Larsen v. Industrial Acc. Com., 34 Cal.2d 772, 774 [215 P.2d 16]; London Guar. & Acc. Co. v. Industrial Acc. Com., 203 Cal. 12, 16 [263 P. 196]; London etc. Co. v. Industrial Acc. Com., 57 Cal.App.2d 616, 619 [135 P.2d 7].)
Confusion respecting the mutuality of parental duty to support a child came about in cases where custody had been awarded to one parent with no provision for support by the other, or with a provision limiting the extent of such support. (Gen. see Federal Mut. Liab. Ins. Co. v. Industrial Acc. Com., supra, 195 Cal. 283, 286; Llewellyn Iron Works v. Industrial Acc. Com., 191 Cal. 28, 30 [214 P. 846]; Svoboda v. Superior Court, 190 Cal. 727, 728-729 [214 P. 440]; Pacific Gold Dredging Co. v. Industrial Acc. Com., supra, 184 Cal. 462, 464-465; R. Sherer & Co. v. Industrial Acc. Com., 182 Cal. 488, 490 [188 P. 798]; Lewis v. Lewis, 174 Cal. 336 [163 P. 42]; Matter of McMullin, 164 Cal. 504 [129 P. 773]; Davies v. Fisher, 34 Cal.App. 137 [166 P. 833].) However, it now is settled that where custody of a child is awarded to one parent the duty to support may be shifted or modified as between each of the parents, but not as between each parent and the child. (Federal Mut. Liab. Ins. Co. v. Industrial Acc. Com., supra, 195 Cal. 283, 287; Pacific Gold Dredging Co. v. Industrial Acc. Com., supra, 184 Cal. 462, 466; Estate of Goulart, 218 Cal.App.2d 260, 263 [32 Cal.Rptr. 229, 6 A.L.R.3d 1380]; Watkins v. Clemmer, 129 Cal.App. 567, 576 [19 P.2d 303]; Southern Cal. Edison Co. v. Industrial Acc. Com., supra, 92 Cal.App. 355, 358; see also Svoboda v. Superior Court, supra, 190 Cal. 727, 728.)
One source of confusion was
The rights and obligations defined in this code section are subject to the limitations contained in Civil Code, sections 137.2 and 139 authorizing the court, in custody proceedings, to order either parent to support the child. Where custody of a child is awarded to the mother, the effect of section 196, as between the parents, absent any decree of court directing otherwise, is to shift the primary duty to support from the father to the mother, but as between the father and the child it does not absolve the former from the duty to support the latter. (Federal Mut. Liab. Ins. Co. v. Industrial Acc. Com., supra, 195 Cal. 283, 289; Pacific Gold Dredging Co. v. Industrial Acc. Com., supra, 184 Cal. 462, 465; Watkins v. Clemmer, supra, 129 Cal.App. 567, 576, 577; Southern Cal. Edison Co. v. Industrial Acc. Com., supra, 92 Cal.App. 355, 358.) Where, under similar circumstances, custody is given the father, as between the father and mother the duty of the former to support continues to be primary and that of the latter continues to be secondary. In either event, however, as between the parents and the child neither of the former is absolved of the duty to support the latter. (Ibid.)
In 1924, which was prior to adoption of the Uniform Civil Liability for Support Act and of
This decision supports the position that the secondary duty of a mother to support her child per se is not the legal liability to support authorizing invocation of the total dependency presumption. On the other hand, the presumption has been applied in favor of a child of a deceased father whose duty to support was secondary, because custody of the child had been awarded the mother, where the father actually had been partially supporting or had been ordered to partially support the child. (Federal Mut. Liab. Ins. Co. v. Industrial Acc. Com., supra, 195 Cal. 283; Pacific Gold Dredging Co. v. Industrial Acc. Com., supra, 184 Cal. 462.)
The total dependency presumption of
In the case at bench the evidence supports the conclusion that the secondary duty of the mother to support her children was activated by their need for support in addition to
No doubt about the mother’s legal liability would exist if, in the custody proceedings, pursuant to the provisions of Civil Code, sections 139 and 196, the court had ordered her to pay a designated amount toward the support of her children. The fact she honored her legal obligation voluntarily, rather than requiring its enforcement by court order, does not contradict its existence. (See Llewellyn Iron Works v. Industrial Acc. Com., supra, 191 Cal. 28, 32-33; Pacific Gold Dredging Co. v. Industrial Acc. Com., supra, 184 Cal. 462, 464, 467, 468.)
Similarly, the fact the father of the children was contributing to their support and the legal liability of the mother was for partial rather than total support, does not foreclose application of the total dependency presumption. (Federal Mut. Liab. Ins. Co. v. Industrial Acc. Com., supra, 195 Cal. 283, 290.) This conclusion conforms to the “social policy” expressed by the provision of
It is of no concern to a determination of the issue in this ease whether the legal liability of the mother was predicated upon her specific duty to support prescribed by
The award is affirmed.
Brown, P. J., concurred.
The respondent Commission denies such distinction in granting a petition for reconsideration of a referee’s award based upon a finding of partial dependency. In making its award based upon a finding of total dependency, the Commission stated: “Labor Code Section 3501 (b) does not require that liability for support be primary; it merely requires legal liability.
“Both parents have a duty to support their minor children regardless of which one has custody under a divorce decree.”
If the award finds its only justification in the quoted language of the Commission, it has its theoretical base in the postulate that each parent of a child under 18 years of age is “the parent . . . legally liable” for the maintenance of such child within the meaning of
The evidence is clear that the four children of the deceased mother were not totally dependent upon her in fact1 and that none of the children was living with the deceased mother at the time of the injury. The finding of total dependency therefore can be based only upon that part of section 3501, subdivi-
The applicability of that presumption, under the factual situation here involved, must depend upon one of the following propositions: (A) Every mother of a minor child is at all times and in all circumstances the parent “legally liable” for the maintenance of such child within the meaning of section 3501, subdivision (b); or (B) a mother not otherwise legally liable for the support of her minor child becomes so liable by making gifts to the child if the responsible father considers himself unable financially to make such gifts.
PROPOSITION (A) CONSIDERED
This proposition is false unless the obligation of a mother to support her minor child is equal and coextensive with the father’s obligation.
Fox v. Industrial Acc. Com., 194 Cal. 173 [228 P. 38], held squarely that the mother of children under the age of 18 years was not legally liable for their support, although she was entitled to their custody equally with their surviving nondependent father with whom she had been living. The court said, at page 182: “It having been held that the deceased parent was not legally liable for the maintenance of the minors, within the meaning of section 14 (a) (2), it is clear that the conclusive presumption of total dependency does not apply.”2
In other cases, the Supreme Court has failed to find that an employed mother was legally liable for support of her children living with her and their surviving nondependent father, although the mother’s earnings were pooled with those of her husband for the support of the family because the father’s salary was insufficient. (Douglas Aircraft Co. v. Industrial Acc. Com., 24 Cal.2d 340 [149 P.2d 702]; Fireman’s Fund Indem. Co. v. Industrial Acc. Com., 24 Cal.2d 942 [149 P.2d 705].) In Douglas, the court said, at page 343: “Whether or not she was liable for their support is of no consequence; the Legislature has stated that the conclusive presumption applies under either of the conditions mentioned.”
His duty is measured by the scope of the penal statute imposing sanctions for its violation. “Since the recasting of section 270 of the Penal Code by the act of 1923 (Stats. 1923, p. 592), the failure of a father to provide necessary support and maintenance for his minor child has been a criminal offense. This is true regardless of agreements, property settlements, decree of divorce or decrees respecting custody or maintenance of the minor, affecting the husband and wife. All doubt or confusion on this subject has also been settled by recent decisions of this court. (Federal Mut. etc. Co. v. Industrial Acc. Com., 195 Cal. 283 [233 P. 335]; Southern Cal. Edison Co. v. Industrial Acc. Com., 92 Cal.App. 355 [268 P. 415].)” (Dixon v. Dixon (1932), 216 Cal. 440, 442 [14 P.2d 497].)3
The father’s obligation is: “. . . unaffected by either the interlocutory or final decree and may be enforced by a proper proceeding.’ (Bernard v. Bernard (1947) 79 Cal.App.2d 353, 358 [179 P.2d 625].) That the children are in the custody of the mother under court order does not relieve the father of the support obligation, even though section 196, Civil Code, provides, in part, that the parent entitled to the custody of a
The view that every mother is legally liable for the maintenance of her children within the meaning of section 3501, Labor Code, makes meaningless much of the language of subdivision (b). If that had been the intention of the Legislature, it being clear that every father is legally liable for the support of his child within the meaning of the statute, all that the Legislature need say would be: “The following shall be conclusively presumed to be wholly dependent for support upon a deceased employee: . . . (b) A child under the age of 18 years if the child had no surviving parent dependent upon the deceased employee.”
It is argued, however, that the adoption of
It is also urged that the amendments of
“The provisions of this section are applicable whether the parents of such child are married or divorced, and regardless of any decree made in any divorce action relative to alimony or to the support of the child.”
The 1923 amendment, so far as pertinent here, made it express that the mother‘s obligation arose only in case of the father’s inability to furnish support, which had not been explicit in the original statute.
In adopting
Failure to make changes in a given statute in a particular respect when the subject is before the Legislature and changes are made in other respects is indicative of an intention to leave the law unchanged in that respect. (Williams v. Industrial Acc. Com., supra, 64 Cal.2d 618, 620.)
Additionally, notwithstanding the adoption in 1955 of
It is not reasonable to conclude, therefore, that either the adoption of
PROPOSITION (B) CONSIDERED
The argument in support of Proposition (B) may be encapsulated as follows:
There was a partial dependency as a matter of fact because of the mother’s unrequested, unordered and voluntary contributions; such contributions created a need for their continuance that made the support furnished by the father inadequate and brought the case within the proviso of
In Fox v. Industrial Acc. Com., supra, 194 Cal. 173, the court declared that the deceased mother did not by voluntary contribution to the support of the minor children become liable for their maintenance; and it remanded the matter to the Commission to make a finding of fact as to the existence and extent of partial dependency.
Dependency, either total or partial, is the test for an award of a death benefit.
Total dependency as a matter of law exists in those cases where a presumption arises under section 3501 that a spouse or child is wholly dependent upon a deceased employee. Both partial dependency and total dependency may exist as a matter of fact.4
Dependency may exist in fact without there having been any legal obligation upon the injured person to furnish support to the dependent.5
Dependency does not mean absolute dependency for the necessities of life; it is sufficient that contributions of the workman are looked to for support in the maintenance of the dependent’s accustomed mode of living. (London Guar. & Acc. Co. v. Industrial Acc. Com., 203 Cal. 12 [263 P. 196]; London Guar. etc. Co. v. Industrial Acc. Com., 57 Cal.App.2d 616 [135 P.2d 7]; Larsen v. Industrial Acc. Com., 34 Cal.2d 772 [215 P.2d 16].)
The fact that the deceased employee has furnished the necessities of life and the person held dependent has supplied only what might be termed luxuries creates a partial, rather than a total, dependency in fact. In such situation it is immaterial
A finding of partial dependency may be based upon the furnishing of nonnecessaries, is not necessarily related to any legal liability to support, and does not itself give rise to a legal obligation that does not exist otherwise. It is not logical, therefore, that the presumption of total dependency declared by section 3501, subdivision (b), should arise because of partial dependency in fact based only upon voluntary contributions to children whose father was discharging his legal obligation to support them, who was entitled to their custody and with whom they were living.
Did An Enforceable Obligation Exist Against The Mother For Support?
It is difficult to see how that might be. Her legal obligation would arise, apart from agreement or court order, when one of the conditions mentioned in
An enforceable obligation, if any, under
The divorce court awarded custody of the children to the father upon his complaint. It may be inferred that he did not ask that the defendant mother furnish any support to the children, or, alternatively, that if he had so prayed, the court found against him.
However, the court, having assumed jurisdiction over the custody of the children, had a continuing jurisdiction over such custody under
The jurisdiction of the court that awarded the custody is exclusive with regard to custody and support. (Lewis v. Lewis, 174 Cal. 336; von Beroldingen v. von Beroldingen (1962), 210 Cal.App.2d 1 [26 Cal.Rptr. 202].)
It follows that only the divorce court could have made an order that the mother pay an amount certain for child support after a hearing in which she would have had an opportunity to
In Fox v. Industrial Accident Com., supra, 194 Cal. 173, the court said, at page 181: “A situation is conceivable in which the husband and wife might be . . . both contributing to the support of the minor children in the manner described above, where by some judicial proceeding and decree, or by a contract between the parties, the mother has made herself legally liable for the support of the minor children . . .”
Neither by agreement nor decree had the mother been obligated to support the children. Had she been legally obligated, that obligation could be discharged only by making payments to the parent having custody whose right and duty it would be to apportion available means among the children and for such necessaries and amenities as he deemed for their best interests. In the case at bench, the evidence shows that of the mother’s gifts between 81 and 82 percent went to the two girls; less than 19 percent to the two boys.
But the reasoning that upholds the Commission’s award logically permits a holding that any divorced mother of children whose custody has been awarded to their father becomes legally liable for their maintenance within the meaning of section 3501, subdivision (b) merely by making gifts to them which the father considers himself financially unable to make; and thereby incurs an enforceable obligation.
Partial Dependency and Attorney’s Fees
If the award had been annulled, the court of appeal properly would have passed upon the finding of the referee that there was partial dependency. That finding under the law may be sustained. Petitioners dispute the amount of the contribution made by the mother, claiming that her earnings and her own living expenses could not have permitted the claimed contribution, citing as authority Sada v. Industrial Acc. Com., 11 Cal.2d 263, 269 [78 P.2d 1127].)
The referee’s original award of attorney’s fees was increased by the respondent Commission in view of the fact that the referee’s award was augmented by the efforts of the attorney. Had the Commission’s award been annulled by the court of appeal, that matter also would properly have been subject to review.
The theory is possible that the amount of the insurance premium having taken account of the risk of paying a death benefit, such benefit therefore should be paid whenever there are minor children and no dependent parent. It is for the Legislature to make such a policy rather than for the respondent Commission to do so by the nullification of existing law.
I would annul the award.