Copple v. Bowlin

• Decision Date: 30 June 1961
• Docket Number: No. 35025,35025
• Citation: 110 N.W.2d 117,172 Neb. 467
• Court: Nebraska Supreme Court
• Parties: William O. COPPLE and Hartford Accident & Indemnity Company, a corporation, appellees-cross-appellees, v. Elinor BOWLIN, cross-appellant, David Cecil Bowlin, a minor, cross-appellee, Sharon Lee Campbell, a minor, cross-appellant, Caralyn K. Campbell, a minor, cross-appellee, Esther Bowlin, cross-appellee, appellees. Impleaded with Ronnie Bowlin, a minor by C. Russell Mattson, Guardian ad litem, appellant-cross-appellee.

Page 117

110 N.W.2d 117

172 Neb. 467

William O. COPPLE and Hartford Accident & Indemnity Company, a corporation, appellees-cross-appellees, v. Elinor BOWLIN, cross-appellant, David Cecil Bowlin, a minor, cross-appellee, Sharon Lee Campbell, a minor, cross-appellant, Caralyn K. Campbell, a minor, cross-appellee, Esther Bowlin, cross-appellee, appellees Impleaded with Ronnie Bowlin, a minor by C. Russell Mattson, Guardian ad litem, appellant-cross-appellee.

No. 35025.

Supreme Court of Nebraska.

June 30, 1961.

Syllabus by the Court

1. A decree of divorce does not become operative until 6 months after its rendition. During such 6-months' period the bonds of matrimony between the parties are not dissolved.

2. A marriage contract between a man and a woman, one of whom is married, is contrary to public policy, illegal, and void.

3. In determining if the 6-months' period has elapsed, the rule is to exclude the first day and include the whole of the last day in said period.

4. Under section 48-124, R.R.S.1943, a child living in the home and dependent upon the deceased employee, who is not a child, adopted child, or stepchild of the deceased, does not qualify as a beneficiary of death benefits under the Workmen's Compensation Act.

5. A son of a deceased employee by a former marriage who resides with his mother under an order of court granting his custody to her is not constructively living with his father, even though the father contributes to his support.

6. Where a deceased father, pursuant to court order, contributed $30 per month to the support of a child residing with a former wife, and the evidence shows that such amount only partially supported the child, such child is a partial dependent under section 48-124, R.R.S.1943.

7. Where a question of dependency is involved under section 48-124, R.R.S.1943, and there is no question of heirship or right of inheritance, paternity may be established as provided by section 13-109, R.R.S.1943.

8. Where a child is wholly dependent upon a deceased father, he takes the death benefits accruing under the Workmen's Compensation Act to the exclusion of partial dependents by the express provisions of section 48-124, R.R.S.1943.

9. Where a determination of paternity is a necessary incident to the determination of dependency under section 48-124, R.R.S.1943, the workmen's compensation court has power and authority to make such determination.

10. The circumstances of each case are to be considered in determining to whom the fees of guardians ad litem are to be taxed, or from what source they are to be paid. Considerations of justice and equity are the controlling factors.

C. Russell Mattson, Kenneth Cobb, Lincoln, for appellant.

Cline, Williams, Wright, Johnson, Old-father & Thompson, Lincoln, for copple.

Marti, O'Gara, Dalton & Sheldon, Justin C. Tallman, Joseph Ginsburg, Lincoln, for Elinor Bowlin and others.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

CARTER, Justice.

This is a workmen's compensation case brought by the employer and his insurance carrier to determine the dependents entitled to the benefits resulting from an employee's death arising out of and in the course of his employment. The trial court held that the minor defendant David Cecil Bowlin was entitled to recover all the benefits provided by the Nebraska Workmen's Compensation Act resulting from the death of his father Cecil Bowlin. An appeal to this court was taken by the minor defendant Ronnie Bowlin.

Cecil Bowlin was employed by William O. Copple to manage a service station in Lincoln. He received weekly earnings of $85 per week. The Hartford Accident and Indemnity Company is the workmen's compensation insurance carrier for Copple. On April 24, 1959, Cecil Bowlin was accidentally killed in an accident arising out of and in the course of his employment. The employer and the insurance company admit liability for compensation benefits for 325 weeks at $34 per week and a burial benefit of $350. All hospital and medical benefits were paid by the insurance carrier before the commencement of this action. The plaintiffs admit complete liability but desire a judgment determining to whom such benefits are to be paid.

The issue to be determined grows out of the following facts: The deceased married the defendant Esther Bowlin on June 15, 1945. To this marriage one child, Ronnie, was born. Ronnie was 11 years of age at the time of trial and has lived wih his mother since her divorce from Cecil Bowlin on February 21, 1950. This decree of divorce provided that Cecil Bowlin should pay $30 per month for the support of Ronnie. The amount that should have been paid at the time of the death of Cecil Bowlin was $3,330. The sum of $1,889 had actually been paid thereon. On December 18, 1952, Cecil Bowlin entered into a ceremonial marriage with Elinor Campbell at Nebraska City, Nebraska. To this purported marriage one son, David Cecil Bowlin, was born. David Cecil Bowlin was 6 years of age at the time of trial. He has lived in the home of Cecil and Elinor Bowlin since their ceremonial marriage and was living there at the time of Cecil Bowlin's death on April 24, 1959.

The defendant Elinor Bowlin was married to Arthur L. Campbell prior to her marriage to Cecil Bowlin. The minor defendants Caralyn Kay Campbell and Sharon Lee Campbell were born to this marriage. At the time of trial they were 17 and 12 years of age. On June 18, 1952, Elinor and Arthur L. Campbell were divorced by decree of the district court. Elinor thereafter, as we have hereinbefore stated, entered into a ceremonial marriage with Cecil Bowlin on December 18, 1952. Thereafter Sharon Lee Campbell lived with and was wholly supported by Cecil Bowlin until his death. Caralyn Kay lived with her maternal grandparents and was wholly cared for by them.

Death benefits under the Workmen's Compensation Act are fixed by section 48-122, R.S.Supp., 1957. Dependents entitled to such benefits are fixed by section 48-124, R.R.S.1943. The latter section provides in part as follows: 'The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee: (1) A wife upon a husband with whom she is living at the time of his death; * * * and (3) a child or children under the age of eighteen years, * * * upon the parent with whom he is * * * living at the time of death of such parent, there being no surviving parent entitled to compensation; * * *. The terms child and children shall include stepchildren and adopted children if members of the deceased's household at the time of his death, * * *. In all other cases, questions of dependency, in whole or in part, shall be determined in accordance with the fact, as the fact may be at the time of the injury; and in such other cases, if there is more than one person wholly dependent, the death benefit shall be divided equally among them, and persons partly dependent, if any, shall receive no part thereof. If there is no one wholly dependent and more than one person partly dependent, the death benefit shall be divided among them according to the relative extent of their dependency.'

Elinor Bowlin claims that she is entitled to the death benefits as the widow of the deceased. The issue as to Elinor Bowlin is whether or not she was the wife of the deceased at the time of his death. The record shows that Elinor Bowlin was granted a decree of divorce from Arthur L. Campbell on June 18, 1952. This decree was not effective until December 19, 1952. S. 42-340, R.R.S.1943. It is clear that Elinor Bowlin was not free to enter into a marriage until 6 months after the date of her divorce from Arthur L. Campbell. Where a certain period must elapse before a divorce becomes final, in determining whether or not such period has elapsed, the rule is to exclude the first day and include the whole of the last day in said period. Garrett v. State, 118 Neb. 373, 224 N.W. 860. The evidence shows that the ceremonial marriage between Elinor Bowlin and the deceased was entered into in the utmost good faith. This is not, however, a matter that can be advanced to sustain the marriage. The statute is one of legislative policy involving a subject over which it has complete control. The wisdom of the legislation is for the Legislature, with which this court has no right to interfere. We necessarily conclude that Elinor Bowlin was the wife of Arthur L. Campbell at the time of her purported marriage to the deceased. As a result, her marriage to the deceased was wholly void and she was not the wife of Cecil Bowlin at the time of his death. Scott v. Scott, 153 Neb. 906, 46 N.W.2d 627, 23 A.L.R.2d 1431. She is not therefore a beneficiary of the deceased under the Workmen's Compensation Act. We necessarily hold, also, that Caralyn Kay Campbell and Sharon Lee Campbell were not stepchildren of Cecil Bowlin at the time of his decease.

The evidence shows that Caralyn Kay Campbell after the marriage of her mother, Elinor Bowlin, to Cecil Bowlin lived with and was wholly maintained by her maternal grandparents. She was not a dependent within the meaning of the Workmen's Compensation Act. The evidence shows that Sharon Lee Compbell lived in the household of the deceased from the time of his marriage to Elinor Bowlin, her mother, until his death. She was totally dependent upon the deceased for her support during this 7-year period. The holding that the marriage of her mother to the deceased was void eliminates her status as a stepchild of the deceased. Not being a natural child, adopted child, or stepchild of the deceased, she has no standing as a dependent as defined by section 48-124, R.R.S.1943.

It is the contention of the defendant Ronnie Bowlin that he is a beneficiary as a son of the deceased, who has been wholly dependent upon his deceased father for support. It is first contended that he was constructively 'living' with his father at the time of the latter's...