Lauderdale v. Hydro Conduit Corp.
| Decision Date | 28 September 1976 |
| Docket Number | No. 2503,2503 |
| Citation | 555 P.2d 700,1976 NMCA 95,89 N.M. 579 |
| Parties | Pat LAUDERDALE, mother and next friend of Salome Ramon Leyba, Corina Leyba, and Connie Ramona Leyba, minor dependent children of Ramon Leyba, Deceased, Plaintiff-Appellee, v. HYORD CONDUIT CORPORATION, Employer, Self-Insured, Defendant-Appellee, v. Francies B. LEYBA, Plaintiff-in-Intervention-Appellant. Nellie LEYBA, Plaintiff-Appellant, v. HYDRO CONDUIT CORPORATION, a Self-Insurer, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
The dispositive issues in this workmen's compensation case are: (1) whether wife No. 3 was entitled to compensation; (2) whether wife No. 1 was entitled to compensation; and (3) attorney fees on appeal. We hold that neither wife was entitled to compensation; accordingly, we do not reach the question of how compensation should be apportioned between a wife and children of another woman.
Leyba was killed in a compensable accident. Pat, the mother of the three minor children and allegedly wife No. 2, sought workmen's compensation benefits on behalf of the children. Pat did not claim compensation benefits on the basis of being a widow. Francies, wife No. 3, intervened in the action brought by Pat. Francies sought compensation benefits as a widow. Nellie, wife No. 1, filed a separate action seeking compensation benfits as a widow. The cases were consolidated. The trial court's decision was that neither Francies not Nellie were entitled to compensation benefits. The trial court awarded compensation to the children of Leyba and Pat. Francies and Nellie appeal.
Leyba married Nellie in November, 1952. He lived with her until May, 1959 at which time they separated. The record indicates an allegedly common law marriage between Leyba and Pat in 1960 or 1961, and an Oklahoma divorce decree in October, 1968. Leyba married Francies in Fort Worth, Texas in August, 1969. Francies was living with, and dependent upon, Leyba at the time of his death in October, 1973.
Leyba and Francies were separated for approximately three months in the fall of 1972. For a portion of this time, Nellie again lived with Leyba.
No one claims, in the appeal, that the children were not entitled to compensation benefits. Both Francies and Nellie claim benefits on the basis of § 59--10--12.10(B), N.M.S.A., 1953 which reads:
'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.'
Under Panzer v. Panzer, 87 N.M. 29, 528 P.2d 888 (1974), Leyba's marriage to Francies, being later in point of time, is presumed to be valid. Nellie, attacking the validity of Francies' marriage, had the burden of proving the invalidity. To meet this burden, Nellie had to prove her prior marriage, and that the marriage had not been dissolved by death or divorce. If Nellie met this burden, Francies was not a widow and thus not entitled to compensation benefits. In Re Reichert, 95 Idaho 647, 516 P.2d 704 (1973); Peters v. Peters, 177 Kan. 100, 276 P.2d 302 (1954) and Annot., 80 A.L.R. 1428 (1932).
It is undisputed that Leyba married Nellie, Leyba also married Francies--thus, was not dead. The issue on appeal is whether there was sufficient evidence that Leyba and Nellie were never divorced.
Nellie testified that she never got a divorce. Francies cites cases from various jurisdictions to the effect that this testimony was insufficient to show no divorce. We agree. In re Jubala's Estate, 40 N.M. 312, 59 P.2d 356 (1936) quotes with approval the rule that proof of one party not having obtained a divorce is insufficient because the other party might have obtained a divorce.
The question then is whether there was sufficient evidence that Leyba did not obtain a divorce from Nellie. We review four items of evidence.
1) Francies testified that she knew Leyba had been married to Nellie and knew that Leyba had been divorced from Pat. Francies had seen the decree of divorce from Pat which Leyba kept in 'his glove compartment' (presumably of his car). There were no papers regarding a divorce from Nellie. Francies never saw any evidence of a divorce from Nellie.
2) Lila Tapia was a sister of Leyba. She rented the house that Leyba and Francies had been buying at the time of Leyba's death. She rented from Francies; Francies was a good friend. Lila knew that Leyba had married Nellie. Asked if she knew whether they were divorced, Lila replied: 'No, not that I ever heard.' There was no objection to this testimony which was admissible under Evidence Rule 803(19).
3) Nellie testified that although she lived at various places in Albuquerque after 1959, she could always be reached through her mother. Leyba knew where the mother lived and was in occasional contact with Nellie's mother after 1959. Nellie testified that she was never served with any divorce papers.
4) Nellie testified that during the time she lived with Leyba in 1972, he asked her if she had gotten a divorce and she said she had not. Nellie also testified that Leyba told her that he had not obtained a divorce. Francies objected to testimony as to what Leyba had said on the grounds that it was impermissible heresay. This testimony was properly admitted. Leyba was dead and therefore unavailable as a witness. Evidence Rule 804(a)(4). A statement concerning the declarant's own divorce is not excluded by the hearsay rule if the declarant is unavailable. Evidence Rule 804(b)(5).
The foregoing items amount to substantial evidence that Leyba did not obtain a divorce from Nellie. The items support the trial court's finding that Leyba did not have the capacity to marry Francies in August, 1969; that Francies was not Leyba's widow; and the trial court's conclusion that Nellie overcame the presumption favoring the marriage of Leyba and Francies. Panzer v. Panzer, supra. Viewing the foregoing items in the light most favorable to support the trial court decision, the trial court could properly have determined that the evidence was clear and convincing that Leyba and Nellie were never divorced. Panzer v. Panzer, supra; Duke City Lumber Company, In., v. Terrel, 88 N.M. 299, 540 P.2d 229 (1975).
Denial of compensation benefits to Francies is affirmed.
Pat never claimed compensation benefits as a widow; there was no issue at trial concerning her purported common law marriage to Leyba. No claim is made on appeal that Leyba's relationship with Pat affected Neilie's status as the legal widow of Leyba.
Although Nellie was the widow of Leyba, she was not living with him at the time of his death. Nellie claims compensation benefits on the basis that she was legally entitled to be supported by him. Section 59--10--12.10, supra. The trial court found that she was not entitled to support; the issue is the propriety of this finding.
Prior compensation decisions do not provide the answer because the issue in those decisions was dependency of the widow rather than entitlement to support. Houston v. Lovington Storage Company, 75 N.M. 60, 400 P.2d 476 (1965); Merrill v. Penasco Lumber Co., 27 N.M. 632, 204 P. 72 (1922); Compare, Tocci v. Albuquerque & Cerrillos Coal Co., 45 N.M. 133, 122 P.2d 515 (1941). The requirement that the widow be actually dependent was removed by Laws 1965, ch. 295. Compare, § 59--10--12.10, supra, with § 59--10--12(j), N.M.S.A.1953 .
Nellie claims that she was legally entitled to support because she was the lawful wife of Leyba. See § 57--2--1, N.M.S.A.1953 (Repl. Vol. 8, pt. 2) which provides that husband and wife contract the obligation of mutual support. Kuert v. Kuert, 60 N.M. 432, 292 P.2d 115 (1956). See also, Merrill v. Penasco Lumber Co., supra, which refers to 'the existence of a marriage with consequent liability to support'.
Marriage with a consequent liability for support does not provide the answer because the right to support may not exist under the facts of a particular case. Numerous decisions in other jurisdictions have considered the right of a spouse to be supported. Where the spouses have separated, consideration has been given to the cause of the separation; the inquiry most often centered on which spouse was at 'fault' for the separation. 3 Nelson, Divorce and Annulment (2nd Ed.) §§ 32.09, 32.11, 32.13, 32.16, 32.17, 32.19--32.22; Annot., 10 A.L.R.2d 466 (1950).
In New Mexico we are not concerned with 'fault' of the spouse in determining a right to support. Where husband and wife have permanently separated, either may institute proceedings for alimony. Section 22--7--2, N.M.S.A.1953 (Supp. 1975). An award of alimony is not dependent on the fault of a spouse. Fitzgerald v. Fitzgerald, 70 N.M. 11, 369 P.2d 398 (1962); Redman v. Redman, 64 N.M. 339, 328 P.2d 595 (1958); Cassan v. Cassan, 27 N.M. 256, 199 P. 1010 (1921). Alimony is a 'substitute for, and in lieu of, the common law or statutory right to marital support during coverture.' Chavez v. Chavez, 82 N.M. 624, 485 P.2d 735 (1971). Alimony 'is a continuation of the right to support.' Burnside v. Burnside, 85 N.M. 517, 514 P.2d 36 (1973).
Alimony, as a continuation of or a substitute for the right to support is not an absolute right; rather, it is a personal right. Burnside v. Burnside, supra. Accordingly, Nellie's right to support from Leyba was personal and not absolute.
The authority of a court to award alimony (or support) under § 22--7--2, supra, is an equitable power. Ex parte Sedillo, 34 N.M. 98,...
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