Nunn v. Nunn

• Decision Date: 20 July 1970
• Docket Number: No. 9021,9021
• Citation: 1970 NMSC 100,473 P.2d 360,81 N.M. 746
• Parties: Martha Helen NUNN, Plaintiff-Appellant, v. Arthur Edward NUNN, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 360

473 P.2d 360

81 N.M. 746

Martha Helen NUNN, Plaintiff-Appellant, v. Arthur Edward NUNN, Defendant-Appellee.

No. 9021.

Supreme Court of New Mexico.

July 20, 1970.

Ray Hughes, Deming, for plaintiff-appellant

Dweight D. Arthur, John F. Schaber, Deming, for defendant-appellee.

OPINION

COMPTON, Chief Justice.

Samuel John Nunn, the natural son of the appellant, died in Vietnam leaving a $10,000.00 Servicemen's Group Life Insurance policy without designating a beneficiary. The codefendant below, Prudential Insurance Company, the insurer, paid one-half of the proceeds to the appellant. The other one-half of the proceeds were claimed by both the appellant and the appellee. Appellant brought this suit seeking to enjoin Prudential from paying the balance to the appellee and requiring payment to herself. Prudential paid the $5,000.00 balance into court and is not further involved in the case. The cause was tried to the court without a jury and judgment was entered in favor of the appellee and appellant filed this appeal.

Appellant assigns numerous errors in the findings of facts and the conclusions of law of the trial court. However, the parties agree that the decisive question on appeal is whether the appellee is a 'parent' within the meaning of the Servicemen's Group Life Insurance Act, 38 U.S.C. §§ 765--775. 38 U.S.C. § 770(a) lists the priority of beneficiaries who take in the event that the insured does not designate a beneficiary. The applicable portion of this section states:

'Fourth, if none of the above, to the parents of such member or former member or the survivor of them; * * *.' (Emphasis added).

The appellee was not the natural father or the adopting father of the insured. The deceased was born out of wedlock to the appellant in Arizona on February 18, 1948. The initial birth certificate of the insured showed no last name and did not indicate the name of the father. There is evidence to the effect that the whereabouts of the natural father is unknown and that he never had any connection with the appellant or the insured. Appellant and appellee were married on August 22, 1952 and in August, 1954, they obtained a delayed birth certificate for the deceased which recited that the appellee was the father of the deceased and listed the deceased's last name as Nunn. Appellant and appellee were separated on or about July 22, 1966, and were divorced on October 22, 1966. Samuel John Nunn entered the military service on September 19, 1967 and was killed in Vietnam on September 10, 1968.

Evidence presented below establishes that the appellee's relationship to the deceased was that of 'stepfather or of a person in locl parentis.' Therefore, we must determine whether a person in such relationship is included in the classification of 'parents' under the Servicemen's Group Life Insurance Act. In attempting to resolve this question, we fail to find any statutory or case law to aid us. The term is not defined in the Act nor is there any case law upon this particular point.

The Servicemen's Group Life Insurance Act is one of a series of Veteran's Insurance Programs that have been enacted beginning with the War Risk Insurance Act in World War I. The program enacted precedent to the Servicemen's Group Act was the National Service Life Insurance Act, 38 U.S.C. §§ 701--724. That particular act specifically defined the term 'parent' to include stepparents and persons in loco parentis. Then why was the term specifically defined in the one act and not in the other? We are inclined to the view that Congress in framing the National Service Act concluded that the word 'parent' was a word that did not normally include within its meaning a person in loco parentis or a stepparent and, therefore, in order to broaden the meaning of the term Congress specifically defined the term in the Act. However, in the Servicemen's Group Act, the word 'parents' was not specifically defined because only the normally accepted limited meaning of the term was intended. It is well settled the unless the contrary appears, statutory words are presumed to be used in their ordinary and usual sense and with the meaning commonly attributable to them. State v. Reinhart, 79 N.M. 36, 439 P.2d 554; State v. Martinez, 48 N.M. 232, 149 P.2d 124. The word 'parents' used in its ordinary and usual sense means one who begets or brings forth an offspring, and usually denotes consanguinity rather than affinity. Also, it commonly refers to the natural f...