Putvain v. Industrial Com'n of Arizona

• Decision Date: 19 March 1984
• Docket Number: No. 17207-PR,17207-PR
• Citation: 140 Ariz. 138,680 P.2d 1199
• Parties: Bert A. PUTVAIN (Deceased); Heidi F. Putvain (Alleged Widow); Bert A. Putvain, Jr., a minor; Jason G. Putvain, a minor; Aaron H. Putvain, a minor; Individually and by their Guardian Ad Litem, Heidi F. Putvain; Tammy Lee Putvain, a minor; Individually and by her Guardian Ad Litem, Sharon Putvain Hall, Petitioners, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, National Metals, Respondent Employer, Transportation Insurance Company, c/o Insurance From CNA, Respondent Carrier.
• Court: Arizona Supreme Court

Page 1199

680 P.2d 1199

140 Ariz. 138

Bert A. PUTVAIN (Deceased); Heidi F. Putvain (Alleged Widow); Bert A. Putvain, Jr., a minor; Jason G. Putvain, a minor; Aaron H. Putvain, a minor; Individually and by their Guardian Ad Litem, Heidi F. Putvain; Tammy Lee Putvain, a minor; Individually and by her Guardian Ad Litem, Sharon Putvain Hall, Petitioners, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent National Metals, Respondent Employer Transportation Insurance Company, c/o Insurance From CNA, Respondent Carrier.

No. 17207-PR.

Supreme Court of Arizona In Banc.

March 19, 1984.

Alston, Edwards & Novak, P.C. by Cecil A. Edwards, Jr., Phoenix, for petitioner Heidi F. Putvain.

James A. Overholt, Chief Counsel, The Industrial Commission of Arizona, Phoenix, for respondent.

Jennings, Strouss & Salmon by Steven C. Lester and Ronald H. Moore, Phoenix, for respondents Employer and Carrier.

CAMERON, Justice.

We granted Heidi F. Putvain's petition for review of a decision of the Arizona Court of Appeals, Division One, affirming the denial of her request for widow's benefits under the Workmen's Compensation Act, A.R.S. § 23-1064. Putvain v. Industrial Commission, 138 Ariz. ---, 680 P.2d 1214 (App.1983). We have jurisdiction pursuant to Ariz. Const. Art. 6, § 5, and Rule 23, Arizona Rules of Civil Appellate Procedure, 17A A.R.S.

We must decide the following issue:

Did petitioner voluntarily abandon her husband prior to his death as defined under A.R.S. § 23-1064(A)(1)?

The facts necessary for a resolution of this issue follow. Petitioner and her deceased husband were married in Vermont in 1973 and lived together as husband and wife until August, 1979. At that time, the couple had an argument concerning decedent's alleged infidelity. As a result, decedent left the couple's home and instituted a divorce action in Vermont which he did not actively pursue. Petitioner countersued for divorce. At the hearing before the administrative law judge, petitioner testified:

Q Is there any reason why you went ahead and countersued for divorce?

A Well, I found out that he was living with someone, and [my attorney] said that would be the easiest way [we] could do it. I think it was after he came to Arizona.

* * *

* * *

Q Is there any reason why in the final divorce decree no provision was made for alimony?

A No. He just said he would never pay child support, so I figured there was no sense in even trying to get alimony or anything. Decedent moved to Arizona. On 2 July 1980 in Vermont petitioner's counterclaim for divorce was granted and a nisi decree entered, to become final on 30 September 1980. Decedent's death on 5 September 1980 was caused by electrocution while working for National Metals. A claim for death benefits was filed 28 November 1980 on behalf of petitioner and her three minor sons. The administrative law judge awarded benefits to the minor children but denied petitioner's claim for widow's benefits. Although the administrative law judge found that the parties were married at the time of the husband's death, and that the applicant was the "wife" of the deceased pursuant to A.R.S. § 23-1064(A)(1), the judge further found that:

8. * * * in substance, although it was the deceased who initially actually physically left the marital abode in August of 1979, it is clear from the argument precipitating said leaving, the applicant Heidi had "had it" with the marital relationship and her course of conduct, both factually (by not attempting reconciliation, etc.) and by legal proceedings (regardless of the "technical status" thereof), demonstrated by fact, and the only reasonable inferences to be drawn therefrom, an abandonment of her husband, the deceased, and the marital relationship involved as of September 5, 1980; * * * that the applicant Heidi F. Putvain having, therefore, factually/legally abandoned the deceased as of the subject injury/demise date, she is not entitled to the conclusive presumption of dependency as a "wife" pursuant to the provisions of A.R.S. § 23-1064 A (1).

The relevant portion of the statute in question states:

The following persons are conclusively presumed to be totally dependent for support upon a deceased employee:

A wife upon a husband whom she has not voluntarily abandoned at the time of the injury.

A.R.S. § 23-1064(A)(1).

The Court of Appeals upheld the administrative law judge's award, holding first that "abandonment under A.R.S. § 23-1064(A)(1) must be determined at the time of injury rather than the time of separation." Putvain v. Industrial Commission, 139 Ariz. ---, ---, 680 P.2d 1214, 1216 (App.1983). Second, the court held that " 'abandonment' under A.R.S. § 23-1064(A)(1) is not equivalent to 'desertion' under the old domestic relations code," and third that abandonment depended upon "the state of mind of the abandoning spouse, that is, a state of mind incompatible with a desire to continue the marriage relationship * * *." Id. at ---, 680 P.2d at 1216. The Court of Appeals then upheld the administrative law judge's finding that the petitioner had abandoned her husband at the time of death.

We agree with the administrative law judge and the Court of Appeals that the status of the parties must be determined at the time of the accident, Clark v. Industrial Commission, 10 Ariz.App. 486, 489, 460 P.2d 22, 25 (1969), and that the parties were still married at the time of the accident. See White v. White, 83 Ariz. 305, 309, 320 P.2d 702, 704-05 (1958) (Colorado interlocutory divorce decree did not terminate marriage relationship until six months had elapsed); Holder v. Industrial Commission of Arizona, 125 Ariz. 366, 369, 609 P.2d 1066, 1069 (App.1980); 2 Restatement of Conflict of Laws 2d, § 285, at 251 (1971). Under Vermont law, death before a divorce decree becomes final terminates the action for divorce. See Vt.Stat.Ann. tit. 15, § 554. "It is well settled that nisi divorce decrees do not dissolve the marriages, and that the death of either party before it becomes absolute, abates the suit and it has no effect on the marital status." In Re Hanrahan's Will, 109 Vt. 108, 128, 194 A. 471, 481 (1937).

We do not agree, however, that the evidence reasonably supports the finding by the administrative law judge that "the only reasonable inference to be drawn" from the evidence is that the petitioner abandoned her husband prior to the injury. First, we believe that the meaning of abandonment in our workmen's compensation code is the same as the meaning of desertion in our previous domestic relations code. Thus, we disagree with the statement by the Court of Appeals that because "Arizona had repealed its domestic relations law relative to desertion as a ground for divorce * * * 'abandon' as it appears in A.R.S. § 23-1064 stands alone." Putvain, supra, at ---, 680 P.2d at 1216. We believe that unless it affirmatively appears to the contrary, legislative intent is determined at the time the legislature acts. The fact that a parallel statute is later repealed does not relate back to negate the intent of the legislature at the time the remaining statute was first enacted. In the instant case we believe that abandonment as used in the workmen's compensation statute, and desertion as used in our domestic relations code at the time the workmen's compensation code first used the word abandonment, have the same meaning. See 2 Larson, Workmen's Compensation Law, § 62.00 (1982). This interpretation complies with the rule that "[q]uestions affecting relationship, such as * * * obligation to support, are determined by the usual statutory and decisional domestic relations law of the jurisdiction, * * *." Id. See also Cl...