Ryan-Walsh Stevedoring Co., Inc. v. Trainer

• Decision Date: 10 September 1979
• Docket Number: RYAN-WALSH,No. 78-1719,78-1719
• Citation: 601 F.2d 1306
• Parties: STEVEDORING CO., INC. and Employers National Insurance Company, Petitioners, v. Doristine TRAINER, Gwendolyn Brown, and Director, Office of Workers' Compensation Programs, U. S. Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1306

601 F.2d 1306

RYAN-WALSH STEVEDORING CO., INC. and Employers National

Insurance Company, Petitioners, v. Doristine TRAINER, Gwendolyn Brown, and Director, Office of

Workers' Compensation Programs, U. S. Department

of Labor, Respondents.

No. 78-1719.

United States Court of Appeals, Fifth Circuit.

Sept. 10, 1979.

Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, W. Boyd Reeves, Mobile, Ala., for petitioners.

Thomas D. Wilcox, Nat'l Assn. of Stevedores, Washington, D. C., for Nat'l Assn. of Stevedores amicus curiae.

Simon, Wood & Gardberg, James C. Wood, J. Randall Crane, Mobile, Ala., Gilbert T. Renaut, Joshua T. Gillelan, II, Atty., U. S. Dept. of Labor, Washington, D. C., for respondents.

Petition to Set Aside an Order of the Benefits Review Board.

Before GODBOLD, SIMPSON and RONEY, Circuit Judges.

SIMPSON, Circuit Judge:

Petitioners, Ryan-Walsh Stevedoring Company, Incorporated and Employers National Insurance Company seek review of a final order entered by the Benefits Review Board ("Board") of the United States Department of Labor awarding death benefits under the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901-950 (1976), to respondents Doristine Trainer and Gwendolyn Brown. In its decision and order the Board found that Doristine Trainer and Gwendolyn Brown were the "widow" and "child", respectively, of the deceased employee, Marion Trainer, and therefore entitled to compensation under 33 U.S.C. § 909 (1976). ¹ For the reasons stated hereinafter we affirm the Board's award of benefits to Gwendolyn Brown, but vacate the award to Doristine Trainer and remand to the Board for further findings.

I. FACTS

Marion Trainer was an employee of petitioner Ryan-Walsh Stevedoring Company, Incorporated on October 10, 1975 when he sustained an injury resulting in his death on October 18, 1975. The parties stipulated that the injury and resulting death arose out of and in the course of Marion Trainer's employment. Thereafter, Doristine Trainer and Gwendolyn Brown filed claims for death benefits payable under the LHWCA. Petitioners, although stipulating generally that the claim fell under the LHWCA, asserted that benefits were not due because Doristine Trainer was not decedent's "widow" and Gwendolyn Brown was not decedent's "child" within the meaning of the act. See 33 U.S.C. §§ 902(14) ("child"), 902(16) ("widow"). Pursuant to 33 U.S.C. § 919(d) (1976), ² and according to the requirements of 5 U.S.C. §§ 554, 556, 557 (1976), the matter proceeded to a hearing before an administrative law judge ("ALJ"). We summarize the evidence adduced at this hearing as it relates to the respondents' claims.

A. Claim of Doristine Trainer

Doristine Kelker (Trainer), respondent, and Fred Wilson McCreary participated in a marriage ceremony on March 15, 1941, in Pensacola, Florida. The ceremony was performed in the home of Doristine's parents by Millard Fountain, a Purported minister. In attendance were Doristine's father, other members of her family, and several members of McCreary's family, including his mother. At the hearing before the ALJ, Doristine testified that: she went through the marriage ceremony with McCreary because she had become pregnant by him; she did not think she was actually being married because the man who performed the ceremony was not a "preacher"; she did not sign the marriage license or the application for this license; she and McCreary lived together as husband and wife for approximately one week, after which he abandoned her; she bore a child, Harriet McCreary, on July 18, 1941; she ultimately moved to Mobile, Alabama, where she met Marion Trainer; and, She never obtained a divorce from McCreary.

McCreary did not testify at the hearing, but his deposition was admitted into evidence. In his deposition McCreary testified that: he married Doristine Kelker in 1940 ; he was drunk during the marriage ceremony, which was performed by a minister whose name he could not remember; he lived with his wife Doristine for five years; he came home from work one day and found Doristine and their daughter, Harriet, were gone; he had neither seen nor been contacted by Doristine since 1945; he had never been served with any divorce papers nor received any notification that a divorce action had been filed against him.

On September 13, 1952, Doristine participated in a marriage ceremony, conducted in Leaksville, Mississippi, with decedent Marion Trainer. The marriage license, Exhibit C-3, reflects that Doristine was married under her maiden name Kelker. She and Marion Trainer lived together as husband and wife in Mobile, Alabama, from the day they participated in this marriage ceremony until Marion's death, a period covering approximately twenty-three years. During this time they purchased a house as husband and wife, had joint checking and savings accounts, filed joint federal income tax returns, and purchased two cemetery plots for themselves. According to John H. White, the Trainers' next-door neighbor for approximately sixteen years, Doristine and Marion Trainer were generally known in the community as being married.

In an attempt to explain how she could have married Marion Trainer when She had not obtained a divorce from McCreary, Doristine testified that her minister had told her that she did not have to get a divorce because McCreary was a sinner and Doristine a Christian, "and anybody who married an unbeliever husband, they did not have to get any divorce and that is why I did not get one". R. vol. II, at 1-64. Doristine also testified that her brother had told her that "if anybody left you at least seven years it was an automatic divorce from them". Id.

B. Claim of Gwendolyn Brown

Gwendolyn Brown is the daughter of Samuel Lewis Brown and Harriet McCreary, Doristine's daughter by Fred McCreary. She was born in Brooklyn, New York, on August 15, 1958. With the exception of one year, when she was in the eighth grade, Gwendolyn lived with her grandmother, Doristine, and Marion Trainer until the latter's death. During his lifetime Marion Trainer provided financial support for Gwendolyn in various forms, E. g., payment for dental expenses, food, musical instrument for the school band, automobile and gasoline and oil for this vehicle. Marion Trainer treated Gwendolyn "just like his own child": taught her how to drive, gave her an allowance, disciplined her when necessary, and took her on social visits and fishing trips with him. Gwendolyn called Marion Trainer "Daddy" and he called her "Niecey".

In 1966 Gwendolyn's natural father, Samuel Brown, died. Thereafter the Social Security Administration has paid a support allowance for Gwendolyn. This allowance started as $55 per month in 1966, and totaled $110 per month at the time the hearing was held before the ALJ.

Gwendolyn Brown is now enrolled in a college in Mobile, Alabama. She never received any financial support from either of her natural parents.

C. ALJ Decision and Order

The ALJ denied respondents' claims, finding that Doristine Trainer was not decedent's "widow" and Gwendolyn Brown not decedent's "child" within the meaning of those terms under the LHWCA. With respect to Doristine Trainer's claim, the ALJ found that the March 15, 1941 marriage ceremony between Doristine and McCreary was valid under Florida law. Additionally, the ALJ held that "the evidence presented at the hearing (was) sufficient to establish that the marriage between Doristine Delker (sic) and Fred McCreary has not been legally dissolved by divorce or otherwise". R. vol. I, at 215. He concluded, therefore, that petitioners herein had rebutted the presumption, arising under Alabama law, that Doristine's prior marriage to McCreary had ended in divorce, thereby rendering the more recent marriage to Marion Trainer invalid. Consequently, Doristine Trainer was not Marion Trainer's "widow" because she had never been his lawful wife.

With respect to Gwendolyn Brown's claim the ALJ found that Brown's primary financial support for the year immediately preceding Marion Trainer's death was furnished by monthly support allowances paid by the Social Security Administration. While conceding that "decedent furnished part of (Gwendolyn Brown's) support and treated her as a daughter during that time", the ALJ concluded that she did not qualify as a "dependent child" for death benefits from Marion Trainer because her primary financial support was based upon Social Security allowances accruing by reason of her natural father's death.

Pursuant to 33 U.S.C. § 921(b)(3) (1976), ³ the decision and order of the ALJ were appealed to the Board.

D. Board Decision

The Benefits Review Board reversed the ALJ's denial of benefits. In so doing, the Board held: (1) under "new guidelines" it was then establishing for construing the terms "widow" and "widower" as used in the LHWCA, Doristine Trainer was the widow of Marion Trainer for purposes of receiving death benefits under the Act irrespective of her marital status under state law; and (2) Gwendolyn Brown was entitled to death benefits as decedent's "surviving child" since she was a "child in relation to whom the deceased employee stood in loco parentis for at least one year prior to the time of injury".

With regard to Doristine Trainer's claim, the guidelines fashioned by the Board for construing the terms "widow" and "widower" read as follows:

(T)he Board is establishing herein new guidelines for construing "widow" and "widower" as those terms are used in the Act. Under these guidelines we need not refer to or apply the state laws of Florida or Alabama. Rather, for purpose of receiving death benefits under the Act, it shall be conclusively established that a claimant is a "widow" or "widower" if, at the time of the death of the employee, and for at least ten years prior to his or her death, the employee and the claimant had lived together in the same household and held themselves out to their relatives,...