{ "id": 2865518, "name": "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. HYDRO CONDUIT CORPORATION, Employer, Self-Insured, Defendant-Appellee, v. Francies B. LEYBA, Plainfiff-In-Intervention-Appellant; Nellie LEYBA, Plaintiff-Appellant, v. HYDRO CONDUIT CORPORATION, a Self-Insurer, Defendant-Appellee", "name_abbreviation": "Lauderdale ex rel. Leyba v. Hydro Conduit Corp.", "decision_date": "1976-09-28", "docket_number": "No. 2503", "first_page": "579", "last_page": "586", "citations": [ { "type": "official", "cite": "89 N.M. 579" }, { "type": "parallel", "cite": "555 P.2d 700" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "73 N.M. 371", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321793 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/73/0371-01" ] }, { "cite": "84 N.M. 683", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2765517 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/84/0683-01" ] }, { "cite": "26 A. L.R.3d 1386", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": 0 }, { "cite": "78 N.M. 781", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321842 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0781-01" ] }, { "cite": "77 N.M. 369", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2803477 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0369-01" ] }, { "cite": "1 N.M. 208", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8300695 ], "year": 1857, "opinion_index": 0, "case_paths": [ "/nm/1/0208-01" ] }, { "cite": "76 N.M. 660", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8504207 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0660-01" ] }, { "cite": "38 N.M. 164", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559049 ], "weight": 2, "year": 1934, "opinion_index": 0, "case_paths": [ "/nm/38/0164-01" ] }, { "cite": "63 N.M. 215", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2775686 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/nm/63/0215-01" ] }, { "cite": "34 N.M. 98", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1556121 ], "weight": 2, "year": 1929, "opinion_index": 0, "case_paths": [ "/nm/34/0098-01" ] }, { "cite": "85 N.M. 517", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2775281 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0517-01" ] }, { "cite": "82 N.M. 624", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333579 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0624-01" ] }, { "cite": "199 P. 1010", "category": "reporters:state_regional", "reporter": "P.", "year": 1921, "opinion_index": 0 }, { "cite": "27 N.M. 256", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841836 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/nm/27/0256-01" ] }, { "cite": "64 N.M. 339", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5345778 ], "weight": 3, "year": 1958, "opinion_index": 0, "case_paths": [ "/nm/64/0339-01" ] }, { "cite": "70 N.M. 11", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2851584 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0011-01" ] }, { "cite": "10 A.L.R.2d 466", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1950, "opinion_index": 0 }, { "cite": "60 N.M. 432", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590384 ], "weight": 2, "year": 1956, "opinion_index": 0, "case_paths": [ "/nm/60/0432-01" ] }, { "cite": "45 N.M. 133", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1565123 ], "weight": 2, "year": 1941, "opinion_index": 0, "case_paths": [ "/nm/45/0133-01" ] }, { "cite": "204 P. 72", "category": "reporters:state_regional", "reporter": "P.", "year": 1922, "opinion_index": 0 }, { "cite": "27 N.M. 632", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8843209 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/nm/27/0632-01" ] }, { "cite": "75 N. M. 60", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5377058 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/75/0060-01" ] }, { "cite": "88 N.M. 299", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2838553 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0299-01" ] }, { "cite": "40 N.M. 312", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841871 ], "weight": 2, "year": 1936, "opinion_index": 0, "case_paths": [ "/nm/40/0312-01" ] }, { "cite": "80 A.L.R. 1428", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1932, "opinion_index": 0 }, { "cite": "177 Kan. 100", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 22736 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/kan/177/0100-01" ] }, { "cite": "95 Idaho 647", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 4422451 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/idaho/95/0647-01" ] }, { "cite": "87 N. M. 29", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2830312 ], "weight": 4, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/87/0029-01" ] } ], "analysis": { "cardinality": 777, "char_count": 15837, "ocr_confidence": 0.804, "pagerank": { "raw": 1.433538233620569e-07, "percentile": 0.6517569171021168 }, "sha256": "319cb372420173e00592c9f20a69df52365d7ccaa8acd32e8c5329021cadccdf", "simhash": "1:3b8fdcf61e9ea829", "word_count": 2655 }, "last_updated": "2023-07-14T20:56:52.908635+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and LOPEZ, JJ., concur." ], "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. HYDRO CONDUIT CORPORATION, Employer, Self-Insured, Defendant-Appellee, v. Francies B. LEYBA, Plainfiff-In-Intervention-Appellant. Nellie LEYBA, Plaintiff-Appellant, v. HYDRO CONDUIT CORPORATION, a Self-Insurer, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThe dispositive issues in this workmen\u2019s 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.\nLeyba was killed in a compensable accident. Pat, the mother of the three minor children and allegedly wife No. 2, sought workmen\u2019s 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 benefits as a widow. The cases were consolidated. The trial court\u2019s decision was that neither Francies nor Nellie were entitled to compensation benefits. The trial court awarded compensation to the children of Leyba and Pat. Francies and Nellie appeal.\nLeyba 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.\nLeyba and Francies were separated for approximately three months in the fall of 1972. For a portion of this time, Nellie again lived with Leyba.\nNo one claims, in the appeal, that the children were not entitled to compensation benefits. Both Francies and Nellie claim benefits on the basis of \u00a7 59-10-12.10(B), N.M.S.A., 1953 (2d Repl. Vol. 9, pt. 1) which reads:\n\u201cThe 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.\u201d\nWhether Wife No. 3 Was Entitled to Compensation\nUnder Panzer v. Panzer, 87 N. M. 29, 528 P.2d 888 (1974), Leyba\u2019s marriage to Francies, being later in point of time, is presumed to be valid. Nellie, attacking the validity of Francies\u2019 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).\nIt is undisputed that Leyba married Nellie, Leyba also married Francies \u2014 thus, was not dead. The issue on appeal is whether there was sufficient evidence that Leyba and Nellie were never divorced.\nNellie testified that she never got a divorce. Francies cites cases from various jurisdictions to the effect that this testimo~ ny was insufficient to show no divorce. We agree. In re Jubala\u2019s 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.\nThe question then is whether there was sufficient evidence that Leyba did not obtain a divorce from Nellie. We review four items of evidence.\n1. 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 \u201chis glove compartment\u201d (presumably of his car). There were no papers regarding a divorce from Nellie. Francies never saw any evidence of a divorce from Nellie.\n2. Lila Tapia was a sister of Leyba. She rented the house that Leyba and Francies had been buying at the time of Leyba\u2019s 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: \u201cNo, not that I ever heard.\u201d There was no objection to this testimony which was admissible under Evidence Rule 803(19).\n3. 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\u2019s mother after 1959. Nellie testified that she was never served with any divorce papers.\n4. 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 here-say. This testimony was properly admitted. Leyba was dead and therefore unavailable as a witness. Evidence Rule 804(a)(4). A statement concerning the declarant\u2019s own divorce is not excluded by the hearsay rule if the declarant is unavailable. Evidence Rule 804(b) (5).\nThe foregoing items amount to substantial evidence that Leyba did not obtain a divorce from Nellie. The items support the trial court\u2019s finding that Leyba did not have the capacity to marry, Francies in August, 1969; that Francies was not Leyba\u2019s widow; and the trial court\u2019s 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, Inc., v. Terrel, 88 N.M. 299, 540 P.2d 229 (1975).\nDenial of compensation benefits to Francies is affirmed.\nWhether Wife No. 1 Was Entitled to Compensation\nPat 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\u2019s relationship with Pat affected Nellie\u2019s status as the legal widow of Leyba.\nAlthough 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.\nPrior 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, Toed v. Albuquerque & Cerrillos Coal Co., 45 N.M. 133, 112 P. 2d 515 (1941). The requirement that the widow be actually dependent was removed by Laws 1965, ch. 295. Compare, \u00a7 59-10-12.10, supra, with \u00a7 59 \u2014 10\u201412(j), N.M. S.A. 1953 (1st Repl. Vol. 9, pt. 1).\nNellie claims that she was legally entitled to support because she was the lawful wife of Leyba. See \u00a7 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 \u201cthe existence of a marriage with consequent liability to support\u201d.\nMarriage 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 \u201cfault\u201d for the separation. 3 Nelson, Divorce and Annulment (2nd Ed.), \u00a7\u00a7 32.09, 32.11, 32.13, 32.16, 32.17, 32.19-32.22; Annot., 10 A.L.R.2d 466 (1950).\nIn New Mexico we are not concerned with \u201cfault\u201d 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 \u201csubstitute for, and in lieu of, the common law or statutory right to marital support during coverture.\u201d Chavez v. Chavez, 82 N.M. 624, 485 P.2d 735 (1971). Alimony \u201cis a continuation of the right to support.\u201d Burnside v. Burnside, 85 N.M. 517, 514 P.2d 36 (1973).\nAlimony, 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\u2019s right to support from Leyba was personal and not absolute.\nThe authority of a court to award alimony (or support) under \u00a7 22-7-2, supra, is an equitable power. Ex parte Sedillo, 34 N.M. 98, 278 P. 202 (1929); see Redman v. Redman, supra; Compare 3 Nelson, supra, \u00a7 32.03. Equity regards the substance, not the form. Skaggs Drug Center v. General Electric Company, 63 N.M. 215, 315 P.2d 967 (1957); Cooper v. Otero, 38 N.M. 164, 29 P.2d 341 (1934). We consider the substance of Nellie\u2019s right to support in determining whether the trial court erred in finding that Nellie was not legally entitled to support from Leyba. In making that determination, the question is whether the trial court abused its discretion in exercising its equitable power. See Home Savings & Loan Association v. Bates, 76 N.M. 660, 417 P.2d 798 (1966).\nWhen Leyba and Nellie separated in 1959, Nellie had no intention of living with Leyba again. Nellie began living with Lucero in 1961 and lived with, and was supported by him approximately ten years. She had four children by Lucero. She began using Lucero as her name in 1961; her driver\u2019s license and welfare papers use the Lucero name. Other than this lawsuit, she has not used Leyba as her name on any legal document in the past ten years. While living with Leyba for a short time in 1972, she maintained a separate residence, going \u201cback and forth to my house and his house.\u201d One of the reasons she separated from Leyba in 1972 was \u201cmy kids\u201d that did not belong to Leyba. She referred to Lucero as her husband and did so in her deposition about two weeks before the trial. After separating from Leyba in 1972, she did not expect Leyba to contribute to her support.\nOn the foregoing evidence, the trial court in the exercise of its equitable powers, could properly find that Nellie was not legally entitled to be supported by Leyba. See Martinez v. Lucero, 1 N.M. 208 (1857).\nDenial of compensation benefits to Nellie is affirmed.\nAttorney Fees on Appeal\nThe trial court awarded attorney fees on behalf of the children to be paid by the employer. A partial satisfaction of the judgment has been filed which is to the effect that the attorney fees awarded by the trial court have been paid.\nThe employer asserts that this Court has no jurisdiction to award attorney fees for the services of the childrens\u2019 attorneys on appeal. By \u201cjurisdiction\u201d the employer means power or authority. Heckathorn v. Heckathorn, 77 N.M. 369, 423 P.2d 410 (1967). The employer\u2019s contention is based on \u00a7 59-10-23(D), N.M.S.A.1953 (2d Repl. Vol. 9, pt. 1), the pertinent portion of which reads:\n\u201c. . . where compensation to which any person shall be entitled shall be refused and the claimant shall thereafter collect compensation through court proceedings . . . then the compensation to be paid the attorney for the claimant shall be fixed by the court trying the same or the Supreme Court upon appeal in such amount as the court may deem reasonable and proper and when so fixed and allowed by the court shall be paid by the employer . . . .\u201d\nThe employer does not claim that the Court of Appeals lacks authority to award attorney fees on appeal. See Measday v. Sweazea, 78 N.M. 781, 438 P.2d 525, 26 A. L.R.3d 1386 (Ct.App.1968).\nThe employer contends that it has not \u201crefused\u201d to pay the compensation awarded by the trial court; that it is paying the compensation award to the children. The employer points out that it did not appeal the trial court\u2019s judgment. Accordingly, the employer claims that this Court has no authority to award attorney fees on appeal because no statute, rule of court or contract authorizes an award. See Aboud v. Adams, 84 N.M. 683, 507 P.2d 430 (1973).\nThe employer would limit the meaning of \u201crefusal\u201d to pay compensation to a refusal to pay after entry of judgment. Section 59-10-23 (D), supra, is not so limited. Attorney fees on appeal are authorized if the employer refuses to pay compensation and the claimant thereafter collects compensation in the trial court. In this situation, attorney fees may be awarded against the employer, both in the trial court and on appeal.\nThe employer did refuse to pay compensation. Its answer to the claim of Pat, on behalf of the children, and its answers to the claims of Francies and Nellie were identical. The employer was willing to pay compensation to the dependants entitled thereto but did not know who they were and \u201ctherefore withheld payment of compensation pending a determination by appropriate authority.\u201d This was a refusal to pay. Employers Mutual Liability Ins. Co. of Wis. v. Jarde, 73 N.M. 371, 388 P. 2d 382 (1963).\nAfter the employer\u2019s refusal to pay compensation, Pat, on behalf of the children, collected compensation in court proceedings. These two facts being established, the appellate court had authority to award attorney fees on appeal. Section 59-10-23(D), supra, does not limit this authority to situations where the employer appeals. The statutory authority exists even though the employer is satisfied with the trial court judgment and an unsuccessful claimant appeals in an effort to obtain a part of the compensation awarded to a successful claimant.\nThe facts of this case show that our holding is equitable. On appeal, the employer has taken the position that it will pay compensation to the claimants held by this Court to be entitled to compensation. The employer has not attempted to defend the compensation award in favor of the children. It was left to Pat to defend the children\u2019s compensation against the efforts of Nellie and Francies to diminish the award to the children. Pat, on behalf of the children, is in the position of collecting compensation on the appeal by defending the trial court\u2019s award. Under \u00a7 59 \u2014 10\u2014 23(D), supra, the employer should pay a reasonable attorney fee for the successful defense on appeal.\nOral argument is unnecessary. The judgment of the trial court is affirmed. Pat, on behalf of the children, is awarded $1,750.00 as and for attorney fees for the appeal.\nIT IS SO ORDERED.\nHENDLEY and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "John J. Carmody, Jr., Kanter & Carmody, P.A., Albuquerque, for appellant Francies B. Leyba.", "Joe A. Duran, Albuquerque, for appellant Nellie Leyba.", "John Hogan Stewart, Quincy D. Adams, Adams & Foley, Albuquerque, for appellee Lauderdale.", "Vance Mauney, P. A., Albuquerque, for appellee Hydro Conduit." ], "corrections": "", "head_matter": "555 P.2d 700\nPat 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. HYDRO CONDUIT CORPORATION, Employer, Self-Insured, Defendant-Appellee, v. Francies B. LEYBA, Plainfiff-In-Intervention-Appellant. Nellie LEYBA, Plaintiff-Appellant, v. HYDRO CONDUIT CORPORATION, a Self-Insurer, Defendant-Appellee.\nNo. 2503.\nConsolidated.\nCourt of Appeals of New Mexico.\nSept. 28, 1976.\nRehearing Denied Oct. 18, 1976.\nCertiorari Denied Nov. 16, 1976.\nJohn J. Carmody, Jr., Kanter & Carmody, P.A., Albuquerque, for appellant Francies B. Leyba.\nJoe A. Duran, Albuquerque, for appellant Nellie Leyba.\nJohn Hogan Stewart, Quincy D. Adams, Adams & Foley, Albuquerque, for appellee Lauderdale.\nVance Mauney, P. A., Albuquerque, for appellee Hydro Conduit." }, "file_name": "0579-01", "first_page_order": 615, "last_page_order": 622 }