{ "id": 1571150, "name": "Leslie Anne KAU, Plaintiff-Appellee, v. Ray BENNETT, d/b/a Bennett Tower Painting Company, and Employers Insurance of Wausau, Defendants-Appellants", "name_abbreviation": "Kau v. Bennett", "decision_date": "1977-10-25", "docket_number": "No. 2851", "first_page": "162", "last_page": "165", "citations": [ { "type": "official", "cite": "91 N.M. 162" }, { "type": "parallel", "cite": "571 P.2d 819" } ], "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": "325 So.2d 708", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9672924 ], "opinion_index": 0, "case_paths": [ "/so2d/325/0708-01" ] }, { "cite": "267 F.Supp. 61", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1574894 ], "opinion_index": 0, "case_paths": [ "/f-supp/267/0061-01" ] }, { "cite": "322 A.2d 184", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1974, "pin_cites": [ { "page": "187" } ], "opinion_index": 0 }, { "cite": "129 N.J.Super. 28", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 320495 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nj-super/129/0028-01" ] }, { "cite": "3 S.E.2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "6" } ], "opinion_index": 0 }, { "cite": "215 N.C. 685", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631509 ], "opinion_index": 0, "case_paths": [ "/nc/215/0685-01" ] }, { "cite": "89 N.M. 579", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2865518 ], "weight": 4, "pin_cites": [ { "page": "583" }, { "page": "704" } ], "opinion_index": 0, "case_paths": [ "/nm/89/0579-01" ] }, { "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, "pin_cites": [ { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/nm/27/0632-01" ] }, { "cite": "118 Vt. 59", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 8543413 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/vt/118/0059-01" ] }, { "cite": "120 Vt. 505", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 4625357 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/vt/120/0505-01" ] }, { "cite": "190 A. 625", "category": "reporters:state_regional", "reporter": "A.", "pin_cites": [ { "page": "627" } ], "opinion_index": 0 }, { "cite": "118 N.J.L. 25", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 152060 ], "opinion_index": 0, "case_paths": [ "/njl/118/0025-01" ] }, { "cite": "135 Kan. 378", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 1883989 ], "weight": 2, "pin_cites": [ { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/kan/135/0378-01" ] } ], "analysis": { "cardinality": 433, "char_count": 6861, "ocr_confidence": 0.815, "pagerank": { "raw": 8.146408086382697e-08, "percentile": 0.47442495682180696 }, "sha256": "29f74967f8d7ce3a282d49c869c84f7bd016f040b85a8b0a62097cc580e9b8ee", "simhash": "1:501d54eaa4459278", "word_count": 1127 }, "last_updated": "2023-07-14T15:07:42.064818+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ and LOPEZ, JJ., concur.", "HERNANDEZ and LOPEZ, JJ., concur." ], "parties": [ "Leslie Anne KAU, Plaintiff-Appellee, v. Ray BENNETT, d/b/a Bennett Tower Painting Company, and Employers Insurance of Wausau, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nThe trial court awarded plaintiff, a widow, workmen\u2019s compensation benefits for the death of her husband pursuant to \u00a7 59-10-12.10 N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 1). Defendants appeal. We affirm.\nThe only issue on this appeal is whether Leslie Anne Kau (Leslie) was legally entitled to be supported by Kenneth A. Kau (Kenneth), her deceased husband, at the time of his death.\nLeslie and Kenneth were married in California on or about June 26, 1971. They were 18 and 19 years of age, respectively. They lived together as husband and wife until March 26, 1973, at which time Kenneth disappeared. His whereabouts were thereafter unknown until October of 1973 when Leslie was notified of his death. At the time of his death, he was employed in New Mexico. Leslie and Kenneth were not divorced, and Leslie did not abandon Kenneth nor remarry during his absence.\nDefendants challenged two findings of fact:\n16. That plaintiff and defendant were not . . . legally separated at the time of decedent\u2019s death.\n18. That plaintiff was dependent upon the decedent for her support.\nSection 59-10-12.10(B) reads:\nAs used in the Workmen\u2019s Compensation Act, unless the context otherwise requires, the following persons, and they only, shall be deemed dependents and entitled to compensation under the provisions of the Workmen\u2019s Compensation Act:\nB. 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. [Emphasis added]\nUnder this statute, Leslie was held to be a dependent and entitled to compensation if she was legally entitled to be supported by Kenneth.\nWhat is meant by \u201clegally entitled to be supported by him\u201d?\nThe trial court found:\nThat both the law of California and the law of New Mexico at all times material to this cause required a husband to support his wife.\nThis finding was not challenged.\nThe word \u201clegal\u201d is defined in Black\u2019s Law Dictionary at 1038 (Rev. 4th ed. 1968):\nLEGAL. 1. Conforming to the law; according to law; required or permitted by law; not forbidden or discountenanced by law; good and effectual in law. Freeman v. Fowler Packing Co., 135 Kan. 378, 11 P.2d 276, 277; General Motors Acceptance Corporation v. Schwartz, 118 N.J.L. 25, 190 A. 625, 627.\nSee also, Gates v. Gates, 120 Vt. 505, 144 A.2d 782 (1958); Lewis v. Holden, 118 Vt. 59, 99 A.2d 758 (1953); 52 A C.J.S. Legal at 754 (1968).\n\u201cLegally entitled to support\u201d means \u201centitled to support according to law.\u201d Inasmuch as the laws of California and New Mexico required Kenneth to support Leslie, Leslie was a dependent legally entitled to support.\nThe trial court\u2019s finding No. 18 \u201cThe plaintiff was dependent upon the decedent for support\u201d was superfluous. The statute does not provide that a wife must be \u201cactually dependent\u201d on her husband for support to recover compensation benefits. The version of the present \u00a7 59-10-12.10(B), supra, that was in effect before 1973 (Ch. 113, \u00a7 12(j)(2), 1929 N.M. Laws; Ch. 92, \u00a7 6, 1937 N.M. Laws) read in pertinent part:\nThe following persons, and they only shall be deemed dependents and entitled to compensation under the provisions of this act.\n2. The widow, only if living with the deceased at the time of his death, or legally entitled to be supported by him and actually dependent . . . . [Emphasis added]\nThe words \u201cand actually dependent\u201d were deleted by the 1973 amendment. Under the prior statute, \u201cactually dependent\u201d was an essential ingredient of recovery of workmen\u2019s compensation as a dependent widow. \u201c[T]he widow must have been dependent in fact as well as in law.\u201d Merrill v. Penasco Lumber Co., 27 N.M. 632, 633, 204 P. 72 (1922). This concept was based upon the theory that married women may not be entitled to support because they are not actually dependent upon their husbands for support. The legislature desired to, and did, remove this burden of proof from both the widow and the widower, and it did intend to relieve the survivor of the marriage of the duty of proving actual dependency.\nDefendants rely on Lauderdale v. Hydro-Conduit Corporation, 89 N.M. 579, 555 P.2d 700 (Ct.App.1976). Here, there were three wives of a deceased employee. We are concerned only with Pat, the first wife. \u201cPat never claimed compensation benefits as a widow; there was no issue at trial concerning her purported common law marriage to Leyba [after deceased left her].\u201d [89 N.M. at 583, 555 P.2d at 704], Pat sought compensation for her children who were born of her marriage to the deceased husband. The reasons she did not seek compensation as a widow are stated in eloquent language and do not need a restatement. Lauderdale does not support defendants\u2019 claim that compensation benefits be denied Leslie.\nDefendants also claim that Leslie and Kenneth were \u201clegally separated\u201d at the time of Kenneth\u2019s death contrary to finding No. 16. For Leslie to be \u201clegally separated\u201d from Kenneth means \u201cseparated according to law.\u201d The word \u201cseparation\u201d is defined in Black\u2019s Law Dictionary at 1530 (Rev. 4th ed. 1968):\nSEPARATION. In matrimonial law, a cessation of cohabitation of husband and wife by mutual agreement, or, in case of \u201cjudicial separation,\u201d under the decree of a court. Woodruff v. Woodruff, 215 N.C. 685, 3 S.E.2d 5, 6.\nLeslie and Kenneth were not \u201clegally separated.\u201d \u201cWhen a husband abandons his wife without justifiable cause, or separates himself from her and refuses or neglects to maintain and provide for her, a judgment of separate maintenance may be entered . . . .\u201d Weinkrantz v. Weinkrantz, 129 N.J.Super. 28, 322 A.2d 184, 187 (1974). Even a decree of separate maintenance does not constitute a \u201clegal separation,\u201d Rafal v. United States, 267 F.Supp. 61 (D.Del.1967), but a judgment of separation from bed and board does constitute a \u201clegal separation.\u201d Ainsworth v. Association Life Insurance Co., Inc., 325 So.2d 708 (La.App.1976).\nWhen Kenneth disappeared, Leslie remained legally entitled to support. Leslie and Kenneth were not legally separated.\nAffirmed.\nIT IS SO ORDERED.\nHERNANDEZ and LOPEZ, JJ., concur.\nAMENDMENT TO OPINION\nSUTIN, Judge:\nHaving overlooked an award of attorney fees to plaintiff for services rendered in this appeal by plaintiff\u2019s attorney, the opinion rendered and filed is hereby amended to include therein the following:\nPlaintiff is awarded the sum of $1,750.00 for services rendered by her attorney in the appeal to this Court.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": "SUTIN, Judge. SUTIN, Judge:" } ], "attorneys": [ "R. E. Richards, Hobbs, for defendants-appellants.", "Joel M. Carson, Losee & Carson, P. A., Artesia, for plaintiff-appellee." ], "corrections": "", "head_matter": "571 P.2d 819\nLeslie Anne KAU, Plaintiff-Appellee, v. Ray BENNETT, d/b/a Bennett Tower Painting Company, and Employers Insurance of Wausau, Defendants-Appellants.\nNo. 2851.\nCourt of Appeals of New Mexico.\nOct. 25, 1977.\nAs Amended Oct. 31, 1977.\nR. E. Richards, Hobbs, for defendants-appellants.\nJoel M. Carson, Losee & Carson, P. A., Artesia, for plaintiff-appellee." }, "file_name": "0162-01", "first_page_order": 198, "last_page_order": 201 }