Rookard, Inc. v. Meyers

548 P.2d 1318, 25 Or. App. 303, 1976 Ore. App. LEXIS 1969

• Court: Court of Appeals of Oregon
• Decided: April 26, 1976
• Docket: No. 75-5731, CA 5662
• Status: Published

Opinions

THORNTON, J.

The employer appeals from the decision of the circuit court which held that the three minor stepchildren of a deceased employe were substantially dependent upon him at the time of his death in covered employment and that the children were therefore entitled to death benefits. ORS 656.002(5).

The wife of the deceased, Mrs. Gloriajean Meyers, has three children from her prior marriage to Gerald Haffner. That marriage was dissolved in December of 1973. The decree requires Mr. Haffner to pay $225 per month in child support, which he has done.

Mrs. Meyers married Bruce Meyers, the deceased, in March of 1974, and they lived together with her three children until his death in December of that year.

Shortly after the death of Mr. Meyers, Mrs. Meyers applied for death benefits, both for herself and for her three children. The claim was allowed as to her, but denied as to her three children on the ground that they were not substantially dependent upon their stepfather since their natural father was paying child support. Mrs. Meyers requested a hearing and the hearings referee allowed the entire claim. Employer appealed to the Workmen’s Compensation Board and later to the circuit court, losing at both levels. Employer now appeals to this court.

The amount of support that a stepfather must contribute before the stepchildren are substantially dependent upon him varies with the circumstances, as does the amount of support that the children can receive from their natural father and still be substantially dependent upon their stepfather. No exact dollar or percentage figure can be established; the question must be considered on a case-by-case basis. Professor Larson states:

"* * * A showing of actual dependency does not require proof that, without decedent’s contributions, claimant would have lacked the necessities of life, but only that decedent’s contributions were relied on by claimant to maintain claimant’s accustomed mode of living.” 2 Larson, Workmen’s Compensation Law 11-58, 11-60 to 11-61, § 63.11 (1976).

The evidence in this case is that Mr. Meyers’ net income of $410 per month went into a common fund along with the $225 per month child support Mrs. Meyers received from her former husband and the $55 per month welfare she received.¹ It is undisputed that virtually all of this $690 per month family income was expended on the family as a whole. No records were kept as to exactly how much was spent on each member of the family.

It is clear from the evidence that the children enjoyed a standard of living somewhat above that which the child support and the welfare alone would allow. The family took frequent trips to the beach and in general engaged in the usual family-type activities such as going on picnics, to movies, etc. One of the boys had a mini-bike and an expensive rubber raft. Such items and activities cannot be indulged in on an income near the bare subsistence level. From this and the rest of the evidence we find in our de novo review, we conclude that the children were therefore necessarily and substantially dependent upon the deceased.

Affirmed.

1 The evidence is unclear as to how much Mrs. Meyers received from welfare. As we read the record, she received $280 per month but that to do so she had to assign her child support payments, leaving a net gain of $55 per month.