Opinion
John A. Hovanec and John L. Kelly, Jr., Gary, for appellant.
Larry G. Evans and Karen L. Hughes, Chester, Clifford, Hoeppners&s Houran, Valaparaiso, for appellee.
WHITE, Judge.
This appeal is from an award denying compensation to a posthumous unacknowledged illegitimate child whose father was killed in a compensable accident. Holding the acknowledgment requirement of the Workmen's Compensation Act unconstitutional, we reverse.
The full Industrial Board found that decedent is the father of the child, that he and the child's mother knew each other for approximately four months prior to his death; that they were planning to marry and were scheduled to obtain their marriage license on Saturday of the week in which he was killed; they were not living together nor was he contributing to her support; they had commenced sexual relations about one month prior to his death and had had five separate acts of sexual intercourse; that she was not dating or having sexual relations with anyone else; that she missed her menstrual period which would normally have occurred one or two weeks before his death; that the child was born some eight months after his death. There was no finding (and no evidence to support a finding) as to whether he knew that his fiancee had passed her normal time for menstruation or whether he may have had any reason to suspect that she may have conceived.
The Board "further found that deceased never acknowledged said (child) as his illegitimate child nor was there any act or affirmation or declaration by deceased as to such acknowledgment, and therefore, said (child) does not qualify as a dependent of deceased under the Workmen's Compensation Act since she was not an acknowledged illegitimate child of the decedent."
Though not expressly conceding that the Board's decision conforms to the express provisions of "The Indiana Workmen's Compensation Act of 1929" appellant does not contend that it does not. Instead, she contends that the provisions of Ind.Ann.Stat. § 22-3-3-19 which dictate that result are unconstitutional. She bases that contention primarily upon Weber v. Aetna Casualtys&sSurety Co. (1972), 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768, in which the United States Supreme Court held that a similar Louisiana statute violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. Apparently the Louisiana statute like Indiana's aforementioned § 22-3-3-19 provides that an illegitimate child is the equivalent of what Indiana law classifies as a presumptive dependent of the father only if he has acknowledged the child. Louisiana, however, requires a formal acknowledgment and denies a married man the right to make it.
Acts 1929, ch. 172, § 1, p. 536, now Ind.Code § 22-3-2-1 reads: "This act shall be known as 'The Indiana Workmen's Compensation Act of 1929.' "
See, e. g., Haskett v. Haskett (1975), Ind.App., 327 N.E.2d 612; Horner v. Boomershine (1928), 88 Ind.App. 57, 161 N.E. 641.
The Indiana Workmen's Compensation Act provides by § 22-3-3-18 that dependents "shall consist of three classes, viz. (1) presumptive dependents, (2) total dependents in fact, and (3) partial dependents in fact." Further, that "(p)resumptive dependents shall be entitled to compensation to the complete exclusion of total dependents in fact and partial dependents in fact . . . ." Whether Louisiana's compensation law makes precisely these same provisions for classes of dependents or not is not clear but the state court judgment in Weber is what it would have been under Indiana's act.
See Ind.Code 29-1-2-7.
The facts in Weber are:
"On June 22, 1967, Henry Clyde Stokes died in Louisiana of injuries received during the course of his employment the previous day. At the time of his death Stokes resided and maintained a household with one Willie Mae Weber, to whom he was not married. Living in the household were four legitimate minor children, born of the marriage between Stokes and Adlay Jones Stokes who was at the time committed to a mental hospital. Also living in the home was one unacknowledged illegitimate child born of the relationship between Stokes and Willie Mae Weber. A second illegitimate child of Stokes and Weber was born posthumously." (406 U.S. at 165, 92 S.Ct. at 1401.)
The posthumous illegitimate, according to the statement of facts in the Louisiana Court of Appeal opinion, Stokes v. Aetna Casualty and Surety Co. (La.App., 1969), 232 So.2d 328, 329, was born January 4, 1968, more than six months after his father's death. None of the published opinions concerns itself with making any distinction between the two illegitimates nor does any opinion state whether the decedent had ever informally acknowledged his paternity of either illegitimate or whether he was even aware of the fetal existence of the posthumous child although it appears from the Court of Appeal opinion that the mother of the illegitimates "prayed that 'she, together with her minor child Lisa Marie Weber (not the posthumous child) be recognized and declared . . . entitled to compensation' " and thus may have made no claim for the posthumous child. However, both the state and the United States Supreme Court opinions seem to treat both illegitimates as being in the same category as to entitlement or non-entitlement to compensation.
The Louisiana Supreme Court had affirmed a judgment which had awarded maximum compensation benefits to the four legitimate children and had awarded compensation to the two illegitimate children to the extent benefits were not exhausted by the legitimate children. But since the award to the legitimate children had exhausted the benefits the two illegitimate children received nothing.
In the state courts and before the United States Supreme Court the attorneys for the illegitimate children relied on Levy v. Louisiana (1968), 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed. 436. The state Supreme Court found distinctions by which to hold that Levy was not controlling: (1) the Levy statute excluded all illegitimates while the compensation statute merely relegates them to a less favorable position; (2) in Levy the tortfeasor escaped liability on the fortuity of the potential claimant's illegitimacy whereas full compensation was paid in Weber. Of those distinctions Mr. Justice Powell for the United States Supreme Court, said:
"We do not think Levy can be disposed of by such finely carved distinctions. The Court in Levy was not so much concerned with the tortfeasor going free as with the equality of treatment under the statutory recovery scheme. Here, as in Levy, there is impermissible discrimination. An unacknowledged illegitimate child may suffer as much from the loss of a parent as a child born within wedlock or an illegitimate later acknowledged. (Our emphasis.) So far as this record shows, the dependency and natural affinity of the unacknowledged illegitimate children for their father were as great as those of the four legitimate children whom Louisiana law has allowed to recover. The legitimate children and the illegitimate children all lived in the home of the deceased and were equally dependent upon him for maintenance and support. It is inappropriate, therefore, for the court below to talk or relegating the unacknowledged illegitimates 'to a less favorable position as are other dependent relatives such as parents.' The unacknowledged illegitimates are not a parent or some 'other dependent relative'; in this case they are dependent children, and as such are entitled to rights granted other dependent children. (Original emphasis.)
"Respondents contend that our recent ruling in Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971), controls this case. In Labine, the Court upheld, against constitutional objections, Louisiana intestacy laws which had barred an acknowledged illegitimate child from sharing equally with legitimate children in her father's estate. That decision reflected, in major part, the traditional deference to a State's prerogative to regulate the disposition at death of property within its borders. Id., at 538, 91 S.Ct. (1017), at 1020. The Court has long afforded broad scope to state discretion in this area. Yet the substantial state interest in providing for 'the stability of . . . land titles and in the prompt and definitive determination of the valid ownership of property left by decedents,' Labine v. Vincent, 229 So.2d 449, 452 (La.App.1969), is absent in the case at hand.
"Moreover, in Labine the intestate, unlike deceased in the present action, might easily have modified his daughter's disfavored position. As the Court there remarked:
'Ezra Vincent could have left one-third of his property to his illegitimate daughter had he bothered to follow the simple formalities of executing a will. He could, of course, have legitimated the child by marrying her mother . . . .'
Such options, however, were not realistically open to Henry Stokes. Under Louisiana law he could not have acknowledged his illegitimate children even had he desired to do so. The burdens of illegitimacy, already weighty, become doubly so when neither parent nor child can legally lighten them." (Footnotes omitted.) (406 U.S. at 169-171, 92 S.Ct. at 1403.)
The decedent in the case at bar apparently left no actual dependents. The findings of the Board imply that it is almost certain that had his fatal industrial accident occurred one or two weeks later he would have left two presumptive dependents: a wife and a posthumous legitimate child. The child's birth at a time after the father's death compatible with conception during the marriage would have given rise to a presumption that the child was legitimate (in practical effect would have legitimated his posthumous child) and their living together (for which they had bought or rented a trailer) would have made the wife his presumptive dependent. The timing of the accident, coupled with the acknowledgment requirement of the statute, thus will prove a windfall for the father's employer (or the employer's insurance carrier) if we hold that the statutory requirement of acknowledgment is constitutionally a bar to the child's status as dependent.
Although the woman who would have been his wife was not living with him at the time of his death the Board's findings clearly imply that they intended to live together when married. E. g., the Board found: "that deceased and the said ______ ______ were planning to marry, and were scheduled to obtain their marriage license on Saturday of the week deceased was killed; that ______ ______ and the deceased had purchased a car together; and ______ ______ had occasioned the purchase of a trailer for the parties (our emphasis), which deceased was residing in at the time of his death; . . ." Had they married and commenced living together she would have been, by virtue of IC § 22-3-3-19 "conclusively presumed to be wholly dependent for support upon . . . deceased . . . (as) (a) a wife upon a husband with whom she is living at the time of his death, . . . ."
The facts here do not precisely parallel those in Weber, though the posthumous Weber child's situation is nearer that of the claimant here in that there is no indication in any of the opinions that the deceased natural father had informally acknowledged its paternity or that he knew of its fetal existence. But (for the writer of this opinion) the most obvious factual difference is shown by Justice Blackmun's concurring opinion to be no distinguishing factor at all in the result reached by the majority. Blackmun said that for him it was the provision of La.Civ.Code, Art. 204 which made it impossible for the father to acknowledge his illegitimate children which
See the statement in note 3, ante.
"proves fatal for this workmen's . . . compensation case under the focus of constitutional measurement. . . .
"I thus give primary emphasis to the presence of Art. 204 and, I believe, far more emphasis than does the Court. If that statute did not exist or were inapplicable, the case might be a different one. While the Court refers to Art. 204, and to a degree relies on it ante, at 1404, n. 9, it seems to me that it does so only secondarily. I read the opinion as flatly granting dependent unacknowledged illegitimate children full equality with dependent legitimate children and therefore as striking down the Louisiana statutory scheme even for the situation where the father has the power to acknowledge his illegitimates but refrains from doing so. In other words, the Court holds the Louisiana system unconstitutional with respect to illegitimate dependent children wholly apart from the barrier of Art. 204. Certainly the first paragraph of the opinion is to this effect." (406 U.S. at 176-7, 92 S.Ct. at 1407.)
The acknowledgment requirement of the Indiana compensation law is concededly much less onerous than Louisiana's acknowledgment requirement in that any man cognizant of having fathered an illegitimate can easily bestow the blessing of acknowledgment on his child by merely saying he is the father. But in light of Justice Blackmun's analysis of the majority opinion, it is the writer's view that it was the requirement of acknowledgment itself, or perhaps more precisely the drawing of any distinction between legitimate and illegitimate children, or being acknowledged and unacknowledged illegitimates, which proved constitutionally fatal to the Louisiana statute. Therefore the writer would hold that insofar as the Indiana Workmen's Compensation Act makes compensation for industrially orphaned illegitimate children dependent upon their deceased father's acknowledgment, it violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and the Equal Privileges section of the Indiana Bill of Rights, Article 1, section 23, Constitution of Indiana. In the writer's opinion to classify children for purposes of presumptive dependency under the Compensation Act as unacknowledged illegitimates on the one hand, (therefore, not presumed dependent) and legitimates or acknowledged illegitimates on the other hand (therefore conclusively presumed dependents) is constitutionally unreasonable. Since the child claimant was not living with nor being supported by the deceased at the time of his death she must qualify as a presumptive dependent under the following pertinent provisions of Ind.Ann.Stat. § 22-3-3-19 (Burns Code Ed., 1973, 1977 Supp.):
However, to prove that a man said he was the father of an illegitimate can be difficult. See, e. g., Hooley v. Hooley (1967), 141 Ind.App. 101, 226 N.E.2d 344, 10 Ind.Dec. 466. In that case the issue of whether decedent's paternity of a posthumous illegitimate had been proved was complicated by the presumption of legitimacy which arose from the mother's being the legal wife of a man from whom she had been long separated but who had some degree of access to her. Furthermore the decedent's comments on the pregnancy of the mother with whom he was living were equivocal. The Industrial Board denied compensation to the child and the Appellate Court affirmed because, "We cannot say that the evidence is such that reasonable minds could only conclude that the presumption of legitimacy was rebutted, that the decedent was the father of (the claimant child), or that he acknowledged her." (Our emphasis.) Hooley does decide, however, that the definition of children in what is now IC § 22-3-3-19 includes a posthumous acknowledged illegitimate child. 141 Ind.App. at 104-5, 226 N.E.2d 344, 349.
Apparently Judge Sullivan's view is that the classification becomes constitutionally unreasonable only when the father has no opportunity to acknowledge. By his view then an illegitimate whose paternity had been duly established by juvenile court decree and whose father was supporting him at the time of the father's fatal injury would not be entitled to compensation unless the father had also acknowledged the child as his own.
"The following persons are conclusively presumed to be wholly dependent for support upon a deceased employee and shall constitute the class known as presumptive dependents in section 18 (22-3-3-18) of this chapter:
"(d) An unmarried child under eighteen (18) years upon the parent with whom he or she may not be living at the time of the death of such parent, but upon whom, at such time, the laws of the state impose the obligation to support such child.
"As used in subsections (c), (d), (e), and (f) of this section, the term 'child' shall include . . . posthumous children and acknowledged illegitimate children."
We have already determined, upon authority of Weber v. Aetna, etc., supra, that in this particular case the acknowledgement requirement is unconstitutional. Hooley v. Hooley (1967), 141 Ind.App. 101, 226 N.E.2d 344, 10 Ind.Dec. 466; (see note 6, ante ) holds that a posthumous acknowledged illegitimate child is a "child" within that definition. This leaves only the question of whether the laws of Indiana imposed upon the deceased the duty to support the child. The answer is found in the first two sections of what is popularly called the "Paternity Act" or "The Children Born Out of Wedlock (Act)".
" § 31-4-1-1 Purpose of act. It is the obligation of the state of Indiana to provide proper legal procedures that will enable children born out of wedlock to have proper care, maintenance, education, protection, support and opportunities the same as children born in wedlock; and it (is) the purpose of this act to establish procedures that will enable children to have such rights and privileges."
In essence this states what the Supreme Court held in Weber v. Aetna, supra, and in Levy v. Louisiana (1968), 391 U.S. 73, 88 S.Ct. 1509 to be the obligation of every state to its illegitimates or more precisely, when a state statute denies illegitimates the legal rights and procedures it provides for legitimates it has denied them a constitutional right to equal treatment.
The Paternity Act provides procedures for establishing paternity and for forcing parents (primarily the father) to support their illegitimate children but it obviously does not attempt to cover the spectrum of laws necessary to "enable children born out of wedlock to have . . . care, maintenance, education, protection, support and opportunities the same as children born in wedlock." Had it done so the present case would not be before us. If our decision withstands its future tests the lofty aspiration of this preamble will be much closer to realization.
" § 31-4-1-2 Obligation of parents. The parents of a child born out of wedlock and not legitimated . . . owe the child necessary maintenance, medical care, education and support, and are liable for the child's funeral expenses. The obligations imposed upon parents to support their legitimate children are hereby imposed upon the parents of children born out of wedlock." (Our emphasis.)
The illegitimate father in the case at bar was killed before any court ever had occasion to declare his obligation to his child but by the express terms of the foregoing § 31-4-1-2, his duty to support his child was the same as would have been his duty had he been married to the child's mother. His death robbed his child of any opportunity to ever enjoy the benefit of that duty. Her loss was the same loss she would have sustained had her parents been married. The Workmen's Compensation Act was intended in part to compensate children for their loss of support, actual or legally required, resulting from the death of a parent in an industrial accident.
§ 31-4-1-2 imposed upon the deceased the duty to support the child. Since we have invalidated under the circumstances of this case, the statutory requirement that she be acknowledged to be considered a presumptive dependent, she meets all the requirements of § 22-3-3-19(d) of the Compensation Act for classification as a presumptive dependent.
The award of the Industrial Board is set aside and the case is remanded to the Board for further proceedings consistent with this opinion.
Reversed and remanded.
SULLIVAN, J., concurs with separate opinion.
BUCHANAN, C. J., dissents with opinion.
SULLIVAN, Judge, concurring:
I readily concur in the reversal of the Industrial Board's decision for constitutional reasons but would observe that I do so because the father here had no opportunity to acknowledge the child as his own. For this reason I believe the decision in Weber v. Aetna Casualtys&sSurety Co. (1972), 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 to be applicable and that the Indiana Workmen's Compensation Act acknowledgment requirement was unconstitutionally applied in this case.
BUCHANAN, Chief Judge, dissenting.
I dissent because I disagree with the majority's (and Justice Blackmun's) liberal interpretation of the majority opinion in Weber v. Aetna Casualtys&sSurety Co. (1972), 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768.
The decision in Weber is limited. It does not mandate that all Workmen's Compensation Acts requiring acknowledgment of illegitimates be invalidated on equal protection grounds. Only those statutes are invalid which require acknowledgment if the parent is legally incapable of acknowledgment (there is no such limitation in Indiana).
As I read Weber, the evil that was condemned was the Louisiana provision (unlike Indiana law) that a child conceived at a time the parents were incapable of contracting marriage (e. g., one was already married) could not be acknowledged by the father. Thus, even an illegitimate brought up in the home with the father and mother and other children, and totally dependent on the father for support, could never have preferred status for purposes of workmen's compensation if the father was legally incapable of acknowledging him. To create such a classification of unacknowledgeable illegitimates was held not to bear a rational relationship to a legitimate state purpose.
Though the U. S. Supreme Court did not apply the less stringent rule of Labine v. Vincent (1971), 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288, in Weber because of the father's legal inability to acknowledge dependent illegitimates, no such impediment exists in Indiana because of the ease with which a father can acknowledge an illegitimate under Indiana law. 1
Mr. Justice Powell said in Weber:
(I)n Labine the intestate, unlike deceased in the present action, might easily have modified his daughter's disfavored position. As the Court there remarked:
"Ezra Vincent could have left one-third of his property to his illegitimate daughter had he bothered to follow the simple formalities of executing a will. He could, of course, have legitimated the child by marrying her mother in which case the child could have inherited his property either by intestate succession or by will as any other legitimate child." Labine, supra, 401 U.S., at 539, 91 S.Ct., at 1021.
Such options, however, were not realistically open to Henry Stokes. Under Louisiana law he could not have acknowledged his illegitimate children even had he desired to do so. The burdens of illegitimacy, already weighty, become doubly so when neither parent nor child can legally lighten them. (emphasis supplied) (footnote omitted)
406 U.S. at 170-71, 92 S.Ct. at 1404.
Just as the father in Labine could have assured an illegitimate child the right to inherit, in Indiana a father of an illegitimate can assure his child the right to collect workmen's compensation by the simple expedient of acknowledging him.
Though there may not be a rational basis for distinguishing between acknowledged illegitimates and unacknowledged illegitimates if the father cannot acknowledge them, there is a rational basis for differentiating between acknowledged illegitimates and unacknowledged illegitimates if the father can easily acknowledge them.
Requiring acknowledgement decreases the problem of locating illegitimate children and determining questionable claims of parenthood. One of the purposes of workmen's compensation statutes is to compensate the dependent families of those killed in industrial accidents. In Louisiana, a dependent child living in the home (as was the case in Weber ) might, because of the father's legal inability to acknowledge him, be given a lesser status in the recovery of workmen's compensation, but it is much less likely that a child similarly situated in Indiana would suffer the same exclusion.
Because the father in this case, due to his untimely death, had no opportunity to acknowledge this particular offspring does not change my opinion. The majority admits that the decedent left no actual dependents. It speaks in purely speculative terms if decedent had married before his death, he would have left two dependents. This is a reaching out.
Lines must be drawn somewhere. To allow recovery to an unacknowledged, posthumous illegitimate child creates a class of recipients never contemplated by the legislature.
Furthermore, to declare unconstitutional the acknowledgement requirement in the area of Workmen's Compensation in reliance on Weber, may cast doubt on the acknowledgement requirement in the area of intestate succession 2 an appalling prospect.