Opinion
W.C. No. 4-403-955
December 14, 1999
FINAL ORDER
In this claim for death benefits Barbara Stolte Kretschman (widow) seeks review of an order of Administrative Law Judge Martinez (ALJ) which determined that Kristell Kretschman (daughter) was wholly dependent on the decedent, and apportioned death benefits 25 percent to the widow and 75 percent to the daughter. We affirm.
The decedent was killed in an industrial accident on December 23, 1998. He was survived by the widow, and by the daughter and a son. The children were the issue of a prior marriage. At the time of the accident the son was nineteen years old and the daughter was sixteen years old. The daughter lived with her mother, and the son apparently lived alone.
At the time of his death the decedent earned $625.17 per week. The ALJ found the decedent was paid two times per month, and would give his paycheck to his mother (Hazel). Hazel would then write checks to cover the decedent's expenses including payments on a trailer, lot payments, and credit card payments. Hazel also testified that she would give the daughter an average of $50 to $100 per month with the decedent's knowledge and permission. However, approximately $23 per month of this amount was paid on a life insurance policy which the decedent had purchased to cover the children. (Tr. pp. 85-86, 94, 97).
The ALJ also found that when the decedent was divorced from the daughter's mother in 1986, he agreed to pay child support of $125 per month per child. He further agreed to pay the first $25 of uncovered medical expenses, and 50 percent of remaining medical expenses. Finally, the decedent agreed to be responsible for one-half the cost of the children's college educations. On January 2, 1991, the divorce decree was modified by mutual agreement to provide that the decedent was no longer required to pay any child support to the children's mother. This modification was prompted by the fact that the son was residing with the decedent while the daughter remained with the mother. The modification did not otherwise affect the decedent's obligations.
The ALJ found that the daughter established by a preponderance of the evidence that she was wholly dependent on the decedent within the meaning of § 8-41-501(1)(b), C.R.S. 1999. Specifically, the ALJ determined that the decedent supported his daughter prior to the divorce, paid child support in accordance with the divorce decree, and, after modification of the decree, continued to provide the daughter with support in the amount of $50 to $100 per month until his death. The ALJ also found the decedent continued to pay the daughter's medical benefits when requested to do so, and remained responsible for one-half of her college education.
The ALJ also ordered that the daughter receive 75 percent of the death benefits and the widow receive 25 percent. In support of this distribution the ALJ found the widow was working full-time and could earn in excess of $7,500 per year with bonuses. Further, the ALJ found that the widow received $50,000 from a life insurance policy on the decedent, as well as $2,400 from a 401(K) payout. In contrast, the ALJ found the daughter is a full-time student who works part-time in a grocery store. Further, the ALJ noted that the daughter aspires to a college education, and has "immediate need for substantial benefits." Although the ALJ recognized the daughter was receiving Social Security benefits, he noted these benefits would terminate when she reaches 18 years of age.
I.
On review, the widow contends the ALJ erred as a matter of fact and law in concluding that she failed to rebut the presumption that the daughter was wholly dependent on the decedent. In support, the widow cites testimony that the daughter's mother covered all of the daughter's living expenses. The widow also contends that Hazel's testimony is not credible because there was no "documentation" that Hazel gave money to the daughter. Finally, the widow asserts the decedent had no legal duty to support the daughter and, therefore, the daughter could not be considered a dependent. We reject these arguments.
Section 8-41-501(1)(b) provides that "minor children of the deceased under the age of eighteen years" are "presumed to be wholly dependent." The presumption of dependency is predicated on the parent's legal obligation to support the child. Truitt v. Industrial Commission, 31 Colo. App. 166, 499 P.2d 621 (1972). Although this presumption is rebuttable, the party challenging the presumption must establish that the minor child received absolutely no support from the deceased. Knight v. Department of Natural Resources, 689 P.2d 733 (Colo.App. 1984); Diamond Industries v. Claimants in re Death of Crouse, 41 Colo. App. 541, 589 P.2d 1383 (1978). In this regard, we note that the presumption remains intact even if the decedent provided indirect support. Knight v. Department of Natural Resources, supra (property division paid to ex-wife constituted a form of "vicarious" support to the minor children).
The question of whether the decedent provided any support to a minor child is one of fact for determination by the ALJ. Knight v. Department of Natural Resources, supra. Consequently, we must uphold the ALJ's findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. In applying this standard of review we must defer to the ALJ's resolution of conflicts of the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Although the vast majority of the daughter's expenses may have been covered by the mother, the record nevertheless supports the determination that the decedent continued to provide some support to his daughter until the time of his death. See Diamond Industries v. Claimants in re Death of Crouse, supra (statute does not invite a weighing of the relative contributions to the support of a dependent). Hazel's testimony, which the ALJ necessarily credited, establishes that the decedent continued to provide money to the daughter even after the 1991 order for the modification of the decedent's child support payment. Further, the decedent continued to pay the daughter's medical expenses when requested, even though no payments were requested during calendar 1998. (Tr. p. 58).
The ALJ did not err in relying on Hazel's testimony. The absence of documents to corroborate her testimony was a matter going to its weight, not the admissibility of the testimony. See Halleburton Service v. Miller, 720 P.2d 571 (Colo. 1886) (testimony is not incredible as matter of law unless overwhelmingly rebutted by hard, certain evidence to the contrary).
Further, we reject the widow's assertion that the decedent had no "legal duty" to support his daughter after the 1991 child support modification. First, as the ALJ determined, the modification did not completely abrogate the duty of support because the decedent was required to pay certain medical expenses and one-half of the daughter's education should she enter college. In any event, the modification did not represent an abrogation of the decedent's duty to his daughter. Rather, the decedent and his ex-wife reached mutual agreement concerning the child support obligation in light of the fact that the son began residing with the decedent. Thus, the modification represented a compromise of the decedent's legal obligation to his daughter, not elimination of the obligation. Moreover, the daughter received a type of "vicarious" benefit from the modification since her mother was no longer required to spend her income on the son's living expenses.
Truitt v. Industrial Commission, supra, is not authority to the contrary. In that case, the children's grandparents legally adopted the children. Consequently, the decedent-father retained no legal obligation to support them. Here, in contrast, the decedent's legal obligation to support his daughter was never terminated.
II.
The widow next contends the ALJ erred in allocating the death benefits. The widow argues that her "actual dependence" on the decedent compared to the daughter's "actual dependence" required the ALJ to award at least equal shares to each of the claimants. We disagree.
Section 8-42-121, C.R.S. 1999, allows the ALJ to apportion death benefits between dependents in a manner which he deems "just and equitable." A just and equitable distribution will depend upon the facts of each case, and the ALJ may consider the "actual dependence" of the claimants as well as the relative incomes and circumstances of the claimants. Spoo v. Spoo, 145 Colo. 268, 358 P.2d 870 (1961).
The standard for review of an ALJ's apportionment of death benefits is abuse of discretion. Spoo v. Spoo, supra. Consequently, we may not interfere with the ALJ's order unless it is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985). In this regard, we note that once benefits are apportioned between dependents, modifications are not permitted except for specific statutory reasons. Ward v. Ward, 928 P.2d 739 (Colo.App. 1996). Consequently, the ALJ must be cognizant of foreseeable circumstances which may affect the dependents' needs.
Here, it may be true that the widow's "actual dependence" on the decedent was greater than that of the daughter at the time of death. However, the ALJ found evidence that the daughter is likely to incur substantial expenses for college in the immediate future. Further, at the time of the hearing the widow was employed at a full-time occupation, while the daughter's Social Security benefits will end on her eighteenth birthday. Finally, the widow received a substantial sum of money from the decedent's life insurance policy, and the daughter's right to workers' compensation death benefits will terminate no later than her twenty-first birthday. Section 8-41-501(1)(c), C.R.S. 1999. Under these circumstances, we cannot say the ALJ's apportionment of the death benefits constitutes an abuse of discretion.
IT IS THEREFORE ORDERED that the ALJ's order dated June 30, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed December 14, 1999 to the following parties:
Barbara Stolte Kretschman, 424 32 Rd., #168, Clifton, CO 81520
Kristell Kretschman, P.O. Box 188, DeBeque, CO 81630
Reynolds Polymer Technology, Inc., 607 Hollingsworth St., Grand Junction, CO 81505-1017
Legal Department, Colorado Compensation Insurance Authority — Interagency Mail
J. Keith Killian, Esq., 225 N. 5th St., #1010, P.O. Box 4848, Grand Junction, CO 81502 (For Claimant Barbara Stolte Kretschman)
Douglas E. Briggs, Esq., 743 Horizon Ct., #200, Grand Junction, CO 81506 (For Claimant Kristell Kretschman)
David Smith, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondents)
BY: A. Pendroy