Opinion
W.C. No. 4-425-155
April 5, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Coughlin (ALJ), dated February 17, 2000, which determined the claimant, Susana Marquez, was the common law wife of Sergio Reyes (decedent); and, therefore, determined the claimant is entitled to dependency benefits. The claimant seeks review of a supplemental order, dated September 26, 2000, which determined the decedent's average weekly wage. We affirm the order of February 17, and modify the supplemental order of September 26.
I.
The decedent was killed in an automobile accident on May 7, 1999. The ALJ found that in August 1998, the claimant and the decedent began dating. Early in November 1998, the claimant and decedent moved into an apartment and resided together until the decedent's death.
The ALJ found that after moving in together the claimant and decedent publicly referred to each other as husband and wife. Members of both the claimant's and decedent's families testified to this fact. Based on this evidence the ALJ inferred the existence of a common law marriage resulting from cohabitation and general reputation.
On review, the respondents argue the record does not contain sufficient evidence of "objective elements" to support the finding of a common law marriage. The respondents point out the claimant and decedent did not jointly own any real property, they did not file a joint tax return, and there was no evidence of joint bank or credit accounts. The respondents rely on People v. Lucero, 747 P.2d 660 (Colo. 1987), as authority for their position. We perceive no error.
A common law marriage is established by mutual consent or an agreement of the parties to be husband and wife, and this agreement must be followed by the mutual and open assumption of the marital relationship. The agreement must be manifested by conduct which gives evidence of the parties' mutual understanding. Id. at 663. In Lucero, the court stated the "two factors that most clearly show an intention to be married are cohabitation and a general understanding or reputation among persons in the community in which the couple lives that the parties hold themselves out as husband and wife." Id. at 665. The court also listed a number of other "behaviors" which "may be considered," including the maintenance of joint accounts, joint ownership of property, use of the man's surname by the woman, and the filing of joint tax returns. However, Lucero emphasized that "there is no single form that any such evidence must take," and the ultimate determination "turns on issues of fact and credibility, which are properly within the trial court's discretion." Id. at 665; see also In re Custody of Nugent, 955 P.2d 584 (Colo.App. 1997).
Because determination of a common law marriage is a question of fact, we must uphold the ALJ's finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000; Emenyonu v. Don Ward, Inc., W.C. No. 4-391-071 (March 12, 2001). This standard of review requires us to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents' assertion notwithstanding, the record contains ample evidence that the claimant and decedent cohabited and held themselves out as married in the community where they resided. As the Lucero decision emphasized, these are the two most important behaviors evidencing a common law marriage. In addition, the ALJ found there was evidence that the decedent provided support for the claimant and her child, and that the claimant and decedent comingled their funds.
The fact that some "behaviors" tending to prove the existence of a common- law marriage were not present does not change the result. Lucero expressly provides the evidence need not take any particular form so long as the agreement of the parties is evidenced by actual behavior. Here, the record fully supports the ALJ's finding that a common law marriage was proven.
II.
The claimant next contests the ALJ's summary order which calculated the average weekly wage to be $465.05. We modify the order.
In the February 17 order, the ALJ found the decedent's average weekly wage was $465.05 based on earnings of $13 per hour plus time and one-half for overtime. However, the ALJ arrived at this amount by averaging the total number of hours the claimant worked during his 20 weeks of employment. Moreover, the ALJ purported to exclude a $150 per week "travel allowance" which the decedent received while working at remote sites, and which he was earning at the time of his death. The claimant appealed the February 17 order arguing the ALJ should have based the average weekly wage on the claimant's earnings during the last three weeks of employment, and should have included the travel allowance.
In the summary order, the ALJ agreed the travel allowance should be included in the average weekly wage. However, the ALJ again averaged the claimant's earnings plus the travel allowances paid over the 20 weeks of employment. The ALJ again found the average weekly wage was $465.05.
The claimant filed a timely petition to review the summary order. The only argument contained in the petition is that the ALJ's method of calculation "should result in an average weekly wage of $465.95 not the stated average weekly wage of $465.05." We have performed the calculations required by the ALJ's summary order and agree with the claimant that the correct average weekly wage is $465.95, and the order is amended accordingly.
We do not understand the claimant to be challenging the ALJ's method of determining the average weekly wage. However, even if the claimant were raising such an argument, we would find it to be without merit. The ALJ found in the summary order that, "due to the nature of the claimant's work," the fairest method of calculating the average weekly wage is to average the claimant's earnings over the 20 weeks of employment.
The ALJ possessed discretion to use any method which would arrive at a fair calculation of the claimant's average weekly wage. Section 8-42-102(3), C.R.S. 2000. Here, the evidence was that the decedent's work was seasonal and he did not always receive the travel allowances (Exhibit K). Consequently, we perceive no abuse of discretion in the ALJ's method of calculating the average weekly wage. Drywall Products v. Constuble, 832 P.2d 957 (Colo.App. 1991).
Because the ALJ's summary order included the travel allowance, the ALJ has resolved the claimant's other objection to the February 17 order.
IT IS THEREFORE ORDERED the ALJ's order dated February 17, 2000, is affirmed insofar as it determined the claimant was the decedent's common law wife and is entitled to dependent's benefits.
IT IS FURTHER ORDERED the ALJ's summary order dated September 26, 2000, is modified to provide that the decedent's average weekly wage is $465.95.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Robert M. Socolofsky
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. 2000.
Copies of this decision were mailed April 5, 2001 to the following parties:
Susana Marquez, 4895 Tejon St., Denver, CO 80221
LVI Environmental Services, Inc., 2630 N. 2nd Ave., Denver, CO 80219-1632
Reliance Insurance Co., P. O. Box 261218, Littleton, CO 80163-1218
Janie Castaneda, Esq., 1120 Lincoln St., #703, Denver, CO 80203 (For Claimant)
Craig H. Russell, Esq., 4450 Arapahoe Ave., #100, Boulder, CO 80303-9102 (For Claimant)
John Lebsack, Esq., 950 17th St., 21st floor, Denver, CO 80202-2804 (For Respondents)
Gregory Cairns, Esq., 1775 Sherman St., #1075, Denver, CO 80203 (For Respondents)
By: L. Epperson