Summary: Petitioner/Insurer petitioned the Workers' Compensation Court for guidance in paying death benefits to two minor children and their mother. Their mother had been receiving all benefits but the children do not live with her and she provides them no support in any form.

Held: While the statute governing death benefits provides for payment of a minor child's share to the surviving parent, by expressly providing benefits for the child the statute contemplates that the benefits will be applied to benefit the child, hence where the parent provides no support to the child the benefits may be redirected to the child and the child's guardian.

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Benefits: Death Benefits: Children. While the statute governing death benefits provides for payment of a minor child's share to the surviving parent, by expressly providing benefits for the child the statute contemplates that the benefits will be applied to benefit the child, hence where the parent provides no support to the child the benefits may be redirected to the child and the child's guardian. (Construing sections 39-71-721, -723 and -116(3), MCA (1991).)

Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-723 (1991). While the statute governing death benefits provides for payment of a minor child's share to the surviving parent, by expressly providing benefits for the child the statute contemplates that the benefits will be applied to benefit the child, hence where the parent provides no support to the child the benefits may be redirected to the child and the child's guardian. (Construing sections 39-71-721, -723 and -116(3), MCA (1991).)

Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: 39-71-721 (1991). While the statute governing death benefits provides for payment of a minor child's share to the surviving parent, by expressly providing benefits for the child the statute contemplates that the benefits will be applied to benefit the child, hence where the parent provides no support to the child the benefits may be redirected to the child and the child's guardian. (Construing sections 39-71-721, -723 and -116(3), MCA (1991).)

Statutes and Statutory Interpretation: Absurd Results. Statutes should be construed to avoid absurd results. S.L.H. v. State Compensation Mut. Ins. Fund, 2000 MT 362, ¶ 17, 303 Mont. 364, 15 P.3d 948 (2000).

Statutes and Statutory Interpretation: Conflicting Provisions. Courts must reconcile conflicting statutory provisions and make them operative in accordance with the legislative intent, insofar as it is possible to do so.

Statutes and Statutory Interpretation: No Meaningless Provisions. Courts must reconcile conflicting statutory provisions and make them operative in accordance with the legislative intent, insofar as it is possible to do so.

Statutes and Statutory Interpretation: Plain Meaning. " Generally, courts should apply the plain meaning of legislation, however when 'the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.... [T]he intention of the drafters, rather than the strict language, controls.'" United States v. Ron Pair Enter. (1989), 489 U.S. 235, 242, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290, 299 (citation omitted). Quoted in S.L.H. v. State Compensation Mut. Ins. Fund, 2000 MT 362, ¶ 31, 303 Mont. 364, 15 P.3d 948 (2000).

¶1 The trial in this matter was held on December 4, 2002, in Miles City, Montana. Petitioner, Montana State Fund, was represented by Mr. Thomas E. Martello. Respondent, Leslie Jackson, did not appear either personally or through counsel. Olivia Colon and Centennial Colon, who are the minor children of Edwardo Colon, were present and represented by their guardian ad litem, Mr. Frank J. Joseph.

¶2 Exhibits: No exhibits were offered.

¶3 Witnesses: Olivia Colon, Centennial (C.J.) Colon, Dolores Himanga, Roberta Jackson, and Alma Jean Renz testified.

¶4 Issues Presented: The issue, as rephrased by the Court, is: How should the death benefits of the deceased's minor children be paid?

¶5 Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, and the arguments of the parties, the Court makes the following:

¶6 On July 9, 1991, Edwardo Colon suffered a fatal industrial injury arising out of and in the course of his employment with Earth & Wood Craftsman, Incorporated.

¶7 At the time of the injury, Earth & Wood was insured by the State Fund. It accepted liability for the injury and resulting death.

¶8 At the time of his injury and death, Edwardo Colon was married to Leslie Jackson (Leslie) and had two natural children, Olivia and Centennial (C.J.) Colon. Olivia's and C.J.'s natural mother is Leslie Jackson.

¶9 Leslie, Olivia, and Centennial are the beneficiaries of Edwardo Colon.

¶10 State Fund has been paying death benefits for all three beneficiaries in the total sum of $145.55 per week. Since Leslie is the natural mother of Olivia and C.J., it has been paying that entire amount to Leslie.

¶11 The State Fund was furnished with information indicating that Olivia and C.J. are neither living with nor being supported by Leslie. It then filed the present petition seeking a determination as to how it should pay benefits attributable to Olivia and C.J.

¶12 On June 17, 2002, Leslie was personally served with a summons and a copy of the petition. A copy of the return is in the Court file. She thereafter sent correspondence to the Court indicating her awareness of the present proceeding. All further notices of proceedings in this matter were mailed to her, first class postage prepaid, to the address she furnished the Court. None of the notices were returned to the Court. (Court File.)

¶13 She was served with notices of the pretrial conference and trial.

¶14 Leslie lives in Poplar, Montana. Leslie's mother is Alma Jean Renz (Alma), who also lives in Poplar, Montana. Alma appeared at trial. She testified that she talked to Leslie shortly before traveling to Miles City for the trial. Leslie acknowledged she was aware of the upcoming trial but told her (Alma) that she would not be attending the trial because she did not have transportation to Miles City.

¶15 Olivia lives with Dolores and Frank Himanga in Frederick, South Dakota. She is 17½ years old (d.o.b. July 9, 1985). She is a junior in high school and plans to go to college.

¶16 Dolores and Frank Himanga are Olivia's de facto guardians. Olivia last lived with her mother five years ago in North Dakota. Her mother returned to Montana but left Olivia in North Dakota with Rhonda Himanga. Olivia then moved in with Dolores and Frank Himanga who have cared and provided for her ever since.

¶17 Since her mother moved back to Montana, Olivia has received no monetary or other support from her mother, Leslie. The Himangas have received no support for Olivia.

¶18 Olivia last saw her mother two or three years ago. She does not speak with her mother by telephone and has received one or two letters over the past five years. Her mother does not send her gifts or cards on holidays.

¶19 Olivia is receiving social security benefits on account of her father's death. Those benefits were paid to her mother until recently when the Social Security Administration redirected the benefits to her directly, co-payable to Dolores Himanga.

¶20 C.J. is 16 years old (d.o.b. September 17, 1986). For the last three years he has lived with his aunt, Roberta Jackson (Roberta), and his grandmother, Alma, in Poplar, Montana. He is a freshman in high school.

¶21 C.J.'s grandmother, Alma, is his legal guardian.

¶22 Leslie provides no monetary support to or for C.J. Roberta testified that Leslie has been asked for support for C.J. but she has never provided any support.

¶23 C.J. sees his mother in town but she does not talk to him. He last lived with her five years ago.

¶24 As with Olivia, the Social Security Administration recently redirected C.J.'s social security benefits directly to him with his grandmother as co-payee.

¶25 This case is governed by the 1991 version of the Montana Workers' Compensation Act since that was the law in effect at the time of Edwardo's industrial accident. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).

¶26 The death benefits in this case are governed by sections 39-71-116, -721and -723, MCA (1991).

¶27 As applicable here, section 39-71-721, MCA, provides that the decedent's "beneficiaries as defined in 39-71-116(3)(a) through (3)(d)" are entitled to benefits equal to two-thirds of the decedent's wages, subject to a statutory maximum amount. In turn section 39-71-116(3)(a) through (3)(d), MCA, provides:

(3)  "Beneficiary" means:

(a) a surviving spouse living with or legally entitled to be supported by the deceased at the time of injury;

(b) an unmarried child under the age of 18 years;

(c) an unmarried child under the age of 22 years who is a full-time student in an accredited school or is enrolled in an accredited apprenticeship program; (d) an invalid child over the age of 18 years who is dependent upon the decedent for support at the time of injury;

Olivia and C.J. are unmarried children under the age of 18, thus they are beneficiaries entitled to equally share with their mother in the death benefits.

¶28 Remittance of death benefits is governed by 39-71-723, MCA (1991). As applicable to the present case, that section provides:

39-71-723.  How compensation to be divided among beneficiaries. Compensation due to beneficiaries shall be paid to the surviving spouse, if any, or if none, then divided equally among or for the benefit of the children.  . . .

On its face, the section requires payment of Olivia's and C.J.'s benefits to their mother, Leslie Jackson. But under the circumstances of this case, and similar cases, where the surviving spouse has abandoned her children and fails to provide them with any support whatsoever, such payment would deprive the children of the benefits which sections 39-71-721 and 39-71-116(b) and (c), MCA, expressly provides them. Elementary principles of statutory construction require that all three sections be read together to give effect to all of their provisions, if possible. Montana Auto. Ass'n v. Greely, 193 Mont. 378, 389, 632 P.2d. 300, 632. They also provide that statutes should be construed to avoid absurd results. S.L.H. v. State Compensation Mut. Ins. Fund, 2000 MT 362, ¶ 17, 303 Mont. 364, 15 P.3d 948 (2000).

¶29 While the Court recognizes that it cannot write in new provisions omitted by the legislature, section 1-2-101, MCA, it also cannot ignore provisions which are express in the statute, id. The statutes at issue here seemingly conflict. Montana Auto Ass'n, cited above, provides guidance for reconciling them:

If possible, subsections of a statute should be construed in a manner that will give effect to them all. This Court must reconcile conflicting statutory provisions and make them operative in accordance with the legislative intent, insofar as it is possible to do so.

193 Mont. at 389, 632 P. 2d at 632. Indeed, "[t]here is a presumption existing against the construction of a statute which would render it ineffective, inefficient, or which would cause grave public injury . . . ." Pondera County v. Pondera County, 89 Mont. 342, 297 P. 498, 501 (1931). And if there is any doubt that the Court must give effect to the children's entitlement, that doubt is dispelled by guidance from S.L.H., in which the Supreme Court said:

¶ 31 Generally, courts should apply the plain meaning of legislation, however when "the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.... [T]he intention of the drafters, rather than the strict language, controls." United States v. Ron Pair Enter. (1989), 489 U.S. 235, 242, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290, 299 (citation omitted). "Where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all." Section 1-2-101, MCA.

S.L.H. at ¶ 31.

¶30 Construing the sections together, I find implicit in the provision for payment of children's benefits to the surviving spouse a requirement that the surviving spouse be providing support for the children. Parents have a legal obligation to support their children. Section 40-6-211, MCA, provides: "The parent or parents of a child shall give the child support and education suitable to the child's circumstances." Thus, to allow Leslie to keep all of the benefits not only deprives Olivia and C.J. of their statutory entitlement but would also be contrary to fundamental public policy and frustrate section 40-6-211, MCA. I therefore conclude that under the facts of the present case, section 39-71-723, MCA, implicitly allows payment of the children's share of death benefits to be applied for their direct benefit, therefore, the benefits may be paid directly to them and their guardians.

¶31 The death benefits of Olivia Colon which have been withheld pursuant to this Court's prior Order, as well as her future benefits, shall be paid directly to her and her de facto guardian, Dolores Himanga, as co-payees.

¶32 The death benefits of Centennial (C.J.) Colon which have been withheld pursuant to this Court's prior Order, as well as his future benefits shall be paid directly to him and his guardian, Alma Jean Renz, as co-payees.

¶33 This JUDGMENT is certified as final for purposes of appeal.

¶34 Any party to this dispute may have twenty days in which to request a rehearing from these Findings of Fact, Conclusions of Law and Judgment.

DATED in Helena, Montana, this 12^th day of December, 2002.

(SEAL)

/s/ Mike McCarter
JUDGE

c: Mr. Thomas E. Martello
Mr. Frank J. Joseph
Ms. Leslie Jackson
Ms. Olivia Colon (Courtesy Copy)
Mr. Centennial (C.J.) Colon (Courtesy Copy)
Ms. Dolores Himanga (Courtesy Copy)
Ms. Alma Jean Renz (Courtesy Copy)
Submitted: December 4, 2002