Malone v. City of Los Angeles

MOORE, P. J.

The question for decision is whether the son of a deceased employee of the city of Los Angeles, under the age of 18 years who has been adopted by his stepfather, is still entitled to a pension as the orphan of such deceased employee.

One Joseph William Kacl was employed by the city as a fireman and was a member of the fire and police pension system. He was killed in the performance of his duties November 6, 1939. A pension having been awarded to respondent as the widow of Fireman Kacl, it was discontinued in 1945 on her marriage to Gerald Malone. Subsequently she was ap

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pointed guardian of the person and estate of her son Joseph William Kael II, whereupon she applied to appellants for a pension for Junior under the provisions of section 183 of the city charter,

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and the child was granted such pension. Thereafter, by decree of the court, Gerald Malone adopted the boy on November 20, 1946, and Joseph William II has lived with his mother and Gerald in their home.

Proceedings were duly instituted by the board of pension commissioners who gave notice to respondent that no further pension would be paid on the ground that the minor had ceased to be a son of respondent’s deceased husband and thereby ceased to be entitled to benefits of section 183. Thereafter, no pension was paid to the adopted son and the pension board notified respondent that no further pension benefit would be paid to Joseph William II and demanded restitution of all sums paid to the child as pension money prior to November 28, 1952, in the total sum of $6,304.53. Subsequently, respondent as guardian of her minor son petitioned the superior court for a writ of mandate to compel appellants to resume payment of the pension to Joseph William II. Upon the issues raised by the “return” of the board of pension commissioners, the court tried the controversy and made findings in accordance with the allegations of Mrs. Malone and concluded that the board should resume payment of all sums to which the minor son is entitled “computed back to November 28,1952. ’’ Judgment followed.

Appellants now demand a reversal on the grounds that (1) the adoption of the minor by Gerald Malone terminated the boy’s pension rights; (2) section 183 of article XVII of the city charter does authorize the termination or forfeiture of the “minor’s pension rights upon, or and by reason of, his adoption during the period of his entitlement, (3) it was error