[301]WHELAN, J. I dissent.
Section 3501, subdivision (b) of the Labor Code makes a distinction between a parent who at the time of fatal injury “was legally liable” for the maintenance of a child under the age of 18 years, and a parent not so liable.
The respondent Commission denies such distinction in granting a petition for reconsideration of a referee’s award based upon a finding of partial dependency. In making its award based upon a finding of total dependency, the Commission stated: “Labor Code Section 3501 (b) does not require that liability for support be primary; it merely requires legal liability.
“Both parents have a duty to support their minor children regardless of which one has custody under a divorce decree.”
If the award finds its only justification in the quoted language of the Commission, it has its theoretical base in the postulate that each parent of a child under 18 years of age is “the parent . . . legally liable” for the maintenance of such child within the meaning of Labor Code, section 3501, subdivision (b). I recognize that if the award may find legal support in some other theory, it will not be set aside because the Commission may have put forth a faulty explanation for a sound conclusion.
The evidence is clear that the four children of the deceased mother were not totally dependent upon her in fact1 and that none of the children was living with the deceased mother at the time of the injury. The finding of total dependency therefore can be based only upon that part of section 3501, subdivi[302]sion (b) that declares a presumption of total dependency when the deceased parent “was legally liable” for maintenance.
The applicability of that presumption, under the factual situation here involved, must depend upon one of the following propositions: (A) Every mother of a minor child is at all times and in all circumstances the parent “legally liable” for the maintenance of such child within the meaning of section 3501, subdivision (b); or (B) a mother not otherwise legally liable for the support of her minor child becomes so liable by making gifts to the child if the responsible father considers himself unable financially to make such gifts.
Proposition (A) Considered
This proposition is false unless the obligation of a mother to support her minor child is equal and coextensive with the father’s obligation.
Fox v. Industrial Acc. Com., 194 Cal. 173 [228 P. 38], held squarely that the mother of children under the age of 18 years was not legally liable for their support, although she was entitled to their custody equally with their surviving nondependent father with whom she had been living. The court said, at page 182: “It having been held that the deceased parent was not legally liable for the maintenance of the minors, within the meaning of section 14 (a) (2), it is clear that the conclusive presumption of total dependency does not apply. ’ ’2
In other cases, the Supreme Court has failed to find that an employed mother was legally liable for support of her children living with her and their surviving nondependent father, although the mother’s earnings were pooled with those of her husband for the support of the family because the father’s salary was insufficient. (Douglas Aircraft Co. v. Industrial Acc. Com., 24 Cal.2d 340 [149 P.2d 702] ; Fireman’s Fund Indem. Co. v. Industrial Acc. Com., 24 Cal.2d 942 [149 P.2d 705].) In Douglas, the court said, at page 343: “Whether or not she was liable for their support is of no consequence; the Legislature has stated that the conclusive presumption applies under either of the conditions mentioned. ’'
[303]The father has heretofore always had the primary duty to furnish support. (Newell v. Newell (1956), 146 Cal.App.2d 166,178 [303 P.2d 839].)
His duty is measured by the scope of the penal statute imposing sanctions for its violation. ‘ ‘ Since the recasting of section 270 of the Penal Code by the act of 1923 (Stats. 1923, p. 592), the failure of a father to provide necessary support and maintenance for his minor child has been a criminal offense. This is true regardless of agreements, property settlements, decree of divorce or decrees respecting custody or maintenance of the minor, affecting the husband and wife. All doubt or confusion on this subject has also been settled by recent decisions of this court. (Federal Mut. etc. Co. v. Industrial Acc. Com., 195 Cal. 283 [233 P. 335] ; Southern Cal. Edison Co. v. Industrial Acc. Com., 92 Cal.App. 355 [268 P. 415].)” (Dixon v. Dixon (1932), 216 Cal. 440, 442 [14 P.2d 497].)3 The father’s obligation is: “ ‘. . . unaffected by either the interlocutory or final decree and may be enforced by a proper proceeding.’ (Bernard v. Bernard (1947) 79 Cal.App.2d 353, 358 [179 P.2d 625].) That the children are in the custody of the mother under court order does not relieve the father of the support obligation, even though section 196, Civil Code, provides, in part, that the parent entitled to the custody of a [304]child must give him support and education suitable to his circumstances. (Dickens v. Dickens (1947) 82 Cal.App.2d 717 [187 P.2d 91].) ” (Estate of Goulart, 218 Cal.App.2d 260, 263 [32 Cal.Rptr. 229, 6 A.L.R.3d 1380].)
The view that every mother is legally liable for the maintenance of her children within the meaning of section 3501, Labor Code, makes meaningless much of the language of subdivision (b). If that had been the intention of the Legislature, it being clear that every father is legally liable for the support of his child within the meaning of the statute, all that the Legislature need say would be: “The following shall be conclusively presumed to be wholly dependent for support upon a deceased employee: . . . (b) A child under the age of 18 years if the child had no surviving parent dependent upon the deceased employee. ’ ’
It is argued, however, that the adoption of section 243 of the Civil Code in 1955 altered significantly the legal obligation of a mother to support her child. That section provides as follows: “Every woman shall support her child; and her husband and her parent when in need. The duty imposed by this section shall be subject to the provisions of Sections 176, 196, and 206 of the Civil Code. ’ ’
Section 196 referred to in section 243, was enacted in 1872. It is as follows: “The parent entitled to the custody of a child must give him support and education suitable to his circumstances. If the support and education which the father of a legitimate child is able to give are inadequate, the mother must assist him to the extent of her ability. ’’
It is also urged that the amendments of section 270 of the Penal Code in 1923 and 1955 made changes that affect the question of the legal liability of a mother of minor children. That section now reads in part: “In the event that the father of either a legitimate or illegitimate minor child is dead or for any other reason whatsoever fails to furnish the necessary food, clothing, shelter or medical attendance or other remedial care for his minor child, the mother of said child shall become subject to the provisions of this section and be criminally liable for the support of said minor child during the period of failure on the part of the father to the same extent and in the same manner as the father.
“The provisions of this section are applicable whether the parents of such child are married or divorced, and regardless of any decree made in any divorce action relative to alimony or to the support of the child. ’'
Section 270, Penal Code, was altered in 1955 only by the [305]insertion of the words “or for any other reason whatsoever” in place of the words “or unable by reason of physical or mental infirmity” in the first of the quoted paragraphs and by conforming the remainder of that paragraph to such alteration.
The 1923 amendment, so far as pertinent here, made it express that the mother's obligation arose only in case of the father’s inability to furnish support, which had not been explicit in the original statute.
In adopting section 243, Civil Code, the Legislature must have been aware of the provisions of Labor Code, section 3501, subdivision (b). It is to be assumed that the Legislature was aware also of the holding in Fox v. Industrial Acc. Com., supra, 194 Cal. 173. (Williams v. Industrial Acc. Com., 64 Cal.2d 618, 620 [51 Cal.Rptr. 277, 414 P.2d 405].) Had the Legislature wished to equate the mother’s legal liability for support with that of the father under section 3501, subdivision (b), they might have done so, but they did not.
Failure to make changes in a given statute in a particular respect when the subject is before the Legislature and changes are made in other respects is indicative of an intention to leave the law unchanged in that respect. (Williams v. Industrial Acc. Com., supra, 64 Cal.2d 618, 620.)
Additionally, notwithstanding the adoption in 1955 of section 243, Civil Code, Newell v. Newell, supra, 146 Cal.App.2d 166, 178, decided in 1956, reiterates the primary nature of the father’s obligation to support the children.
It is not reasonable to conclude, therefore, that either the adoption of Civil Code, section 243, or the amendment of Penal Code, section 270, squares the legal liability of a mother for child support with that of the father. The father remains primarily liable for the support of his children.
Proposition (B) Considered
The argument in support of Proposition (B) may be encapsulated as follows:
There was a partial dependency as a matter of fact because of the mother’s unrequested, unordered and voluntary contributions; such contributions created a need for their continuance that made the support furnished by the father inadequate and brought the case within the proviso of section 196, Civil Code, that “If the support and education which the father of a legitimate child is able to give are inadequate, the mother must assist him to the extent of her ability.”; the mother, therefore, by making such voluntary contributions, [306]became a parent legally liable for the maintenance of such children. In this fashion, a partial dependency based upon voluntary contributions is parlayed into a total dependency. I doubt the validity of such an argument and for the following reasons:
In Fox v. Industrial Acc. Com., supra, 194 Cal. 173, the court declared that the deceased mother did not by voluntary contribution to the support of the minor children become liable for their maintenance; and it remanded the matter to the Commission to make a finding of fact as to the existence and extent of partial dependency.
Dependency, either total or partial, is the test for an award of a death benefit.
Total dependency as a matter of law exists in those cases where a presumption arises under section 3501 that a spouse or child is wholly dependent upon a deceased employee. Both partial dependency and total dependency may exist as a matter of fact.4
Dependency may exist in fact without there having been any legal obligation upon the injured person to furnish support to the dependent.5
Dependency does not mean absolute dependency for the necessities of life; it is sufficient that contributions of the workman are looked to for support in the maintenance of the dependent’s accustomed mode of living. (London Guar. & Acc. Co. v. Industrial Acc. Com., 203 Cal. 12 [263 P. 196]; London Guar. etc. Co. v. Industrial Acc. Com., 57 Cal.App.2d 616 [135 P.2d 7] ; Larsen v. Industrial Acc. Com., 34 Cal.2d 772 [215 P.2d 16].)
The fact that the deceased employee has furnished the necessities of life and the person held dependent has supplied only what might be termed luxuries creates a partial, rather than a total, dependency in fact. In such situation it is immaterial [307]that after the death of the deceased the applicant could no longer maintain the same standard of living without assistance. (London Guar. & Ago. Co. v. Industrial Acc. Com., supra, 57 Cal.App.2d 616, 619.)
A finding of partial dependency may be based upon the furnishing of nonnecessaries, is not necessarily related to any legal liability to support, and does not itself give rise to a legal obligation that does not exist otherwise. It is not logical, therefore, that the presumption of total dependency declared by section 3501, subdivision (b), should arise because of partial dependency in fact based only upon voluntary contributions to children whose father was discharging his legal obligation to support them, who was entitled to their custody and with whom they were living.
Did an Enforceable Obligation Exist Against the Mother for Support?
It is difficult to see how that might be. Her legal obligation would arise, apart from agreement or court order, when one of the conditions mentioned in section 270, Penal Code, might occur. No such condition had occurred.
An enforceable obligation, if any, under section 196, Civil Code, would come into being under court order.
The divorce court awarded custody of the children to the father upon his complaint. It may be inferred that he did not ask that the defendant mother furnish any support to the children, or, alternatively, that if he had so prayed, the court found against him.
However, the court, having assumed jurisdiction over the custody of the children, had a continuing jurisdiction over such custody under Civil Code, section 138, and a continuing jurisdiction to make an award for child support under section 139, Civil Code. That jurisdiction is not defeated because the final decree made no express provision for child support; an award for future support could nevertheless be made by appropriate proceedings before the divorce court. (Krog v. Krog, 32 Cal.2d 812 [198 P.2d 510]; Harlan v. Harlan, 154 Cal. 341 [98 P. 32].)
The jurisdiction of the court that awarded the custody is exclusive with regard to custody and support. (Lewis v. Lewis, 174 Cal. 336; von Beroldingen v. von Beroldingen (1962), 210 Cal.App.2d l [26 Cal.Rptr. 202].)
It follows that only the divorce court could have made an order that the mother pay an amount certain for child support after a hearing in which she would have had an opportunity to [308]be heard. All that can now be said is that the father might have applied to the court for such relief; if he failed to do so and the children were in need they could, by appropriate action in the same proceeding, have brought the matter before the court. (Lewis v. Lewis, supra, 174 Cal. 336, 341 [163 P. 42].)
In Fox v. Industrial Accident Com., supra, 194 Cal. 173, the court said, at page 181: “A situation is conceivable in which the husband and wife might be . . . both contributing to the support of the minor children in the manner described above, where by some judicial proceeding and decree, or by a contract between the parties, the mother has made herself legally liable for the support of the minor children ...”
Neither by agreement nor decree had the mother been obligated to support the children. Had she been legally obligated, that obligation could be discharged only by making payments to the parent having custody whose right and duty it would be to apportion available means among the children and for such necessaries and amenities as he deemed for their best interests. In the case at bench, the evidence shows that of the mother’s gifts between 81 and 82 percent went to the two girls; less than 19 percent to the two boys.
But the reasoning that upholds the Commission’s award logically permits a holding that any divorced mother of children whose custody has been awarded to their father becomes legally liable for their maintenance within the meaning of section 3501, subdivision (b) merely by making gifts to them which the father considers himself financially unable to make; and thereby incurs an enforceable obligation.
Partial Dependency and Attorney’s Fees
If the award had been annulled, the court of appeal properly would have passed upon the finding of the referee that there was partial dependency. That finding under the law may be sustained. Petitioners dispute the amount of the contribution made by the mother, claiming that her earnings and her own living expenses could not have permitted the claimed contribution, citing as authority Sada v. Industrial Acc. Com., 11 Cal.2d 263, 269 [78 P.2d 1127].)
. The referee’s original award of attorney’s fees was increased by the respondent Commission in view of the fact that the referee’s award was augmented by the efforts of the attorney. Had the Commission’s award been annulled by the court of appeal, that matter also would properly have been subject .to review.
[309]Policy Considerations
The theory is possible that the amount of the insurance premium having taken account of the risk of paying a death benefit, such benefit therefore should be paid whenever there are minor children and no dependent parent. It is for the Legislature to make such a policy rather than for the respondent Commission to do so by the nullification of existing law.
I would annul the award.
The mother died July 9, 1964. She had been in her then employment for two years. The father of the children sought and obtained by default an interlocutory decree of divorce from the mother on June 4, 1963, and applied for and obtained a final judgment which was entered on June 10, 1964. The interlocutory decree awarded custody of the children to the father; the final judgment confirmed the award of custody. No express provision for support of the children was made. The father and four children lived together in a house. On weekends the mother usually had two of the children overnight in her one-bedroom apartment. There were two boys and two girls; she had the girls more often than the boys, and never all four at the same time. The mother made them gifts of shoes and other clothing, which, with the exception of some clothing given the girls, was bought new for the children. She bought toys for them, took them to places of entertainment, and furnished their meals during their visits with her. Of the estimated value of the gifts made, over 81 percent went to the girls, less than 19 percent to the boys. The father never asked the mother for assistance in supporting the children and did not directly receive any. He had been able to and did provide the basic necessary things for the children, but not all of the things that they were used to having as a result of the mother’s gifts.
It may be assumed that in Fox v. Industrial Acc. Com., 194 Cal. 173 [228 P. 38], the court believed that the presumption did not arise unless the mother were not only legally liable for their maintenance, but that they be living with her. The court did not decide whether the children who had been at school in Japan for several years were living with the parents, basing its decision solely on the ground that the mother was not legally liable for support within the meaning of the section.
A father’s legal liability to support his minor child is unaffected by an award of custody to the mother without provision for support whether made by a foreign court (Pacific Gold Dredging Co. v. Industrial Acc. Com., 184 Cal. 462 [194 P. 1, 13 A.L.R. 725]; Southern Cal. Edison Co. v. Industrial Acc. Com., 92 Cal.App. 355 [268 P. 415] ) or by a California court (Llewellyn Iron Works v. Industrial Acc. Com., 191 Cal. 28 [214 P. 846]); that award of custody to the mother ordered the father to pay support whether by a foreign court (Federal Mut. Liab. Ins. Co. v. Industrial Acc. Com., 195 Cal. 283 [233 P. 335]) or a California court; (Sherer & Co. v. Industrial Acc. Com., 182 Cal. 488 [188 P. 798]) ; that a 17-year-old son was in military service at the time of the death of his father (Argonaut Ins. Exchange v. Kates, 137 Cal.App.2d 158 [289 P.2d 801]) ; that a 17-year-old son was self-supporting in fact (Pacific Employers Ins. Co. v. Industrial Acc. Com., 81 Cal.App.2d 37 [183 P.2d 344]). Although certain decisions mention that a father has voluntarily commenced or resumed furnishing whole or partial support of a child, which seemed to play a part in the court’s conclusion that the father was legally liable for the child’s maintenance so as to give rise to the conclusive presumption under section 3501, subdivision (b) (Pacific Gold Dredging Co. v. Industrial Acc. Com., supra, 184 Cal. 462; Federal Mut. Liab. Ins. Co. v. Industrial Acc. Com., supra, 195 Cal. 283; Llewellyn Iron Works v. Industrial Acc. Com., supra, 191 Cal. 28), Dixon v. Dixon, supra, 216 Cal. 440, 442, finds the rationale of such decisions to be the father’s immutable legal liability to support his child.
The father’s obligation continues even though he has not honored it. (Argonaut Ins. Exchange v. Kates, 137 Cal.App.2d 158 [289 P.2d 801]; Pacific Employers Ins. Co. v. Industrial Acc. Com., 81 Cal.App.2d 37 [183 P.2d 344].)
Total dependency in fact of a minor child upon a deceased father was found in a case where the presumption of total dependency was certainly applicable. (Madera Sugar Pine Co. v. Industrial Acc. Com. (1922) 189 Cal. 350 [208 P. 278].)
The following have been held totally dependent: decedent’s sister and nephew (Peterson v. Industrial Acc. Com., 188 Cal. 15 [204 P. 390]) ; child of woman with whom deceased lived in meretricious relationship (Federal Mut. Liab. Ins. Co. v. Industrial Acc. Com., 187 Cal. 469 [202 P. 664]; Moore Shipbuilding Corp. v. Industrial Acc. Com., 185 Cal. 200, 205 [196 P. 257, 13 A.L.R. 676]). Partial dependency was held to exist in these cases: Grand-niece of deceased employee (London Guar. etc. Co. v. Industrial Acc. Com., 57 Cal.App.2d 616 [135 P.2d 7]); children of woman with whom deceased employee lived in meretricious relationship (Tuttle v, Industrial Acc. Com., 31 Cal.App.2d 279 [87 P.2d 881]).