Hanson v. City of Seattle

Hunter, J.

This is an action by Joan R. Hanson, guardian ad litem, in behalf of two minor children, Patrick D. McGinley and Michael J. McGinley, plaintiffs (appellants) against the City of Seattle and the members of the Firemen’s Pension Board of the City of Seattle, defendants (respondents), for pension benefits to which they claim they are entitled upon the death of their father.

The father of the minor plaintiffs, who died on January 26, 1968, was a retired member of the City of Seattle fire department. At the time of his death he had been divorced from his wife and the care, custody and control of the children under the divorce decree had been awarded to the mother, reserving the right of reasonable visitation to the father and directing that he pay $100 per month to the mother for their support.

The minor plaintiffs filed a formal claim with the defend ’ ant pension board for benefits by reason of their father’s death. There is no dispute that the children would be entitled to a pension benefit in the amount of their father’s pension, $252.50, to share and share alike until the older child reached the age of 18, at which time the total amount would then be paid for the benefit of the younger child until he attained .the age of 18, provided the children come within the definition of “child” or “children” contained in the Firemen’s Relief and Pensions — 1955 Act. RCW 41.18. This act provides, in part, as follows:

“Child” or “children” means a fireman’s child or children under the age of eighteen years, unmarried, and in the legal custody of such fireman at the time of his death.

RCW 41.18.010 (6).

The defendant pension board ruled that the children, by reason of the language of the divorce decree, were not in the legal custody of their father and their claim for benefits, therefore, was denied. This action followed. The trial court sustained the ruling of the pension board -and dismissed the action. The plaintiffs have appealed.

The plaintiffs contend it was not the intention of the legislature to preclude payment of benefits to children of divorced parents who were not residing with the father at the time of his death, and that the term “legal custody” is ambiguous in that it has a different meaning determined upon the context in which it is used. We agree. Used in the context other than the divorce decree, the father, as a parent, has the legal right to the custody of the children superior to any person other than the mother, unless he has been determined, in a judicial proceeding, to be an unfit person to have such custody. In re Neff, 20 Wash. 652, 655, 56 P. 383 (1899), we said:

The order made by the superior court of Snohomish county, when the custody of the children was awarded to their mother in the divorce suit, was necessarily temporary in its nature, and it would require much more co: gent reasons to deliver the custody of the children to a stranger than to their mother. The parents are the natural guardians and entitled to the care, control and society of their children; and when, -unfortunately;. the marital union is dissolved, as in this case, it may be necessary to commit the custody of the children to one to the exclusion of the other, and it will usually be done to the one least at fault, if competent. But it does not necessarily deprive the other, as against any one else, of the custody of the children.

(Italics ours.) Even under the context of a divorce decree, the father has the right to the custody of his children during the period of their visitations to him. We believe the phrase “legal custody” as used in the statute, must be construed in the broad sense in the light of the purpose and public policy upon which the pension act was premised.

The general purpose of pension legislation is not expressly spelled out in the 1955 act; however, it is implicit, from a review of other pension acts passed by' the legislature of this staté, that the fundamental objective óf súch legislation is to provide benefits to the employees of the system, upon their disability or retirement, and to their dependents upon their disability or death. ¡This legislative purpose was expressly stated in the 1969 Washington Law Enforcement Officers’ and Fire Fighters’ Retirement System Act, RCW 41.26, which states, in part, as follows:

The purpose of this chapter is to provide for an actuarial reserve system for the payment of death, disability, and retirement benefits to law enforcement officers and fire fighters, and to beneficiaries of such employees, thereby enabling such employees to provide for themselves and their dependents in case of disability or death, and effecting a system of retirement from active duty.

RCW 41.26.020.

The Firemen’s Relief and Pensions — 1947 Act, RCW 41.16.010(3) provides for pension benefits for children of firemen, defined, in part, as follows:

“Child or children” shall mean a child or children unmarried and under eighteen years of age.

The 1955 act, as heretofore recited, provides benefits for children upon the death of a fireman as follows:

“Child” or “children” means a fireman’s child or children under the age of eighteen years, unmarried, and in the legal custody of such fireman at the time of his death.

The 1969 act, RCW 41.26.030(7), defines “child” or “children” that are entitled to benefits upon the death of a fireman as follows:

“Child” or “children” whenever used in this chapter means every natural born child, posthumous child, child legally adopted prior to the date benefits are payable under this chapter, stepchild and illegitimate child legitimized prior to the date any benefits are payable under this chapter, all while under the age of eighteen years and unmarried.

The Volunteer Firemen’s Relief and Pensions Act, RCW 41.24.160, refers to “child” or “children” entitled to benefits upon the death of a fireman as follows:

Whenever .a fireman dies as the result, of injuries received, or sickness contracted in consequence or as the result of the performance of his duties, the board of trustees shall order and direct the payment of the sum of one thousand dollars to his widow, or if there be no widow, then to his dependent child or children, or if there be no dependent child or children, then to his parents or either of them, and the sum of one hundred dollars per month to his widow during her life together with the additional monthly sums of twenty-five dollars for the youngest or only child and twenty dollars for each additional child of the member, unemancipated or under eighteen years of age, dependent upon the member for support at the time of his death, to a maximum total of two hundred dollars per month: Provided, That if there is no widow, or the widow dies while there are children, unemancipated or under eighteen years of age, then the amount of one hundred dollars per month shall be paid for the youngest or only child together with an additional twenty dollars per month for each additional of such children to a maximum of two hundred dollars per month until they become emancipated or reach the age of eighteen years; . . . Provided, That if the widow, child or children, or the parents, or either of them, marry while receiving such pension the person so marrying shall thereafter receive no further pension from the fund.

(Italics ours.)

The State-wide City Employees’ Retirement Act, RCW 41.',44, and the Teachers’ Retirement Act, RCW 41.32, authorize the payment of benefits to the surviving “child” or “children” of a member or employee. The respective pension plans do not specifically define “child” or “children”; however, both acts contemplate payment of benefits to dependent minors of the deceased member, regardless of who has custody of the children.

The defendants argue that the declaration of policy announced in the 1969 act, RCW 41.26, supra, can be considered only in relation to the 1969 act. We disagree. It may be considered in pari materia with the other pension acts in determining the legislative purpose of pension legislation. See Beach v. Board of Adjustment, 73 Wn.2d 343, 438 P.2d 617 (1968); State v. Bell, 59 Wn.2d 338, 368 P.2d 177 (1962), cert. denied, 371 U.S. 818, 88 S. Ct. 34 (1962); Seattle v. State, 54 Wn.2d 139, 338 P.2d 126 (1959). From an examination of the foregoing pension and retirement acts, we believe it is inherent that the benefits, as related to dependent surviving children of a deceased employee covered under the particular system, have the objectives and purposes as stated in the policy statement of the 1969 act.

The law is well established that pension legislation must be liberally construed most strongly in favor of the beneficiaries. Benedict v. Board of Police Pension Fund Comm’rs, 35 Wn.2d 465, 214 P.2d 171, 27 A.L.R.2d 992 (1950) ; Cottam v. Los Angeles, 184 Cal. App. 2d 523, 7 Cal. Rptr. 734, 85 A.L.R.2d 238 (1960). It is further well established, that pension statutes are to be construed as a whole and together with related acts with the view of promoting the objects and purposes of the lawmaking body, and their force and effect are not to be confined or restricted to the literal terms of the statute. Subsidiary provisions contained in pension acts must be construed consistently with the objects and purposes of the act. See 62 C.J.S. Municipal Corporations § 588(d) (1951); 70 C.J.S. Pensions § 2 (1951) .

Applying these tests to the definition of “child” or “children” under the 1955 act, requires that the phrase “legal custody” be given a functional and workable meaning consistent with the purpose and intent of the pension legislation. To construe the term “legal custody” in the technical context of a divorce decree, denying benefits to dependent children of a deceased fireman who are living with the divorced mother, is inconsistent with the objects and purposes of the pension legislation. Therefore, we hold that the dependent surviving children of a divorced father, who are in the custody of the mother under a divorce decree at the time of their father’s death, come within the definition of “child” or “children” in the 1955 pension act. Moreover, in further support of this determination, our search of specialized works relating to insurance and pension plans disclosed no definition for .“legal custody” indicating.it to be a word of “art” for actuarial purposes.

The judgment of the trial court is reversed, and the pension board is directed to grant the benefits prayed for by the plaintiff minor children in this case.

Finley, Rosellini, and Hale, JJ., concur.