(dissenting).
This case comes before this Court solely on the record proper. Contained herein are the court’s findings of fact and conclusions of law and the judgment entered.
The trial court concluded that plaintiff was entitled to 5% of decedent’s weekly wage for the benefit of Patrick K. Strickland, natural son of decedent when married to plaintiff; that plaintiff was entitled to receive 6/eo or Vizth of the weekly compensation benefits, or $9.55 per week, payable from the date of filing this lawsuit which was November 29,1977, until the end of the compensation period.
Defendant, Rhoda Ann Strickland, widow of decedent, argues that plaintiff’s appeal has not been preserved for review on two grounds: (1) there was no attack on the findings of fact and conclusions of law and (2) the transcript of the record was not included in the praecipe.
At first blush, it would appear that Rhoda was right. Plaintiff’s attorney did not reply or seek a reprieve, nor did the majority opinion respond. Under these circumstances, I feel constrained to step in as plaintiff’s advocate to see that justice is done. If the Supreme Court grants certiorari and reverses, this opinion will not be published. Nevertheless, the ultimate question to be reached is a matter of first impression and the serious problems raised by Rhoda should be answered.
Rhoda submits the case of Reliance Insurance Company v. Marchiondo, 91 N.M. 276, 573 P.2d 210 (1978) which states the issue:
The issue is whether under the state of this record we can justify overturning conclusions of law made by the trial court that appear on their face to be properly supported by the trial court’s findings of fact. ... [91 N.M. at 278, 573 P.2d at 212].
In the instant case, the conclusions of law are not supported by the findings of fact, those which constitute a proper statement of ultimate facts. Without a transcript of the record, the ultimate facts cannot be challenged. We are only concerned with whether the trial court properly distributed compensation benefits as provided by statute. The distribution percentage appears only in the conclusions of law. Ofttimes, findings and conclusions are mixed questions of fact and law. Facts stated which misstate the law cannot be considered as an ultimate fact.
The trial court found that:
8. Patrick K. Strickland is the surviving son of the decedent by a former marriage between the decedent and the plaintiff, Elizabeth Cunnan.
9. Patrick K. Strickland although under the age of 18. was not at the time of his father’s death, dependent upon his father for support or maintenance but was in fact supported by his mother and stepfather. [Emphasis added.]
Finding No. 9 states facts which are irrelevant under the law. True, heretofore, children under 18 years of age, to be eligible dependents had to be actually dependent upon the deceased because the statute so provided. Houston v. Lovington Storage Company, 75 N.M. 60, 400 P.2d 476 (1965). Actual dependency was deleted by Laws 1973, ch. 47. Section 52-1-17(A), N.M.S.A. 1978 now provides that “[A] child under eighteen [18] years of age or incapable of self-support and unmarried,” shall be deemed a dependent and entitled to compensation benefits.
It cannot be gainsaid that Patrick was an eligible dependent and entitled to compensation benefits despite the fact that he was not supported by his father.
Section 59-10-18.7(0(1), N.M.S.A.1953 (2nd Repl.Vol. 9, pt. 1, Supp.1975), subsequently amended, see § 52-l-46(C)(l), N.M. S.A.1978, provides for distribution “to the child ... if there be no widow . entitled to compensation, thirty-five per cent [35%] of the average weekly wage of the deceased . . .” The legislative intent was to provide compensation benefits to Patrick because his mother was not a widow entitled to compensation. Otherwise, a natural son of divorced parents would be “Gone With The Wind.” To deny Patrick compensation benefits would obstruct the spirit of the Workmen’s Compensation Act.
Section 59-10-18.7(C)(2), (3), (4) and (5) speak in terms of a surviving widow of decedent entitled to compensation benefits with one, two, three or more children. Contra, Allstate Erectors, Inc. v. Boshell, 301 A.2d 316 (Del.Super.1972), aff’d, Boshell v. Allstate Erectors, Inc., 305 A.2d 619 (Del.1973); Farmer v. Farmer, 562 S.W.2d 205 (Tenn.1978). I disagree with these cases because in my opinion (C)(1) was intended to cover a separate household concept. This concept is supported by subsection (F) which reads as follows:
F. the event of the death or remarriage of the widow . . entitled to compensation benefits as provided in this section, the surviving children shall then be entitled to compensation benefits computed and paid as provided in Paragraph (1) of Subsection C of this section for the remainder of the compensable period;
If Rhoda dies or remarries, there is no widow entitled to compensation benefits. Her child is placed in the same category as Patrick. In other words, we do have a separate household concept. As long as Rhoda remains alive and unmarried she is entitled to 55% of the average weekly wage. Patrick is entitled to 35%.
We should avoid “equitable allocation” and judicial discretion. The statute does not provide for it. A spate of disputes would come along. To enumerate the legal problems that arise under these judicial rules is to play “ring around the rosy” with the idiosyncratic attitude of each district judge. The Workmen’s Compensation Act should not be subject to judicial tortuosities. I interpret the Act to mean what in my mind and experience is a fair adjudication of the serious problem that confronts children left by the wayside in family instability-
The trial court’s conclusion that plaintiff is entitled to 5% of decedent’s weekly wage is not supported by the findings of fact. Plaintiff was entitled to 35% of decedent’s weekly wage of $114.61, which is $40.11, the amount to which plaintiff was entitled for the benefit of Patrick, not from the date of filing the lawsuit, but from the date of decedent’s death until the end of the compensation period.
The compensation benefits are due and payable by decedent’s employer. The purpose of the Workmen’s Compensation Act is to avoid uncertainty in litigation and to assure dependents of a deceased workman prompt payment of compensation. Absent litigation in the instant case, it was the duty of the employer to search for eligible dependents, to determine whether decedent left children surviving by a pievious marriage. To rely upon decedent’s widow is to put “the cart before the horse,” ofttimes a Trojan horse.
Whether the employer is entitled to any reimbursement from Rhoda, or whether $40.11 should be deducted from Rhoda’s weekly payments depends upon the facts disclosed at the trial. Upon reversal of the trial court’s judgment, this case should be remanded to the trial court to make the determination.