Duhaime v. Treasurer

DUHAIME_V_TREASURER.92-316; 161 Vt. 157; 636 A.2d 754

[Filed 19-Nov-1993]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-316


 Robert M. Duhaime                            Supreme Court

                                              On Appeal from
      v.                                      Washington Superior Court

 Treasurer, State of Vermont                  June Term, 1993



 Stephen B. Martin, J.

 Oreste V. Valsangiacomo, Jr., of Valsangiacomo, Detora & McQuesten, P.C.,
    Barre, for plaintiff-appellant

 Jeffrey L. Amestoy, Attorney General, and Robert W. Gagnon, Senior Assistant
    Attorney General, Montpelier, for defendant-appellee


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      DOOLEY, J.   Plaintiff, Robert Duhaime, appeals from a declaratory
 judgment holding that he is not entitled to receive additional retirement
 benefits from the Vermont Employees Retirement System, 3 V.S.A. {{ 455-
 495, for financially supporting his stepchild.  He argues that 3 V.S.A. {
 461(c)(2) requires the Treasurer to pay him an extra ten percent of his
 "average final compensation" on account of his dependent stepson.  He also
 argues that if he is not entitled to additional compensation under the
 statute, the statute violates his rights under the Equal Protection Clause
 of the United States Constitution and Chapter I, Articles 7 and 9 of the

 

 Vermont Constitution.  We agree that the statute entitles him to the
 benefits he seeks and we reverse.
      Plaintiff was employed by the Vermont State Police from 1976 to 1983,
 at which time he began receiving accidental disability retirement
 compensation pursuant to 3 V.S.A. { 461.  Prior to his disability,
 plaintiff had married Yolande Duhaime.  Her biological son, Nathan, lived
 with his father until 1986, when he moved in with his mother and the
 plaintiff.  In 1989, Ms. Duhaime was granted sole custody of Nathan.  The
 custody order states that Ms. Duhaime is "presently financially able to
 support Nathan," and it provides no child support from Nathan's biological
 father, although the father acknowledges that he may have to pay child
 support in the future.  In fact, plaintiff has financially supported Nathan
 since 1986.  He claims Nathan as a dependent for purposes of calculating his
 income tax liability and his Veterans' Administration disability allotment.
      The issue in this appeal centers on whether plaintiff may claim his
 stepchild, Nathan, as "a dependent child of his" for purposes of calculating
 his retirement allowance pursuant to 3 V.S.A. { 461(c)(2).(FN1) If Nathan is a
 child who comes within the statutory description, plaintiff is entitled to
 the extra retirement benefits he seeks.  The superior court denied plaintiff

 

 additional benefits for the dependent child because plaintiff had no legal
 obligation to support Nathan.  Defendant argues, in addition, that
 irrespective of plaintiff's obligation to support Nathan, the statute allows
 additional benefits only for adopted or natural children.  We consider each
 ground for denial of additional compensation in turn.
      The superior court decision was based on the erroneous principle that a
 stepparent has no duty to support his or her stepchild.  That was the rule
 at common law, Borkman v. Commissioner of Social Welfare, 128 Vt. 561, 565,
 268 A.2d 790, 793 (1970), unless the stepparent stood in loco parentis to
 the stepchild.  See In re Fowler, 130 Vt. 176, 181, 288 A.2d 463, 467
 (1972).  In adopting 15 V.S.A. { 296, however, the Legislature changed the
 common law rule.  The critical part of this statute is the last sentence,
 which states:
         The duty of a stepparent to support a stepchild under
         this section shall be coextensive with and enforceable
         according to the same terms as the duty of a natural or
         adoptive parent . . . including any such duty of support
         as exists under the common law of this state, for so
         long as the marital bond creating the step relationship
         shall continue.

 15 V.S.A. { 296.  Because of this language, we held recently in Ainsworth v.
 Ainsworth, 154 Vt. 103, 112, 574 A.2d 772, 778 (1990) "that the statute
 creates a general obligation of support" on stepparents.
      Nathan is dependant on plaintiff in fact.  Nathan is also legally
 dependent on plaintiff because of plaintiff's obligation of support.  Unless
 defendant's argument that { 461(c)(2) is limited to natural or adopted
 children is correct, Nathan's dependency gives plaintiff the right to the
 additional benefits he seeks.

 

      Defendant's argument is grounded in the statutory requirement that the
 child be "dependent child of his," which defendant interprets to mean a
 natural or adopted child "of his," irrespective of dependency.  Defendant
 argues that this is the plain meaning of the statute to which we must
 adhere.  See McSweeney v. McSweeney, ___ Vt. ___, ___, 618 A.2d 1332, 1334
 (1992) ("Where the meaning of a statute is plain on its face, we will
 enforce the statute according to its terms.").  Further, defendant argues
 that this is the construction adopted by the Vermont Retirement Board, which
 administers the retirement system, see 3 V.S.A. { 471(a), and we must defer
 to its interpretation.  See In re Taft Corners Assocs., 4 Vt. L.W. 138, 140
 (April 30, 1993).
      We find these arguments unpersuasive.  The language of the statute is
 far from plain.  The words "of his," on which defendant puts so much weight,
 can be taken to mean "child of his," as defendant urges, or "dependent ...
 of his," as plaintiff urges.  Neither possible meaning, "his child" or "his
 dependent," is more plain than the other.
      Other canons of statutory construction are against defendant's
 interpretation.  The retirement act is remedial legislation that must be
 construed liberally in favor of the beneficiaries.  Vincent v. Vermont
 State Retirement Bd., 148 Vt. 531, 536, 536 A.2d 925, 929 (1987).  Moreover,
 the obvious intent of the statute is to increase the retiree's benefits to
 account for minor dependents the retiree must support.  See Burlington Elec.
 Dep't v. Vermont Dep't of Taxes, 154 Vt. 332, 335, 576 A.2d 450, 452 (1990)
 (primary goal of statutory construction is to implement the intent of the
 Legislature).  It makes no sense for the Legislature to recognize the
 expenses of some dependents in that category and ignore the expenses of

 

 others.  See In re Southview Assocs., 153 Vt. 171, 175, 569 A.2d 501, 503
 (1989) ("We will avoid a construction that would render the legislation
 ineffective or irrational.").  As the New Hampshire Supreme Court stated
 when addressing a similar question of determining the amount of Workers'
 Compensation benefits:  "The benevolent purpose of the . . . statute belies
 the suggestion that the granting or withholding of compensation benefits was
 intended to turn on the technical requirement of legal adoption where all
 the characteristics of the parent-child relationship are otherwise proven."
 MacArthur v. Nashua Corp., 493 A.2d 1126, 1129 (N.H. 1985).  The Legislature
 that created plaintiff's obligation to support Nathan as if he were his
 natural or adopted child could not have intended to deprive him of the
 income to do so when he could no longer work for the state.
      We are also not persuaded that we should defer to the Vermont
 Retirement Board in these circumstances.  Defendant defended this case
 relying on the common law rule that a stepparent has no duty to support a
 stepchild.  Neither defendant, nor plaintiff, nor the superior court,
 recognized the relevant statute, 15 V.S.A. { 296, or our decision in
 Ainsworth.  We do not know whether the Board would have denied plaintiff's
 benefits if the Board had been aware of plaintiff's obligation to support
 Nathan.  Thus, we do not have a definitive interpretation of the statute to
 which to defer.
      Because of our disposition of the statutory claim, it is unnecessary to
 reach plaintiff's constitutional claims.
      Reversed; judgment is entered for plaintiff.
                                    FOR THE COURT:

                                    _____________________________
                                    Associate Justice


------------------------------------------------------------------------------
                                  Footnotes


FN1.    3 V.S.A. { 461(c)(2) provides:
     (c) [A] group C member, upon accidental disability retirement, shall
 receive as a minimum an allowance which:
 . . .
     (2)  If his compensation from the state is subject to social security
 withholding will, when added to his social security benefit, be equal to
 fifty percent of his average final compensation plus ten percent of his
 average final compensation for each dependent child of his, not in excess of
 three, who has not attained age eighteen or, if a dependent student, has not
 attained age twenty-three.


------------------------------------------------------------------------------
                                 Dissenting
 

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-316


 Robert M. Duhaime                            Supreme Court

                                              On Appeal from
      v.                                      Washington Superior Court

 Treasurer, State of Vermont                  June Term, 1993



 Stephen B. Martin, J.

 Oreste V. Valsangiacomo, Jr., of Valsangiacomo, Detora & McQuesten, P.C.,
    Barre, for plaintiff-appellant

 Jeffrey L. Amestoy, Attorney General, and Robert W. Gagnon, Senior Assistant
    Attorney General, Montpelier, for defendant-appellee


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      GIBSON, J., dissenting.   Because I believe the majority's holding
 perpetuates a misreading of the plain language of 15 V.S.A. { 296, I
 dissent.
      The majority predicates its holding that plaintiff has a legal duty to
 support Nathan on what it terms the "critical part" of 15 V.S.A. { 296.
 That part is the same part of the statute the Court emphasized in Ainsworth
 in holding "that the statute creates a general obligation of support" on
 stepparents.  Ainsworth v. Ainsworth, 154 Vt. 103, 112, 574 A.2d 772, 778
 (1990).  I believe the evidence does not establish that plaintiff in this
 case has a legal duty under 15 V.S.A. { 296 to support Nathan, and I would
 overrule Ainsworth insofar as it holds that a general obligation to support

 

 stepchildren exists without reference to the specific conditions set forth
 in { 296.
      The majority opinion quotes only a portion of { 296.  It omits the
 first sentence -- also a "critical part" of the statute, which must be read
 in conjunction with the remainder.  The full statute reads as follows:

           A stepparent has a duty to support a stepchild if they
           reside in the same household and if the financial
           resources of the natural or adoptive parents are
           insufficient to provide the child with a reasonable
           subsistence consistent with decency and health.  The
           duty of a stepparent to support a stepchild under this
           section shall be coextensive with and enforceable
           according to the same terms as the duty of a natural or
           adoptive parent to support a natural or adoptive child
           including any such duty of support as exists under the
           common law of this state, for so long as the marital
           bond creating the step relationship shall continue.

 15 V.S.A. { 296 (emphasis added).
      The statute clearly specifies conditions under which a stepparent has a
 duty to support a stepchild "under this section": (1) if the stepchild
 resides in the same household, and (2) if the natural or adoptive parents
 cannot provide adequate support.  Only when those conditions are met will
 the duty of a stepparent be "coextensive with and enforceable according to
 the same terms as the duty of a natural or adoptive parent."  Id.  See
 Slocum v. Department of Social Welfare, 154 Vt. 474, 481, 580 A.2d 951, 954
 (1990) ("all language in a statute . . . is inserted for a purpose," and we
 must "strive where possible to give effect to every word, clause, and
 sentence").
      I do not disagree that the obligation, when imposed, is a general one,
 but I cannot agree that it necessarily attaches whenever a stepchild lives
 with a stepparent and is supported by the stepparent.  Such an
 interpretation is a revision of the statute, usurping the "power[] of the

 

 legislature to determine public policy."  Payne v. Rozendaal, 147 Vt. 488,
 502, 520 A.2d 586, 594 (1986) (Peck, J., dissenting).  The Legislature
 clearly intended, in writing the statute as it did, that the duty to
 support a child shall reside first and foremost with the natural or
 adoptive parents.  If they can support the child, even if the child resides
 in the household of a stepparent, they must do so.
      Nor do I disagree with the majority's desire to construe the
 retirement provisions liberally, or with its conclusion that "[i]t would
 make no sense for the Legislature to recognize the expenses of some
 dependents . . . and ignore the expenses of others."  The facts of this
 case, however, do not bring us to this point.  In this case, we do not know
 to what extent the natural father is able to support Nathan, or to what
 extent the family court intended the natural father to provide support.
 Where the record is incomplete, as here, it contravenes the intent of { 296
 to hold that a stepparent incurs a legal obligation to support a stepchild
 merely because the child lives with and is supported by the stepparent.
      The predicate of the majority's opinion clearly goes against the plain
 language of 15 V.S.A. { 296.  I therefore dissent.
      I am authorized to say that Chief Justice Allen joins in this dissent.


                                              ___________________________
                                              Associate Justice