B-157287, AUGUST 18, 1965

B-157287: Aug 18, 1965

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THE BISCAYNE TELEVISION CORPORATION WAS REQUIRED TO MAKE A BACK PAY SETTLEMENT TO FOUR DISCRIMINATEES. WERE DECEASED AT THE TIME OF SETTLEMENT. CONFLICTING CLAIMS HAVE BEEN RECEIVED IN EACH CASE. WHO HAVE PRESENTED AN ASSIGNMENT FROM THE ADMINISTRATOR OF THE ESTATE OF THEIR DECEASED SON. WEAND WAS VERY ILL AT THE TIME HE SIGNED THE CHANGE OF BENEFICIARY FORM FOR HIS COMMERCIAL INSURANCE (WHICH INSURANCE WAS PAID TO HIS PARENTS). THAT SHE AND THE DECEASED WERE MARRIED AT THE TIME OF THE UNFAIR LABOR PRACTICE WHICH RESULTED IN THIS BACK PAY SETTLEMENT. CLAIMS WERE RECEIVED IN THE CASE OF CHARLES B. THE SURVIVING SPOUSE TAKING THE SAME AS IF HE OR SHE WERE ONE OF THE CHILDREN. "/2) IF THERE ARE NO LINEAL DESCENDANTS.

B-157287, AUGUST 18, 1965

TO MISS ETHELREDA C. FESMIRE, AUTHORIZING CERTIFYING OFFICER, NATIONAL LABOR RELATIONS BOARD:

YOUR LETTER OF JULY 20, 1965, REQUESTED OUR DECISION AS TO THE PARTIES ENTITLED TO A BACK PAY SETTLEMENT IN THE MATTER OF BISCAYNE TELEVISION CORPORATION. UNDER DECISIONS OF THE BOARD AND OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT, THE BISCAYNE TELEVISION CORPORATION WAS REQUIRED TO MAKE A BACK PAY SETTLEMENT TO FOUR DISCRIMINATEES, TWO OF WHOM, CHARLES B. FILER AND JAY H. WEAND, WERE DECEASED AT THE TIME OF SETTLEMENT. CONFLICTING CLAIMS HAVE BEEN RECEIVED IN EACH CASE.

IN THE CASE OF JAY H. WEAND, A CLAIM HAS BEEN RECEIVED FROM HIS PARENTS, GEORGE H. WEAND AND NORA WEAND, WHO HAVE PRESENTED AN ASSIGNMENT FROM THE ADMINISTRATOR OF THE ESTATE OF THEIR DECEASED SON. A CLAIM ALSO HAS BEEN RECEIVED FROM DECEDENT'S DIVORCED WIFE, STELLA WEAND SWISS. MRS. SWISS BASES HER CLAIM ON THE ALLEGATION THAT JAY H. WEAND WAS VERY ILL AT THE TIME HE SIGNED THE CHANGE OF BENEFICIARY FORM FOR HIS COMMERCIAL INSURANCE (WHICH INSURANCE WAS PAID TO HIS PARENTS); THAT THE VETERANS ADMINISTRATION PAID HIS "G.I.' INSURANCE TO HER; AND THAT SHE AND THE DECEASED WERE MARRIED AT THE TIME OF THE UNFAIR LABOR PRACTICE WHICH RESULTED IN THIS BACK PAY SETTLEMENT.

CLAIMS WERE RECEIVED IN THE CASE OF CHARLES B. FILER FROM HIS DIVORCED WIFE, LOUISE FILER MEYER, AS GUARDIAN FOR THEIR TWO MINOR CHILDREN, AND FROM EDWARD P. MARLOW, ADULT SON OF A PREVIOUS MARRIAGE OF MR. FILER.

THE BACK PAY SETTLEMENTS HERE INVOLVED CONSTITUTE ASSETS OF THE ESTATES OF THE DECEASED DISCRIMINATEES. SINCE BOTH DECEDENTS APPARENTLY DIED INTESTATE, THE AMOUNTS DUE MUST BE DISTRIBUTED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DECEDENTS' DOMICILE. THE RECORD INDICATES THAT BOTH MEN DIED WHILE DOMICILED IN THE STATE OF FLORIDA.

SECTION 731.23 OF THE FLORIDA STATUTES, 1963 EDITION, PROVIDES IN PART HERE PERTINENT AS FOLLOWS:

"731.23 ORDER OF SUCCESSION.--- THE REAL AND PERSONAL PROPERTY OF AN INTESTATE SHALL DESCEND AND BE DISTRIBUTED AS FOLLOWS:

"/1) TO THE SURVIVING SPOUSE AND LINEAL DESCENDANTS, THE SURVIVING SPOUSE TAKING THE SAME AS IF HE OR SHE WERE ONE OF THE CHILDREN.

"/2) IF THERE ARE NO LINEAL DESCENDANTS, TO THE SURVIVING SPOUSE.

"/3) IF THERE IS NO SURVIVING SPOUSE, TO THE LINEAL DESCENDANTS.

"/4) IF THERE IS NONE OF THE FOREGOING, TO THE FATHER AND MOTHER EQUALLY, OR TO THE SURVIVOR OF THEM.'

SECTION 65.03, FLORIDA STATUTES, 1963, PROVIDES THAT "NO DIVORCE SHALL BE FROM BED AND BOARD, BUT EVERY DIVORCE SHALL BE FROM BONDS OF MATRIMONY.'

THUS, NEITHER OF THE DIVORCED WIVES CLAIMING HERE CONSTITUTED A "SURVIVING SPOUSE" AT THE TIME OF DEATH OF HER FORMER HUSBAND. FURTHERMORE, NEITHER DIVORCED WIFE CLAIMS OR ALLEGES THAT THE DIVORCE DECREE IN HER CASE ATTEMPTED TO AWARD HER THE BACK PAY SETTLEMENT HERE IN QUESTION. IN VIEW THEREOF, NEITHER OF THE DIVORCED WIVES HAS ANY VALID CLAIM TO SUCH SETTLEMENT IN HER OWN RIGHT. THE ALLEGATIONS OF MRS. SWISS HAVE NO MATERIAL BEARING UPON THE DISPOSITION OF THE AMOUNT CLAIMED.

SINCE THERE IS NO SURVIVING SPOUSE OR LINEAL DESCENDANT OF JAY H. WEAND, HIS PARENTS, GEORGE H. WEAND AND NORA WEAND, ARE ENTITLED TO SHARE EQUALLY THE AMOUNT DUE HIS ESTATE.

IN VIEW OF THE PROVISIONS OF SECTION 731.23 QUOTED ABOVE, IT SEEMS APPARENT THAT MR. FILER'S THREE CHILDREN--- EDWARD P. MARLOWE, RICHARD ALAN FILER, AND BARBARA LOUISE FILER--- ARE ENTITLED TO SHARE EQUALLY THE AMOUNT DUE TO MR. FILER'S ESTATE. SINCE RICHARD AND BARBARA ARE MINORS, THE AMOUNT DUE THEM MUST BE PAID TO AN APPROPRIATE GUARDIAN.

WHILE MRS. LOUISE FILER MEYER CLAIMS AS GUARDIAN OF THE TWO MINOR CHILDREN, SHE DID NOT SUBMIT ANY DOCUMENTARY EVIDENCE OF APPOINTMENT AS GUARDIAN. HOWEVER, THE CHILDREN'S ADDRESS IS THE SAME AS HERS, AND THEY APPEAR TO BE IN HER CUSTODY. IN THIS CONNECTION, SECTION 744.13, FLORIDA STATUTES, 1963, PROVIDES THAT PARENTS ARE THE NATURAL GUARDIANS OF THEIR MINOR CHILDREN AND THAT, IN CASE OF DIVORCE, THE NATURAL GUARDIANSHIP BELONGS TO THE PARENT WHO IS GIVEN CUSTODY OF THE CHILDREN. SUBSECTION (2) OF SECTION 744.13 PROVIDES THAT A NATURAL GUARDIAN "MAY WITHOUT APPOINTMENT, AUTHORITY OR BOND, COLLECT, RECEIVE, MANAGE AND DISPOSE OF ANY PERSONAL PROPERTY INHERITED BY, OR OTHERWISE ACCRUING TO THE BENEFIT OF THE CHILD DURING INFANCY, WHEN THE AMOUNT INVOLVED IN ANY INSTANCE DOES NOT EXCEED ONE THOUSAND DOLLARS * * *.' IT IS NOTED THAT THE AMOUNT DUE EACH CHILD HEREIN IS $1,093.93. HOWEVER, SECTION 733.20, FLORIDA STATUTES, 1963, PROVIDES THAT A MINOR CHILD IS ENTITLED TO A FAMILY ALLOWANCE OF ONE YEAR'S SUPPORT, PAYABLE TO THE PERSON HAVING CARE AND CUSTODY OF SUCH MINOR CHILD. IN VIEW OF THESE VARIOUS STATUTES, IT APPEARS THAT THE SHARES DUE RICHARD AND BARBARA MAY BE PAID TO MRS. LOUISE FILER MEYER AS THEIR GUARDIAN.

THE VOUCHER FORWARDED WITH YOUR LETTER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.