SCOW: When Does a Parent Provide “Regular[] . . . Support”?

I’m not in the mood to be depressed this afternoon, nor am I in the mood to make you depressed, so I’m going to skip over most of the facts in Estate of Bunch v. McGraw Residential Center (Wash., May 3, 2012), which the Supreme Court handed down last week. Basically, Ashlie Bunch lived for a while with her mother, Amy Kozel, in Florida. Then in 2003 Ashlie moved to Washington to live with her father, Steven Bunch, which she did until 2008, when she died.

Bunch claimed (and we’ll assume) that after Ashlie moved to Washington, Kozel essentially had no relationship with Ashlie.  Bunch sued defendant McGraw Residential Center pursuant to RCW 4.24.010, which provides a cause of action for a parent based on the injury or death of a child. Kozel attempted to intervene in the suit, since she was also Ashlie’s parent. 

“The fundamental point of contention in this case is whether Kozel has standing to proceed under RCW 4.24.010.” The relevant statutory language reads:

A mother or father, or both, who has regularly contributed to the support of his or her minor child, and the mother or father, or both, of a child on whom either, or both, are dependent for support may maintain or join as a party an action as plaintiff for the injury or death of the child.

 (The emphasis is in the Court’s opinion, though not in the statute.) According to the Court, “the key question is whether the term ‘has regularly contributed’ requires that the support be continuing at the time of the child’s death.” Since Kozel was not “regularly contributing” support at the time of Ashlie’s death, a requirement of support up to the time of death would bar Kozel’s participation in the lawsuit.

The Court concluded that the statute does not require continuing regular support at the time of the child’s death. The Court gave several reasons for this interpretation. First, the Court discussed its method of review of the statute, about which there was some debate. The Court of Appeals had strictly construed the statute, since it was an abrogation of the common law. On the other hand, an amicus argued that the statute should be liberally construed because it was remedial.

The Court rejected both contentions, stating that the distinction “is easily overstated” since neither method of interpretation “may be employed to defeat the intent of the legislature.” Accordingly, the Court decided to give the statute “a fair reading, one that is neither strict nor liberal.” That seems, well… fair?

Turning to the statute itself, the Court noted that “has regularly contributed” is written in the “present perfect” tense, indicating that past periods of regular contribution were sufficient to satisfy the statute. The Court contrasted this phrasing with the statute’s use of the present tense “are dependent” in reference to parents who are dependent on a child at the time of death. In other words, if the legislature wanted to require present support, it knew how to do it.

Moreover, the statute allows for varying amounts of recovery for different parents. According to the Court, this implies that any fall off in support should be addressed in the allocation phase, not the initial gatekeeper phase.

Lastly, the Court observed that a “continuous support up until death” requirement could lead to absurd results. For example, what if a child were kidnapped for some period of months of years prior to death, and therefore was not being “supported” by his parents at the time of his death. Or what if a child dies during a period in which a parent is in a coma, and then the parent recovers? In that circumstance too, the parent would not have been providing support at the time of death. The Court concluded that the legislature could not have intended such results, and therefore it read the statute to avoid the “up to the time of death” requirement.

An interesting final note in the Court’s opinion: Because Bunch and McGraw settled the case following the initial denial of Kozel’s motion to intervene, the case was over by the time it got to the Supreme Court. Accordingly, as part of its disposition of the case, the Court ordered that the settlement agreement be “set aside” so that the case could continue with Kozel’s involvement.

Justice Johnson dissented. The dissent does not address the Court’s discussion of the present perfect tense, nor does it address the statute’s use elsewhere of the present tense “are.” Instead, the dissent focuses on the word “regular,” which “requires the support to be unvarying and constant.”

In my view, however, the dissent’s grammatical discussion is just a hook to point out some absurdities in the Court’s statutory construction. On the “kidnapping” or “coma” hypotheticals, the dissent notes that the solution to that problem would be to read an “impossibility” defense into the statute for special cases, rather than to alter the entire scope of the statute.

More fundamentally, however, the Court’s reading of the statute leaves no room for an actual estrangement. The dissent doesn’t put it quite this way, but what if the record was clear that at some point prior to her death, Ashlie specifically told Kozel in writing that she wanted nothing more to do with her, that she should not contact her any more, and that she wanted her out of her life. And assume that Kozel responded by saying, “fine.” Even under those facts, there would have been a time in the past when Kozel indeed provided regular support to Ashlie. Under the Court’s reading of the statute, that’s enough; Kozel gets to join.

I’m not sure if that is a result the legislature intended or a result that is within a fair reading of the statute. But if it’s not, then I’m not sure what sort of test to employ to determine when a long period of no support is sufficiently long to effect a disqualification under the statute, or when an estrangement is sufficiently clear to do the same. The Court’s rule seems to take those inquiries off the table and out of the courts, which is perhaps a good thing all around.

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One thought on “SCOW: When Does a Parent Provide “Regular[] . . . Support”?

  1. Pingback: [Tuesday] Monday [Afternoon] Morning Mash-up: May 15, 2012 | Ziff Blog

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