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Weinberg v. Todd Shipyards

Decided: October 30, 1967.

DORIS WEINBERG, PETITIONER-APPELLEE,
v.
TODD SHIPYARDS, RESPONDENT-APPELLANT



Gaulkin, Lewis and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.

Kolovsky

Petitioner Doris Weinberg and Louis Weinberg lived together as husband and wife from the date of their ceremonial marriage August 18, 1960 until Louis' death on June 25, 1964. With them at their residence in Brooklyn, New York, lived Doris' daughter by a former marriage, Ivy Tannenbaum, who was nine years of age when Louis died.

It is conceded that Louis died as the result of an accident arising out of and during the course of his employment with respondent Todd Shipyards.

In its amended answer to the petition for dependency benefits, N.J.S.A. 34:15-13, filed in the Division of Workmen's Compensation (Division) by Doris as widow and on Ivy's behalf as a dependent, the respondent employer asked that the Division

"instruct, by way of judgment, to whom the dependency benefits should be paid, if any,"

alleging that:

"The respondent believes, based on information obtained, that Shirley Kaplan was the former wife of decedent who was divorced by a decree issued through the Mexican Courts; that during the period of their marriage 2 children were born, namely Cheryl Weinberg

Rosen and P. Weinberg Zipper. Subsequently, decedent married Doris Tannenbaum who was divorced by a decree of the State of Alabama, County of Marion, from Sheldon Tannenbaum, Feb. 3, 1960 and Ivy Tannenbaum is the daughter of Doris Tannenbaum by that marriage. Respondent has been notified that all of the aforementioned parties claim a dependency relationship to decedent for benefits under the Workmen's Compensation Act of New Jersey."

In fact, however, the proofs establish that neither Mrs. Shirley Kaplan, Louis' former wife, nor the two children of his marriage to Shirley have made a claim for dependency benefits. When Louis died, both of the children were married, one was 27 years old, the other 20.

Louis Weinberg and his former wife, Shirley, had been separated for a "long time" when she travelled to Mexico and on July 21, 1959 obtained an ex parte divorce from Louis. Shirley then married one Irving Kaplan and they live together in Brooklyn. Mrs. Kaplan testified that Mr. Kaplan's business "provided the support" for both of them.

The proofs dissipated the employer's pleaded fear that it faced conflicting claims by two persons, each claiming to be the widow of Louis Weinberg. Cf. Minter v. Bendix Aviation Corp., 24 N.J. 128 (1957). Nevertheless, the employer pressed its claim that Doris is not entitled to dependency benefits as Louis' widow because allegedly neither Louis nor she was free to marry on August 18, 1960. In addition to attacking the validity of Shirley's Mexican divorce, the employer attacked the validity of Doris' decree of divorce from her former husband, Sheldon Tannenbaum, entered in Alabama on February 3, 1960 in a proceeding in which Sheldon appeared and submitted to the jurisdiction of the Alabama court. The attack on the Alabama divorce is not repeated in this court, apparently in recognition that, on its face, the Alabama divorce decree appears to be entitled to full faith and credit.

Both the Division and, on appeal, the County Court, in deciding in Doris' favor, ruled that the employer Todd Shipyards had failed to overcome the strong presumption in favor of the ...


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