Request By:
Ms. Jane E. Graham
Corporate Counsel
Department of Law
Lexington-Fayette Urban
County Government
The Municipal Building
136 Walnut Street
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 15 in which you relate that the Board of Trustees of the Lexington-Fayette Urban County Government Policemen's and Firemen's Retirement and Benefit Fund has requested that you seek our opinion regarding an interpretation of KRS 67A.450. More specifically, the question is as follows:
"In the case of a decedent who, at the time of his death, left a widow and one child by a second marriage, do any benefits accrue to the former wife by reason of another child born to the first marriage?"
From the above question, we assume that you are referring to the child of the deceased by his first wife from whom he was divorced, and thus raise the question as to whether any annuity benefits accrue to the first wife by virtue of said child.
Our response to your question would be in the negative for the same basic reasons expressed in OAG 42,920 referred to by you.
Subsection (2) of KRS 67A.450 reads as follows:
"(2) If the widow has minor children under the age of eighteen (18), or in the case of a child regularly engaged in fulltime educational activities the age of twenty-three (23), the annuity to the widow shall be increased one-half (1/2) on account of the first child and one-fourth (1/4) on account of each additional such child, subject to a maximum combined payment to the widow and children of sixty per cent (60%) of the final rate of salary." (Emphasis added).
You will note that the above quoted statute simply refers to the surviving widow's minor children. We believe the wording of the statute is the key to the problem in that neither the provisions of subsection (2) or any other of the sections under KRS 67A.450 refer to the surviving children other than those of the widow of the deceased, which we believe could not include children by a previous marriage. If the legislature had intended to include the surviving children of a former marriage, we believe it would have done so in clear and specific terms. As you know, in construing a statute, words must be given their ordinary meaning and used in their ordinary sense. Baker v. White, 251 Ky. 691, 65 S.W. 2d 1022 (1933); Barnes v. Indian Refining Co., 280 Ky. 811, 134 S.W.2d 602 (1939); and Commonwealth v. Trent, 117 Ky. 34, 77 S.W. 390 (1903).
Under the circumstances, we are therefore of the opinion [which agrees with your conclusion] that since the deceased first wife could in no way be considered his widow, not being married to him at the time he died, she would not be entitled to any annuity by reason of the child in question. This may be a harsh rule but it will be a matter for the legislature to correct.