JAIME P. BOSWORTH & others [Note 1] vs. COMMONWEALTH.

LIACOS, J. The plaintiffs, by their guardians and next friends, filed claims in the Worcester Division of the District Court

Page 713

seeking compensation, pursuant to G. L. c. 258A, Section 1 (1984 ed.), [Note 2] as dependents of their mother, a deceased victim of violent crime. After hearing, the judge awarded the plaintiffs $9,900, the maximum recovery permitted under G. L. c. 258A, to be apportioned equally among them. See G. L. c. 258A, Section 5. The Commonwealth claimed a report to the Appellate Division for the Western District. G. L. c. 231, Section 108 (1984 ed.). The Appellate Division affirmed the award and dismissed the report. The Commonwealth appeals from that decision. G. L. c. 231, Section 109 (1984 ed.). We affirm.

The judge found as follows. On October 12, 1982, Ethel Marie Bosworth's body was found near some railroad tracks in Worcester. She was an apparent victim of homicide. The victim was twenty-four years old at the time of her death. She was living in Worcester with her three sons, the plaintiffs in this action, who were aged five, three, and two respectively. Approximately a year or two before her death, the victim was employed as a nurse's aide in a nursing home in Fitchburg. She was paid $3.50 an hour and worked forty hours a week. The victim had been unemployed, however, for some time prior to her death. During this period, she was receiving Veterans' Administration benefits for two of her sons, as well as public assistance payments from the Department of Public Welfare of the Commonwealth.

Subsequent to the victim's death, a guardian was appointed for each of the plaintiffs. Although the plaintiffs continue to be supported by public funds, they have not received any payments as a direct result of their mother's death from any insurance program or public source. G. L. c. 258A, Section 6.

The judge allowed the Commonwealth's requests for findings as follows: (1) The victim had no income at the time of her death; "Allowed to the extent that she had no earned income at the time of her death." (2) The plaintiffs have not shown any diminution in support occasioned by the victim's death;

Page 714

"Allowed -- But not material." (3) The plaintiffs did not incur any out-of-pocket expenses as a result of the crime; "Allowed in so far as [each] Plaintiff is considered to be the minor child of the deceased." The judge also allowed, without reservation, the following rulings and findings requested by the plaintiffs: (1) The plaintiffs are dependents of the mother; (2) the mother's life expectancy, at the time of her death, was 46.7 years; (3) the mother had an earning capacity of at least $6,720 a year; (4) the mother's loss of future earnings was in excess of $10,000.

The Commonwealth contends, on appeal, that the judge erred in awarding the plaintiffs compensation for loss of support under G. L. c. 258A.

1. Finding of dependency. General Laws c. 258A, Section 3 (b), includes, among those persons eligible for compensation, a dependent of a victim who has died as a result of a violent crime. A dependent is defined as a "child ... who is wholly or partially dependent for support upon and living with the victim at the time of his injury or death due to a crime alleged in a claim pursuant to this chapter." G. L. c. 258A, Section 1. The Commonwealth maintains that, because the plaintiffs' mother was unemployed at the time of her death and because she was supporting the plaintiffs with public funds, the plaintiffs were not wholly or partially dependent on the mother for support. We disagree.

A child may be dependent on a parent for support, within the meaning of G. L. c. 258A, Section 1, even if that parent is not generating the financial resources that sustain the family unit. We reach this conclusion for two reasons. First, there has been increasing recognition that the provision of domestic services, such as cooking and housecleaning, has economic value. Second, and more importantly, dependence is "rooted not only in economic requirements, but also in filial needs for closeness, guidance, and nurture." Ferriter v. Daniel O'Connell's Sons, 381 Mass. 507, 516 (1980). [Note 3]

Page 715

A child who is reared in a family in which the father is the sole provider of financial support, while the mother attends principally to child rearing and household responsibilities, is clearly dependent for purposes of G. L. c. 258A, Section 1, on the mother as well as the father. We think the case at bar indistinguishable from that situation. The plaintiffs, all minors of tender years, were dependent in every respect on their mother. The fact that the mother was not the source of the funds which supported the family is not fatal to the children's claim of dependency. See Boyd v. Pennsylvania Crime Victim's Compensation Bd., 504 A.2d 415, 417 (Pa. Commw. Ct. 1986) (under Pennsylvania's victim's compensation statute, a child who receives his principal financial support from public funds nonetheless may be a dependent of his noncustodial parent, who is still obligated by law to support the child).

2. Finding of loss of support. General Laws c. 258A, Section 5, states in part: "No compensation shall be paid unless the claimant has incurred an out-of-pocket loss of at least one hundred dollars or has lost two continuous weeks of earnings or support.... Any compensation for loss of earnings or support shall be in an amount equal to the actual loss sustained; provided, however, that no award under this chapter shall exceed ten thousand dollars." The Commonwealth contends that the plaintiffs have failed to demonstrate an actual financial loss of support as a result of their mother's death. [Note 4] It directs our attention to the judge's finding that the plaintiffs have suffered no diminution in support [Note 5] and argues that the judge erred in utilizing

Page 716

the mother's earnings as a nurse's aide to calculate projected loss of earnings and support. We address this latter point, as we deem it determinative.

In Gurley v. Commonwealth, 363 Mass. 595, 597 (1973), we held that the statutory phrase in G. L. c. 258A, Section 5, "compensation for loss of earnings or support" includes future loss of earnings and support, stating: "We can see no logical reason why the victim's death should not be treated as a permanent loss of support to be computed on the basis of life expectancy evidence and actuarial tables in determining the victim's future loss of earning capacity." The Commonwealth seeks to distinguish Gurley on the ground that there the victim was employed at the time of his death, whereas here the victim was unemployed. We find this distinction unpersuasive. As the Appeals Court stated in Cantara v. Massachusetts Bay Transp. Auth., 3 Mass. App. Ct. 81, 87-88 (1975), although it is essential in order to recover for loss of earnings to prove the earning capacity of the claimant at the time of her injury, "past earnings may be probative of earning ability at the time of the injury." [Note 6]

We recognize, as did the Appeals Court, that the admissibility of evidence of past earnings is subject to considerations of remoteness in time; however, this is a matter within the sound discretion of the trial judge. Id. at 88-89. The judge apparently viewed the victim's employment as a nurse's aide as sufficiently probative in proximity to the date of her death to justify calculating her loss of earnings on the basis of that employment. We cannot say that he abused his discretion in doing so. In determining lost earnings, other courts have admitted evidence of

Page 717

wages earned more than one to two years before the wage earner's injury or death. See Cantara, supra at 88-89 & n.7, and cases cited.

The judge determined that the victim had an earning capacity of at least $6,720 a year, [Note 7] and that her loss of future earnings was in excess of $10,000. He found, as well, that the plaintiffs did not receive any payment from any insurance program or public funds due to their mother's death. This finding is unchallenged. Therefore, the plaintiffs' estimated loss of support, based on the victim's earning capacity, was not subject to offset by any funds received from other sources. [Note 8] See G. L. c. 258A, Section 6; Gurley v. Commonwealth, supra at 597-599. Accordingly, the judgment in the plaintiffs' favor for $9,900, minus attorneys' fees, will stand.

Order dismissing report affirmed.