Mountain States Telephone
and Telegraph Company,
a Colorado corporation
v.
Department of Labor and
Employment, Industrial Commission of
the State
of Colorado (Ex-Officio Employment
Compensation Commission of Colorado), and
Alice J. Wetherow
No. C-1543
197 Colo.
335; 592 P.2d 808
Supreme Court of Colorado
En Banc
April 2, 1979
DeMuth, Eiberger, Kemp & Backus, David H. Stacy, for petitioner.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy,
Edward G. Donovan, Solicitor General, Louis L. Kelley, Assistant,
for respondents.
HODGES, Chief Justice.
The claimant-respondent is a 38-year-old woman, married, and the
mother of three. On July 7, 1976, she resigned from her job with
Mountain Bell in order to accompany her husband to California where
he had obtained new employment. The claimant applied for
unemployment compensation under the Colorado Employment Security
Act, section 8-70-101, et seq., C.R.S. 1973 (1978 Supp.). The
Industrial Commission granted a full award of benefits, and the
court of appeals affirmed in Mountain States Telephone and
Telegraph Co. v. Department of Labor and Employment, 40 Colo.
App. 381, 579 P.2d 651 (1978). We granted certiorari and now
reverse.
In granting a full award of benefits to respondent, the
Industrial Commission concluded that under section 8-73-108(6)(b)(VI),
C.R.S. 1973 (1976 Supp.) (now repealed), the claimant's separation
from employment was "unavoidable" and, therefore, she was entitled
to a full award of benefits. We do not find it necessary to reach
the issue of whether a married woman who terminates her employment
in order to relocate with her husband is deemed to be unavoidably
unemployed within the meaning of section 8-73-108(6)(b)(VI), C.R.S.
1973 (1976 Supp.). Assuming, however, that the respondent fell
within the purview of this provision, the commission nevertheless
lacked statutory authority to make an award under it. Section
8-73-108(6) stated explicitly that the subsection was only
applicable where "the division determine[d] that a claim for
benefits was not specifically covered under other provisions of this
section."
In the present case, respondent's claim was explicitly covered by
section 8-73-108(5)(d) which mandates a reduction of benefits where
the claimant's reason for separation is "[m]oving to another area
except for health reasons or to accept a better job." Respondent
concedes that her move to California was not prompted by health
reasons or by job prospects. Accordingly, the court of appeals and
the Industrial Commission erred in finding that respondent was
entitled to a full award of benefits under subsection (6), rather
than a reduced award under subsection (5).
The cases cited by the court of appeals in support of its opinion
(Briggs v. Industrial Commission, 36 Colo. App. 292, 539 P.2d
1303 (1975), and Mountain States Telephone and Telegraph Company
v. Department of Labor, 38 Colo. App. 298, 559 P.2d 252 (1976)),
are inapposite, because they involved claimants who qualified for a
"special award" of benefits under the marital obligation section of
the statute. Section 8-73-108(7)(a)(I), C.R.S. 1973 (1976 Supp.)
(now repealed). Unlike subsection (6), subsection (7) did not
contain the requirement that it could not be invoked if the
commission determined that the claim was covered under other
provisions of section 108.
The marital obligation provision was declared unconstitutional by
this court in Kistler v. Industrial Commission, 192 Colo.
172, 556 P.2d 895 (1976), and was subsequently deleted from the
statute by the general assembly. Accordingly, a claim for
compensation, such as the one requested here, can no longer be
supported on a marital obligation grounds.
The judgment is reversed and the case is returned to the court of
appeals for remand to the respondent consonant with this opinion.
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