v.
Alice J. Wetherow
No. C-1543
197 Colo. 335;
592 P.2d 808
Supreme Court of Colorado
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 (now repealed), the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.
