Colvard v. Department of Employment

• Decision Date: 27 January 1978
• Docket Number: No. 12490,12490
• Citation: 98 Idaho 868,574 P.2d 910
• Parties: Sandra B. COLVARD, Claimant-Appellant, v. DEPARTMENT OF EMPLOYMENT, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 910

574 P.2d 910

98 Idaho 868

Sandra B. COLVARD, Claimant-Appellant, v. DEPARTMENT OF EMPLOYMENT, Defendant-Respondent.

No. 12490.

Supreme Court of Idaho.

Jan. 27, 1978.

James H. Paulsen, Sandpoint, for claimant-appellant.

Wayne L. Kidwell, Atty. Gen., R. LaVar Marsh, Deputy Atty. Gen., Boise, for defendant-respondent.

SHEPARD, Chief Justice.

This is an appeal from an order of the Industrial Commission in an unemployment compensation case. The Department of Employment denied appellant Colvard's application for unemployment compensation benefits on the basis that she was self-employed and hence, ineligible for benefits. Upon appeal of that determination to the Industrial Commission, it found that she was not self-employed but remanded the matter to the Department of Employment for a determination of whether claimant had registered for work and whether she was available for and seeking work during the period of her claim. Claimant-appellant Colvard appealed that order of the Industrial Commission. We affirm the order of the Industrial Commission insofar as it found claimant was not self-employed, however, we reverse that part of the Commission's order remanding the matter for further findings.

Colvard was a ski instructor during the winter months and during the summer months assisted her husband with the operation of a marina. Her ski instruction work ended on April 11, and on April 16, 1976, she filed for unemployment compensation benefits and registered for work. Her claim was denied on the basis that she was self-employed. See I.C. § 72-1366(k), which states, "A benefit claimant shall not be entitled to benefits if his principal occupation is self-employment." Colvard thereafter followed all of the Idaho Department of Employment appellate procedures, but was continually held to be self-employed. On November 17, 1976, she appealed to the Industrial Commission. The Commission concluded:

"In view of the fact that claimant spent an equal amount of time as an employee of the ski resort and as a self-employed proprietor of the marina, and that her earnings as an employee exceed her share of the gross income from the marina, the Commission concludes that the claimant's principal occupation is not self-employment."

That ruling of the Commission is sustained by the evidence and further no appeal has been perfected from that by the Department of Employment. The Commission, however, concluded that the record reflected considerable doubt that the claimant was available for work and seeking work during her periods of unemployment and that she may not have registered for work with the Department of Employment. The Commission stated that since the Department of Employment had not on the record determined those issues, the matter should be remanded to the Department of Employment for a finding on those issues. Colvard filed a motion to amend that portion of the remand order, which motion was denied. This appeal resulted.

As claimant-appellant correctly points out, the record is clear that at no time during the appellate procedures within the Department of Employment nor in those proceedings before the Industrial Commission was any issue raised by the Department concerning any eligibility requirement for unemployment benefits other than and except for the issue of self-employment. Claimant-appellant Colvard was never notified at any stage in the proceedings below that any other issue existed and in fact the notices furnished to her...