Dawson By and Through McKelvey v. Public Employees' Retirement Ass'n

• Decision Date: 31 May 1983
• Docket Number: No. 81SA187,81SA187
• Citation: 664 P.2d 702
• Parties: John Daniel DAWSON, a Minor, By and Through his Mother and Next Friend, Geraldyne Y. McKELVEY, Plaintiff-Appellant, v. PUBLIC EMPLOYEES' RETIREMENT ASSOCIATION, Audrey L. Dawson, Beth LaRue Dawson, and Sarah Marie Dawson, Defendant-Appellees.
• Court: Colorado Supreme Court

Page 702

664 P.2d 702

John Daniel DAWSON, a Minor, By and Through his Mother and Next Friend, Geraldyne Y. McKELVEY, Plaintiff-Appellant, v. PUBLIC EMPLOYEES' RETIREMENT ASSOCIATION, Audrey L. Dawson, Beth LaRue Dawson, and Sarah Marie Dawson,

Defendant-Appellees.

No. 81SA187.

Supreme Court of Colorado,

En Banc.

May 31, 1983.

Nelson, Hoskin, Groves & Prinster, P.C., John W. Groves, Edward A. Lipton, Grand Junction, for plaintiff-appellant.

J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Ann Sayvetz, Asst. Atty. Gen., Denver, for defendant-appellee Public Employees' Retirement Assn.

George G. Johnson, Jr., Denver, for defendants-appellees, Audrey L. Dawson, Beth LaRue Dawson, and Sarah Marie Dawson.

QUINN, Justice.

John Daniel Dawson, a minor, claiming that his father's death entitles him to an annuity from the survivors' benefit reserve fund of the Public Employees' Retirement Association (PERA), appeals a judgment of the district court affirming a decision of the PERA Retirement Board (Board) denying his claim. ¹ The district court concluded that section 24-51-806, C.R.S.1973 (1982 Repl.Vol. 10), precludes payment of an annuity to a dependent child, born during the decedent's marriage to his former wife and not a member of the decedent's immediate household, when the decedent was survived by dependent children living with a surviving spouse. The district court also held that this statutory distinction with respect to dependent children bears a sufficiently rational relationship to a legitimate governmental interest to survive an equal protection challenge under the Fourteenth Amendment to the United States Constitution and Article II, Section 25 of the Colorado Constitution. We affirm the judgment.

I.

Prior to his death on January 30, 1978, John's father, Daniel W. Dawson, was employed as an assistant principal in the Glenwood Springs Roaring Fork School District and was a contributing member of PERA. Dawson was divorced from Geraldyne McKelvey, John's mother, on February 9, 1970. Incorporated into the divorce decree was a stipulation granting Geraldyne legal custody of John, who was then four years old, with reasonable rights of visitation in Dawson. Dawson was ordered to pay child support in the amount of $125 per month, and support payments were timely made up to the date of Dawson's death, when John was twelve years of age. After his divorce from Geraldyne, Dawson married Audrey L. Dawson, with whom he had a child, Sarah Marie Dawson, and also adopted Audrey's daughter, Beth LaRue Dawson.

Following Dawson's death, his widow Audrey and his former wife Geraldyne filed claims with PERA for survivors' annuities, Audrey filing on behalf of herself and her two daughters and Geraldyne on behalf of John. PERA determined that Audrey was eligible for an annuity pursuant to section 24-51-805, C.R.S.1973 (1982 Repl.Vol. 10), which authorizes the payment of an annuity to a widow who has in her care the decedent's unmarried and unemancipated children; it, however, denied Geraldyne's claim on behalf of John by virtue of section 24-51-806, C.R.S.1973 (1982 Repl.Vol. 10), which authorizes an annuity to a dependent child only when there is no annuity payable to a surviving spouse. In effect, PERA concluded that under the statutory scheme the widow and children's annuity payable to Audrey operated to preclude the payment of an annuity to John.

John requested the Board to reverse the denial of his claim, arguing that a statutory construction authorizing the payment of an annuity to children of a subsequent marriage while excluding children of a prior marriage rendered the statutory scheme irrational and violative of equal protection of the laws under the federal and state constitutions. The Board concluded that the statutes afford no discretion in determining annuity eligibility and that the payment of benefits to John was precluded because of Audrey's eligibility for the statutory widow and children's annuity. John, pursuant to section 24-4-106, C.R.S.1973 (1982 Repl.Vol. 10), sought judicial review in the Denver District Court on the basis that either the Board had misconstrued the applicable statutes or that the statutes violated equal protection of the laws. The district court rejected John's claims and this appeal followed. ²

II.

In our view the Board correctly construed the PERA statutes in denying John's claim. The statutes governing the PERA survivors' benefit reserve fund, sections 24-51-801 to 24-51-807, C.R.S.1973 (1982 Repl.Vol. 10), set forth express legislative priorities among three classes of potentially surviving dependents. The first priority (the widow's annuity) is accorded to the surviving spouse. ³ A widow of a deceased public employee becomes eligible for an annuity under section 24-51-804 when she attains a requisite age, which varies with the length of the decedent's service, or when she is found by the board to be mentally or physically incapacitated from gainful employment. ⁴ This annuity terminates upon the widow's remarriage. When the widow has in her care an unmarried and unemancipated ⁵ child of the decedent, she becomes eligible for an annuity under section 24-51-805 (the widow and children's annuity) regardless of her age and regardless of the length of the decedent's service. ⁶

The next priority is granted to dependent children. Under section 24-51-806 (the children's annuity), an unmarried and unemancipated child is eligible for an annuity only if "no annuities have been payable under section 24-51-804 or 24-51-805," which are the statutory provisions creating the widow's annuity and the annuity for a widow with dependent children. ⁷ Section 24-51-806 also provides that the child's annuity terminates upon either of the following events: (1) the qualification of the surviving spouse for the widow's annuity pursuant to section 24-51-804 by reason of age or disability; or (2) the child's adoption, marriage, death, or emancipation, except that a child who is "so mentally or physically incapacitated that he cannot provide for himself after reaching age eighteen" is eligible for an annuity regardless of age.

The last group of potential surviving claimants consists of surviving parents. Section 24-51-807 (the dependent parents' annuity) authorizes the payment of a survivor's annuity to any "parent who was dependent upon [the decedent] for at least fifty percent of his support," when "no annuities have been or will be paid under sections 24-51-804 to 24-51-806 ...." ⁸ The annuity for dependent parents is payable until the remarriage or death of the parent.

As this examination of the legislative system of priorities makes clear, the statutory annuity scheme mandates the payment of survivors' benefits to Audrey to the exclusion of other claimants. Audrey is eligible for the widow and children's annuity under section 24-51-805 because she is a surviving spouse who has in her care the decedent's unemancipated children. The only statutory authorization for payment of an annuity for John is section 24-51-806, which authorizes an annuity only when "no annuities have been payable under section 24-51-804 or 24-51-805." Because an annuity is payable to Audrey under section 24-51-805, no payment may be made under section 24-51-806, and, therefore, there is no statutory authorization for the payment of an annuity to John.

John argues that the statutory language in section 24-51-806, i.e., "no annuities have been payable under section 24-51-804 or 24-51-805," was inserted into this section solely to prevent a double recovery and was not intended to vitiate an annuity to a child not living with the surviving spouse merely because the surviving spouse is also eligible for an annuity. We disagree with this argument. The statutory scheme evidences an overriding legislative intent to make the widow and children's annuity of section 24-51-805 exclusive of other statutory annuities as long as the conditions of eligibility for the widow and children continue to exist. ⁹ There is no circumstance under which a surviving spouse could receive both the widow's annuity of section 24-51-804 and also claim the children's annuity of section 24-51-806 on behalf of a dependent and unemancipated child.

Similar exclusionary language to that of section 24-51-806 is contained in section 24-51-807, which authorizes the payment of an annuity to qualified dependent parents when "no annuities have been or will be paid under sections 24-51-804 to 24-51-806." This latter language is clearly not necessary to prevent double recovery by parents, who are not eligible for an annuity under any other section. We therefore conclude that the statutory language limiting the children's annuity of section 24-51-806 to situations where "no annuities have been payable under section 24-51-804 or 24-51-805" was not designed to prevent double recovery, but instead was intended to create a statutory ranking of potential classes of claimants. ¹⁰

Legislative intent is the touchstone of statutory interpretation. When the meaning of a statute is plain and unambiguous, a court cannot substitute its opinion as to how the law should read in place of the law already enacted. E.g., People in the Interest of Maddox v. District Court, 198 Colo. 208, 597 P.2d 573 (1979); Civil Service Employees Association v. Love, 167 Colo. 436, 448 P.2d 624 (1968). That the statutory scheme might not be a paradigm of equity is not to say that we can ignore the clear import of the unambiguous statutory language. The legislative intent, as expressed in the statutory scheme for survivors' benefits, is to prohibit the payment of the children's annuity of section 24-51-806 to John as long as the surviving spouse is eligible for the widow's annuity under section 24-51-804 or the widow and children's annuity under section 24-51-805. The district court, therefore, did not err in upholding the Board's construction...