Pate v. Rasco

• Decision Date: 17 February 1995
• Citation: 656 So.2d 855
• Parties: Lenora W. PATE, as Director of the State Department of Industrial Relations v. Mary L. RASCO. AV93000622.
• Court: Alabama Court of Civil Appeals

Page 855

656 So.2d 855

Lenora W. PATE, as Director of the State Department of Industrial Relations v. Mary L. RASCO.

AV93000622.

Court of Civil Appeals of Alabama.

Feb. 17, 1995.

George Corcoris, Gen. Counsel, and V. Wayne Causey, Asst. Gen. Counsel, Dept. of Indus. Relations, Montgomery, for appellant.

Bryan K. Horsley of Steiner, Crum & Baker, Montgomery, for appellee.

L. CHARLES WRIGHT, Retired Appellate Judge.

Governor Guy Hunt appointed Mary Rasco to serve as an administrative assistant in his office. As a result of the removal of the Governor from office, Rasco became unemployed. She filed for unemployment compensation. It was denied.

After exhausting her administrative remedies, Rasco filed an appeal to the Circuit Court of Montgomery County. The Department of Industrial Relations requested that the appeal be dismissed, contending that Rasco failed to file the appeal in the proper county, as provided by § 25-4-95, Code 1975. The trial court refused to dismiss the action on the jurisdictional claim. The court found that Rasco filed her appeal in the proper county and that she was entitled to unemployment benefits. The Department appeals.

The sole issue on appeal is whether the Montgomery County Circuit Court had jurisdiction to entertain the appeal.

Section 25-4-95 governs the procedure necessary to institute an appeal from a decision by the Department's Board of Appeals. This section provides that an appeal may be perfected by filing within ten days after the decision of the board has become final a notice of appeal "in the circuit court of the county of the residence of the claimant." The only exception to this requirement applies where the claimant does not reside in this state at the time the appeal is taken. The requirements of § 25-4-95 are jurisdictional, and failure to comply necessitates dismissal of the appeal. Director of State Dep't of Industrial Relations v. Nolin, 374 So.2d 903 (Ala.Civ.App.1979).

The record reflects that Rasco lived and worked in Montgomery County prior to and while she was employed by Governor Hunt. In May 1993 she applied for unemployment benefits in Montgomery County. In July 1993 she "went to live [in Tuscaloosa] with a friend whose husband had died." She testified that her friend "invited me to stay with her until I could find work."

The weekly "pay order cards" (weekly claims for benefits) submitted by Rasco from July 10, 1993, to November 1993 were postmarked from Tuscaloosa or Birmingham and contained a Tuscaloosa, Alabama, return address. Until September 4, 1993, these same cards, however, indicated Montgomery as her place of residence. She perfected her appeal to the Circuit Court of Montgomery County on August 26, 1993.

The Department contends that Rasco should have filed her appeal in the Circuit Court of Tuscaloosa County because that was where she resided at the time she filed her appeal. It insists that the phrase "county of residence of the claimant" means where the claimant is actually living, whether permanent or temporary, at the time the appeal is filed.

Rasco's position is that the term residence is synonymous with domicile. She contends that the terms denote the place where the person is deemed in law to live and may not always be the place where the person is actually dwelling.

As a general rule, the words residence and domicile are not considered synonymous. Ex parte Sides, 594 So.2d 93 (Ala.1992). In Alabama, however, the terms are deemed to be synonymous for venue...