BOARD OF APPEALS
|DECISION NO: 1522-BH-93
DATE: Sept. 16, 1993
|CLAIMANT: Robert D. Kimmel, Sr.
|| APPEAL NO.: 9306377
||L.O. NO: 8
||APPELLANT: BOARD - ASSUMED JURISDICTION
Issue: Whether the claimant is receiving or has received a governmental
or other pension, retirement or retired pay, annuity or
other similar periodic payment which is based on any previous
work of such individual, which is equal to or in excess
of his weekly benefit amount, within the meaning of Section
8-1008 of the Labor and Employment Article.
- NOTICE OF RIGHT OF APPEAL TO COURT -
YOU MAY FILE AN APPEAL FROM THIS DECISION IN THE CIRCUIT COURT
FOR BALTIMORE CITY OR ONE OF THE CIRCUIT COURTS IN A COUNTY
IN MARYLAND. THE COURT RULES ABOUT HOW TO APPEAL CAN BE
FOUND IN MANY PUBLIC LIBRARIES, IN THE ANNOTATED CODE
OF MARYLAND, MARYLAND RULES, VOLUME 2, B RULES.
THE PERIOD FOR FILING AN APPEAL EXPIRES October 16, 1993.
|For the Claimant:
||For the Employer:
|Robert Kimmel - Claimant
OF ECONOMIC AND EMPLOYMENT DEVELOPMENT
John T. McGucken- Legal Counsel
EVALUATION OF THE EVIDENCE
The Board of Appeals has considered all of the evidence presented,
including the testimony offered at the hearings. The Board
has also considered all of the documentary evidence introduced
in this case, as well as the Department of Economic and
Employment Development's documents in the appeal file.
FINDINGS OF FACT
The claimant had been employed by Crown, Cork and Seal as a tool and
die setter from September, 1959 through November 13, 1992.
At that point, the plant closed down permanently, ending his job.
The claimant was entitled to a non-contributory pension in the amount
of $928.99 per month effective February 1, 1993.
The claimant was divorced on September 12, 1990. According to the divorce
settlement agreement, which was incorporated into the
court's order, the claimant's wife became an alternate
payee of the pension plan. The claimant's wife thus became
entitled to 40% of the claimant's benefits at the time
that they were received by the claimant. The claimant's
wife also became entitled to the status of surviving spouse
in the event that the claimant died.
The claimant's wife, however, does not own 40% of the claimant's pension.
The pension is paid in full to the claimant, and the claimant
then remits 40% of the amount to his ex-wife. The claimant's
ex-wife's entitlement to the benefits is dependent upon
the claimant's status. For example, should the claimant
die, the claimant's wife would not continue to receive
the 40% share ordered by the court, but would instead
receive a surviving spouse's benefit in an amount set under the plan.
CONCLUSIONS OF LAW
The entire amount of this pension is deductible under Section 8-1008
of the Labor and Employment Article. Title to the pension,
or even a part of the pension, was not transferred to
the claimant's wife. The pension is still paid to the
claimant in full. He has a court obligation to pay the
40% of the pension to his wife, but it remains his pension.
The claimant's wife does not have independent ownership
of any pension amount. Her ownership and status are dependent
upon the claimant's interest in the pension. For these
reasons, the Board concludes that the claimant actually
receives 100% of the pension amount. The 40% which the
claimant must pay to his ex-wife is a legal obligation
which he fulfills from this pension amount, but it does
not represent the wife's independent ownership of that
40% of the pension. Therefore, the entire amount of the
pension must be deducted.
The claimant's benefits must be reduced on account of a retirement
payment within the meaning of Section 8-1008 of the Labor
and Employment Article. His benefits should be reduced
by $216.00 per week ($928.99 divided by 4.3) as long as
he receives the pension in this amount, or as long as
Crown, Cork and Seal remains a base period employer.
The decision of the Hearing Examiner is reversed.
Thomas W. Keech, Chairman
Donna P. Watts, Associate Member
Hazel A. Warnick, Associate Member
DATE OF HEARING: August 10, 1993
COPIES MAILED TO:
UNEMPLOYMENT INSURANCE - EASTPOINT