96-000997 Pamela Eaves vs. Division Of Retirement Status: Closed DOAH Final Order on Thursday, November 20, 1997.

Summary: Member of Florida Retirement System did not change benefits to current wife of 10 years before his death; Wife not entitled to pension benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAMELA EAVES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0997

)

DIVISION OF RETIREMENT, )

)

Respondent. )

___________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Tallahassee,

Florida, before the Division of Administrative Hearings by its duly designated

Administrative Law Judge, Diane Cleavinger, on July 22, 1996.

APPEARANCES

For Petitioner: Granville E. Petrie, Esquire

103 North Gadsden Street

Tallahassee, Florida 32301

For Respondent: Stanley M. Danek, Esquire

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to claim her late husband's pension benefits

under the Florida Retirement System.

PRELIMINARY STATEMENT

A petition for administrative hearing was filed by Petitioner, Pamela

Eaves, dated November 11, 1995, requesting that the State of Florida, Department

of Management Services, through the Division of Retirement, pay Petitioner the

pension benefits of her late husband, Billy Eaves, under the Florida Retirement

System. The Department had denied Petitioner those benefits based on its

decision that Petitioner was not a beneficiary designated by her late husband

prior to his death and was not otherwise a joint annuitant entitled to receive

those benefits.

The Petition for Formal Hearing was forwarded to the Division of

Administrative Hearings.

At the hearing, Petitioner testified in her own behalf and introduced the

testimony of one additional witness. Petitioner also introduced 4 exhibits into

evidence. Respondent did not call any witnesses, but offered 24 exhibits into

evidence.

After the hearing, Petitioner and Respondent submitted their Proposed

Recommended Orders on August 13, 1996 and August 7, 1996, respectively. The

parties' proposed findings of fact have been considered and utilized in the

preparation of this Recommended Order except where such proposals were not

supported by the evidence or were immaterial, cumulative or subordinate.

FINDINGS OF FACT

1. Petitioner, Pamela Eaves, was married to Billy Eaves at the time of his

death on November 23, 1993. They had been married since November 20, 1983.

2. Billy Eaves Had been employed by various employers in the Florida

Retirement System and had in excess of 10 years of creditable service as a

regular class member of the Florida Retirement System. At the time of his death

in 1993 Billy Eaves was employed by the Leon County School Board, had

accumulated 24.04 years of service and was vested in the Florida Retirement

System.

3. Upon his initial enrollment in the Florida Retirement System, Mr.

Eaves, on September 29, 1972, designated JoAnn Eaves, his then wife, as his

primary beneficiary and Elizabeth and Judy Hardage, his mother and sister,

respectively, as his contingent beneficiaries. On January 9, 1978, Mr. Eaves

filed a second designation of beneficiary form, naming JoAnn Eaves as his

primary beneficiary with no provision for a contingent beneficiary. On June 10,

1983, prior to meeting Petitioner, Mr. Eaves filed his last designation of

beneficiary form, naming Peggy Eaves, his sister, as the primary beneficiary

with Elizabeth and Judy Hardage as the contingent beneficiaries.

4. After the filing of the last beneficiary designation form, Billy Eaves

met Pamela Eaves and later married her.

5. During the 10 years of their marriage, Billy Eaves did not file a new

designation of beneficiary form even though he assured Petitioner that she would

receive everything he had. However, the evidence demonstrated that Billy Eaves

was very much aware of his financial circumstances and the steps necessary to

ensure his assets would pass to Petitioner. For unknown reasons, Billy Eaves

failed to take such steps in relation to his pension and some other assets he

owned.

6. Billy Eaves died a few month prior to the time he had decided to

formally retire. He never received any of his retirement benefits. At the time

of his death none of the beneficiaries Billy Eaves had designated were

financially dependent on him as is required under Florida law. Therefore, those

beneficiaries did not receive any of Mr. Eaves retirement benefits.

7. After his death, Petitioner learned that her husband had not designated

her as the beneficiary of his pension benefits and that she was not entitled to

those benefits or a refund of those benefits unless the designated beneficiaries

disclaimed their rights. To date, even though they cannot receive any of Billy

Eaves pension benefits, the designated beneficiaries have refused to disclaim

their rights unless Petitioner pays them a substantial some of money.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding. Sections 120.57, Florida

Statutes.

9. The Florida Retirement System is governed by Chapter 121, Florida

Statutes. Section 121.091(8), Florida Statutes, states in part:

Each member may, on a form provided for

that purpose, signed and filed with the

division, designate a choice of one or more

persons, named sequentially or jointly, as

his beneficiary who shall receive the

benefits, if any, which may be payable in

the event of his death pursuant to the

provisions of this chapter. If no

beneficiary designated by the member

survives him, the beneficiary shall be the

spouse of the deceased, if living. If the

member's spouse is not alive at his death,

the beneficiary shall be the living children

of the member. If no children survive, the

beneficiary shall be the member's father or

mother, if living; otherwise, the bene-

ficiary shall be the member's estate. The

beneficiary most recently designated by a

member on a form or letter filed with the

division shall be the beneficiary entitled

to any benefits payable at the time of the

member's death, except (conditions not

herein applicable).

10. Section 121.091(7)(b), Florida Statutes did provide for death benefits

for members of FRS and stated in part as follows:

If the employment of an active member who

may or may not have applied for retirement

is terminated by reason of his death

subsequent to the completion of 10 years of

creditable service and prior to his effective

retirement date or retirement, if established,

it shall be assumed that the member retired

as of his date of death in accordance with

(subsections of the law). Benefits payable

to the designated beneficiary shall be as

follows:

1. For a beneficiary who qualifies as

a joint annuitant, the optional form of

payment to (section cited).

2. For a beneficiary who does not qualify

as a joint annuitant, no continuing monthly

benefit shall be paid and the beneficiary

shall be entitled to the return of the

member's personal contributions.

11. Section 60S-4.011(1), Florida Administrative Code, provides as

follows:

A member may designate a beneficiary, .

. . , to receive the benefits which may be

payable pursuant to these rules in the event

of the member's death. No designation of

beneficiary shall be effective unless it has

been filed with the Division.

12. Under Florida law, there is no requirement that a person must

designate a spouse as a beneficiary of pension benefits. In fact, a person may

designate any person as his or her beneficiary. The sole responsibility for

naming or changing beneficiaries of pension benefits rests with the member of

the Florida Retirement System.

13. In this case, Billy Eaves did not designate Petitioner as his

beneficiary, but for a period of 10 years permitted his sisters and mother to

remain as his beneficiaries. The Department has no authority to substitute

another beneficiary before or after the death of the member where that member

has not instructed the Department to make such a change. Therefore, Petitioner

is not entitled to claim Billy Eaves's pension benefits or a refund thereof.

See Arnow v. Williams, 343 So.2d 1309 (Fla. 1st DCA 1977); Rogers v. Rogers, 152

So.2d 183 (Fla. 1st DCA 1963); Wilson v. Division of Retirement, 525 So.2d 891

(Fla. 2d DCA 1988); and Xiomara Ricardo v. Department of Management Services,

Case No. DMS DOR 93-98 (Final Order April 14, 1994) affirmed on appeal.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Division enter a final order denying Petitioner's

claim to her late husband's pension.

DONE AND ENTERED this 1st day of October, 1996 in Tallahassee, Leon County,

Florida.

___________________________________

DIANNE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of October, 1996.

COPIES FURNISHED:

Stanley M. Danek, Esquire

Division Attorney

Division of Retirement

Cedars Executive Center

2639 Monroe Street, Building C

Tallahassee, FL 32399

Granville E. Petrie, Jr., Esquire

103 North Gadsden Street

Tallahassee, FL 32301

A.J. McMullian, III, Director

Division of Retirement

Cedars Executive Center

2639 North Monroe Street, Building C

Tallahassee, FL 32399-0950

William H. Lindner, Secretary

Department of Management Services

Knight Building, Suite 307

Koger Executive Center

2737 Centerview Drive

Tallahassee, FL 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.