96-005806 Joyce Griffith vs. Division Of Retirement Status: Closed Recommended Order on Friday, July 11, 1997.

Summary: Wife of deceased member is not entitled to pension benefits of late husband where member's former wife was designated primary beneficiary.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOYCE GRIFFITH, )

)

Petitioner, )

)

vs. ) Case No. 96-5806

)

STATE OF FLORIDA, DIVISION OF )

RETIREMENT, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly designated Administrative Law Judge, Susan B.

Kirkland, held a formal hearing in this case on June 24, 1997, in

Fort Lauderdale, Florida, by video teleconference.

APPEARANCES

For Petitioner: Regina S. Buskin, Esquire

Connie L. Hiaasen, Esquire

Buskin and Hiaasen, P.A.

707 Southeast Third Avenue, Suite 101

Fort Lauderdale, Florida 33316

For Respondent: Augustus D. Aikens, Jr.

Chief Legal Counsel

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to the retirement benefits of

her late husband, Frederick Griffith.

PRELIMINARY STATEMENT

By letter dated November 12, 1996, Respondent, Department of

Management Services, Division of Retirement (Division), denied

the request of Petitioner, Joyce Griffith, that she be deemed the

designated beneficiary for the pension benefits of her late

husband Frederick Griffith. Joyce Griffith was denied the

benefits because the file of the Division reflected that the

designated beneficiary of record was Ruth Griffith,

Mr. Griffith's former wife. Joyce Griffith filed a petition for

an administrative hearing dated December 3, 1996. The case was

forwarded to the Division of Administrative Hearings on December

11, 1996, for assignment to an administrative law judge.

The final hearing was scheduled for February 18, 1997. On

February 14, 1997, Petitioner filed an Amended Motion for

Continuance, which motion was granted. The final hearing was

rescheduled for June 24, 1997. Ruth Griffith filed a Petition to

Intervene, which was granted on March 10, 1997. On June 12,

1997, the Intervenor filed a Motion to Withdraw Petition to

Intervene. The motion was granted by Order dated June 13, 1997.

At the final hearing, Petitioner testified on her own behalf

and called the following witnesses: Debra Williams, Vicki Moten,

Stanley Colvin, Ronald Cote, and David Ragsdale. Petitioner's

Exhibits 1-6 were admitted in evidence. At the final hearing,

Respondent called Stanley Colvin and David Ragsdale as its

witnesses. Respondent's Exhibits 1-4 were admitted in evidence.

A transcript was not ordered. The parties agreed to file

proposed recommended orders within ten days from the close of the

hearing. The parties timely filed their proposed recommended

orders.

FINDINGS OF FACTS

1. Frederick Griffith was employed with the Broward County

School System from January 4, 1971, until his death on June 9,

1996.

2. Frederick Griffith was enrolled with the State of

Florida Retirement System at the time of his death.

3. Frederick Griffith separated from his first wife, Ruth

Griffith, in 1976, and they were divorced on October 25, 1989.

4. Frederick Griffith and Petitioner, Joyce Griffith, were

married on November 25, 1989, after having been together for

approximately 12 years. Joyce and Frederick Griffith were

married at the time of his death.

5. Joyce Griffith applied for her husband's benefits as the

surviving spouse.

6. The Respondent, Division of Retirement (Division),

denied Joyce Griffith benefits as surviving spouse, stating that

the beneficiary of record was Ruth Griffith. The Division

advised Joyce Griffith that they would recognize her as surviving

spouse and pay her a monthly benefit if Ruth Griffith would

disclaim her rights as the designated beneficiary.

7. Ruth Griffith refused to disclaim her rights and applied

for the benefits as the designated beneficiary. The Division

paid her $4,373.94. Because Ruth Griffith was not dependent on

Frederick Griffith at the time of his death, she was entitled

only to the lump sum amount that Mr. Griffith had paid into the

retirement system.

8. On February 2, 1992, Mr. Griffith submitted Retirement

Information Request, Form FR-9, to the Division for a calculation

of total years of creditable service and the amount due to

purchase his creditable military service. On June 15, 1995, the

Division replied to the FR-9 request by issuing Form FRS-40,

Estimate of Retirement Benefits. The information provided to

Mr. Griffith was calculated based on the assumption that

Mr. Griffith would retire with a retirement effective date of

February, 1997. The Estimate of Retirement Benefits advised

Mr. Griffith that there was an apparent discrepancy with the

beneficiary listed on his FR-9 and his named beneficiary listed

in the Division's official records. Specifically, Mr. Griffith

was advised:

The spouse listed on the Retirement

Information Request, FR-9, and used for this

estimate is not your primary beneficiary. If

you intend to change your beneficiary

designation, please complete a personal

history record, FRS-M10, in your personnel

office.

9. Mr. Griffith did not file a revised FRS-M10 in response

to the advice given by the Division in the June 15, 1995, FRS-40.

10. After Mr. Griffith received the FRS-40, Joyce Griffith

insisted that he call the Broward County School Board to verify

that she was the designated beneficiary. Joyce Griffith gave her

husband the number to call. The school board personnel assured

Mr. Griffith that Joyce Griffith was his beneficiary.

Apparently, Mr. Griffith called the department which dealt with

life insurance benefits and not retirement benefits.

11. Joyce Griffith was the beneficiary of her husband's

employer-provided life insurance policy for $150,000.

Mr. Griffith had designated her as his beneficiary on a change of

beneficiary form dated August, 1990.

12. Mr. Griffith had completed a form entitled Application

for Service Retirement designating Joyce Griffith as his primary

beneficiary. The form was notarized on November 25, 1995.

Mr. Griffith did not indicate a retirement date on the form and

never filed the form with either the Division or his employer.

13. After Mr. Griffith's death, Joyce Griffith found an

employee copy of a FRS-10 form among Mr. Griffith's military

papers. The form was dated November 19, 1991, and signed by

Mr. Griffith. The form was not filed with either the School

Board of Broward County or the Division. Neither the school

board nor the Division have any record of the form being filed.

The form was not correctly completed. In the area of the form

entitled Designation of Beneficiaries, the employee is supposed

to complete only one of three sections. On the form signed by

Mr. Griffith, the first section was checked, and the other two

sections were filled out with the names of Joyce Griffith and the

children of Mr. Griffith.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

15. Section 121.091(8), Florida Statutes, deals with the

designation of beneficiaries and provides:

Each member may, on a form provided for that

purpose, signed and filed with the division,

designate a choice of one or more person,

named sequentially or jointly, as his or her

beneficiary who shall receive the benefits,

if any, which may be payable in the event of

the member's death pursuant to the provisions

of this chapter. If no beneficiary is named

in the manner provided above, or if no

beneficiary designated by the member survives

the member, the beneficiary shall be the

spouse of the deceased, if living. If the

member's spouse is not alive at his or her

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 beneficiary 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

benefits shall be paid as provided in

paragraph (7)(d) when death occurs in the

line of duty.

16. Rule 60S-4.011(1), Florida Administrative Code provides

that "No designation of beneficiary shall be effective unless it

has been filed with the Division."

17. The deceased, Frederick Griffith, had last completed a

designation of beneficiary form on December 30, 1970, naming Ruth

Griffith as his primary beneficiary. He later married Joyce

Griffith in November, 1989, but did not file a change of

designation of beneficiary with the School Board of Broward

County or with the Division before his death on June 9, 1996.

Since no change of beneficiary form was filed with the Division

before his death, the 1970 designation of Ruth Griffith as his

primary beneficiary remained effective at the time of his death.

18. In Pamela Eaves v. Division of Retirement , Case No.

DMS-DOR, Final Order entered December 3, 1996, the Division held

that the sisters and mother of the deceased member were the

designated beneficiaries of the member's pension benefits and

that the current wife was not entitled to claim the pension

benefits of her late husband. The Division held:

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 of pension benefits rests

with the member of the retirement system.

Id. at page 6 of Recommended Order.

20. In Xiomara Ricardo v. Deparment of Management

Services, Division of Retirement , Case No.

DMS-DOR 93-08, Final Order April 14, 1994, aff'd 644

So. 2d 351 (Fla. 3rd DCA), the Division held that the

spouse of the deceased member could not claim the

member's pension benefits because the former wife was

the designated beneficiary. The Division stated:

James Ricardo signed and filed a designation

of beneficiary form (Exhibit 2) naming Helga

Ricardo, his then wife, as his beneficiary on

or about March 25, 1975. He later became

divorced from Helga in March, 1985, but he

did not change his designation of beneficiary

before he died on March 19, 1992. A member

must not only execute a change of the proper

form, but he must also file that change with

the Division before any change is effective.

Therefore, Helga Ricardo is the designated

beneficiary of James Ricardo. The Division

cannot speculate as to why he did not change

his designated beneficiary nor can the

Division make such a change for him in the

absence of specific instruction from him to

do so.

Id . at page 5.

21. Joyce Griffith is not the designated

beneficiary of Frederick Griffith's pension benefits

and she is not entitled to claim those benefits.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered denying

Petitioner's request for the retirement benefits of Frederick T.

Griffith.

DONE AND ORDERED this 11th day of July, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

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 11th day of July, 1997.

COPIES FURNISHED:

Connie L. Hiaasen, Esquire

Regina S. Bushkin, Esquire

707 Southeast Third Avenue, Suite 101

Fort Lauderdale, Florida 33316

Augustus D. Aikens, Jr., Esquire

Department of Management Services

Division of Retirement

2639-C North Monroe Street

Tallahassee, Florida 32399-1560

A. J. McMullian, III, Director

Department of Management Services

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Paul A. Rowell, General Counsel

Department of Management Services

Division of Retirement

4050 Esplanade Way

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.