97-005914 Latonia Faye Cromartie vs. Division Of Retirement Status: Closed Recommended Order on Monday, February 1, 1999.

Summary: Petitioner failed to establish financial dependence as a "joint annuitant" with the deceased member.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LATONIA FAYE CROMARTIE, )

)

Petitioner, )

)

vs. ) Case No. 97-5914

)

DIVISION OF RETIREMENT, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

by video teleconference on November 24, 1998, before J. D.

Parrish, a designated Administrative Law Judge of the Division of

Administrative Hearings at Tallahassee, Florida.

APPEARANCES

For Petitioner: Gary Robert Fine, Esquire

Rodham & Fine, P.A.

The Trial Lawyers Building

633 Southeast Third Avenue, Suite 4R

Fort Lauderdale, Florida 33301

For Respondent: Larry D. Scott, 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 benefits as a "joint

annuitant" for the deceased, Gloria Cromartie.

PRELIMINARY STATEMENT

This case began on September 11, 1997, when the Division of

Retirement advised the Petitioner, Latonia Faye Cromartie, that

her request to be deemed a "joint annuitant" had been denied.

More specifically, the notice advised Petitioner that she had

failed to provide documentation to show that the deceased,

Petitioner's mother, had provided at least half of her financial

support for the year immediately prior to the member's death.

Thereafter, the Petitioner timely requested an administrative

hearing to contest the agency decision, and the matter was

forwarded to the Division of Administrative Hearings for formal

proceedings on October 15, 1997.

At the hearing, Petitioner testified in her own behalf and

presented witnesses Kimberly Golden and Darlene Harriet Gibson.

Petitioner's Exhibits marked for identification A through T have

been admitted into evidence, except for Exhibit Q to which an

objection was sustained.

The Respondent offered testimony from Stanley Colvin, the

Retirement Administrator for the Survivor Benefits Section at the

Division of Retirement. The Respondent's Exhibits numbered 1

and 2 have also been received into evidence.

The transcript of the proceeding was filed on

December 1, 1998. By stipulation of the parties the proposed

recommended orders were due on or before December 31, 1998. They

have been considered in the preparation of this order.

FINDINGS OF FACT

1. The Petitioner, Latonia Faye Cromartie, is the adult

daughter and sole legal heir of the deceased, Gloria Cromartie, a

vested member of the Florida Retirement System (FRS).

2. The Respondent is the state agency charged with the

responsibility of managing the FRS.

3. Gloria Cromartie died on August 9, 1995. Ms. Cromartie

was a long-term employee of the Broward County Public School

District and resided in that county. At the time of her death

she had designated Mattie Cromartie as the beneficiary of her FRS

benefits. Mattie Cromartie predeceased the member.

4. As Ms. Cromartie was not survived by the designated

beneficiary or a spouse, the Petitioner sought FRS benefits as

the member's sole surviving heir. As such, Petitioner claimed

she was entitled to a FRS benefit as a "joint annuitant."

5. The Respondent denied Petitioner's claim and maintained

that she had not demonstrated she was financially dependent on

the deceased member for the year prior to the member's death

(August 1994 through July 1995).

6. For the relevant period of time, the deceased member had

not claimed Petitioner on her income tax return as a dependent.

7. Petitioner did not reside with the deceased member. At

all times material to this case, Petitioner resided in Georgia.

8 The deceased member was a generous parent who assisted

Petitioner financially on numerous occasions. It is accepted

that these financial contributions greatly assisted Petitioner.

The deceased made payments on Petitioner's credit debt and

supplemented her income for rent purposes.

9. Nevertheless, the documentation submitted by Petitioner

does not demonstrate the deceased member provided at least

one-half of Petitioner's financial support for the period August

1994 through July 1995.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings.

11. The Petitioner bears the burden of proof to establish

she is entitled to benefits as a "joint annuitant," one who was

dependent on the deceased for her financial support.

12. Rule 60S-6.001(34), Florida Administrative Code,

defines "joint annuitant" as:

(34) JOINT ANNUITANT -- Means:

(a) the spouse; or

(b) a natural or legally adopted child who

is either under 25 or physically or mentally

disabled and incapable of self-support,

regardless of age, or any other person under

25 for whom the member is the legal guardian

and who is financially dependent for no less

than one-half of his or her support from the

member at retirement or at the time of death

of such member, whichever occurs first; or

(c) a parent or grandparent, or a person

age 25 or older for whom the member is the

legal guardian, provided that such parent,

grandparent, or other person is financially

dependent for no less than one-half of his or

her support from the deceased member at

retirement or at time of the death of such

member, whichever occurs first. See also 60S-

4.011(5)(c).

13. The Respondent's interpretation and application of the

foregoing "joint annuitant" policy was applicable to the period

at issue in this proceeding.

14. In this case, Petitioner has failed to establish she is

entitled to FRS benefits as a "joint annuitant." Petitioner's

description of cash gifts made to her by the deceased, which are

not documented by the evidence presented, has not been deemed

persuasive in this matter. Bank records demonstrating and

supporting the cash trail alleged from the deceased to the

Petitioner have not been produced. The weight of the credible

evidence presented in the cause has not established Petitioner as

a "joint annuitant." Consequently, Petitioner's claim must fail.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Division of Retirement enter a

Final Order denying Petitioner's request for benefits as the

deceased member's "joint annuitant" and reimbursing Petitioner

for the deceased's contributions to the FRS.

DONE AND ENTERED this 1st day of February, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of February, 1999.

COPIES FURNISHED:

A. J. McMullian, III, Director

Division of Retirement

Cedars Executive Center

2639 North Monroe Center, Building C

Tallahassee, Florida 32399-1560

Emily Moore, Chief Legal Counsel

Division of Retirement

Cedars Executive Center

2639 North Monroe Street, Building C

Tallahassee, Florida 32399

Larry D. Scott, Esquire

Division of Retirement

Cedars Executive Center

2639 North Monroe Street, Building C

Tallahassee, Florida 32399

Gary Robert Fine, Esquire

Rodham & Fine, P.A.

The Trial Lawyers Building

633 Southeast 3rd Avenue, Suite 4R

Fort Lauderdale, Florida 33301

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.