19-002985 Lori A. Savinsky, As Guardian Of The Property Of Cali Ann Savinsky, The Minor Ward vs. Department Of Management Services, Florida Retirement System, Bureau Of Benefit Payments Status: Closed Recommended Order on Wednesday, November 20, 2019.

Summary: Petitioner failed to prove that FRS member's minor child is entitled to receive benefits instead of the beneficiaries designated by the FRS member.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LORI A. SAVINSKY, AS GUARDIAN OF

THE PROPERTY OF CALI ANN

SAVINSKY, THE MINOR WARD ,

Petitioner ,

vs. Case No. 19 - 2985

DEPARTMENT OF MANAGEMENT

SERVICES, FLORIDA RETIREMENT

SYSTEM, BUREAU OF BENEFIT

PAYMENTS ,

Respondent,

and

JEFFREY SAVINSKY,

Intervenor .

/

RECOMMENDED ORDER

On October 16, 2019, Hetal Desai, Administrative Law Judge

with the Division of Administrative Hearings (DOAH), held a final

hearing by video teleconference at sites located in Ft. Myers and

in Tallahassee, Florida.

APPEARANCES

For Petitioner: Alden Aaron Rumfelt, Esquire

Post Office Box 22

LaBelle, Florida 33975

For Respondent: T homas E. Wright, Esquire

Nikita S. Parker, Esquire

Office of the General Counsel

Department of Management Services

4050 Esplanade Way , Suite 160

Tallahassee , Florida 32399 - 0950

For Intervenor: Jeffrey Savinsky

4559 Sierra Lane

Bonita Springs, Florida 34134

STATEMENT OF THE ISSUE

Whether Petitioner, as a surviving minor child, is entitled

to benefits from the Florida Retirement System (FRS), instead of

the beneficiaries designated by the FRS member on the form

provided by the Department of Management Services, Division of

Retirement (Department). Alternatively sta ted, the issue is what

effect , if any, did the marriag e and subsequent divorce of the

FRS member to the minor child' s mother have on his previous

designation of beneficiaries, pursuant to section 121.091,

Florida Statutes (2018) . 1/

PRELIMINARY STATEMENT

On September 27, 2018, the Department notified Lori Ann

Savinsky it would not pay monthly FRS benefits to Cali Ann

Savinsky ( the minor child she had with Jeremy Savinsky ) because

Mr. Savinsky had designated that such benefits be distributed to

his son ( a child from another mother who is not a party) and

Mr. Sa vinsky's brother, Jeffery Savinsky, the Intervenor. 2/ At

the time of Mr. Savinsky's death, he and Ms. Savinsky were no

longer married.

Petitioner timely filed a Petition for Administrative

Hearing with the Department on October 24, 2018, requesting a

hea ring not involving disputed issues of material fact, pursuant

to section 120.57(2), Florida Statutes . The Department assigned

the matter to a Department Hearing Officer, who heard the matter

on May 22, 2019. On May 28, 2019, the Hearing Officer entered a n

Order Transferring Matter to DOAH, noting that Petitioner raised

disputed issues of material fact necessitating the termination of

informal proceedings.

On June 4, 2019, the Department referred the matter to DOAH,

where it was assigned to the undersigne d and set for hearing.

Thereafter, the final hearing was continued based on the

Department 's unopposed motion for continuance to allow the

Intervenor to participate in the final hearing.

A pre - hearing conference was held via telephone on

October 9, 2019 . During that conference call, t he parties

discussed Petitioner' s Request to Take Judicial Notice filed

September 20, 2019, and Petitioner' s Notice of Confidentiality

filed October 8, 2019. Regarding the confidentiality issue, the

parties agreed to prese nt exhibits at trial with the minor

child's birthdate and other identifying information redacted.

Regarding the request for judicial notice, at the final hearing

the undersigned took official recognition of the following

documents: the Final Judgment of Dissolution of Marriage

(Exhibit P3), Marital S ettlement Agreement (part of Exhibit P2),

and Parenting Plan (part of Exhibit P2), in the matter of

Savinsky v. Savinsky , Case No. 11 - DR - 4565 (Twentieth Judicial

Circuit for Lee County, Florida); and the attac hments to the

Petition for Administrative Hearing that were part of the

Department files (Ex. P8). See sections 90.202 and 90.203, Fla.

Stat; Fla. Admin. Code R. 28 - 106.213(6).

The final hearing was held on October 16, 2019 . Petitioner

presented the test imony of Deborah Coe Silver, a psychologist,

M s. Savinsky, and the Department' s representative, Dave Heitel.

Petitioner' s exhibits P2, P3, P5, P7, and P8 were admitted into

evidence. Respondent also offered the testimony of Mr. Heitel.

R espondent' s exhi bits R1 and R2 were admitted into evidence.

Additionally, Ms. Savinsky was allo wed to give a closing

statement , which was not considered as sworn testimony.

The hearing was recorded but not transcribed. The parties

agreed to submit their proposed recomm ended orders (PROs) by

October 28, 2019. Petitioner and Respondent timely submitted

t heir PROs, which have been considered in the preparation of this

Recommended Order . Petitioner also filed a n Amended Proposed

Order , which has been considered ; and a doc ument titled

"Exceptions to Respondent's Proposed Recommende d Order , " which

was reviewed, but h as not been considered. See Fla. Admin. Code

R. 28 - 106.215 (not providing for exceptions , a reply , or a

response to a PRO); and Fla. Admin. Code R. 28 - 106.216 ( allowing

exceptions to a recommended order to be filed with an agency , but

not providing for exceptions to a PRO).

FINDING S OF FACT

Parties

1. The Department is the governmental agency that

administers the retirement and pension systems for members of

the State of Florida Retirement System (FRS), pursuant to

Chapter 121, Florida Statutes. See § 121.025, Fla. Stat.

2. Jeremy Savinsky was a firefighter by profession and a

member of the FRS. Mr. Savinsky died on November 4, 2017. There

was no evidence of the cause of death, except that it was an

accident. There was no evidence Mr. Savinsky died in the line of

duty, or that his death was job - related. 3/

3. On October 23, 2006, Mr. Savinsky married Ms. Savinsky,

who gave birth to their child (minor child) shortly thereafter.

4 . On July 1, 2011, Ms. Savinsky and Mr. Savinsky finalized

their divorce. By all accounts, during the marriage and after

the divorce, Mr. Savinsky was a decent father, paid his child

support, an d was active in the minor child' s life .

5 . The Intervenor is Mr. Savinsky' s adult brother. As

explained below, Mr. Savinsky designated the Intervenor as one of

two beneficiaries for his FRS benefits in the event of his own

death.

6 . The Inte r venor is not a "joint annuitant" as defined by

Florida Administrative Code Rule 60S - 6.001(36).

Form BEN - 001

7 . On May 1, 2006, Mr. Savinsky filled out and signed

Form BEN - 001, Beneficiary Designation Form (Form) issued by the

Department. That form allows a member to choose one of three

options for de signation of a beneficiary of his or her FRS

benefits, as summarized below.

OPTION 1 - Benefits are paid according to

section 121.091, Florida Statutes, in the

following order: (1) member' s spouse,

(2) member' s living children (equally),

(3) member ' s parents equally, or (4) lega l

representative of the member's estate.

OPTION 2 Î Benefits are paid sequentially to

the persons listed by the member in the order

they are listed.

OPTION 3 Î Benefits are paid jointly and

divided among the persons listed by the

member in the percentage provided by the

member.

8 . Mr. Savinsky chose Option 3 and listed his son (born

June 2001) and the In tervenor as joint beneficiaries, with each

beneficiary to be given 50 percent of the benefits.

9. The bottom of the F orm contains explanatory paragraphs

citing s ection 121.091(8), Florida Statutes , and stating the

following:

If your designated beneficiary does not

qualify as a joint annuitant, only a refund

of any contributions you made to the system

will be paid at your death. Only a joint

annuitant will be eligible to receive monthly

benefits from your retirement account. A

joint annuitant is your spouse; your natural

or legally adopted child who is either under

the age 25 or is physically or mentally

disabled and inc apable of self - support

(regardless of age); or your parent,

grandparent, or a person for whom you are the

legal guardian, provided such parent,

grandparent, or person received one - half or

more of their financial support from you or

is eligible to be claime d as a dependent on

your federal income tax return. Effective

January 1, 1999, a member' s spouse will be

the primary beneficiary regardless of

previous beneficiary designations unless a

new Form BEN - 001 is completed subsequent to

the marriage to the curre nt spouse.

Florida Department of Management Services Form BEN - 001,

rev 7/2000, Rule (1), Enrollment (2000) (emphasis supplied).

Petit i oner argues that the use of the term "previous beneficiary"

means that any beneficiary desig nation made prior to a n FRS

member's marriage is nullified at the time of the marriage. As

explained below, that interpretation is not consistent with

section 121.091, Florida Statutes.

CONCLUSIONS OF LAW

Jurisdiction

10 . Petitioner seeks nullification of the Form so the FRS

mon ies are distributed to the minor child or Mr. Savinsky ' s

estate based on two theories: (1) the Form is "invalid, illegal

and/or equitably unenforceable, especially as applied in this

case , " and (2) application of "equitable principles so that the

minor ch ild receives a share of her father' s retirement." See

Petitioner' s PRO, 3 and 5.

1 1 . Although Petitioner challenges the Form, it has not

brought this administrative action as a traditional rule

challenge pursuant to section 120.56, Florida Statutes.

Re gardless, Section 120.57(1)(e)1. prohibits the Department or

the undersigned from utilizing a rule that is an invalid exercise

of delegated legislative authority:

An agency or an administrative law judge may

not base agency action that determines the

subst antial interests of a party on . . . a

rule that is an invalid exercise of delegated

legislative authority. This subparagraph

does not preclude application of valid

adopted rules and applicable provisions of

law to the facts.

Therefore, the undersigned h as jurisdiction to review the

validity, legality, and enforceability of the F orm.

12 . Regarding Petitioner' s second theory, as an

admini strative judge operating under c hapter 120, Florida

Statutes, the undersigned does not have jurisdiction to award or

r ecommend equitable relief. Rather, in Florida, circuit courts

have exclusive jurisdiction over all cases in equity, and only

circuit courts can resolve matters involving equitable relief.

See § 26.012(2)(c), Fla. Stat. ("Circuit courts shall have . . .

exclusive original jurisdiction [i]n all cases in equity

including all cases relating to juveniles except traffic offenses

as p rovided in chapters 316 and 985 "). "While an administrative

agency may exercise quasi - judicial power when authorized by

statute, it may not exercise power which is basically and

fundamentally judicial such as the grant of an equitable remedy."

Biltmore Constr. Co. v. Fla. Dep't of Gen. Servs. , 363 So. 2d

851, 853 - 54 (Fla. 1st DCA 1978)(only a court exercising equitable

powers may decree specific performance). Therefore, the

undersigned addresses only the issue of whether the Form is

invalid or illegal.

Burden and Standard

1 3 . As an applicant, Petitioner bears the burden of proving

her entitlement to benefits from Mr. Savinsky' s F RS account. See

Wilson v. Dep' t of Admin., Div. of Ret. , 538 So. 2d 139, 141 - 142

(Fla. 4th DCA 1989). Petitioner must prove entitlement to

benefits by a preponderance of the evidence. § 120.57(1)(j).

1 4 . To succeed in the challenge to the F orm as an ill egal

rule, Petitioner must show that the F orm "enlarges, modifies, or

contravenes" the specific provisions of the law it implements.

See § 120.52(8)(c), Fla. Stat. To determine if a rule

contravenes the implementing statutory authority, both the

statute and rule must be reviewed to assess whether the rule

gives effect to the implementing law and whether the rule

interprets the law's specific powers and duties. See Bd. of Trs.

of Int. Impust Fund v. Day Cruise Ass'n , 794 So. 2d 696, 704

(Fla. 1st DCA 2001). Where there is a conflict between a statute

and an administrative rule, the statute takes precedence. See

State v. Ins. Servs. Off. , 434 So. 2d 908 (Fla. 1st DCA 198 3);

One Beacon Ins. v. Ag ency for Health Care Admin. , 958 So. 2d 1127

(Fla. 1st DC A 2007).

1 5 . First , the statute is unambiguous. It clearly provides

that benefits are paid to the person or persons designated on the

F orm, unless there is a spouse who survives the FRS member and

there is no F orm executed after the marriage to that spou se.

DESIGNATION OF BENEFICIARIES. Ï

(a) 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 or her beneficiary who shall receive the

ben efits, 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

that benefits shall be paid as provided in

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

line of duty. Notwithstanding any other

provisions in this section to the contrary,

for a member who dies prior to his or her

effective date of retirement on or after

Ja nuary 1, 1999, the spouse at the time of

death shall be the member's beneficiary

unless such member designates a different

beneficiary as provided herein subsequent to

the member's most recent marriage.

(emphasis added).

121.09 1(8)(a), Fla . Stat.

1 6 . I n other words, the conditions that the Peti tioner must

meet in order for the Department to disregard the designated

beneficiaries on the Form are (1) Ms. Savinsky was married to the

FRS member , and (2) the marriage existed at the time of member's

death. U pon satisfaction of both of these conditions, the F orm

is nullified, but not on the satisfaction of only the first

condition. Moreover, contrary to Petitioner's argument, n ot hing

in the statute states the designated beneficiary (or the F orm ) is

invalidate d simply bec ause of a marriage. Here, Petitioner

c annot satisfy the conditions.

1 7 . E ven if Petitioner could satisfy the conditions to

circumvent Mr. Savinsky's designations for the beneficiaries ,

Ms. Savinsky would receive the benefits as a spouse, not the

minor child. H ad the Legislature intended to carve out an

exception to the beneficiary listed on the F orm in favor of non -

designated minor children , it could have done so. Compare

§ 121.091(7)(d), Fla. Stat. (providing benefits for minor

children of FRS member who dies in the line of duty).

18. Turning next to a review of the rule, neither the

Florida Administrative Code Rule 19 - 11.002 (Rule) ( implement ing

the Form ) , nor the Fo rm itself contravene s the language of

section 121.09 1 (8), Florida Statutes . The statu t e authorizes the

Department to utilize a form for the purpose of designating

beneficiaries to receive benefits in case of a n FRS member's

death . Florida Administrative Code Rule 19 - 11.002 incorporates

the Form by reference and provides with s pecificity how

beneficiaries are designated. The Rule states in relevant part:

(4) A participant may designate a

beneficiary or beneficiaries at any time, as

follows:

(a) A participant may designate a

beneficiary or beneficiaries to receiv e the

assets of the participant' s FRS Investment

Plan account, either sequentially or jointly.

(b) A participant may designate as

beneficiary any person, organization, trust,

or his estate.

(c) Any such beneficiary designation shall

be made on Form IPBEN - 1, rev. 09 - 03, which is

hereby adopted and incorporated by reference.

This form is available in paper form and may

be obtained by calling the toll - free MyFRS

Financial Guidance Line at 1(866)446 - 9377,

Monday through Friday, except holidays,

9:00 a.m. to 8:00 p.m. The beneficiary

designation may be made online by logging

onto MyFRS.com and clicking on "Resources"

and then "Forms."

(d) A participant may change his beneficiary

designation at any time by filing a new

beneficiary designation form. There is no

separat e form for changes of beneficiary

designation.

(5) If a participant is married and

designates a beneficiary who is not the

spouse of the participant, then the

participant is required to notify the spouse

that he or she is not the beneficiary of the

proce eds of the participant' s FRS Investment

Plan account(s). The spouse must acknowledge

that he or she understands that he or she is

not the beneficiary of the participant' s FRS

Investment Plan account(s) by signing the

beneficiary designation form, Form IPB EN - 1,

rev. 09 - 03, in the appropriate place.

Alternatively, the spouse may provide the FRS

Investment Plan Administrator with a

notarized sta tement reflecting the spouse' s

understanding that the spouse is not the

beneficiary of the participant' s FRS

Invest ment Plan account(s). No distribution

will be made of any FRS Investment Plan

account(s) in the absence of a declaration by

the spouse of his or her understanding that

he or she is not the beneficiary of the

participant' s FRS Investment Plan account(s).

Fla. Adm. Code R. 19 - 11.002(4)(2006).

19 . Nothing in the Rule or the Form "enlarges, modifies, or

contravenes" the specific provisions of section 121.09 1( 8),

Florida Statutes, which it implement s .

2 0 . Petitioner also argue s Mr. Savinsky intended to pr ovide

for the minor child, and his designation was a mistake or error.

Rescission of an application of benefits based on a unilateral

mistake has been rejected. See Williams v. Department of

Management Services, Division of Retirement , Case No. 08 - 3326

( Fla. DOAH Oct. 30, 2008), aff'd , 31 So. 3d 838 (Fla. 5th DCA

2010). Therefore, this argument also fails.

2 1 . Based on the clear language of the statute, Petitioner

has failed to show by a preponderance of the evidence that the

Form should be nullified o r the designated beneficiaries should

be di splaced by Petitioner . Petitioner has failed to show that

the minor child should receive FRS benefits.

2 2 . Finally, monthly benefits are not available to a

beneficiary who does not qualify as a joint annuitant. See

§121.091(7)(b)(2.), Fla. Stat. B ecause the issue of whether the

Intervenor was otherwise eligible to receive benefits (monthly or

lump sum) w as not addressed at the hearing, the u ndersigned makes

no finding regarding the Intervenor's eligibility for monthly

benefits.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Management Services , Division

of Retirement enter a f inal o rder denying the Petitioner's

request to receive the death retire ment benefits of Jeremy

Savinsky, on behalf of the minor child.

DONE AND ENTERED this 20th day of November , 2019 , in

Tallahassee, Leon County, Florida.

S

HETAL DESAI

Administrative Law Judge

Division of Administrative He arings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of November , 2019 .

ENDNOTE S

1 / Unless otherwise specified, all references to the Florida

Statutes and Florida Administrative Code are to the 2018

versions, which was in effect when the Petition was filed.

2/ Lori Ann Savinsky, brings this action as the guardian of the

property of C ali Ann Savinsky, the daughter she had with Jeremy

Savinsky, the deceased FRS member. For the purposes of this

Recommended Order, "Petitioner" refers to the party bringing this

action; "Ms. Savinsky" refers to Lori Ann Savinsky; "minor child"

refers to Ca li Ann Savinsky; "Mr. Savinsky" refers to Jeremy

Savinsky; and "the Intervenor" refers to Jeffery Savinsky.

3/ There was no testimony relating to whether Mr. Savinsky was

retired or "vested" at the time of his death as defined by

Florida Administrative Co de Rule 60S - 6.001(70). Documentation,

however, provided by the Dep artment refers to eligibility of

"monthly benefits" indicating that death benefits were to be

distributed as if Mr. Savinsky died subsequent to being vested,

but prior to his effective date of retirement. Regardless, no

finding is made as to the amount or type of distribution the

Department must make to the benefi ciaries .

COPIES FURNISHED:

Thomas E. Wright, Esquire

Office of the General Counsel

Department of Management Services

Suite 1 60

4050 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

Alden Aaron Rumfelt, Esquire

Post Office Box 22

LaBelle, Florida 33975

(eServed)

Jeffrey Savinsky

4559 Sierra Lane

Bonita Springs, Florida 34134

Nikita S. Parker, Esquire

Office of the G eneral Counsel

Department of Man a gement Services

Suite 160

4050 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

David DiSalvo, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32315 - 9000

(eServed)

Chasity O'Steen, General Counsel

Office of the General Counsel

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to su bmit 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.