STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESTELL R. DORAIS )

)

Petitioner, )

)

vs. ) CASE NO. 83-2051

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case in Orlando on April 24, 1984.

Additional testimony was taken by deposition after the final hearing and was submitted in the form of deposition transcripts filed June 4, 1984.

The issue is `whether petitioner is entitled to Florida Retirement System benefits as a result of the death of her husband, John Wallace, on September 8, 1975. Specifically, the issue is whether Mr. Wallace completed and/or filed a change of beneficiary form after January 1, 1959 which would have made petitioner the effective beneficiary upon his death; under the original designation of beneficiary form filed January 1, 1959, Mr. Wallace's daughter by his previous marriage would be the beneficiary.

FINDINGS OF FACT

1. John Wallace began service as a Sumter County school board member on January 1, 1959. (Joint Stipulation). On or about January 1, 1959, he completed a blue-top computer enrollment card (Petitioner's Exhibit 1), which also designated his wife Effie as his first beneficiary of his retirement benefits and his daughter, Mrs. Kindle Johnson, as the second beneficiary. (Joint Stipulation).

   
   

2. Effie Wallace died January 22, 1963. (Joint Stipulation)

   
   

3. John Wallace married Estell Loudin June 9, 1964. (Joint Stipulation).

   
   

4. John Wallace executed an election to transfer to the Florida Retirement System, effective December 1, 1970. (Petitioner's Exhibit 2). (Joint Stipulation).

   
   

5. John Wallace died September 8, 1975. (Joint Stipulation). On November 12, 1975, Betty Carruthers, an employee of the Sumter County School Board, notified the Division of Retirement of Mr. Wallace's death. Margie Smith in the Division of Retirement completed a form (Petitioner's Exhibit 4) setting forth the information she received from Betty Carruthers in the November 12, 1975, telephone conversation. Not having any beneficiary designation form in the School Board file, Carruthers simply advised Smith that petitioner was Wallace's second wife, his first wife, Effie, having predeceased him. Smith's quick check

   of the Division of Retirement records management section did not uncover Wallace's designation of beneficiary form. (Petitioner's Exhibit 1, 5).

   
   

6. On March 9, 1977, the Division of Retirement received petitioner's FR- 11, an application (albeit on the incorrect form) for her deceased husband's benefits, along with certain supporting documents. In an April 13, 1977, letter (Petitioner's Exhibit 6) sent out over David Ragsdale's name but written and signed by a benefits calculation specialist trainee, petitioner was erroneously informed that she was the beneficiary of her husband's benefits, since he had designated his first wife Effie, who had predeceased him. But after the letter went out, it came to the attention of Marjorie Smith that the April 13, 1977 letter was incorrect since Wallace's original January 1, 1959 designation of beneficiary form designated Wallace's daughter, Mrs. Kindle [sic] Johnson, who is still living, as Wallace's second beneficiary. In a June 5, 1977, latter (Petitioner's Exhibit 7), again sent out over David Ragsdale's name but dictated by Marjorie Smith and signed by Ragsdale's secretary, petitioner was informed that respondent had located the designation of beneficiary card, signed by Mr. Wallace, designating his daughter, Mrs. Kindle [sic] Johnson, as his second beneficiary.

   
   

7. On June 20, 1977, Randall Thornton, petitioner's attorney at the time, wrote a letter (Petitioner's Exhibit 8) to David Ragsdale, seeking a copy of the beneficiary card upon which the respondent based its decision in the June 15, 1977, letter to petitioner. On July 12, 1977, Mr. Thornton sent another letter to the respondent, attention Mrs. Ferguson (Petitioner's Exhibit 9), asking again for a copy of the beneficiary designation upon which its decision was based awarding Mr. Wallace's retirement benefits to his daughter.

   
   

8. On the same date, respondent sent Mr. Thornton a letter (Petitioner's Exhibit 10), enclosing a copy of the original enrollment card. (Petitioner's Exhibit 1). Thornton's secretary called petitioner into the office on July 15, 1977, the day after Thornton received and reviewed respondents' July 12, 1977 letter. Petitioner looked at the copy of Wallace's designation of beneficiary form and stated that she did not believe her husband had written both his first wife's name and his daughter's name as first and second beneficiaries, respectively, at the same time. She did not, however, prove this at final hearing.

   
   

9. Petitioner did not prove that there is or ever was another designation of beneficiary executed by Mr. Wallace other than Petitioner's Exhibit 1. Prior to 1972, if a member of the Florida Retirement System or any pension plan in existence prior to December 1, 1970, wanted to change his designated beneficiary, he would complete another blue-top enrollment card. In 1972, a new enrollment form, FRS-M10, was instituted consisting of three identical parts.

If a member of the Florida Retirement System completed the form, the original would be sent to the respondent, with a copy to the agency employing the individual and a copy to the individual. (Carruthers deposition, p.4).

Respondent has searched its records and has found no other designation of beneficiary form signed by Mr. Wallace apart from Petitioner's Exhibit 1. The files at the Sumter County School Board have been searched and no designation of beneficiary signed by Mr. Wallace found. (Carruthers deposition, p.3).

Petitioner's attorney Randall Thornton has searched his files and found no designation of beneficiary signed by Mr. Wallace other than Petitioner's Exhibit

1. (Thornton deposition, p.18)

   CONCLUSIONS OF LAW

   
   

   1. Prior to December 1, 1970, Mr. Wallace was a member of the State and County Officers' and Employees' Retirement System, (here-inafter SCOERS), Chapter 122. Florida Statutes, Section 122.12(1) Florida Statutes (1983), states in part as follows:

      
      

      Any officer or employee may file, in writing, a designation of beneficiary and it shall be the duty of the divi sion to refund 100 percent, without interest, of the contributions made to the retirement trust fund by such deceased officer or employee to such designated beneficiary. The officer or employee shall have the privilege of changing, in writing, the desig nated beneficiary at any time.

      
      

      The above provision has been in effect at least from 1963 to the present with a minor revision not herein relevant.

      
      

   2. Since December 1, 1970, Mr. Wallace was a member of the Florida Retirement System (hereinafter, FRS) Chapter 121, Florida Statutes. Section 121.091(8), Florida Statutes (1970, Supp.), stated in part as follows:

      
      

      Each member may on a form provided for that purpose, signed and filed with the administrator, designate a choice of one or more beneficiaries, named in sequence, to receive the benefits, if any, which may be payable in the event of his death pursuant to the provisions of this chapter. (emphasis added)

      
      

      The above provision was in effect in September, 1975, the date of Mr. Wallace's death.

      
      

   3. Rule 22B-4.11, Florida Administrative Code, adopted pursuant to Section 121.091(8), Florida Statutes, states in part as follows:

      
      

      1. A member may designate a beneficiary on a form provided by the Administrator to receive the benefits, if any, which may be payable pursuant to these rules and regula tions in the event of the member's death.

      2. If a member desires to designate more than one beneficiary, this may be done on the form prescribed by the Administrator

         by designating additional beneficiaries sequentially, or jointly.

      3. A member may change his designation of a beneficiary at any time on the proper form provided by the Administrator

         (6) If a member has transferred from an existing system, any person whom the mem ber had designated as his beneficiary

         under that existing system shall remain the member's designated beneficiary and shall receive the benefits, if any, which may be payable pursuant to these rules and regulations in the event of the member's death unless the member changes his designation of beneficiary

         on the proper form provided by the Administrator.

         
         

   4. In Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977), the First District Court of Appeal stated that a designation of beneficiary executed by a member of the Chapter 122, Florida Statutes pension plan, who later transferred to the Florida Retirement System "remained valid until" the person's death. See also Rule 22B-4.11(6), Florida Administrative Code.

      
      

   5. In this case, petitioner did not prove that her husband ever filed (or ever completed) a change of beneficiary form to supersede his original designation of his first wife and daughter as first and second beneficiaries, respectively, i.e., his January 1, 1959 enrollment card. Under the law cited above, `her husband's daughter, Mrs. Kindle [sic] Johnson, not petitioner, is entitled to the benefits resulting from John Wallace's death.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Administration, Division of Retirement, enter a final order denying petitioner's request for benefits on the ground that she is not, in law and fact, entitled to benefits resulting from the death of her husband, John Wallace.

RECOMMENDED this 9th day of July, 1984, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1984.

ENDNOTE

1/ The parties' proposed findings of fact have been considered and, except to the extent reflected in these Findings of Fact, are rejected as either not having been proved, being contrary to facts proved by the other party, being subordinate or being irrelevant.

COPIES FURNISHED:

James E. Tatman, Esquire Two West Central Boulevard Suite 570

Orlando, Florida 32801

Stanley M. Danek, Esquire Division of Retirement Department of Administration 2639 North Monroe Street Suite 207C

Tallahassee, Florida 32303

Nevin G. Smith, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Andrew J. McMullian, III, Director Division of Retirement

Cedars Executive Center Building C

Tallahassee, Florida 32303

Docket for Case No: 83-002051

Orders for Case No: 83-002051