STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JULIE E. REEBER, ET AL., )

)

Petitioner, )

)

vs. ) CASE NO. 92-0215

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Stephen F. Dean, held a public hearing in the above- captioned case on May 14, 1992, in Deland, Florida.

APPEARANCES

For Petitioner: Julie E. Reeber, pro se

133 Kirkwood Drive Debary, FL 32713

For Respondent: Larry D. Scott, Esquire

Department of Administration

Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, FL 32399-1560

For Intervenor: Rhonda B. Goodson, Esquire

Post Office Box 4319 South Daytona, FL 32121

STATEMENT OF THE ISSUES

The ultimate issue is whether Julie E. Reeber, Alexander Reeber and Christine Tadry are entitled to receive survivor benefits payable under the Florida Retirement System (FRS) for Marjorie A. McCollum, deceased, under the facts and circumstances of the Case.

The factual issue is whether Marjorie A. McCollum was incompetent when she made the designation of beneficiary and under the undue influence of her daughter Suzanne L. Benson.

PRELIMINARY STATEMENT

By letter dated November 26, 1991, the Director of the Division of Retirement (Division) notified Julie Reeber, with copy to Suzanne Benson, that in accordance with the records of the Division, the beneficiary of the member, Marjorie McCollum (deceased), social security number 118-24-0421, was Suzanne L.

Benson, and that it was the intent of the Division to pay Ms. Benson the remaining Option 2 disability retirement benefit from the account of Marjorie McCollum estimated at $280.69 per month from September 1, 1991, through August 31, 2001. Furthermore, the letter advised that this constituted the final agency action of the Division unless an appeal was filed with the Division.

A request for Formal Hearing was timely filed on behalf of Alexander Reeber, Christine Tadry and Julie Reeber. On January 10, 1992, the case was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer. On February 5, 1991, a Motion for Intervention was filed with the Division of Administrative Hearings by attorney Rhonda B. Goodson on behalf of Suzanne Benson.

At hearing, Ms. Julie Reeber testified in her own behalf and presented the testimony of Floyd Jonhill Ayers, Mattie J. Antiliey, and Ted Hines.

Petitioner's exhibits 1 and 2 were received into evidence. The Respondent presented the deposition of Stanley Colvin which was received into evidence. The intervenor presented the testimony of Mary Shere.

Only the Division of Retirement filed proposed findings. These were read, considered, and adopted without significant change.

FINDINGS OF FACT

1. In August of 1991, Ms. Marjorie A. McCollum, a member of the Florida Retirement System (FRS) applied for disability retirement benefits. (Deposition of Stanley Colvin).

   
   

2. As part of her application for disability retirement benefits on Form FR-13 (Florida Retirement System Application for Disability Retirement), Ms. McCollum designated her daughter, Suzanne L. Benson, as her beneficiary. (Exhibit 1 of the deposition of Stanley Colvin).

   
   

3. The designation reads, "All previous beneficiary designations are null and void. The beneficiary whom I designate to receive the benefit or refund at my death is Suzanne L. Benson." (Deposition of Stanley Colvin, Exhibit 1).

   
   

4. According to the date on the form, Ms. McCollum signed the application on August 28, 1991, and was properly witnesses by a notary public, John T. West. (Testimony of Mary Shere).

   
   

5. According to the application, Ms. McCollum was suffering from cancer. She selected the Option 2 retirement benefit. (Exhibit 1 of Stanley Colvin deposition).

   
   

6. Ms. McCollum's application for disability retirement benefits, with the Option 2 retirement benefit, was approved by the Division of Retirement with an effective date of September 1, 1991. (Deposition of Stanley Colvin, Exhibit 9). Prior to receiving her first check, Ms. Marjorie McCollum died on September 23, 1991. (Deposition of Stanley Colvin, Exhibit 9).

   
   

7. On November 4, 1991, the Division, by letter, notified Suzanne L. Benson that as designated beneficiary of Ms. Marjorie McCollum, she was entitled to the Option 2 benefit in the amount of $280.69 per month through August 31, 2001, for ten years.

8. On November 19, 1991, the Division received a letter from Julia Reeber, another daughter of Ms. McCollum (the deceased), disputing the designation of her sister Suzanne L. Benson as the beneficiary. (Deposition of Stanley Colvin, Exhibit 16).

   
   

9. As a result of the notice of dispute by Julia Reeber, the Division on November 26, 1991, notified Ms. Benson by letter that payment of the Option 2 benefit would not be forthcoming until the dispute was resolved. (Deposition of Stanley Colvin, Exhibit 12).

   
   

10. The designation of beneficiary executed by Ms. McCollum was properly executed and filed with the Division of Retirement in accord with the Florida Statutes and rules pertaining to the designation of beneficiaries for Florida retirement benefits. (Deposition of Stanley Colvin).

    
    

11. Suzanne L. Benson was the properly designated beneficiary, and the Division intended to pay the Option 2 benefit to Suzanne L. Benson in accord with the Division's rules. (Deposition of Stanley Colvin).

    
    

12. Ms. McCollum suffered some deterioration of her mental faculties prior to her death because of her illness, she could no longer handle her financial matters, and needed aid from her children in the payment of her bills. However, at no time was the Petitioner legally declared incompetent. Testimony of Julie Reeber).

    
    

13. Despite suffering from the ravages of the disease, Ms. McCollum was at times able to function in a normal matter without evidence of diminished mental capacity. (Testimony of Mary Shere).

    
    

14. On August 23, 1991, the deceased came to the office of Ms. Mary Shere. Ms. McCollum had been a regular customer of Ms. Shere's beauty parlor and later her accounting service. Ms. Shere had known Ms. McCollum for over ten years. (Testimony of Mary Shere).

    
    

15. On August 23, 1991, Ms. McCollum and Ms. Shere talked for an hour to an hour and a half regarding her illness and her application for disability retirement. Ms. McCollum expressed her desire for Ms. Shere to notarize the application for disability retirement benefits. Ms. McCollum told Ms. Shere that Ms. McCollum wanted her daughter Suzanne to be the beneficiary of her death benefits. However, they could not complete the designation of beneficiary because the form had not come. Another discussion concerning the arrival of the forms took place by telephone on August 24, 1991, between Ms. Shere and the Deceased.

    
    

16. On August 26, 1991, Suzanne Benson telephoned Ms. Shere advising Ms. Shere that her mother had been hospitalized, and that she needed to come to the hospital in order to notarize the disability application. (Testimony of Mary Shere).

    
    

17. On August 26, 1991, Ms. Shere accompanied by one of her employees, John West, visited Ms. McCollum in the hospital. In her presence, the application was signed by Ms. McCollum and notarized by John West. (Testimony of Mary Shere).

    
    

18. Ms. Shere's very credible testimony was that Ms. McCollum knew what she was doing, was aware of what she possessed and knew she was terminal.

19. Ms. McCollum made a knowing and rational decision to designate Suzanne

    L. Benson as her beneficiary.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented. This order is entered pursuant to Section 120.57(1), Florida Statutes.

    
    

21. Section 121.091(6)(a)2, Florida Statutes, provides in pertinent part as follows:

    
    

    A decreased retirement benefit payable to the member during his lifetime and, in the event of his death within a period of 10 years after his retirement, the same monthly amount payable for the balance of such

    10-year period to his beneficiary or, in case the beneficiary is decreased, in accordance with subsection (8) as though no beneficiary had been named.

    
    

    A rule is presumed valid in any proceeding under Section 120.57, Florida Statutes, unless it is successfully challenged under Section 120.56, Florida Statutes (1991).

    
    

22. In accordance with the authority granted by the Legislature, the Division, pursuant to Section 121.031(1), Florida Statutes, adopted Rules 22B- 4.010(1)(b), 22B-4.010(7) and 22B-4.010(6), Florida Administrative Code. Rule 22B-4.010(1)(b), Florida Administrative Code, provides:

    
    

    Option 2. A retirement benefit payable during his lifetime and, in the event of his death within a period of 10 years after his retirement, the same monthly amount to be payable to his beneficiary for the balance of such 10-year period.

    
    

23. Rule 22B-4.010, Florida Administrative Code, provides in pertinent part as follows:

    
    

    If the member retires due to disability and dies after his effective date of retirement and prior to cashing or depositing a retirement benefit payment, benefits will be payable in accordance

    with the provisions of 22V-4.010(6), F.A.C.

    
    

24. The Petitioner timely challenged the Division's determination of beneficiary. In order to invalidate the designation of beneficiary of the deceased, the Petitioner attempted to show her mother, Ms. McCollum, was mentally incompetent on August 28, 1991.

    
    

25. Chapter 744, Florida Statutes, sets forth a statutory procedure to inquire into the incapacity of an individual. The statutes draw a distinction between incapacity (the inability to manage some of their property or meet some

    of their essential health and safety needs) and total incapacity (the inability to exercise any of the rights listed in Section 744.3215(2) and (3), Florida Statutes).

    
    

26. The evidence discloses that, while Ms. McCollum may have been under emotional stress and unable to manage some of her property, she was not legally incapacitated on August 28, 1991, when she filed a new designation of beneficiary with the Division of Retirement.

    
    

27. The only evidence of undue influence by Suzanne on Ms. McCollum was her care of Ms. McCollum. The other children also assisted in caring for Ms. McCollum. Further, according to the testimony of Mary Shere, who knew Ms. McCollum well and witnesses the signing and notarization of the disability application, Ms. McCollum made a knowing, rational decision to designate her daughter Suzanne L. Benson as her beneficiary, which was consistent with their discussion at Shere's office several days earlier. For Ms. McCollum to have retained this desire for that period of time indicates that she was not under her daughter's influence and was competent to manage the disposition of her death benefits.

    
    

28. The deceased, Marjorie McCollum, properly filed a new designation of beneficiary form with the Division of Retirement naming her daughter, Suzanne L. Benson, as her beneficiary. The new designation of beneficiary voided Ms. McCollum's prior designation of beneficiary.

    
    

29. Since competent, substantial evidence has not been provided to support a finding of incompetency or undue influence, the Petitioners have not carried their burden or proof. The Division's determination that Suzanne L. Benson was the beneficiary should be effectuated.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED:

That a Final Order be entered by the Division holding that Marjorie McCollum retired with an Option 2 retirement benefit and that Suzanne L. Benson, her designated beneficiary, receive the Option 2 benefit.

DONE and ENTERED this 29 day of May, 1992, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29 day of May, 1992.

COPIES FURNISHED:

Julie E. Reeber

133 Kirkwood Drive Debary, FL 32713

Larry D. Scott, Esquire Department of Administration

Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, FL 32399-1560

Rhonda B. Goodson, Esquire Post Office Box 4319

South Daytona, FL 32121

A. J. McMullian, III, Director Division of Retirement

Cedars Executive Center, Building C 2539 North Monroe Street Tallahassee, FL 32399-1550

John A. Pieno, Secretary Department of Administration

415 Carlton Building Tallahassee, FL 32399-1550

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. 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.

Docket for Case No: 92-000215

Orders for Case No: 92-000215