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.

1. 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.

   
   

2. 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.

COPIES FURNISHED:

Connie L. Hiaasen, Esquire Regina S. Bushkin, Esquire

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1997.

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.

Docket for Case No: 96-005806

Orders for Case No: 96-005806