STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIW MAE BARNES, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1623

)

DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 12 December, 1979 at Bartow, Florida.

APPEARANCES

For Petitioner: Jeffrey A. Miller, Esquire

Polk County Legal Aid Society, Inc.

232 N. Tennessee Avenue Lakeland, Florida 33801

For Respondent: Diane K. Kiesling, Esquire

Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32304

By Request for Proceeding received in the Division of Administrative Hearings on July 27, 1979, Willie Mae Barnes, Petitioner, by and through her attorney, requested the $171.88 refund on contributions held in the account of Callie Grier, the daughter of Petitioner. As grounds for requesting this refund it is alleged that the designated beneficiary for retirement benefits from Mrs. Grier, her former husband, Timothy Grier, was removed as a beneficiary on Mrs.

Grier's insurance after their divorce in 1971 and Mrs. Grier intended to remove him as beneficiary of retirement benefits at the same time.

At the hearing two witnesses were called by Petitioner, one witness was called by Respondent, and 7 exhibits were admitted into evidence. Proposed Findings of Fact submitted by the respective parties and not included herein were deemed immaterial to the results reached or unsupported by competent and substantial evidence.

FINDINGS OF FACT

1. The facts here involved are largely undisputed. Callie Grier was employed by the Polk County Hospital as a nurses aide from 1966 until July of

   1972. She did not have 10 years employment for retirement purposes at the time of her death in 1976, hence her retirement had not vested. In 1966, and again in 1969, Callie Grier designated her husband, Timothy Grier, as beneficiary of her retirement benefits.

   
   

2. At the beginning of her employment Callie Grier was covered under the City and County employees retirement system. In 1970 retirement provisions were modified to establish a Florida Retirement System to cover all city, county and state employees. Those employees covered under a previous retirement system were given the option of transferring to the new system or staying with their existing retirement system. In 1970 Mrs. Grier elected to transfer to the Florida Retirement System (Exhibit 7).

   
   

3. On 18 September 1970 Callie Grier obtained a final judgment of divorce from Timothy Grier, Jr., which judgment provided for the payment of child support. (Exhibit 1)

   
   

4. On 23 March 1971 an Order of Contempt was issued adjudging Timothy Grier, Jr. in contempt of court and sentencing him to IS days in jail for failure to pay child support. (Exhibit 2) . On 1 November 1971 Timothy Grier was adjudged to be in contempt of court and sentenced to jail for 90 days for being in arrears on child support payments (Exhibit 3) . Also on 1 November 1971 an order relinquishing jurisdiction over Timothy Grier to the Criminal Court was issued (Exhibit 4). On or about this time Timothy Grier departed Bartow and his present whereabouts is unknown to Petitioner.

   
   

5. Callie Grier married Aaron Spencer after her divorce from Grier and was so married at the time of her death.

   
   

6. Petitioner has custody of the minor child of Callie Grier and has had custody since the death of Callie Grier.

   
   

7. On 10 February 1971 Callie Grier executed a change of beneficiary form for her insurance with The Travelers Insurance Company designating Willie Mae Barnes as beneficiary (Exhibit 6)

   
   

8. At this time Callie Grier was suffering from a kidney disorder which later required the use of dialysis. Following a kidney transplant in 1976 Callie Grier died in a Gainesville hospital.

   
   

9. In 1970 many of the employees in Polk County were not aware of all of their retirement benefits and little effort was expended by local employers to insure the employees had all information.

   
   

10. The State Division of Retirement has held numerous seminars and workshops throughout Florida, including Polk County, for both supervisors and employees from time to time since the Division of Retirement was formed. In addition, at least annually brochures were prepared in sufficient numbers to provide one for each employee and sent to the various employers. These brochures explained the various retirement benefits to which employees are entitled.

    
    

11. In these brochures. as well as he seminars and workshops, the requirement of having currently designated beneficiaries was stressed.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

13. When Callie Grier elected to transfer from the County retirement system to the State system in 1970, the previously designated beneficiary carried over to the new system and remained valid until and unless changed in the manner required by law. Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977)

    
    

14. Section 121.091(8)(1970), Florida Statutes, provided in pertinent part:

    
    

    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 . .

    
    

15. Pursuant to this provision Callie Grier designated Timothy Grier beneficiary of her retirement benefits and this designation remained valid at the time of her death.

    
    

16. Testimony intimating that Callie Grier intended her mother to be the beneficiary of her retirement benefits was excluded upon objection that such evidence violates the provisions of Section 90.05, Florida Statutes.

From the foregoing it is concluded that despite the small sum involved, the unknown whereabouts of the designated beneficiary, and the obvious merit of one standing in the position of Petitioner, Respondent is not allowed to disburse these funds to Petitioner. It is Therefor

RECOMMENDED that Petitioner's claim for the $171.88 remaining in Callie Grier's retirement account be denied.

Entered this 10th day of January, 1980.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Jeffrey A. Miller, Esquire

Polk County Legal Aid Society, Inc.

232 N. Tennessee Avenue Lakeland, Florida 33801

Diane K. Kiesling, Esquire Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32304

Docket for Case No: 79-001623

Orders for Case No: 79-001623