Judges: R. T. CARPENTER
Agency: Department of Management Services
Latest Update: Aug. 29, 1985
Summary: Benefits denied. Spouse at retirement entitled to benefits, not spouse at death. Estoppel theory rejected. Spouse failed to show how position changed.
85-0809STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARILYN WALDEN, )
)
Petitioner, )
)
vs. ) Case No. 85-809
) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )
)
Respondent, )
)
and )
)
BARBARA C. YEATER, )
)
Intervenor. )
)
RECOMMENDED ORDER
This matter came on for hearing in Orlando, Florida on July 22, 1985, before the Division of Administrative Hearings and its duly appointed Hearing Officer R. T. Carpenter.
For Petitioner: Jacqueline R. Griffin, Esquire
Peirsol, Boroughs, Grimm Bennett & Griffin, P.A.
Post Office Box 3309 Orlando, Florida 32802
For Respondent: Augustus D. Aikens, Jr., Esquire
Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207, Building C Tallahassee, Florida 32303
For Intervenor: John C. Winfree, Esquire
Robinson, Rooks & Owen, P.A. Post Office Box 895 Casselberry, Florida 32707
This case arose on Petitioner's claim for surviving spouse retirement benefits on the death of retired state employee, Jack
Walden. Respondent has denied this claim, having determined that Intervenor, and not Petitioner, is entitled to receive all continuing retirement benefits. The parties submitted proposed findings of fact pursuant to Subsection 120.5 (l)(b)4, Florida Statutes (F.S.). A ruling on each proposed finding of fact has been made either directly or indirectly herein, except where such proposed findings have been rejected as subordinate, cumulative, immaterial, or unnecessary.
FINDINGS OF FACT1
Petitioner is a resident of Florida and resides at 306 Sweetwater Cove Boulevard, North, Longwood, Florida 32779.
Respondent, Department of Administration, Division of Retirement, is an agency of the State of Florida located at Cedars Executive Center, Building C, 2639 North Monroe Street, Tallahassee, Florida 32303.
Intervenor is a resident of 5448 San Luis Drive, Orlando, Florida 32807.
The agency action challenged by the Petition is the determination that the continuing monthly retirement benefit available under Option 4 of the Florida Highway Patrol Pension Plan, which provides for a continuing monthly benefit to the "spouse" of the retiree shall be paid to the person who was the spouse at the time of the retiree's retirement, not the individual who was the spouse of the retiree at the time of the retiree's death.
Petitioner was not married to Florida Highway Patrol retiree Jack E. Walden on the date of his retirement, which was November 1, 1972, but was the legal spouse of Jack E. Walden at the time of his death on January 9, 1985.
Florida Highway Patrol retiree Jack E. Walden was married to Barbara C. Walden on the date of his retirement; however, subsequently on January 22, 1976, Barbara Walden and Jack Walden were divorced. Thereafter, on February 6, 1976, Jack Walden married Marilyn S. Walden and she remained his spouse during the following nine years until his death.
Petitioner has sought to be paid a "surviving spouse" or other benefit available from the Florida Highway Patrol
pension plan, however, the Agency has determined that any benefit must be paid to the former spouse of Jack E. Walden, not Petitioner.
Intervenor, Barbara C Yeater, was married to Jack E. Walden on January 19, 1949. She was his spouse during the entire time of his service with the Florida Highway Patrol, at the time of his retirement in 1972, and until dissolution of their marriage in 1976.
In September, 1972, prior to his retirement, Jack E. Walden designated Barbara Walden as his beneficiary under the Highway Patrol Retirement System. (Exhibit 1)2
On June 27, 1975, Respondent received Exhibit 2,3 but did not respond to it. At the time Exhibit 2 was received by Respondent, it was the Division of Retirement policy that a retiree who had selected Option 4 under Chapter 321, F.S., could not change the previously selected recipient of survivor benefits subsequent to retirement and cashing of the first warrant. A copy of Exhibit 2 was not sent to Barbara Yeater.
There was no further communication from Jack E. Walden to Respondent concerning changes in beneficiary or option selection after June 27, 1975.
There was an exchange of correspondence between Respondent and Barbara Yeater (Exhibits 3, 4 and 5),4 but copies of that correspondence were not sent to Jack E. Walden.
The Petition and final judgment of dissolution between Jack Walden and Barbara Yeater are Exhibits 7 and 8 in evidence. The subject retirement benefits were not disposed of in the final judgment of dissolution.
The monthly benefit payable to Jack E. Walden's surviving spouse is $622.00 plus cost-of-living adjustments.
Decedent retired with 21.60 years service, which produced an initial benefit of $475.91.
Jack E. Walden believed, at the time of his death, that he had accomplished the change in beneficiary which he sought to carry out by filing Exhibit 2 with Respondent. This fact is based on the absence of any reply by Respondent rejecting the proposed change, by Decedent's failure to make other arrangements for Marilyn Walden, by not seeking to modify
the alimony payments awarded to Intervenor, and by his statements to Petitioner and to his friend, George Watson, indicating his belief that the change had been effected, and, finally, by the fact that Respondent accepted and thereafter utilized the change of address contained in the change of beneficiary notice.
Respondent relied on the Arnow case5 in its decision to award the continuing benefits to Intervenor on the death of Jack
E. Walden (discussed below).
CONCLUSIONS OF LAW
Section 321.20(5), F.S.(1975), governs the payment of continuing benefits to spouses who survive retired highway patrolmen. This section provides:
Every member shall have the right at any time prior to receipt of his first monthly pension payment to elect to receive a reduced pension during his lifetime with the provision that such reduced pension, or one- half thereof if so designated, shall be continued after his death to his spouse during her lifetime. The amount of such reduced pension shall be the actuarial equivalent of the amount of such pension otherwise payable to the member in accordance with subsection (1). (emphasis added)
Section 122.08(4), F.S. (1975) governs the payment of continuing benefits to spouses who survive retired state employees, and does not differ in any material way from the provision quoted above. Section 122.08(4), F.S., states:
Any state or county officer or employee shall have the right at any time prior to receipt of his or her first monthly installment of retirement compensation to elect to receive a reduced retirement compensation with the provision that the surviving spouse shall continue to draw such reduced retirement compensation, or one-half thereof if so designated, so long as such spouse shall live. The amount of such reduced retirement compensation shall be the
actuarial equivalent of the amount of such retirement compensation otherwise payable to such officer or employee. (emphasis
added)
The latter provision was construed in the Arnow case and was interpreted by Respondent to apply to the Highway Patrol retirement provisions of Chapter 321, F.S., since both provisions were similar. In the Arnow ruling, the Court stated at page 1311:
The only logical interpretation of this statute is that all rights vest at the time of retirement. At that time if the retiree elects an option under which his spouse will benefit if he predeceases her, that person who is his spouse at the time of the election and upon whose age the actuarial equivalent is determined acquires vested rights in the option which the retiree elected. Nowhere in the retirement law is there any indication that dissolution of marriage will terminate a spouse's retirement benefits. If the Legislature had intended for dissolution of marriage to cut off benefits to such a spouse, we believe it would have said so in explicit terms. Such spouse is the surviving spouse for retirement benefit purposes, since such spouse was the retiree's spouse at the time the retirement benefits vested. In our view, the reference to the surviving spouse in the context in which the statute is written, means the retiree's spouse at the time he retires and designates such spouse to receive the reduced benefits for the balance of her life if such spouse survives him.
After the Arnow decision in 1977, Respondent changed its policy. The policy had been that only the spouse at the time of retirement would be eligible for benefits when the retiree died and that if the spouse at the time of retirement was no longer the spouse at the time of death, no one would be eligible for survivor benefits. This was the policy in effect when Jack E. Walden attempted to change his beneficiary. It was also in effect at the time Intervenor wrote to Respondent asking
if she had any entitlement. The answer she received was that she did not, except for the month in which the death occurred.
Following the Arnow decision, Respondent modified this policy to enable ax-spouses who were spouses at the time of retirement to receive continuing benefits. This policy remained in effect until 1979, when the Legislature amended Chapter 121,
F.S. to provide for a change in beneficiary. Only Chapter 121 was so amended, however, and the Highway Patrol retirement statute remained in its earlier form until it was amended effective July 1, 1985, to permit a change in spouse beneficiary after retirement.
An examination of the Arnow decision in light of the facts of that case and the actions of the Legislature in amending Chapter 121 in 1979, to permit post-retirement changes in beneficiaries demonstrates how tenuous Respondent's policy was. Arnow represented the efforts of a retiree to provide his ex-wife with benefits on his death. The Court agreed that she should not lose her anticipated benefits as a result of the divorce. No change in beneficiary was involved as it is here. By its 1979 amendment, the Legislature essentially overruled the Arnow interpretation that spousal benefits necessarily vested at the time of retirement.
Respondent's failure to act on the instructions of Jack E. Walden to change his beneficiary cannot be accepted as a denial of those instructions. Rather, they remained pending until Respondent's decision (challenged here) to award benefits to the Intervenor. Jack E. Walden's instructions cannot be dismissed by merely stating what would have happened if they had been acted on when filed.
Jack E. Walden was entitled to be informed of Respondent's policy and obviously believed his instructions had been given effect. Through his later statements and conduct, it must be concluded that he relied on such belief. Further, had he been told in 1976 that his requested change could not be accepted, he may well have acted as the retiree did in the Arnow case or as other retirees have apparently (successfully) done in seeking amendment to retirement statutes through their legislative representatives. At the very least, he surely would have obtained some insurance benefits for his widow.
Because of its failure to act on the clear instructions of the retiree, Jack E. Walden, Respondent should now be estopped to deny his widow the surviving spouse benefit.
The definition of equitable estoppel, which has been applied in a recent State agency case is:
that one party by words or conduct has caused another to believe that a material fact or a material state of the law exists,
the party misled must have relied on this representation, and (c) the position of that party must have been changed as a result of reliance upon the state of affairs. (citations omitted)6
Respondent, by its conduct (acceptance of the change of beneficiary form without comment, and utilization of the change of address contained therein) caused Jack E. Walden to believe his instructions had been received and given effect. Decedent therefore relied on the State to provide such continuing retirement benefits. This reliance resulted in a "change of position" (or forbearance) by Jack E. Walden in that he did not avail himself of other means to protect his widow.
RECOMMENDATION
From the foregoing, it is RECOMMENDED:
That Respondent enter a Final Order awarding continuing retirement benefits to Petitioner.
DONE and ENTERED this 29th day of August, 1985 in Tallahassee, Florida.
R. T. CARPENTER 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 29th day of August, 1985.
ENDNOTES
1/ Findings of Fact 1 through 14 are as stipulated to by the parties.
2/ This is a Highway Patrol Retirement System form provided for designating beneficiaries.
3/ This is an election of retirement options form on which Jack
E. Walden wrote "Change beneficiary to Marilyn S. Walden." It also included a change of address. The form was signed by Jack
E. Walden and was notarized.
4/ This correspondence (all dated in 1976) involved Intervenor's inquiry into her status as beneficiary after the divorce.
5/ Arnow v. Williams, 343 So. 2d 1309 (Fla. 1st DCA 1977).
6/ Fraga v. Dept. of Health and Rehabilitative Services, (Fla. 3rd DCA 1985 , 464 So. 2d 145.
COPIES FURNISHED:
Jacqueline R. Griffin, Esq. PEIRSOL, BOROUGHS, GRIMM, BENNETT & GRIFFIN, P.A.
Post Office Box 3309 Orlando, Florida 32802
John C. Winfree, Esq. ROBISON, ROOKS & OWEN, P.A.
Post Office Box 895 Casselberry, Florida 32707
Augustus D. Aikens, Jr., Esq. Division of Retirement
Cedars Executive Center 2639 North Monroe Street Suite 207 - Building C Tallahassee, Florida 32303
Gilda Lambert, Secretary Department of Administration
435 Carlton Building
Tallahassee, Florida 32301
Docket for Case No: 85-000809
Orders for Case No: 85-000809
| Issue Date |
Document |
Summary |
|
Dec. 04, 1985 |
Agency Final Order
|
|
|
Aug. 29, 1985 |
Recommended Order
|
Benefits denied. Spouse at retirement entitled to benefits, not spouse at death. Estoppel theory rejected. Spouse failed to show how position changed.
|
