STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAMELA EAVES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0997

) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Administrative Law Judge, Diane Cleavinger, on July 22, 1996.

APPEARANCES

For Petitioner: Granville E. Petrie, Esquire

103 North Gadsden Street Tallahassee, Florida 32301

For Respondent: Stanley M. Danek, Esquire

Division of Retirement

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

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to claim her late husband's pension benefits under the Florida Retirement System.

PRELIMINARY STATEMENT

A petition for administrative hearing was filed by Petitioner, Pamela Eaves, dated November 11, 1995, requesting that the State of Florida, Department of Management Services, through the Division of Retirement, pay Petitioner the pension benefits of her late husband, Billy Eaves, under the Florida Retirement System. The Department had denied Petitioner those benefits based on its decision that Petitioner was not a beneficiary designated by her late husband prior to his death and was not otherwise a joint annuitant entitled to receive those benefits.

The Petition for Formal Hearing was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner testified in her own behalf and introduced the testimony of one additional witness. Petitioner also introduced 4 exhibits into evidence. Respondent did not call any witnesses, but offered 24 exhibits into evidence.

After the hearing, Petitioner and Respondent submitted their Proposed Recommended Orders on August 13, 1996 and August 7, 1996, respectively. The parties' proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the evidence or were immaterial, cumulative or subordinate.

FINDINGS OF FACT

1. Petitioner, Pamela Eaves, was married to Billy Eaves at the time of his death on November 23, 1993. They had been married since November 20, 1983.

   
   

2. Billy Eaves Had been employed by various employers in the Florida Retirement System and had in excess of 10 years of creditable service as a regular class member of the Florida Retirement System. At the time of his death in 1993 Billy Eaves was employed by the Leon County School Board, had accumulated 24.04 years of service and was vested in the Florida Retirement System.

   
   

3. Upon his initial enrollment in the Florida Retirement System, Mr. Eaves, on September 29, 1972, designated JoAnn Eaves, his then wife, as his primary beneficiary and Elizabeth and Judy Hardage, his mother and sister, respectively, as his contingent beneficiaries. On January 9, 1978, Mr. Eaves filed a second designation of beneficiary form, naming JoAnn Eaves as his primary beneficiary with no provision for a contingent beneficiary. On June 10, 1983, prior to meeting Petitioner, Mr. Eaves filed his last designation of beneficiary form, naming Peggy Eaves, his sister, as the primary beneficiary with Elizabeth and Judy Hardage as the contingent beneficiaries.

   
   

4. After the filing of the last beneficiary designation form, Billy Eaves met Pamela Eaves and later married her.

   
   

5. During the 10 years of their marriage, Billy Eaves did not file a new designation of beneficiary form even though he assured Petitioner that she would receive everything he had. However, the evidence demonstrated that Billy Eaves was very much aware of his financial circumstances and the steps necessary to ensure his assets would pass to Petitioner. For unknown reasons, Billy Eaves failed to take such steps in relation to his pension and some other assets he owned.

   
   

6. Billy Eaves died a few month prior to the time he had decided to formally retire. He never received any of his retirement benefits. At the time of his death none of the beneficiaries Billy Eaves had designated were financially dependent on him as is required under Florida law. Therefore, those beneficiaries did not receive any of Mr. Eaves retirement benefits.

   
   

7. After his death, Petitioner learned that her husband had not designated her as the beneficiary of his pension benefits and that she was not entitled to those benefits or a refund of those benefits unless the designated beneficiaries disclaimed their rights. To date, even though they cannot receive any of Billy Eaves pension benefits, the designated beneficiaries have refused to disclaim their rights unless Petitioner pays them a substantial some of money.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.57, Florida Statutes.

   
   

9. The Florida Retirement System is governed by Chapter 121, Florida Statutes. Section 121.091(8), Florida Statutes, states in part:

   
   

   Each member may, on a form provided for that purpose, signed and filed with the division, designate a choice of one or more persons, named sequentially or jointly, as his beneficiary who shall receive the benefits, if any, which may be payable in the event of his death pursuant to the provisions of this chapter. If no beneficiary designated by the member survives him, the beneficiary shall be the spouse of the deceased, if living. If the member's spouse is not alive at his 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 bene- ficiary 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 (conditions not herein applicable).

   
   

10. Section 121.091(7)(b), Florida Statutes did provide for death benefits for members of FRS and stated in part as follows:

    
    

    If the employment of an active member who may or may not have applied for retirement is terminated by reason of his death subsequent to the completion of 10 years of

    creditable service and prior to his effective retirement date or retirement, if established, it shall be assumed that the member retired

    as of his date of death in accordance with (subsections of the law). Benefits payable to the designated beneficiary shall be as follows:

    1. For a beneficiary who qualifies as a joint annuitant, the optional form of payment to (section cited).

    2. For a beneficiary who does not qualify as a joint annuitant, no continuing monthly benefit shall be paid and the beneficiary shall be entitled to the return of the member's personal contributions.

11. Section 60S-4.011(1), Florida Administrative Code, provides as follows:

    
    

    A member may designate a beneficiary, .

    . . , to receive the benefits which may be payable pursuant to these rules in the event of the member's death. No designation of beneficiary shall be effective unless it has been filed with the Division.

    
    

12. 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 beneficiaries of pension benefits rests with the member of the Florida Retirement System.

    
    

13. In this case, Billy Eaves did not designate Petitioner as his beneficiary, but for a period of 10 years permitted his sisters and mother to remain as his beneficiaries. The Department has no authority to substitute another beneficiary before or after the death of the member where that member has not instructed the Department to make such a change. Therefore, Petitioner is not entitled to claim Billy Eaves's pension benefits or a refund thereof.

See Arnow v. Williams, 343 So.2d 1309 (Fla. 1st DCA 1977); Rogers v. Rogers, 152 So.2d 183 (Fla. 1st DCA 1963); Wilson v. Division of Retirement, 525 So.2d 891 (Fla. 2d DCA 1988); and Xiomara Ricardo v. Department of Management Services, Case No. DMS DOR 93-98 (Final Order April 14, 1994) affirmed on appeal.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division enter a final order denying Petitioner's

claim to her late husband's pension.

DONE AND ENTERED this 1st day of October, 1996 in Tallahassee, Leon County, Florida.

DIANNE CLEAVINGER

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 1st day of October, 1996.

COPIES FURNISHED:

Stanley M. Danek, Esquire Division Attorney Division of Retirement Cedars Executive Center

2639 Monroe Street, Building C Tallahassee, FL 32399

Granville E. Petrie, Jr., Esquire

103 North Gadsden Street Tallahassee, FL 32301

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

Cedars Executive Center

2639 North Monroe Street, Building C Tallahassee, FL 32399-0950

William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307

Koger Executive Center 2737 Centerview Drive

Tallahassee, FL 32399-0950

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. Some agencies allow a larger period within 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: 96-000997

Orders for Case No: 96-000997