STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARMANDO MARTINEZ, JR. )

)

Petitioner, )

)

vs. ) Case No. 97-1688

)

DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, David M. Maloney, conducted an administrative hearing in this case on July 23, 1997, in Tampa, Florida.

APPEARANCES

For Petitioner: Natalie M. Martinez

Suite 3811

3801 Northgreen Avenue

Tampa, Florida 33624

For Respondent: Robert B. Button, Jr.

Division of Retirement

Cedars Executive Center, Building C 2369 North Monroe Street Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

Whether at the time of his father's death, Armando Martinez, Jr., was a "dependent beneficiary" of his father, a vested member of the Florida Retirement System, so as to be entitled to his father's retirement benefits?

PRELIMINARY STATEMENT

On April 4, 1997, the Division of Administrative Hearings received a "Notice of Election to Request Hearing Officer" from the Division of Retirement. In effect, the notice announced the Division of Retirement's request that an Administrative Law Judge be assigned to conduct a proceeding on a petition for a formal administrative hearing by Armando Martinez, Jr., challenging the division's decision to deny Mr. Martinez, Jr.'s, claim to retirement benefits upon the death of his father. Attached to the notice were both the petition and a letter dated February 17, 1997. The letter, from the division to Mr. Martinez, Jr., related the division's decision to deny him "lifetime Option 3 monthly benefit under the FRS law," "[i]n the absence of proof that Armando Martinez, Sr., provided [him] at least half of [his] financial support."

Following designation of another Administrative Law Judge to conduct the proceeding, the case was transferred to the undersigned. At final hearing, Petitioner testified himself and called four other witnesses: Stephanie Osborne, Delores Cubero, Brian Stevens and Petitioner's mother, Ms. Natalie M. Martinez.

The division called Ms. Stanley Colvin, Administrator of the Survivor Benefits Section at the Division of Retirement.

Pursuant to agreement of the parties, the time for submitting proposed recommended orders was extended for Ms.

Natalie Martinez, the Petitioner's qualified representative, to submit a late-filed exhibit and was extended again upon the motion of the division until January 21, 1998. A proposed recommended order was timely submitted by the division on

January 14, 1998. Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. Armando Martinez, Jr., was born on February 22, 1974, to Natalie M. Martinez and the late Armando Martinez, Sr. In 1992, when Armando, Jr., was eighteen years old, Mr. and Mrs. Martinez were divorced. The following year, 1993, less than two weeks after Armando, Jr.'s, nineteenth birthday, Armando Martinez, Sr., died. The cause of death was liver cancer, a disease from which Ms. Martinez presently suffers.

2. At the time of his death on March 7, 1993, Mr. Martinez was a vested member of the Florida Retirement System. A municipal employee, he had been a bus operator. At some point close to commencement of his employment, slightly more than ten years prior to his death, Armando Martinez, Sr., had executed a Form M-10. The form named his wife, Natalie, as his primary beneficiary. Armando, Jr., the only child of Armando, Sr., and Natalie Martinez, was named as the sole contingency beneficiary.

3. Following Mr. Martinez, Sr.'s death, Ms. Martinez disclaimed Florida Retirement System benefits. She did so in

   order for Armando, Jr., as the contingent beneficiary, to be able to receive the benefits.

4. On February 17, 1997, the Division of Retirement denied Armando, Jr., survivor benefits. Had Mr. Martinez, Sr., died one-year and several weeks earlier, that is, prior to Armando, Jr.'s eighteenth birthday, the Division would have approved distribution of survivor benefits to him. But, although he was still a high school student, since he was older than nineteen by a few days at the time of his father's death, the Division required proof that Armando, Jr., had received half of his support from his father at the time of his father's death. No such proof was provided to the Division prior to or at the time of its preliminary denial. In fact, in his 1992 tax return, Mr.

   Martinez did not claim his son Armando, Jr., as a dependent. In this formal administrative proceeding, however, Armando Martinez, Jr., provided such proof, proof which was lacking until hearing.

5. The year 1992 was very difficult for Armando Martinez, Jr., and his family. His parents separated, Armando, Jr., lived with his mother. Armando, Sr., lived elsewhere. Prior to his death, divorce proceedings were finalized.

6. In the meantime, Ms. Martinez had lost her job. She remained unemployed for the entire year and in early 1993 as well. Armando, Jr., was still in high school at the time of his father's death. During the 1992-93 school year, to support

   himself and his mother, he obtained work part-time while he remained in school.

7. Ms. Martinez paid the rent for their apartment at a rate of between $370 and $500 per month. The monthly phone bill of Ms. Martinez and Armando, Jr., was approximately $50; utility payments $70; groceries $300; gasoline $10, automobile insurance

   $100; and school supplies $40. There were other expenses, clothes, for example, that occurred from time-to-time.

8. In addition to minimal government support to

   
   

   Ms. Martinez and Armando, Jr.'s, part-time employment income, Armando, Jr., was supported by cash payments provided by his father. Two or three times a month, Armando's father and a girl friend, Karen Jones, would drive to the front of the house.

   Because of his illness, Mr. Martinez remained in the car while Ms. Jones brought cash, usually between two and five hundred dollars in an envelope to the front door. On more than one of these occasions, Ms. Jones, the envelope, and the cash were observed by friends of the family at the moment of delivery.

9. Ms. Martinez log of the estimates of these payments totals approximately $8,500, an amount in excess of Mr. Martinez's income reported in his 1992 tax return filed before his death in 1993 to be $6,389.00. But, Mr. Martinez, Sr. had access to other means of support and other monies including proceeds from insurance policies.

10. The $8,500 provided to Armando, Jr., by Armando Martinez, Sr. constituted more than half of Armando, Jr.'s, support for the year 1992 and up until Mr. Martinez, Sr.'s, death in early 1993.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

12. The burden of proof, normally on the party asserting the affirmative of an issue, Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977), rests in this case on Petitioner.

13. Armando Martinez, Jr., therefore has the burden of proving that he is a "dependent beneficiary under Sections 121.021(28), Florida Statutes (1993), the law in effect at the time of Armando, Sr.'s, death. In other words, Armando Martinez, Jr., as a person designated by his father to receive a retirement benefit upon his father's death, is required to prove that at the time of death he was "financially dependent for no less than one- half of his support from the deceased member. . . ." Section 121.021(28), Florida Statutes (1993).

14. At bottom, this case is one of credibility. The Division contends that Armando, Jr., and his mother, Ms. Martinez, are not to be believed for several reasons including that the amount they claim Armando, Jr., received from his father

    in cash in the months leading up to his death exceeded Mr. Martinez' net income reported on his 1992 income tax return. But, Ms. Martinez and Armando, Jr., swore under oath that the support in cash payments were provided to Armando, Jr., by Mr.

    Martinez, Sr. Their sworn testimony was corroborated through the use of documents and the testimony under oath of family friends. In the end, Armando Martinez, Jr., prevails because his testimony and that of his mother's was believable. It was believable not just because it was corroborated by others but also because of the demeanor and manner of presentation of both petitioner and his mother. In sum, petitioner has met the burden of proof.

15. At the time of Armando Martinez, Sr.'s, death, Armando Martinez, Jr., was the dependent beneficiary of Armando Martinez, Sr. As such, Armando Martinez, Jr., is entitled to receive a retirement benefit as the result of the death of Armando Martinez, Sr., a vested member of the Florida Retirement System.

RECOMMENDATION

Accordingly, it is hereby recommended that the Division of Retirement recognize Armando Martinez, Jr., to have been the dependent beneficiary of Armando Martinez, Sr., at the time of Mr. Martinez, Sr.'s, death, and therefore entitled to retirement benefits.

DONE AND ORDERED this 27th day of January, 1998, in Tallahassee, Leon County, Florida.

DAVID M. MALONEY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1998.

COPIES FURNISHED:

Robert B. Button, Esquire Division of Retirement

Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560

Natalie Martinez Suite 3811

3801 Northgreen Avenue

Tampa, Florida 33624

Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way

Tallahassee, Florida 32399-0950

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

Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560

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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-001688

Orders for Case No: 97-001688