COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Madgie Cox and Alvie Grimes,

Petitioners

v. Docket No. CR-07-1017

Boston Retirement Board and
Teresa Carter and Frank Richard Carter, III,

Respondents

Appearance for Petitioners:

C. Peter R. Gossels, Esq.

84 State Street
Boston, MA 02109-2299

Appearance for Respondent Board:

Michael A. West, Esq.

McLucas & West, PC
141 Tremont Street, 4th floor
Boston, MA 02111-1227

Appearance for Intervenors:

David J. Himmelberger, Esq.

One Hollis Street, Suite 400
Wellesley, MA 02482

Administrative Magistrate:

Maria A. Imparato, Esq.

DECISION

Madgie Cox and Alvie Grimes filed an appeal on October 31, 2007 under G. L. c. 32, s. 16 (4) of the Boston Retirement Board's failure to act to recognize the Petitioners as the beneficiaries of the Board's deceased member, Mack Grimes. By email communication of November 7, 2007 the Board indicated that Theresa Carter and Frank Richard Carter III are deemed to be the rightful beneficiaries of Mack Grimes. (Exs. 1, 2)

By letter of December 10, 2007 the Petitioners requested that the matter be handled as a Submission Without a Hearing under 801 CMR 1.01 (10) (c). By letter of December 12, 2007 I informed all parties that all documents and arguments were due on January 14, 2008. (Ex. 3)

On December 10, 2007 the Petitioners filed a brief in support of their appeal with attachments A - K.

On January 11, 2008 the Respondent Board filed its brief, with attachments 1 - 14.

On January 15, 2008 Teresa Carter and Frank Richard Carter, III filed a Motion for Leave to File Late, together with a brief. I allowed the Motion for Leave to File Late.

On January 24, 2008 the Petitioners filed a Reply to Respondents' Brief, and a Reply to the Brief of Theresa Carter and Frank Richard Carter, III.

On January 31, 2008 the Respondent Board filed a letter requesting permission to file affidavits from R. Paul Parisi, Executive Secretary of the Boston Parks and Recreation Department, and Edward J. O'Brien, Jr., Manager of Client Services for the Board. On February 4, 2008 counsel for Theresa Carter and Frank Richard Carter, III, filed a letter urging me to accept the two affidavits offered by the Board. I did not act on the Board's request.

On February 19, 2008 the Respondent Board filed an affidavit from Edward J. O'Brien, Jr. The record closed on February 19, 2008.

I marked documents into evidence. (Exs. 1 - 11) A list of exhibits appears on the last page of this decision.

FINDINGS OF FACT

1. Mack Grimes, Jr., d.o.b. 5/17/1942, ("Mack") worked for the City of Boston Parks and Recreation Department from 1975 to 2005. He was a member of the Boston Retirement System. He died on September 19, 2005. (Ex. 5, p. 3; Attachment 1; Attachment 6, SBRS Application for Retirement, Member Information)

2. Madgie Cox ("Cox"), d.o.b. 5/29/1943, is Mack's sister. She lives in Bronx, New York. (Ex. 4, Facts, Attachment A)

3. Alvie Grimes ("Grimes"), d.o.b. 9/17/1964, is Mack's niece. She lives in Bronx, New York. (Ex. 4, Facts, Attachment A)

4. Theresa Carter, d.o.b. 9/3/1953, was Mack's "partner." Frank Richard Carter, III, d.o.b. 2/10/1974, is Theresa's son. They live in Mattapan. (Ex. 4, Attachment F)

5. On March 19, 2005 Mack was admitted to the Sherrill House, a skilled nursing facility in Boston, from Brigham & Women's Hospital. (Ex. 4, Facts)

6. On June 3, 2005 Mack filed with the Board an application for superannuation retirement benefits, together with a Change of Refund Beneficiary form naming Theresa Carter and Frank Richard Carter, III, as his beneficiaries. The Change of Refund Beneficiary form was witnessed by R. Paul Parisi, Executive Secretary of the Boston Parks and Recreation Department. (Ex. 5, Facts, Attachment 6)

7. On July 13, 2005 Mack was discharged from Sherrill House and went to live in Bronx, New York with Cox and Grimes. (Ex. 4, Facts)

8. On August 9, 2005 Mack signed a Change of Beneficiary form naming Cox and Grimes as his beneficiaries. The form was witnessed by Jessica Hughes, Mack's great niece. (Ex. 5, Attachment 7; Ex. 4, Attachments A & B)

9. Cox and Grimes attempted to fax the Change of Beneficiary form naming them as Mack's beneficiaries to the Board on August 10, 2005 at 1:04 p.m., and again at 2:01 p.m. Neither fax was received by the Board because the Board's fax number was busy. (Ex. 5, Attachments 8 & 9)

10. Mack had several telephone conversations with Edward J. O'Brien, Jr., Manager of Client Services for the Board, after Mack's move to New York. Mack called to inquire whether his Intent to Retire form and his Change of Beneficiary Form were completed correctly, and to request final retirement papers be sent to him in New York. Mr. O'Brien assured Mack that the Intent to Retire and the Change of Beneficiary forms had been completed correctly and had been filed with the Board. (Ex. 11)

11. On September 9, 2005 the Board forwarded to Mack, care of Cox, the final papers that needed to be filled out in order to complete his application for superannuation retirement. (Ex. 5, Attachment 2)

12. Mack Grimes died on September 19, 2005. (Ex. 5, Attachment 1)

13. On December 2, 2005 Theresa Carter and Frank Richard Carter, III, each filed with the Board an Application for Refund on Death of Active Member form. (Ex. 5, Attachment 11)

14. In response to a visit from Cox on or about January 3, 2006, Edward J. O'Brien, Jr. wrote to Cox on January 3, 2006 informing her that a review of Mack's retirement file did not reveal a beneficiary form executed by Mack naming her as his beneficiary. He informed Cox that the Board would distribute Mack's annuity savings funds to "the beneficiaries of record whom are listed on a beneficiary form submitted to this board on June 8, 2005." (Ex. 5, Attachment 12)

15. On January 17, 2006 Cox and Grimes faxed to the Board eleven pages of documents, including the Change of Beneficiary form completed by Mack on August 9, 2005. (Ex. 5, Attachment 13)

16. Cox and Grimes retained counsel who, by letter of January 19, 2007, requested that Mack's funds be distributed to Cox and Grimes. (Ex. 4, Attachment K)

17. In June 1996 Mack became the policy holder of a Trustmark Insurance Company life insurance policy, naming his sisters, Madgie Cox and Nora Spellers as his beneficiaries. In April 2003 Mack executed a Change of Beneficiary form naming Cox and Grimes as the beneficiaries. On August 18, 2005 Mack completed a Beneficiary Designation Form for Trustmark naming Cox and Grimes as his life insurance beneficiaries. (Ex. 5, Attachments 3, 4, 5)

CONCLUSION AND ORDER

The decision of the Boston Retirement Board to acknowledge Theresa Carter and Frank Richard Carter, III, as the rightful beneficiaries of Mack Grimes is affirmed.
G. L. c. 32, s. 11 (2) (c) provides in pertinent part:

Any member, upon his written notice on a prescribed form filed with the board prior to his death, may nominate … one or more beneficiaries to receive … any sum becoming payable … on his death

The only written notice on a prescribed from filed with the Board prior to Mack's death is the Change of Beneficiary form that Mack filed with the Board on or about June 3, 2005 (together with his application for superannuation retirement benefits), naming Theresa Carter and Frank Richard Carter, III, as his beneficiaries.
Although Mack apparently filled out a new Change of Beneficiary form on or about August 9, 2005, that form was not filed with the Board prior to Mack's death. It is unclear why or how Madgie Cox and Alvie Grimes were not aware that their attempts to fax the new form to the Board were unsuccessful, in view of the fax log indicating that the fax did not go through because the Board's fax line was busy. It was not until after Mack's death, however, that the Board became aware of the form naming Cox and Grimes as beneficiaries.

The Petitioners claim that the June 3, 2005 form naming the Carters as beneficiaries is forged because it appears that Mack did not add "Jr." to his signature. The Petitioners do not offer the opinion of a handwriting expert to support their claim.

Mack's signature on the June 3, 2005 form does not appear to be a forgery, and his signature on June 3, 2005 on his application for retirement does clearly include "Jr." Furthermore, the record contains a letter from R. Paul Parisi attesting to the fact that he witnessed Mack's signature on June 3, 2005. I conclude that Mack's signature on June 3, 2005, witnessed by R. Paul Parisi, is not a forgery.

I relied on the affidavit of Edward J. O'Brien, Jr. to find facts with respect to the telephone conversations he had with Mack while Mack was in New York. I found Mr. O'Brien's recollections to be more reliable than those of Madgie Cox, who claims that she listened in on a telephone call between Mack and Mr. O'Brien. Mr. O'Brien, as a party to the telephone call, is in a better position to reliably recount the substance of those conversations.

Because the Change of Beneficiary form naming Theresa Carter and Frank Richard Carter, III, was the only Change of Beneficiary form filed with the Board on a prescribed form prior to Mack's death, Theresa Carter and Frank Richard Carter, III, are the rightful beneficiaries of Mack Grimes under G. L. c. 32, s. 11 (2) (c).

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Maria A. Imparato
Administrative Magistrate

DATED: 3/11/08

EXHIBITS

Exhibit 1 Petitioner's appeal, 11/2/07
2 Faxes between Boston Retirement Board and DALA,11/7/07, 12/5/07
3 Magistrate to parties, 12/12/07
4 Petitioner's Brief, with attachments A - K, 12/11/07
5 Respondent's Brief, with attachments 1 - 14, 1/11/07
6 Petitioner's reply to Respondent's Brief, 1/24/08
7 Petitioner's reply to Intervenor's Brief, 1/24/08
8 Brief of Intervenors, 1/15/08
9 Respondent to Magistrate, 1/31/08
10 Intervenor's counsel to Magistrate, 2/4/08
11 Affidavit of Edward J. O'Brien, Jr., Manager of Client Services


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