COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Alan McDonough,

Petitioner

v. Docket No. CR-06-1034

Quincy Retirement Board,

Respondent


Appearance for Petitioner:

Frank J. McGee, Esq.

1952 Ocean St.
Marshfield, MA 02050

Appearance for Respondent:

Michael Sacco, Esq.

Law Offices of Michael Sacco
285 College Highway, P.O. Box 479
Southampton, MA 01073

Administrative Magistrate:

Kimberly A. Fletcher, Esq.

DECISION

Alan McDonough is appealing the November 6, 2006 decision of the Quincy Retirement Board denying his request for member-survivor benefits (Ex. 1). He appealed timely under the provisions of G.L. c. 32, § 16(4) (Ex. 2). I heard the appeal on December 19, 2007 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston. There are 11 documents in evidence (Exs. 1 - 11). I marked the pre-hearing memorandum of the Petitioner as "A" for identification and the pre-hearing memorandum of the Respondent as "B" for identification.

There was no testimony. Both sides gave oral argument. There is one tape of the hearing. Petitioner's post-hearing memorandum received on January 3, 2008 was marked "C" for identification.

Findings of Fact

1. Alan and Claire McDonough were married on August 21, 1976 (Ex. 5).

2. On February 21, 1996, Claire McDonough filed a Complaint for Divorce in Norfolk Probate and Family Court. The Complaint alleged that Alan McDonough, on or about January 26, 1996, "did intentionally strike the Plaintiff about her head and face several times causing her physical harm." The Complaint further alleged that Alan McDonough had been "cruel and abusive…on many other occasions throughout the marriage." Claire McDonough sought and received a 209A restraining order (Exs. 7 and 8).

3. On February 27, 1996, Alan McDonough, through his attorney, denied that he intentionally struck his wife causing her physical harm and denied that he had been cruel and abusive on many other occasions throughout the marriage (Ex. 9).

4. Claire McDonough, d.o.b. 2/15/53, joined the Quincy Retirement System on May 30, 1996 after previously working in the Boston Police Department, the Quincy School Department and the Quincy Hospital. In her New Member Enrollment Form dated May 9, 1996, she designated Matthew McDonough, her son, as the 100% beneficiary. Claire McDonough completed another New Member Enrollment Form on September 19, 1996. This showed a membership date of September 20, 1996 and also designated her son, Matthew McDonough, as her 100% beneficiary (A, B).

5. On January 28, 1997, the 209A restraining order expired (Ex. 7).

6. Alan and Claire McDonough last lived together on or about December 5, 2002 (Ex. 11).

7. On October 27, 2003, Alan and Claire McDonough signed a Separate Support Agreement wherein they agreed to dismiss the divorce action filed in 1996 (Ex. 11).

8. Claire McDonough resigned from her position as a Paraprofessional with the Quincy public schools effective September 2, 2005. Upon her resignation she had 13.9 years of creditable service with the Quincy Retirement System and became a member inactive (A, B).

9. Claire McDonough died in Florida on or about April 4, 2006 (Ex. 5).

10. On July 17, 2006, Alan McDonough requested of the Quincy Retirement Board any benefits due him as the surviving spouse of Claire McDonough (Ex. 5).

11. On November 6, 2006, the Quincy Retirement Board denied Alan McDonough's request, concluding that his conduct towards his spouse "should be considered moral turpitude" (Ex. 1).

12. Alan McDonough appealed (Ex. 2).

Conclusion and Order

The decision of the Quincy Retirement Board denying Alan McDonough's request for a member-survivor allowance is affirmed, but not for the reason that the Board gave.

General Laws, c. 32, § 12(2)(d) provides, in pertinent part:
If a member dies before being retired without an eligible beneficiary other than the spouse of such member nominated under this option, or, notwithstanding the provisions of paragraph (a) of subdivision (2) of section thirteen, if a member in service as described in paragraph (i) of paragraph (a) of subdivision (1) of section three who has not less than two years of creditable service dies and leaves a
spouse to whom such member had been married for not less than one year, or if a member dies within thirty days following the date the retirement of such member became effective without an eligible beneficiary nominated under Option (c) of this section, an election may be made by such spouse to receive the member-survivor allowance under this option; provided, that said spouse and the deceased member were living together at the time of death of such member, or that the board finds that they had been living apart for justifiable cause other than desertion or moral turpitude on the part of the spouse.

Examining the first clause, I assume that Claire McDonough died before being retired since she was under age 55 and had fewer than 20 years of creditable service. There was no evidence that she retired with an option election. She had nominated, however an eligible beneficiary other than her spouse. The parties stipulated that she had designated her son as her 100% beneficiary. So the provisions of the first clause do not apply.

The second clause beginning, "if a member in service," does not apply because Claire McDonough was not a member in service when she died.

The third clause beginning, "or if a member dies within thirty days," also does not apply because Claire McDonough did not die within 30 days following retirement, since she died before being retired.

Since none of the conditions have been met, Alan McDonough is not eligible to elect a member-survivor allowance under § 12(2)(d).

The Quincy Retirement Board's position, that Alan McDonough is not entitled to the benefit "because his conduct towards Claire McDonough constituted moral turpitude" is not valid. It is true that Claire McDonough, in 1996, alleged that her husband hit her several times, causing her physical harm. It is also true that her husband denied the allegations. Later the couple apparently reconciled and lived together. Allegations in a complaint of divorce fall far short of demonstrating moral turpitude.

Based on the foregoing, the decision of the Quincy Retirement Board denying Alan McDonough's request for a member-survivor allowance is affirmed. The Board shall make payment to Claire McDonough's son pursuant to the provisions of G.L. c. 32, § 11(2).

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Kimberly A. Fletcher
First Administrative Magistrate

DATED: 3/12/08