COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

Liane Mielke,


Petitioner

v. CR-07-1154
Dated: January 8, 2010


Middlesex Retirement System,


Respondent

Appearance for Petitioner:

Liane Mielke


55 Broad Street
Weymouth, MA 01829

Appearance for Respondent:

Thomas Gibson, Esq.

Middlesex Retirement System
25 Linnell Circle
P.O. Box 160
Billerica, MA 01865


Administrative Magistrate:

Joan Freiman Fink, Esq.

SUMMARY OF DECISION


In accordance with the provisions of G.L. c. 32, § 12 (2), the Middlesex Retirement System properly denied the Petitioner's request for retirement benefits under Option C on behalf of her former husband, Michael Donahue, as she was remarried prior to the effective date of Mr. Donahue's retirement.

DECISION

Pursuant to G.L. c. 32, § 16(4), the Petitioner, Liane Mielke, is appealing the November 29, 2007 decision of the Respondent, Middlesex Retirement System, denying her request for certain retirement benefits as an alternative payee under Option C on behalf of her former husband, Michael Donahue. (Exhibit 1.) The appeal was timely filed in accordance with the provisions of G.L. c. 32, § 16(4).
On October 22, 2009, the parties were notified by the Division of Administrative Law Appeals that they could waive their right to a hearing and submit the case on written submissions pursuant to the provisions of 801 CMR 1.01(10)(c). The parties were given to November 25, 2009 either to submit written arguments and/or proposed exhibits or to file an objection to submission of the case on the record. On November 3, 2009, the Respondent submitted proposed exhibits and written argument. The Petitioner did not file an argument nor did she file an objection to her appeal being submitted on the record pursuant to 801 CMR 1.01(10)(c). The record was closed on November 27, 2009.

The following exhibits are now marked into evidence:

1. Decision Letter dated 11/29/07
2. Appeal Letter
3. Marriage Certificate dated 7/20/02
4. Domestic Relations Order
5. Application for Superannuation Retirement Benefits for Michael Donahue dated 9/29/03
6. Letter to Michael Donahue from Middlesex Retirement System dated 11/28/03

FINDINGS OF FACT

Based on the evidence presented, I make the following findings of fact:

1. The Petitioner, Liane Mielke, d.o.b. 10/15/60, was married to Michael Donahue, a member of the Middlesex Retirement System. The Petitioner and Mr. Donahue were divorced in or about 1994. (Exhibit 4.)

2. The Middlesex Probate Court issued a Domestic Relations Order on June 2, 1994, following the judgment of divorce between the Petitioner and Michael Donahue. Paragraph 5 of the Order provides that Mr. Donahue shall designate the Petitioner as his Option C beneficiary at the time of his retirement, conditioned upon the Petitioner's being "living and not remarried at the time of his retirement." (Exhibit 4.)

3. Paragraph 5 of the Domestic Relations Order further provides that "such designation (Option C) may be changed or withdrawn by the Participant (Michael Donahue) should the Alternate Payee (the Petitioner) die or remarry prior to his retirement." (Exhibit 4.)

4. On July 20, 2002, the Petitioner married Scot Del Mielke. (Exhibit 3.)

5. On September 29, 2003, Michael Donahue filed an application for superannuation retirement benefits with an effective retirement date of September 12, 2003. (Exhibit 5.)

6. Michael Donahue's Option Selection Form listed "N/A" on the spousal acknowledgement signature line. In an "Affidavit of Member as to Marital Status Upon Retirement," Michael Donahue stated that he was not currently married, but that he had previously been married to the Petitioner. (Exhibit 5.)

7. On October 1, 2007, the Petitioner filed with the Middlesex Retirement System a copy of the Domestic Relations Order and requested that she be granted retirement benefits on behalf of Michael Donahue as an Alternate Payee. (Exhibit 1.)

8. On November 29, 2007, the Middlesex Retirement System notified the Petitioner in writing that she was not eligible to receive retirement benefits under her former husband's retirement as an Alternate Payee. (Exhibit 1.)

9. The Petitioner filed a timely appeal of that decision with the Contributory Retirement Appeal Board. (Exhibit 2.)


CONCLUSION

The Petitioner is not eligible to receive Option C retirement benefits as a designated Alternate Payee under her former husband's superannuation retirement as she was remarried prior to the effective date of her former spouse's retirement.

The provisions of G.L. c. 32, § 12 (2) Option C provide in pertinent part that:
No person shall be eligible for nomination as beneficiary under this option unless such person is the spouse, former spouse who has not remarried, child, father, mother, sister or brother of such member.(Emphasis supplied.)

The facts in this case are not in dispute. The Petitioner, who was divorced from Michael Donahue in or about 1994, got remarried to Scott Del Mielke on July 20, 2002. Mr. Donahue, her former spouse, did not apply for superannuation retirement benefits until September of 2003, fourteen months after the Petitioner's marriage to Mr. Mielke. Under the clear language of G.L. c. 32, § 12(2), since the Petitioner was remarried at the time of her former husband's retirement, she is not eligible for nomination as beneficiary under Option C of his retirement.

For the foregoing reasons, the decision of the Middlesex Retirement System denying the Petitioner's request for Option C benefits on behalf of her former spouse's retirement is hereby affirmed.


SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS
/s/

Joan Freiman Fink
Administrative Magistrate
Dated: 1/8/10