COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Tracy Whitman,


Petitioner

v. Docket No. CR-06-905

State Board of Retirement,


Respondent

Appearance for Petitioner:

Stephen G. Michaels, Esq.,

4 Anawan Avenue
West Roxbury, Ma. 02132

Appearance for Respondent:

Erin Nally, Esq.

State Board of Retirement
One Ashburton Pl. - 12th Fl.
Boston, Ma. 02108

Appearance for Intervenor,

Guide Dog Foundation:

Scott Merrill, Esq.

Foley Hoag, LLP
Seaport World Trade Center West
155 Seaport Blvd.
Boston, Ma. 02210

Administrative Magistrate:

Joan Freiman Fink, Esq.


DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, Tracy Whitman, is appealing the October 27, 2006 decision of the Respondent, State Board of Retirement, denying her request for survivor based benefits payable from the State Board of Retirement account of Ms. Brenda Whitman. An appeal was timely filed in accordance with the provisions of G.L. c. 32 §16(4).

A hearing pursuant to G.L. c. 7 §4H was held on November 27, 2007 at the offices of the Division of Administrative Law Appeals, 98 N. Washington Street, Boston, Ma. Various documents were entered into evidence at the hearing (Exhibits 1 - 15). The Petitioner's Pre-hearing Memorandum was marked as "A" for identification, the Respondent's Pre-hearing Memorandum was marked as "B" for identification, and the Intervenor's Pre-hearing Memorandum was marked as "C" for identification. The Petitioner testified in her own behalf. One cassette tape recording was made of the hearing.

FINDINGS OF FACT

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

1. The Petitioner, Tracy Whitman, d.o.b. 5/15/81, was the daughter of Brenda Pippin Whitman (testimony of the Petitioner).

2. Brenda Whitman was an Employment Counselor with the Massachusetts Commission for the Blind from September of 1976 through the date of her death on June 6, 2004. Brenda Whitman was legally blind from birth and could read only Braille. During her adult years, she had a series of guide dogs to assist her including dogs supplied by the Guide Dog Foundation for the Blind, Inc. (stipulation of the parties, testimony of the Petitioner).

3. At the time that she commenced employment with the Massachusetts Commission for the Blind, Brenda Whitman, then Brenda Pippin, completed a Massachusetts State Board of Retirement Enrollment Blank and Beneficiary Designation Form (Exhibit 7).

4. The entire form appears to have been completed on Brenda Whitman's behalf by the witness, Diane Fields, a former employee of the Massachusetts Commission for the Blind (Exhibit 7).

5. On the Beneficiary Designation Form, Brenda Whitman designated the Second Sight Dog Foundation of Smithtown, New York (a.k.a. Guide Dog Foundation for the Blind, Inc.) as the sole designated beneficiary nominated to receive any sum becoming payable pursuant to the provisions of G.L. c. 32 §11 (2)(c) (Exhibit 7).

6. The State Board of Retirement received the Enrollment Blank and Beneficiary Form in May of 1977. Ms. Field had mistakenly written September 27, 1977 instead of September 27, 1976 as the date of signing the form (Exhibit 7).

7. On February 14, 1981 Brenda Pippin married Sherman Whitman and took the name Brenda Pippin Whitman. Their daughter Tracy, the current Petitioner, was born on May 15, 1981 (stipulation of the parties).

8. On May 18, 1983 and again on May 28, 1987, Brenda Whitman executed Massachusetts Group Insurance beneficiary designation forms listing her husband as the sole beneficiary of her life insurance (Exhibit 8).

9. In the late 1990's, the Petitioner had a conversation with her mother at which time, Brenda Whitman asked to verify that she had her daughter's correct Social Security number in order to ensure that certain documentation was in order (testimony of the Petitioner).

10. On November 7, 2001, Brenda and Sherman Whitman executed a Separation Agreement. This Agreement contained the following provision (Article 13): "the Parties hereby release and waive any and all claims each may have made in the pension rights or 401K plan of the other party" (Exhibit 11).

11. A Judgment of Divorce Nisi was issued by the Suffolk County Court on December 21, 2001 pursuant to a divorce complaint filed by Brenda Whitman (Exhibit 11).

12. During the years between 2001 and 2004, the Petitioner cared for her mother. Although Brenda Whitman was fully able to perform her duties at work, she needed assistance with reading her mail and other documents. The Petitioner, as well as other relatives and friends, read for her mother (testimony of the Petitioner).

13. Brenda Whitman died on June 6, 2004. The cause of her death as listed on her death certificate was "hypertensive heart disease" (Exhibit 5).

14. On October 11, 2004, Sherman Whitman, by notarized affirmation, relinquished all rights to any death benefits due him as the named beneficiary on the Group Insurance life insurance policies on Brenda Whitman. In that same document, he assigned his rights to any death benefits arising under these policies to his daughter, Tracy Whitman (Exhibit 6).

15. By letter dated January 9, 2006, counsel for the Petitioner inquired as to the existence of any accumulated retirement benefits remaining in the state retirement account of Brenda Whitman (Exhibit 4).

16. On October 27, 2006, the State Board of Retirement notified counsel for the Petitioner that his client had no claim for survivor based benefits as the Guide Dog Foundation had been designated by Brenda Whitman as the sole beneficiary on her Enrollment Blank and Beneficiary Designation Form (stipulation of the parties).

17. On November 7, 2006, the Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board (Exhibit 2).

CONCLUSION

The decision of the State Board of Retirement is affirmed. The Guide Dog Foundation is entitled to receive all of the survivor based benefits payable from the State Board of Retirement account of Brenda Whitman.

G. L. c. 32, §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, and from time to time change, one or more beneficiaries to receive… any sum becoming payable under the provisions of this subsection, upon his death ...

G.L. c. 32 §11 (2)(a) provides in pertinent part:

Upon receipt by the board of proper proof of the death of any member before the date any retirement allowance becomes effective for him…the amount of any accumulated total deductions credited to his account…shall…be paid in one sum to his surviving beneficiary or beneficiaries entitled thereto…

On September 27, 1976, Brenda Whitman, then Brenda Pippin, properly executed an Enrollment and Beneficiary Designation form prescribed by the State Board of Retirement. The form was signed by Brenda Whitman and witnessed by a co-employee, Denise Fields. On this form, Brenda Whitman designated Second Sight Dog Foundation of Smithtown, New York (a.k.a. Guide Dog Foundation for the Blind, Inc.) as the sole designated beneficiary nominated to receive any sum becoming payable pursuant to the provisions of G.L. c. 32 §11 (2)(c) Although Brenda Whitman had the right to change this beneficiary designation by filing a new form with the State Board of Retirement at any time, she did not do so, even after her divorce from Stuart Whitman in December of 2001. Brenda Whitman did however, change her Massachusetts Group Insurance Commission beneficiary designation form on at least two occasions, once in 1983 and again in 1990. Thus, Brenda Whitman was aware of the fact that she had the right to change beneficiary designation forms. Moreover, the Petitioner testified that on one occasion in the late 1990's, Brenda Whitman asked her daughter to verify her correct social security number in order that she (Brenda Whitman) could ensure that certain documents were in order.

The Petitioner argues that as Brenda Whitman's sole heir, she is the rightful recipient of the survivor based retirement funds. The Petitioner further argues that the Enrollment and Beneficiary Designation form executed by Brenda Whitman in 1976 was invalid in that there was an error in the date. The witness to the form, Denise Fields, who completed it at Brenda Whitman's direction mistakenly dated the document as September 27, 1977 instead of September 27, 1976. Despite the Petitioner's contention, I conclude that this error was completely de minimis and has no effect on the validity of the document itself.

The Petitioner also maintains that since the definition of beneficiary does not include a charity, the Guide Dog Foundation is not entitled to receive Brenda Whitman's survivor based retirement benefits. In support of its assertion, the Petitioner notes that G.L. c. 32 §1 defines beneficiary as "any person entitled to present or potential benefit on account of membership of a person other than himself, under the provisions of section one to twenty-eight inclusive." According to the Petitioner, since the Guide Dog Foundation is a charity, not a person, it is not entitled to receive Brenda Whitman's retirement survivor based benefits. Notwithstanding the Petitioner's argument, G.L. c. 32 §1 does not define the word "person." The definition of person is contained in G.L. c. 4 §7. G.L. c. 4 §7 states that the term "'person' shall include corporations, societies, associations and partnerships" (emphasis supplied).

The Petitioner further argues that G.L. c. 32 §11 (2) provides that prior to making payment to the surviving beneficiary, the retirement board shall provide to the IV-D agency (Child Support Enforcement Division of the Department of Revenue), the name, date or birth, address, and social security of each beneficiary. Thus, the Petitioner stresses that a charity cannot be a beneficiary as it cannot provide this requisite information. However, the language relating to the personnel data is included in G.L. c. 32 §11(2) in order to assist the Commonwealth of Massachusetts in protecting dependent children. G.L. c. 119A §1 provides in pertinent part that:
It is the public policy of the commonwealth that dependent children shall be maintained, as completely as possible, from the resources of their parents, thereby relieving or avoiding, at least in part, the burden borne by the citizens of the commonwealth.

The language within G.L. c. 32 §11(2) does not prohibit the designation of a charity as a beneficiary. Rather, the intent of the Massachusetts State Legislature in enacting the provision relating to personnel data was to provide the IV-D agency with proper identifying information in order to determine if an individual who is a named beneficiary of survivor based retirement benefits has any outstanding dependent child obligations.
In addition, despite the Petitioner's contention to the contrary, the Massachusetts State Legislature never intended that charitable or non-profit organizations be excluded from the definition of beneficiary for retirement purposes.

The Petitioner also maintains that Brenda Whitman's marriage to Sherman Whitman should have resulted in the revocation of her prior designation of the Guide Dog Foundation as her retirement beneficiary since spousal rights supersede the beneficiary designation. This argument may have had some merit had Brenda Whitman remained married to Sherman Whitman at the time of her death. However, Brenda Whitman's divorce from Sherman Whitman was final in 2001, some three prior to her death in 2004. Thus, any spousal rights which may have superseded the beneficiary designation no longer existed. Moreover, there is no provision in Chapter 32 that provides that a subsequent marriage automatically renders an existing beneficiary nomination invalid.

Finally, the Petitioner argues that she, as the sole heir and child of Brenda Whitman, is entitled to the same rights and protections afforded omitted children pursuant to G.L. c. 191 §20. That provision provides that:

If a testator omits to provide in his will for any of his children, whether born before or after the testator's death, or for the issue of a deceased child, whether born before or after the testator's death, they shall take the same share of his estate which they would have taken if he had died intestate, unless they have been provided for by the testator in his life time or unless it appears that the omission was intentional and not occasioned by accident or mistake.

In the present case, Brenda Whitman died intestate and the Petitioner was appointed administratrix of her estate. The Petitioner was the sole heir and inherited whatever assets Brenda Whitman left as a result of dying intestate. The provisions of G.L. c. 191 §20 are not applicable in this case as Brenda Whitman did not make a will and further, no reference is made in that statute relating to survivor based retirement benefits. There is simply no evidence in this case to suggest that the Beneficiary Enrollment and Designation Form designating the Guide Dog Foundation does not reflect the wishes of Brenda Whitman. Nor was any evidence presented to demonstrate that Brenda Whitman was mentally incapacitated or otherwise confused at the time she completed this form designating the Guide Dog Foundation as her beneficiary.

In light of the foregoing, I conclude that the designation by Brenda Whitman of the Guide Dog Foundation as beneficiary of her survivor based retirement benefits must be upheld. Although I realize that this result is harsh for the Petitioner, nonetheless, section 11 (2)(a) of Chapter 32 requires that the State Board of Retirement distribute Brenda Whitman's survivor based retirement benefits to her named beneficiary, the Guide Dog Foundation for the Blind in accordance with the provisions of G. L. c. 32 s. 11(c). The decision of the State Board of Retirement denying survivor based retirement benefits to the Petitioner is hereby affirmed.


SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink, Esq.
Administrative Magistrate

Dated: 12/31/07


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