WEBVTT 2 00:00:10.154 --> 00:00:21.812 REQUIREMENT SYSTEM. (APPEARANCES TENDERED.) 3 00:00:21.812 --> 00:00:27.790 CHIEF JUSTICE RABNER: GOOD MORNING, COUNSEL, AND WELCOME. MR. 4 00:00:27.790 --> 00:00:53.259 CAROSIA, PLEASE. ERIC A. CAROSIA: GOOD MORNING, AND MAY IT 5 00:00:53.259 --> 00:00:57.587 PLEASE THE COURT. WE ARE HERE TODAY BECAUSE THE ESTATE SEEKS THIS 6 00:00:57.587 --> 00:01:02.333 COURT'S INTERVENTION IN THE INTEREST OF JUSTICE TO CORRECT THE REPEATED ERRORS 7 00:01:02.333 --> 00:01:09.063 WHICH IMPROPERLY DIVESTED THE DECEDENT, KEITH ISAAC AND HIS ESTATE OF THEIR 8 00:01:09.063 --> 00:01:18.242 OWNERSHIP INTERESTS IN 208,950,000 IN RETROACTIVE PENSION BENEFITS. 9 00:01:18.242 --> 00:01:24.449 THESE FUNDS DUE, BUT NOT PAID TO THE DECEDENT AT THE TIME OF MR. ISAAC'S DEATH 10 00:01:24.449 --> 00:01:29.857 WERE UNEQUIVOCALLY INVESTED IN MR. ISAAC BEFORE HE PASSED AWAY. THE RECORD 11 00:01:29.857 --> 00:01:36.191 IS CLEAR ON THIS. THE BOARD CONFIRM HIS TITLE MENT AND INVESTMENT IN THESE FUNSDZ 12 00:01:36.191 --> 00:01:41.276 42 DAYS BEFORE HE DIED AND STIPULATED THROUGH COUNSEL THAT HE HELD A VESTED 13 00:01:41.276 --> 00:01:45.301 INTEREST IN THESE FUNDS. DESPITE THIS, SUBSEQUENT TO THE DECEDENT'S 14 00:01:45.301 --> 00:01:51.584 DEATH THE BOARD DIVERTED THE FUNDS TO HISSES STRANGED SPOUSE INSTEAD OF 15 00:01:51.584 --> 00:01:56.483 HIS ESTATE. UNPAID PENSION BENEFITS. THE LAW, 16 00:01:56.483 --> 00:02:02.181 IS UNAMBIGUOUS, THE LEGISLATURE CON L CONSISTENT WITH THE LAWS OF VESTED PROPERTY 17 00:02:02.181 --> 00:02:10.517 RIGHTS AT N.J.S.A. 4316 A 12.2 RESERVED TO A RETIREMENT EXCLUSIVE CONTROL 18 00:02:10.517 --> 00:02:16.611 OVER THE DISPOSITION OF UNPAID PENSION BENEFITS DUE THEM ALLOWING THEM TO DESIGNATE 19 00:02:16.611 --> 00:02:21.210 A BENEFICIARY FOR SUCH FUNDS. THE LEGISLATURE PLACED NO RESTRICTION 20 00:02:21.210 --> 00:02:29.226 ON WHO A RETIREMENT COULD NAME AS A BEN FISH FOR THESE FUNDS. 21 00:02:29.226 --> 00:02:35.066 ADDITIONALLY AND CRITICALLY, THE LEGISLATURE DID NOT REQUIRE AN AFFIRMATIVE BENEFICIARY 22 00:02:35.066 --> 00:02:39.912 DESIGNATION FOR THE RETIRE RANT IN ORDER FOR THE RETIRE RANT TO CONTROL 23 00:02:39.912 --> 00:02:45.681 THE DISPOSITION OF SUMP FUNDS. RATHER, IT ANTICIPATED, IT ANTICIPATED, 24 00:02:45.681 --> 00:02:51.365 CONTEMPLATED THAT THE RETIRE RANT MAY NOT FILE ANY SUCH BENEFICIARY DESIGNATION 25 00:02:51.365 --> 00:02:57.438 AND IT CLEARLY AND UNAMBIGUOUSLY MANDATED IN SUCH A CASE WHERE THERE IS NO BENEFICIARY 26 00:02:57.438 --> 00:03:02.802 DESIGNATION THE UNPAID PENSION BENEFITS SHALL BE PAID TO THE ESTATE. 27 00:03:02.802 --> 00:03:05.846 THIS IS CONSISTENT WITH THE LAWS OF VESTING AND HIS PROPERTY OWNERSHIP 28 00:03:05.846 --> 00:03:09.892 RIGHTS. AS RECOGNIZED BY THE APPELLATE DIVISION, MR. ISAAC 29 00:03:09.892 --> 00:03:15.646 NEVER DESIGNATED HIS ESTRANGED SPOUSE OR ANYONE ELSE AS A BENEFICIARY OF HIS UNPAID 30 00:03:15.646 --> 00:03:20.467 PENSION BENEFITS. HIS RETIREMENT APPLICATION COMPLETED THREE 31 00:03:20.467 --> 00:03:24.611 YEARS BEFORE HE BECAME ENTITLED TO THESE FUNDS DID NOT EVEN ALLOW FOR SUCH 32 00:03:24.611 --> 00:03:29.438 A DESIGNATION BY ITS DESIGN AND AS THE BOARD HAS ACKNOWLEDGED IN SWORN STATEMENTS. 33 00:03:29.438 --> 00:03:34.693 SPECIFICALLY, I WILL REFER THIS COURT TO P A 86, THE BOARD'S 34 00:03:34.693 --> 00:03:40.220 RESPONSE TO REQUESTS FOR ADMISSION NO. 11 WHERE THEY EXPLAINED MR. ISAAC DID NOT 35 00:03:40.220 --> 00:03:46.068 HAVE AN OPTION TO DESIGNATE ANYONE OTHER THAN MRS. ISAAC AS A BENEFICIARY 36 00:03:46.068 --> 00:03:54.875 OF UNPAID REQUIREMENT BENEFITS N.J.S.A. 4316 A 121, THE BOARD DOES NOT RECOGNIZE 37 00:03:54.875 --> 00:03:59.972 A SPLIT BETWEEN DIFFERENT TYPES OF BENEFITS, EXAMPLE, PENSION BENEFITS 38 00:03:59.972 --> 00:04:05.078 AND RETRO FUNDS, ADDITIONALLY THE APPELLATE DIVISION RECOGNIZED AT PAGE 9 OF 39 00:04:05.078 --> 00:04:09.007 IELTHS OPINION AS EXPLAINED BY THE BOARD'S COUNSEL IN ITS CERTIFICATION TO THIS 40 00:04:09.007 --> 00:04:13.031 COURTED THE MATERIALS SHOW THAT UNLIKE MEMBERS OF SOME OTHER PENSION SYSTEMS, 41 00:04:13.031 --> 00:04:19.159 PFRS MEMBERS DO NOT HAVE AN OPTION TO DESIGNATE A BENEFICIARY AT THE RECEIPT OF 42 00:04:19.159 --> 00:04:23.831 UNCASHED PENSION CHECKS AS OF THE DEATH OF THE MEMBER IN THE APPLICATIONS 43 00:04:23.831 --> 00:04:27.997 FOR REQUIREMENT. THIS IS DIRECTLY CONTRADICTORY TO THE PLAIN 44 00:04:27.997 --> 00:04:35.516 MANDATE OF THE LEGISLATURE AT SECTION 12.12 GRANTING THE RETIRE RANT BROAD RIGHTS 45 00:04:35.516 --> 00:04:40.918 TO DISPOSE OF THE PROPERTY AS HE OR SHE PLEASE ES AN CONSISTENT WITH THE DECEDENT'S 46 00:04:40.918 --> 00:04:46.738 VESTED PROPERTY AN OWNERSHIP RIGHTS. IT ALSO CONFIRMS IN THIS 47 00:04:46.738 --> 00:04:52.900 CASE, THE DECEDENT COULD NOT HAVE DESIGNATED A BENEFICIARY FOR HIS UNPAID 48 00:04:52.900 --> 00:04:56.380 PENSION BENEFITS ON THAT FORM. HE COULD NOT HAVE DONE IT. ACCORDING 49 00:04:56.380 --> 00:05:01.768 LY, AS A MATTER OF LAW, THE RETRO FUNDS SHOULD HAVE BEEN PAID TO THE ESTATE. 50 00:05:01.768 --> 00:05:06.826 NEVERTHELESS, IN THE FACE OF THE ESTATE'S CHALLENGE THE BOARD HAS 51 00:05:06.826 --> 00:05:11.881 ATTEMPTED TO JUSTIFY ITS MISTAKE THROUGH INCONSISTENT REASONING AN STATUTORY 52 00:05:11.881 --> 00:05:15.863 MISINTERPRETATION. WHILE THE APPELLATE DIVISION CORRECTLY OBSERVED 53 00:05:15.863 --> 00:05:24.925 THE BOARD'S REASONING WAS GLAUD FLAWED IT UNDULY PREJUDICED THE ESTATE WHEN IT 54 00:05:24.925 --> 00:05:29.925 SIMILARLY IGNORED THE LEGISLATURE'S MANDATE THAT IN SUCH A SITUATION THOSE 55 00:05:29.925 --> 00:05:34.056 FUNDS ARE TO BE PAID THE ESTATE AS A MATTER OF LAW AND, INSTEAD REMANDED THE MATTER 56 00:05:34.056 --> 00:05:39.254 TO THE ADMINISTRATIVE LAW JUDGE TO CONDUCT AN EVIDENTIARY HEARING ON THE 57 00:05:39.254 --> 00:05:43.691 DECEDENT'S PROBABLE INTENT. THE SPECIFIC MANDATES WAS AS TO WHETHER 58 00:05:43.691 --> 00:05:48.551 THE DECEDENT'S LIKELY WOULD HAVE INTENDED HIS IDENTIFICATION OF HISSES STRANGED 59 00:05:48.551 --> 00:05:54.204 SPOUSE ON THE RETIREMENT FORM TO CONVEY A DESIRE THAT SHE RECEIVE ANY UNPAID PENSION 60 00:05:54.204 --> 00:05:58.987 FUNDS DUE HIM UPON HIS DEATH. THIS EXERCISE IS IRRELEVANT AND 61 00:05:58.987 --> 00:06:04.686 IMPROPERLY SPECULATIVE FOR MULTIPLE REASONS. THUS, THE LEGISLATURE DID 62 00:06:04.686 --> 00:06:09.333 NOT REQUIRE RETIRE RANT TO MAKE A BENEFICIARY DESIGNATION WITH RESPECT TO UNPAID 63 00:06:09.333 --> 00:06:14.910 PENSION BENEFITS. THE BOARD DID NOT ALLOW FOR THE RETIRE RANT TO DESIGNATE A 64 00:06:14.910 --> 00:06:21.159 DISH ON THE FORM. THE DECEDENT HAD NO PREDICATE INTENT AT THE 65 00:06:21.159 --> 00:06:26.569 TIME HE FILLED OUT THE FORM 12 YEARS AGO AND THREE YEARS BEFORE HE BECAME ENTITLED 66 00:06:26.569 --> 00:06:30.454 TO THESE FUNDS. THE APPLICATION ON ITS FACE BY ITS DESIGN 67 00:06:30.454 --> 00:06:34.449 DID NOT PROVIDE NOTICE TO THE APPLICANT THAT IT WOULD OPERATE IN ANY WAY AS A 68 00:06:34.449 --> 00:06:38.727 BENEFICIARY DESIGNATION FOR SUCH VESTED FUNDS. NO PARTY IN THIS 69 00:06:38.727 --> 00:06:45.081 CASE IS CLAIMING THAT THE DOOEPT HAD AN INTENTION TO DESIGNATE A BENEFICIARY FOR 70 00:06:45.081 --> 00:06:50.421 HIS UNPAID PENSION BENEFITS ON HIS RETIREMENT APPLICATION FORM. 71 00:06:50.421 --> 00:06:54.888 MOST IMPORTANTLY, WE KNOW THE DECEDENT'S ACTUAL INTENTIONS. WE DON'T 72 00:06:54.888 --> 00:06:59.420 NEED TO DIVINE HIS PROBABLE INTENTIONS BECAUSE AS THE COURT AND THE PARTIES ARE 73 00:06:59.420 --> 00:07:03.439 AWARE, BETWEEN THE PERIOD WHEN THE DECEDENT WAS NOTIFIED THAT HE WAS 74 00:07:03.439 --> 00:07:11.438 GOING TO RECEIVE THESE RETRO FUNDS AND HIS DEATH, HE CREATED A LAST WILL AND TESTAMENT. 75 00:07:11.438 --> 00:07:16.611 IT WAS 33 DAYS AFTER THE BOARD MADE A DECISION THAT THE FUNLDZ WERE VESTED 76 00:07:16.611 --> 00:07:24.232 IN HIM AND SADLY ONLY 6 DAYINGS BEFORE HIS DEATH AND HE DIDN'T INCLUDE HIS FISH 77 00:07:24.232 --> 00:07:29.085 IN THAT WILL. PUT SIMPLY THERE IS NO NEXUS BETWEEN THE 78 00:07:29.085 --> 00:07:32.503 DECEDENT'S'S INTENT WITH RESPECT TO THE DISPOSITION OF HIS UNPAID PENSION 79 00:07:32.503 --> 00:07:35.575 BENEFITS AND THE RETIREMENT APPLICATION FORM. TO ENDEAVOR TO 80 00:07:35.575 --> 00:07:39.417 DESIGN THE DOOEPT'S PROBABLE INTENT IN SUCH A CIRCUMSTANCE AND WITH RESPECT TO 81 00:07:39.417 --> 00:07:44.631 SUCH A DOCUMENT, AN ADMINISTRATIVE FORM NOT CONTROLLED BY THE DECEDENT IN 82 00:07:44.631 --> 00:07:49.373 ANY WAY, NOT INFORMED BY THE DECEDENT WOULD GO WELL BEYOND THE JUDICIALLY PRESCRIBED 83 00:07:49.373 --> 00:07:53.645 LIMITATIONS OF THE DOCTRINE OF PROBABLE INTENT. IF THE FORM 84 00:07:53.645 --> 00:07:58.464 IS ALLOWED IN ANY WAY TO GOVERN THE DISPOSITION OF THE DECEDENT'S UNPAID PENSION 85 00:07:58.464 --> 00:08:04.866 BENEFITS, IT'S AN IMPROPER USE OF HIS VESTED PROPERTY RIGHTS AND THE RIGHT 86 00:08:04.866 --> 00:08:11.084 TO DISPOSE OF HIS PROPERTY BY HIS WILL AND IN THE MANNER CONTEMPLATED BY THE LEGISLATURE 87 00:08:11.084 --> 00:08:17.702 AS SET FORTH UNAMBIGUOUSLY AT # 12.2 AND 12.3. IT SUBSTITUTES 88 00:08:17.702 --> 00:08:23.826 UNCERTAINTY WITH SPECULATIVE INQUIRY. IT SUBSTITUTES UNCERTAINTY 89 00:08:23.826 --> 00:08:30.345 AND SPECULATIVE INQUIRY FOR OPPORTUNITY AMBIGUOUS MANDATE OF THE LEGISLATURE. 90 00:08:30.345 --> 00:08:31.968 JUSTICE WAINER APTER: COUNSEL, YOU MENTIONED THE DECEDENT'S 91 00:08:31.968 --> 00:08:37.338 WILL WAS THAT PART OF THE RECORD BEFORE THE BOARD OR THE OAL OR THE APARTMENT 92 00:08:37.338 --> 00:08:41.647 APRIL D- DANIEL S. ROCKOFF: IT WAS IN. 93 00:08:41.647 --> 00:08:44.751 ERIC A. CAROSIA: IT WAS IN TERMS IT WAS SUBMITTED AS A MOTION FOR RECONSIDERATION. 94 00:08:44.751 --> 00:08:48.943 IN TERMINATION OF IT BEING PART OF THE FORMAL RECORD, IT WAS 95 00:08:48.943 --> 00:08:54.774 -- THE BOARD DID HAVE IT. IT WAS DISCUSSED. THIS CASE EVOLVED INTERESTINGLY 96 00:08:54.774 --> 00:08:59.991 IN THAT NO DISCOVERY WAS PROPOUNDED UPON US. DISCOVERY WAS PROU POUNLDED 97 00:08:59.991 --> 00:09:04.702 UPON THEM. IT WASN'T PRODUCED BY THEM IN DISCOVERY. HOWEVER, IT WAS PROBATED. 98 00:09:04.702 --> 00:09:11.100 IT IS A MATTER OF PUBLIC RECORD. IT WAS JOINTLY STIP LAID TO. SO THEY REVUTD 99 00:09:11.100 --> 00:09:15.508 IT. IT WAS REFLECTED IN THE JOINT STIPULATION. CHIEF JUSTICE RABNER: IS 100 00:09:15.508 --> 00:09:20.309 THERE ANY NEED TO LOOK AT THE WILL IF YOUR ARGUMENT UNDERSTAND 12.3 IS CORRECT? 101 00:09:20.309 --> 00:09:25.230 KAVR KAVR NO, YOUR HONOR. ERIC A. CAROSIA: NO, YOUR HONOR. 102 00:09:25.230 --> 00:09:28.746 I WILL CONTINUE WITH MY ARGUE. KOORDINGLY AFTER 7 YEARS OF 103 00:09:28.746 --> 00:09:32.656 UNWARRANTS DELAY THE STATE RESPECTFULLY REQUESTS THAT THE COURT AFFIRM MR. 104 00:09:32.656 --> 00:09:38.709 ISAAC'S PROPERTY RIGHTS, DIRECT THE PAYMENT OF $208,950 TO HIS ESTATE AND REJECT 105 00:09:38.709 --> 00:09:43.611 TIM PROPER REMAND FOR A PROBABLE INTENT INQUIRY. THIS COURT'S INTERVENTION IS 106 00:09:43.611 --> 00:09:49.737 NECESSARY TO BRING LONG OVERDUE FINAL TEE TO THIS MATTER. 107 00:09:49.737 --> 00:09:51.021 CHIEF JUSTICE RABNER: QUESTIONS ANYONE. JUSTICE HOFFMAN: I HAVE 108 00:09:51.021 --> 00:09:54.677 ONE QUESTION R QUICK QUESTION. COUNSELOR, UNDERSTAND 12.2, 109 00:09:54.677 --> 00:10:04.344 UNDERSTAND 12.2, HOW SACK EXACTLILY WAS MR. ISAAC SUPPOSED TO NOTIFY THE BOARD 110 00:10:04.344 --> 00:10:09.317 THAT HE HAD A CERTAIN INTENTION WITH REGARD TO THE RETRO FUNDS? 111 00:10:09.317 --> 00:10:14.022 I KNOW THAT THERE IS A PROCEDURE THAT THE STATUTE LAYS OUT. IT DOESN'T APPEAR THAT 112 00:10:14.022 --> 00:10:20.071 THAT PROCEDURE APPEARS ON THE FORM. CLOP UNDER CLOP. 113 00:10:20.071 --> 00:10:23.603 WHAT WAS MR. ISAAC SUPPOSED TO DO IF HE WANTED TO NOTIFY THE BOARD ABOUT THE 114 00:10:23.603 --> 00:10:27.338 DISPOSITION OF RETRO FUNDS. ERIC A. CAROSIA: JUSTICE HOFFMAN, 115 00:10:27.338 --> 00:10:33.228 THAT WOULD BE SPECULATION ON MY PART. I AM NOT AWARE OF ANY PROCEDURE THE 116 00:10:33.228 --> 00:10:37.999 BOARD HAD AND I THINK IT WAS BASED ON THEIR FUNDAMENTAL MISUNDERSTANDING THAT HE 117 00:10:37.999 --> 00:10:42.272 DIDN'T HAVE THE ABILITY TO DESIGNATE A BENEFICIARY; THAT'S WHAT THEY HAVE 118 00:10:42.272 --> 00:10:47.388 SAID REPEATEDLY. BUT THAT IS INCORRECT. WHAT HE WAS SUPPOSED TO DO 119 00:10:47.388 --> 00:10:52.184 ACCORDING TO THE STATUTE IS FILE A BENEFICIARY DESIGNATION FOR THOSE 120 00:10:52.184 --> 00:10:57.371 FUNDS WITH THE BOARD. THERE WAS NO SUCH BENEFICIARY REFORM, BUT THE 121 00:10:57.371 --> 00:11:03.174 LEGISLATURE ANTICIPATED THAT CONTINGENCY AND PROVIDED THAT IN THAT EVENT, CONTINUE 122 00:11:03.174 --> 00:11:08.600 TECH MRATD THAT IT WOULD HAPPEN, IN THAT EVENT IT GETS PAID TO HIS ESTATE 123 00:11:08.600 --> 00:11:16.062 SO WE HAVE FINAL IT. WE HAVE CERTAINTY. I THINK THE NEED TO FILE OR THE INTENT 124 00:11:16.062 --> 00:11:24.166 TO FILE A BENEFICIARY DESIGNATION IS A BIT OF A -- RESPECTFULLY, A RED HERRING. 125 00:11:24.166 --> 00:11:28.636 IT WAS PLAINLY ERROR FOR THE BOARD TO PAY THE FUNDS TO THE 126 00:11:28.636 --> 00:11:33.892 ES STRANGED SPOUSE. THE ESTATE CHALLENGED THE BOARD'S AK. IN RESPONDING TO THE 127 00:11:33.892 --> 00:11:38.128 BOARD, IT'S ERRONEOUS CONDUCT BY -- IN RESPONDING TO THE BOARD 128 00:11:38.128 --> 00:11:42.914 THE BOARD UNDERSCORED IT'S ERRONEOUS CONDUCT BY OFFERING DIFFERENT AND 129 00:11:42.914 --> 00:11:47.819 INTERNALLY DIFFERENT REASONS FOR IT'S ACTIONS IN AN ATTEMPT TO ACTIVELY JUSTIFY 130 00:11:47.819 --> 00:11:52.090 ITS MISTAKE. FIFRS THE BOARD CLAIMED THAT SINCE MR. ISAAC WAS 131 00:11:52.090 --> 00:11:57.178 APPROVED FOR HIS RETIREMENT AFTER HIS RETIREMENT DATE AN AFTER HIS PASSING ROXANNE 132 00:11:57.178 --> 00:12:01.912 ANN ISAAC WAS ENTITLED TO AND RECEIVED ALL OF THE RETRO MONEY THAT WOULD HAVE 133 00:12:01.912 --> 00:12:08.147 BEEN PAID TO THE DECEDENT; THAT'S FACTUALLY INCORRECT. HE WAS APPROVED PRIOR 134 00:12:08.147 --> 00:12:15.136 TO HIS DEATH AND THE FUNDS VESZED IN HIM PRIOR IN HIS LIFETIME PER 'HANDBOOK THAT WAS 135 00:12:15.136 --> 00:12:21.030 A FACTUALLY INCORRECT STATEMENT AND EVEN IT WASN'T FACTUALLY INCORRECT THERE IS 136 00:12:21.030 --> 00:12:26.022 NO FACTUAL SUPPORT FOR THAT POSITION. SECOND, THE BOARD IN 137 00:12:26.022 --> 00:12:30.807 RESPONDING TO DISCOVERY AS I JUST OUTLINED CLAIMED MR. ISAAC DID NOT HAVE THE 138 00:12:30.807 --> 00:12:35.953 OPTION TO DESIGNATE ANYONE OTHER THAN MS. R MRS. ISAAC AS A BENEFICIARY OF 139 00:12:35.953 --> 00:12:45.777 UNPAID PENSION BENEFITS, THE CITE THEY GAVE IS SECTION 12.1. SEX 12.1 IS IS WIDOW'S 140 00:12:45.777 --> 00:12:51.685 SURVIVOR PENG. IT WENT OO SPLIT. BUT THIS 141 00:12:51.685 --> 00:12:59.496 COURT DID RECOGNIZE THAT SECTION 12.1, THE WIDOW'S PENSION IN THE SACCONE CASE, 142 00:12:59.496 --> 00:13:05.937 THIS COURT HELD A RETIRE RANT HAS NO RIGHT TO DESIGNATE A BENEFICIARY FOR 143 00:13:05.937 --> 00:13:10.367 THAT. IT'S AN AUTOMATIC PENSION THAT GETS PAID TO THE SURVIVOR ON THE DECEDENT'S 144 00:13:10.367 --> 00:13:16.180 DWET. IT'S SEPARATE AND DISTINCT. THEY WERE COME BIENG AND CONFLATING 145 00:13:16.180 --> 00:13:21.044 TWO DIFFERENT -- ONE IS ACTUALLY NOT A BENEFIT THE UNPAID PENSION BENEFITS WERE 146 00:13:21.044 --> 00:13:25.447 FUNDS, MONEY COMPENSATION THAT HE WAS ENTITLED TO, WHEREAS THE SURVIVOR'S 147 00:13:25.447 --> 00:13:31.857 PENSION IS A PROCEED RESPECTIVE CALL IT A DEATH BENEFIT SO THAT WAS LEGALLY AND 148 00:13:31.857 --> 00:13:35.555 FACTUALLY INCORRECT. IT ALSO DIRECTLY CONTRADICTS THE LEGISLATURE 149 00:13:35.555 --> 00:13:41.268 AT 12.2 WHICH GAVE THE DOOEPTS THE UNRESTRICTED ABILITY TO DESIGNATE A 150 00:13:41.268 --> 00:13:45.181 BENEFICIARY. SO BY LIMITING HIS RIGHTS AND LUMPING IT IN WITH 151 00:13:45.181 --> 00:13:49.902 THE SURVIVOR'S PENSION WHAT THEY DID THERE WAS TOOK AWAY A PROPERTY RIGHT THAT 152 00:13:49.902 --> 00:13:53.643 BELONGED TO HIM WHICH THEY HAD NO RIGHT TO DO. THEY DON'T HAVE 153 00:13:53.643 --> 00:13:57.479 THE AUTHORITY. THE BOARD DOESN'T HAVE THE AUTHORITY TO COMBINE THE CATEGORIES 154 00:13:57.479 --> 00:14:08.886 OF ASSETS OR TO IGNORE THE LEGISLATURE'S CLEAR MANDATE. THIRD, 155 00:14:08.886 --> 00:14:14.342 IN ADOPTING THE OAL DECISION, THEY MADE THE ARGUMENT THAT THEIR ACTIONS WERE 156 00:14:14.342 --> 00:14:18.023 REASONABLE AND THAT THEY WERE IN HARMONY OF THE STATUTORY SCHEME, BUT, AGAIN, 157 00:14:18.023 --> 00:14:23.903 REASONABLENESS IS NOT THE STANDARD HERE. WE HAVE UNAMBIGUOUS STATUTES THAT GOVERN 158 00:14:23.903 --> 00:14:27.903 THE DISPOSITION OF THESE FUNDS. IN TERMS OF HARMONY WITH THE 159 00:14:27.903 --> 00:14:31.604 STATUTORY SCHEME, THE LEGISLATURE SAID YOU HAVE THE RIGHT TO GIVE THIS MONEY 160 00:14:31.604 --> 00:14:36.398 TO WHOEVER YOU WANT. YOU CAN DO IT BY BENEFICIARY DESIGNATION OR WITHOUT IT. 161 00:14:36.398 --> 00:14:40.719 IT CAN GO INTO YOUR ESTATE BECAUSE THE ESTATE IS GOVERNED USUALLY BY A WILL 162 00:14:40.719 --> 00:14:45.176 WHICH IS AN AMBULATORY DOCUMENT. THE DECEDENT'S CAN CONTROL THAT DURING HIS LIFETIME 163 00:14:45.176 --> 00:14:49.748 SO THAT WAS ENTIRELY CONSISTENT WITH PROVIDING FIENLT SO THAT WHAT HAPPENED 164 00:14:49.748 --> 00:14:56.766 HERE DOESN'T HAPPEN WHERE SEVEN WE ARE DOWN THE ROAD NOW AND WE'RE DEBATING WHAT 165 00:14:56.766 --> 00:15:01.966 SHOULD HAVE HAPPENED TO THIS MONEY BUT THE LEGISLATURE AT 12.2 TOLD US WHAT 166 00:15:01.966 --> 00:15:06.358 SHOULD HAVE HAPPENED IT SHOULD HAVE WENT TO THE ESTATE. NEFRNS THE 167 00:15:06.358 --> 00:15:11.171 BOARD'S REASONING HAS BEEN FATALLY FLAWED BECAUSE IT COMPLEETLY IGNORES THE DIRECT 168 00:15:11.171 --> 00:15:16.058 MANDATE OF THE LEGISLATURE WHO ALLOWS THE DECEDENT TO NAME ANYONE HE WANTS 169 00:15:16.058 --> 00:15:22.247 FOR UNPAID PENSION BENEFITS AN COMP L CONTEMPLATES IF HE DOES NOT IT SHALL PASS 170 00:15:22.247 --> 00:15:26.272 TO HIS ESTATE. THE APPELLATE DIVISION, RESPECTFULLY 171 00:15:26.272 --> 00:15:30.995 SUBMITTED INCORRECTLY REMAVENDED THIS MATTER FOR A PROBABLE INTENT HEARING. THE 172 00:15:30.995 --> 00:15:34.555 APPELLATE DIVISION CORRECTLY FOUND THAT THE RETIREMENT APPLICATION FORM COULD 173 00:15:34.555 --> 00:15:39.505 NOT FUNCTION AS A BENEFICIARY DESIGNATION FOR THE RETRO FUNDS AND THAT'S AT PAGE 174 00:15:39.505 --> 00:15:43.930 8 WHERE IT HELD THE LIERMENT APPLICATION FORM THAT THE DOOEPT COMPLETED DOES 175 00:15:43.930 --> 00:15:48.857 NOT STATE ANYWHERE THAT THE MEMBER WHO FILLS IT OUT AN WHO, AS REQUESTED, IDENTIFIES 176 00:15:48.857 --> 00:15:53.919 THE MEMBER'S SPOUSE IS DESIGNATING THAT SPOUSE AS THE RECIPIENT OF ANY PENSION 177 00:15:53.919 --> 00:15:58.073 BENEFITS THAT MAY BE UNPAID AT THE TIME OF THE MEMBER'S DEATH. 178 00:15:58.073 --> 00:16:02.148 JUSTICE PATTERSON: IS IT YOUR POSITION THAT WHAT THAT FORM -- WE OBVIOUSLY DON'T 179 00:16:02.148 --> 00:16:06.638 KNOW WHAT WAS IN HIS MINDS, BUT REASONABLY COULD BE INTERPRETED AS SIMPLY ASKING 180 00:16:06.638 --> 00:16:10.424 WHETHER THERE IS A CURRENT SPOUSE AND NOTHING MORE. ERIC A. 181 00:16:10.424 --> 00:16:14.751 CAROSIA: CORRECT, JUSTICE PATTERSON. IT'S ASKING FOR INFORMATION. IT'S DIRECTING 182 00:16:14.751 --> 00:16:19.789 HIM TO PROVIDE THE NAME OF A SINGLE INDIVIDUAL WITHOUT ANY ABILITY TO NAME 183 00:16:19.789 --> 00:16:26.142 ANYBODY ELSE BUT HIS SPOUSE AND THE TITLE OF THAT FORM SAYS, INFORMATION ON IT. 184 00:16:26.142 --> 00:16:31.222 YES. ADDITIONALLY. THE APPELLATE DIVISION EMPHASIZED THE 185 00:16:31.222 --> 00:16:36.152 DOOEPT'S IDENTIFICATION OF HIS SPOUSE'S NAME ON THE FORM SHOULD NOT BE OVER READ 186 00:16:36.152 --> 00:16:40.597 TO SIGNIFY THAT HE WAS CHOOSING HER TO RECEIVE ANY UNPAID PENSION BENEFITS. 187 00:16:40.597 --> 00:16:45.367 INDEED, AS I'VE PREVIOUSLY SAID, IT WAS IMPOSSIBLE FOR THE 188 00:16:45.367 --> 00:16:49.802 RETIREMENT APPLICATION TO FUNCTION AS A BENEFICIARY DESIGNATION FOR UNPAID PENSION 189 00:16:49.802 --> 00:16:54.075 BENEFITS BECAUSE BY ITS DESIGN THE FORM DID NOT PROVIDE FOR ANY SUCH DE 190 00:16:54.075 --> 00:16:57.556 SIGNATION. THE BOARD WAS UNDER THE BELIEF THAT THAT COULDN'T 191 00:16:57.556 --> 00:17:01.929 HAPPEN. TO THAT END THERE IS NO EVIDENCE THAT THE DECEDENT 192 00:17:01.929 --> 00:17:08.587 INTENDED THE RETIREMENT APPLICATION OR MS. ISAAC'S IDENTIFICATION THERE ON FOR 193 00:17:08.587 --> 00:17:13.555 INFORMATIONAL PURPOSES TO SERVE AS A BENEFICIARY DESIGNATION. 194 00:17:13.555 --> 00:17:16.955 HER NAME DOESN'T APPEAR ANYWHERE IN CONNECTION WITH WITH THE TERM BENEFICIARY. 195 00:17:16.955 --> 00:17:21.246 IT'S ONLY UNDERSTAND THAT INFORMATIONAL SECTION. THE USE OF THE 196 00:17:21.246 --> 00:17:27.325 WORD INFORMATION CONFIRMS IT'S NOT AN AFFIRMATIVE ACT. IT IS NOT HAN AFFIRMATIVE 197 00:17:27.325 --> 00:17:32.770 TESTIMONY MENT TAR REACT BUT RATHER INFORMATIONAL IN NATURE. 198 00:17:32.770 --> 00:17:36.149 AS THE APPELLATE DIVISION NOTED THE NAME IS REQUESTED AS PART OF THE DESIGN 199 00:17:36.149 --> 00:17:40.479 OF THE FORM AND ONLY ONE PERSON CAN BE IMPLEMENTED THERE SO TO THE EXTENT THEY 200 00:17:40.479 --> 00:17:44.321 WERE PROMPTING HIM TO PUT THE NAME THERE AND HE COULDN'T SELECT ANYONE ELSE 201 00:17:44.321 --> 00:17:48.907 THAT PROHIBITED HIM FROM EXER SIZING HIS RIGHTS. THERE IS NO 202 00:17:48.907 --> 00:17:54.212 EXPRESS OR IMPLIED OR ANY OTHER REFERENCE TO UNPAID PENSION BENEFITS TO THE DECEDENT 203 00:17:54.212 --> 00:17:58.524 ON THE FORM AND THE FORM DOES NOT INDICATE OR RECITE THAT IT WILL OPERATE 204 00:17:58.524 --> 00:18:03.594 AS A BENEFICIARY DESIGNATION FOR ANYTHING OTHER THAN LIFE INSURANCE BENEFITS WHICH 205 00:18:03.594 --> 00:18:09.527 CLEARLY LAYS OUT THE TERM BENEFICIARY. AND, THERE, MS. ISAAC 206 00:18:09.527 --> 00:18:14.656 DOESN'T APPEAR. AGAIN, THERE IS SIMPLY NO NEXUS BETWEEN THE 207 00:18:14.656 --> 00:18:17.526 RETIREMENT APPLICATION AND THE DECEDENT'S INTENT WITH RESPECT TO THE DISPOSITION 208 00:18:17.526 --> 00:18:22.118 OF HIS RETRO FUNDS THAT BECAME VESTED THREE YEARS LATER. 209 00:18:22.118 --> 00:18:25.085 JUSTICE MICHAEL NORIEGA: DO YOU KNOW IF THERE ANYWHERE IN THE MEMBER GUIDEBOOK 210 00:18:25.085 --> 00:18:28.898 THAT DISCUSSES THE RETRO FUNDS IN ANY WAY? ERIC A. CAROSIA: 211 00:18:28.898 --> 00:18:32.894 TO MY KNOWLEDGE THERE IS NOT. THERE IS THE DISCUSSION OF WHEN FUNDS BECOME DUE 212 00:18:32.894 --> 00:18:40.217 AND PAYABLE, BUT IN THE POLICE AND FIREMEN POLICE HANDBOOK I DO NOT RECALL 213 00:18:40.217 --> 00:18:43.903 A SECTION THAT DISCUSSES THAT. JUSTICE MICHAEL NORIEGA: THERE IS 214 00:18:43.903 --> 00:18:48.158 A SECTION WHERE THEY TALK ABOUT CHOOSING A BENEFICIARY AS TO GROUP LIFE 215 00:18:48.158 --> 00:18:53.857 INSURANCE AN OTHER SECTIONS BUT THERE IS NOTHING RELATED TO THIS AREA. 216 00:18:53.857 --> 00:18:56.755 ERIC A. CAROSIA: YES, SPECIFIC SLEE WHAT I WAS REFERRING TO, I AM NOT AWARE 217 00:18:56.755 --> 00:19:02.216 OF ANYTHING IN THEIR HANDBOOK. IT IS, THEREFORE, INCORRECT 218 00:19:02.216 --> 00:19:07.752 FOR THE APPELLATE DIVISION TO REMANDS THE MATTER, FOR THE ALJ TO MAKE A 219 00:19:07.752 --> 00:19:12.161 FACTUAL DETERMINATION AS TO WHETHER THE DECEDENT LIKELY WOULD HAVE INTENDED HIS 220 00:19:12.161 --> 00:19:17.236 FOIGS OF HISSES STRANGED SPOUSE ON THE RETIREMENT FORM TO CONVEY A DESIRE THAT 221 00:19:17.236 --> 00:19:23.464 SHE RECEIVE ANY UNPAID RETIREMENT FUNDS DUE TO HIM UPON HIS DEATH. 222 00:19:23.464 --> 00:19:29.880 PROBABLE INTENT IS NOT APPROPRIATE HERE. FIRST, THE APPELLATE 223 00:19:29.880 --> 00:19:34.458 DIVISION LIKE THE ALJ AND THE BOARD IS OVERLOOKING THE MANDATE OF THE 224 00:19:34.458 --> 00:19:39.175 LEGISLATURE THAT THESE FUNDS AS A MATTER OF LAW BELONG TO THE ESTATE, THAT NO 225 00:19:39.175 --> 00:19:43.962 BENEFICIARY DESIGNATION IS REQUIRED AND SO WE DON'T NEED -- JUSTICE 226 00:19:43.962 --> 00:19:48.652 WAINER APTER: HAS IT EVER BEEN APPLIED TO A REQUIREMENT APPLICATION FORM GOVERNED 227 00:19:48.652 --> 00:19:53.638 BY STATUTORY L STATUTE. ERIC A. CAROSIA: NOT TO MY KNOWLEDGE. 228 00:19:53.638 --> 00:19:58.913 SO THERE IS NO NEED TO INVENT A BENEFICIARY DESIGNATION HERE. 229 00:19:58.913 --> 00:20:03.724 THE LEGISLATURE TOLD US THAT. THERE IS THE DOOEPT'S WILL. THERE IS HIS ESTATE. 230 00:20:03.724 --> 00:20:08.715 IT CAN BE PAID TO HIS ESTATE. THIS RESULT IS LOGICAL AN EQUITABLE BECAUSE 231 00:20:08.715 --> 00:20:12.945 IT'S CONSISTENT WITH THE LAWS OF VESTING. IT ALLOWS THE DECEDENT TO CONTROL THE 232 00:20:12.945 --> 00:20:18.143 DISPOSITION OF HIS FUNDS THROUGH HIS ROLE OVER THE COURSE OF A LIFETIME. 233 00:20:18.143 --> 00:20:22.314 IF WE HAVE A HEARING AND IT'S DETERMINED, WOOEFR A PROBABLE INTENT HEARING 234 00:20:22.314 --> 00:20:26.244 AND IT'S DETERMINED THAT HIS SPOUSE WAS NOT INTENDED AS THE BENEFICIARY, WHICH 235 00:20:26.244 --> 00:20:30.948 ASPECT FLEE SUBMITTED WOULD BE THE RESULT, THEN WHAT HAPPENS? WHO 236 00:20:30.948 --> 00:20:36.562 IS THE BENEFICIARY? WHAT DO WE DO? WHAT EVIDENCE 237 00:20:36.562 --> 00:20:40.815 IS SUBMITTED? WHO DO WE TESTIFY TO? THE ANSWER 238 00:20:40.815 --> 00:20:47.719 IS HIS ESTATE. THIS IS NOT UNCOMMON. THESE ARE HOW PRIVATE PENSIONS FUNCTION 239 00:20:47.719 --> 00:20:52.545 AND POLICY DOCUMENTS FOR CLARITY. IF NO BENEFICIARY IS DESIGNATED 240 00:20:52.545 --> 00:20:57.343 THEN TO IS THE THE ESTATE. IF YOU DIDN'T DESIGNATE A BENEFICIARY, STRICT 241 00:20:57.343 --> 00:21:01.130 COMPLIANCE, IT GOES TO THE ESTATE. RATHER THAN HAVE A HEARING, THE 242 00:21:01.130 --> 00:21:05.539 LEGISLATURE TOLD US HOW TO FIGURE THIS OUT AN TOLD US WHO THE BISHS ARE. 243 00:21:05.539 --> 00:21:09.338 WE LOOK TO THE WILL. THE REMANDS RUNS CONTRARY TO THE ESTABLISHED 244 00:21:09.338 --> 00:21:13.862 BODY OF LAW AN PROBABLE INTENT. WHILE THE PROBABLE INTENT DOCTRINE IS A 245 00:21:13.862 --> 00:21:18.892 BROADED DOCTRINE IT HAS LIMITS THAT HAVE BEEN SQUINTLY ENFORCE TD BY THIS COURT 246 00:21:18.892 --> 00:21:22.595 BY THE APPELLATE COURTS AND BY THE TRIAL COURTS, INCLUDING THAT IT CANNOT 247 00:21:22.595 --> 00:21:29.131 BE USED TO CREATE DISPOSITIVE PROVISIONS OUT OF WHOLE CLOTH OR TO MAKE UP INTENTIONS 248 00:21:29.131 --> 00:21:32.790 FOR WHICH THERE IS NO SUPPORT. HERE THEY HAVE ESSENTIALLY ASKED 249 00:21:32.790 --> 00:21:37.125 THE COURT TO ENGAGE IN LAYERS OF SPECULATION THAT A ROUTINE 250 00:21:37.125 --> 00:21:41.505 ADMINISTRATIVE ACT THAT HAPPENED TWELVE YEARS AGO AND POTENTIALLY INVENT A FACT 251 00:21:41.505 --> 00:21:46.203 OR AN ACT FOR WHICH THERE IS NO PREDICATE FACT OR ACT, THERE IS NO INDICIA THAT 252 00:21:46.203 --> 00:21:50.565 THE DECEDENT HAD ANY SORT OF INTENT, PROBABLE OR OTHERWISE TO NAME ANYONE 253 00:21:50.565 --> 00:21:56.170 AS A BENEFICIARY FOR UNPAID PENSION BENEFITS ON THE FORM. 254 00:21:56.170 --> 00:22:00.236 ASBESTOS I'VE SAID BY IT'S DESIGN, HE COULDN'T HAVE. THE 255 00:22:00.236 --> 00:22:04.946 DOCTRINE OF PROBABLE INTENT HAS NOT BEEN EXPANDED TO RETIREMENT APPLICATION FORMS. 256 00:22:04.946 --> 00:22:09.231 UNLIKE A WILL, WHICH IS DRAFTED AT THE REQUEST OF A DECEDENT'S 257 00:22:09.231 --> 00:22:14.816 AND INTENDED TO EMBODY HIS INTENTIONS, THIS IS AN ADMINISTRATIVE FORM. IT'S NOT 258 00:22:14.816 --> 00:22:18.915 LANGUAGE EMPLOYED BY THE DECEDENT. OOIRTS EASE DESIGNED BY AN ADMINISTRATIVE 259 00:22:18.915 --> 00:22:23.600 AGENCY. THE DECEDENT COULD NOT HAVE ANTICIPATED IT WOULD SERVE TO COVER THE 260 00:22:23.600 --> 00:22:27.027 DISPOSITION OF HIS ASSETS. IN FACT, WE HAVE TWO DIFFERENT STATUTES 261 00:22:27.027 --> 00:22:33.421 HERE. THERE ARE STATUTES THAT CODIFY THE PROBABLE INTENT DOCTRINE. THEY ARE 262 00:22:33.421 --> 00:22:38.373 IN THE PROBING CODE. HERE THE LEGISLATURE COULD HAVE PROVIDED FOR A PROBABLE 263 00:22:38.373 --> 00:22:42.501 INTENT ANALYSIS. IT DIDN'T, PROVIDED FOR CLARITY AND SAID IT GOES TO THE 264 00:22:42.501 --> 00:22:48.973 ESTATE. AND, AS I'VE SAID, WE ALSO KNOW THE DECEDENT'S ACTUAL 265 00:22:48.973 --> 00:22:54.597 INTENTIONS. WE DON'T HAVE TO GO THROUGH THE COSTLY AND TIME CONSUMING IMPRECISE 266 00:22:54.597 --> 00:22:59.639 EXERCISE OF DIVINING HIS PROBABLE INTENT HAD HE BEEN ASKED THE QUESTION. 267 00:22:59.639 --> 00:23:03.717 33 AFTER THE BOARD DETERMINED THE DOOEPT WAS TIELTS TO THE 268 00:23:03.717 --> 00:23:09.703 RETRO FUNDS HE MADE HIS WILL. IT'S BEEN DULY PROBATED. HE DIED AND THERE IS NO 269 00:23:09.703 --> 00:23:19.448 BETTER INDICIA OF INTENT THAN WE HAVE IN THIS NEAR CONTEMPORANEOUS ACT. 270 00:23:19.448 --> 00:23:25.444 ESSENTIALLY, IT PUTS AN UNDUE BURDEN ON THE ESTATE. IT REQUIRES US TO DO THE 271 00:23:25.444 --> 00:23:34.001 IMPOSSIBLE, TO PROVE A NEGATIVE THAT A FACT DIDN'T EXIST. AND CRITICALLY, NO 272 00:23:34.001 --> 00:23:40.881 ONE IS CLAIMING THAT THE DOOEPT IFRN TEND IN TENLDZED TO NOMINATE HISSES 273 00:23:40.881 --> 00:23:45.345 STRANGED SPOUSE SO IN CONCLUSION THE LEGISLATURE PERMITTED THE DOOEPT TO CONTROL 274 00:23:45.345 --> 00:23:48.822 THE DISPOSITION OF HIS FUNDS, A BENEFICIARY DESIGNATION WAS NOT 275 00:23:48.822 --> 00:23:54.832 REQUIRED AND THERE WAS GIN SPUT BLEE NO BENEFICIARY DESIGNATION, THERE IS AN 276 00:23:54.832 --> 00:24:00.671 ESTATE AND THERE IS A WILL. THE BOARD SHOULD NOT BE PERMITTED TO CONTROL THE 277 00:24:00.671 --> 00:24:05.279 DISPOSITION OF FUNDS WHICH THE LEGISLATURE LOEFT ENTIRELY TO THE DECEDENT, NOT THROUGH 278 00:24:05.279 --> 00:24:11.574 TORTURED INTERPRETATIONS OF UNAMBIGUOUS STATUTES NOR BY CIRCUMSCRIBING THE 279 00:24:11.574 --> 00:24:15.478 DECEDENT'S RIGHTS THROUGH THE MANIPULATION OF THE RETIREMENT APPLICATION FORM. 280 00:24:15.478 --> 00:24:20.743 SEVERAL YEARS HAVE PASSED SINCE THE DECEDENT'S PROPERTY RIGHTS 281 00:24:20.743 --> 00:24:28.775 WERE UNL LATERALLY DIVESTED. AS A PROLONGED EXERCISE AN INCORRECT SPECULATION. 282 00:24:28.775 --> 00:24:32.569 IN THE INTEREST OF JUSTICE, THE STATE IS EVEN ENTITLED TO FINALITY 283 00:24:32.569 --> 00:24:38.357 IN REPOSE AND TO RECEIVE IT'S FULL ENTITLEMENT AS THE LEGISLATURE INTENDED AND 284 00:24:38.357 --> 00:24:42.800 IF I HAVE ANY TIME LEFT I WOULD LIKE TO RESERVE IT FOR REBUTTAL. 285 00:24:42.800 --> 00:24:47.604 CHIEF JUSTICE RABNER: WE LIKE ASK COUNSEL TO RESERVE IT UPSFRONTS AND WE 286 00:24:47.604 --> 00:25:39.121 JULIANA C. DEANGELIS: Upon the member's death. For the passion fifty, 287 00:25:39.121 --> 00:25:44.027 et al years, the division of pensions and benefits has relied on this statutory 288 00:25:44.027 --> 00:25:50.448 guidepost to protect and provide for the surviving spouse and children when 289 00:25:50.448 --> 00:25:55.707 determining the beneficiaries of a member's pension benefits. Seemingly, the division's 290 00:25:55.707 --> 00:26:02.495 interpretation and application of the beneficiary's statute in favor of the 291 00:26:02.495 --> 00:26:06.199 surviving spouse and children has remained unchallenged for fifty eight years 292 00:26:06.199 --> 00:26:12.224 until this matter before the Court. Here, the Appellate Division found that 293 00:26:12.224 --> 00:26:19.957 the retirement application asking the member to identify his spouse in the marital 294 00:26:19.957 --> 00:26:24.485 you survivor section of the application cannot be over read to signify that 295 00:26:24.485 --> 00:26:30.938 Keith Isaac was nominating his spouse Roxanne Isaac to receive the unpaid 296 00:26:30.938 --> 00:26:35.535 retrofunds at issue here. The Appellate Division found that the retirement 297 00:26:35.535 --> 00:26:42.328 application is unclear and that the beneficiary statutes N.J.S.A. torture three colon 298 00:26:42.328 --> 00:26:49.101 sixteen - twelve point two and twelve point three require something more. 299 00:26:49.101 --> 00:26:54.019 The Police and Firemen's Retirement System in beings with the division of pensions 300 00:26:54.019 --> 00:27:00.255 and benefits will endeavor to create a form or prompt within M boss on that 301 00:27:00.255 --> 00:27:04.318 specifically addresses the Appellate Division's concerns. Regarding the designation 302 00:27:04.318 --> 00:27:09.876 of these retrofunds. Now that Tal resolve this issue moving forward but the 303 00:27:09.876 --> 00:27:15.898 question then becomes how we resolve this matter. The answer to that question 304 00:27:15.898 --> 00:27:20.593 was provided by the Appellate Division. The answer is a remand to the trial court 305 00:27:20.593 --> 00:27:27.405 for a fact-finding hearing to determine decedent's intent at the time he filled 306 00:27:27.405 --> 00:27:32.402 you find out his retirement milk application. In that hearing the administrative 307 00:27:32.402 --> 00:27:37.659 law judge will consider Redskins I can evidence and weigh the credibility of 308 00:27:37.659 --> 00:27:43.776 the testifying witnesses to determine whether the the. Of the sufficient 309 00:27:43.776 --> 00:27:47.999 credible evidence in the record shows that Isaac intended to designate these retrofunds 310 00:27:47.999 --> 00:27:55.078 to his surviving spouse, racks an. The board submits an evidentiary hearing 311 00:27:55.078 --> 00:27:59.949 on the issue of intent is required because that issue really didn't come up 312 00:27:59.949 --> 00:28:03.568 and wasn't fully developed for the trial court as it only really came up in the 313 00:28:03.568 --> 00:28:09.477 Appellate Division's decision and so the board should be afforded the opportunity 314 00:28:09.477 --> 00:28:15.288 to get into the issue of intent and to determine what his indent was at the 315 00:28:15.288 --> 00:28:22.286 time he filled out that form. We ask that this Court affirm the Appellate 316 00:28:22.286 --> 00:28:25.891 Division's decision if urns have any questions I'd Lebanon up. CHIEF 317 00:28:25.891 --> 00:28:31.391 JUSTICE RABNER: Where where does the form designate Roxanne as the beneficiary. 318 00:28:31.391 --> 00:28:36.086 JULIANA C. DEANGELIS: So the division of pensions and benefits has for the past 319 00:28:36.086 --> 00:28:42.204 fifty eight years considered his identification of his spouse under the 320 00:28:42.204 --> 00:28:46.408 margaritas haversacks being a designation of his spouse for pension benefits. 321 00:28:46.408 --> 00:28:49.326 CHIEF JUSTICE RABNER: So I just want to look at the plane language of the 322 00:28:49.326 --> 00:28:55.462 form with you. It dizzying natures Roxanne as quote the wife. Where does 323 00:28:55.462 --> 00:29:00.611 it if at all designate her as the beneficiary, not what the board's 324 00:29:00.611 --> 00:29:08.281 interpretation is but what does the form say? P5: Well, it does say for him 325 00:29:08.281 --> 00:29:15.856 to identify his spouse. But it says marital survivor information and survivor 326 00:29:15.856 --> 00:29:21.192 information I believe that is an indication of the survivor's benefit. 327 00:29:21.192 --> 00:29:27.633 CHIEF JUSTICE RABNER: Can you survive a person but not be their beneficiary? 328 00:29:27.633 --> 00:29:32.037 JULIANA C. DEANGELIS: Yes. CHIEF JUSTICE RABNER: So just survivor doesn't 329 00:29:32.037 --> 00:29:35.528 necessarily answer the question then right. JULIANA C. DEANGELIS: Well, 330 00:29:35.528 --> 00:29:44.062 under PFRS, the retirement statutes, there is the decedent cannot name anyone 331 00:29:44.062 --> 00:29:47.951 other than his survivor spouse. CHIEF JUSTICE RABNER: For the pension 332 00:29:47.951 --> 00:29:49.999 under twelve. JULIANA C. DEANGELIS: For the pence, yes. CHIEF JUSTICE 333 00:29:49.999 --> 00:29:52.101 RABNER: Under twelve point one. JULIANA C. DEANGELIS: Correct. 334 00:29:52.101 --> 00:29:54.174 CHIEF JUSTICE RABNER: We're not talking about a pension though are we. 335 00:29:54.174 --> 00:29:56.898 JULIANA C. DEANGELIS: We are talking about a pension, yes. CHIEF JUSTICE RABNER: 336 00:29:56.898 --> 00:30:00.066 We're talking about benefits other than the widow's pension. JULIANA C. 337 00:30:00.066 --> 00:30:03.838 DEANGELIS: We are talking and yes, there is a distinction and chase what the 338 00:30:03.838 --> 00:30:07.247 Appellate Division was saying. There is a distinction between unpaid benefits that 339 00:30:07.247 --> 00:30:12.293 were do you the decedent at the time of his he death and the survivor's benefit. 340 00:30:12.293 --> 00:30:18.731 And decedent we do concede that fact and that moving forward there will be 341 00:30:18.731 --> 00:30:22.041 a designation for these unpaid retrofunds. CHIEF JUSTICE RABNER: Understood. 342 00:30:22.041 --> 00:30:28.580 So how is an applicant looking at this form to know that by identifying their 343 00:30:28.580 --> 00:30:37.551 spouse, they have designated someone for retrofunds? JULIANA C. DEANGELIS: 344 00:30:37.551 --> 00:30:44.219 The Appellate Division did say that it's unclear what they were designating 345 00:30:44.219 --> 00:30:50.800 when they identified their spouse. And but it's been the division's policy 346 00:30:50.800 --> 00:30:56.530 for the last fifty eight years that by number of people inaugurate the spouse you're 347 00:30:56.530 --> 00:30:59.230 nominating her for or him for both. CHIEF JUSTICE RABNER: So that's their 348 00:30:59.230 --> 00:31:02.832 position. Is it stated anywhere. JULIANA C. DEANGELIS: It is not. 349 00:31:02.832 --> 00:31:07.334 CHIEF JUSTICE RABNER: So how is an applicant to know whether it's been fifty eight 350 00:31:07.334 --> 00:31:11.568 years or some other period of time that they're designating someone by simply 351 00:31:11.568 --> 00:31:20.824 identifying their spouse as a wife? JULIANA C. DEANGELIS: There's no 352 00:31:20.824 --> 00:31:24.249 explanatory text in the retirement application. However we don't know what his intention 353 00:31:24.249 --> 00:31:31.065 was if he knew what exactly he was designating by nominating her as a 354 00:31:31.065 --> 00:31:35.954 spouse Fabiana Pierre-Louis. JUSTICE PIERRE-LOUIS: And the form has a 355 00:31:35.954 --> 00:31:40.121 location for beneficiaries to the life insurance. But says nothing about the 356 00:31:40.121 --> 00:31:43.302 beneficiaries for retrofunds; correct? JULIANA C. DEANGELIS: Correct. 357 00:31:43.302 --> 00:31:50.182 JUSTICE PIERRE-LOUIS: And with when an applicant is if I may out this form, it's 358 00:31:50.182 --> 00:31:55.325 unclear whether an meeting is even thinking about the fact that there might 359 00:31:55.325 --> 00:32:00.819 be retroactive funds when a police officer or a fire firefighter files their 360 00:32:00.819 --> 00:32:04.844 application for retirement benefits, the expectation is they're going to retire 361 00:32:04.844 --> 00:32:08.878 and begin receiving their benefits. In this case, and I'm guessing some other 362 00:32:08.878 --> 00:32:13.701 cases but I'm thinking the maternal of the cases that application is approved and a 363 00:32:13.701 --> 00:32:18.283 they begin receiving benefits. In this case there was a years-long delay which 364 00:32:18.283 --> 00:32:23.421 is the only reason why they were retroactive benefits in the first place. 365 00:32:23.421 --> 00:32:26.931 So it's difficult to conceive thatn an applicant who is seeking to retire and 366 00:32:26.931 --> 00:32:31.432 expecting to get benefits is thinking of the possibility that there will at some point 367 00:32:31.432 --> 00:32:38.411 even be retroactive benefits in existence because they're thinking they're 368 00:32:38.411 --> 00:32:43.551 going to retire right now and a begin receiving benefits? Wouldn't that be 369 00:32:43.551 --> 00:32:48.281 a logical thought that these applicants have while make this application? JULIANA 370 00:32:48.281 --> 00:32:54.893 C. DEANGELIS: Yes, it is logical and while it's certainly difficult to conceive 371 00:32:54.893 --> 00:32:58.243 that they would have some intention as to the retrofunds at the time they filled 372 00:32:58.243 --> 00:33:03.454 out their application if those retrofunds has not vested or really weren't 373 00:33:03.454 --> 00:33:07.626 even an issue upon their application for retirement allowance it's not impossible 374 00:33:07.626 --> 00:33:14.070 and I think that's what the Appellate Division is saying that we as I remember 375 00:33:14.070 --> 00:33:19.303 don't know what we don't know. We don't know what he intended when he designated 376 00:33:19.303 --> 00:33:22.628 her as a spouse. JUSTICE PIERRE-LOUIS: And you I just want to 377 00:33:22.628 --> 00:33:28.015 confirm. You said earlier that you concede the board concedes that there is a difference 378 00:33:28.015 --> 00:33:31.931 between the retroactive benefits and the survivor's benefit. So that's a different 379 00:33:31.931 --> 00:33:35.217 position it appears than the board took in responding to the interrogatories 380 00:33:35.217 --> 00:33:40.130 that counsel for the estate noted earlier where the board indicated the board 381 00:33:40.130 --> 00:33:45.501 does not recognize a split between different types of benefits EG pension benefits 382 00:33:45.501 --> 00:33:49.770 and retropayments. That that is now the board istation the position that there is 383 00:33:49.770 --> 00:33:54.027 a difference between those benefits. JULIANA C. DEANGELIS: Correct and 384 00:33:54.027 --> 00:34:02.256 THRA we didn't cross appeal for a position to the Court and the on the Appellate 385 00:34:02.256 --> 00:34:07.383 Division position for it is the that there is a distinction. JUSTICE PIERRE-LOUIS: 386 00:34:07.383 --> 00:34:10.656 And the make statutes make a distinction. It's pretty clear look at secretary 387 00:34:10.656 --> 00:34:15.183 twelve point one and twelve point two that there is a doesn't think so between 388 00:34:15.183 --> 00:34:20.298 those benefits and how those benefits are paid and other characters of those 389 00:34:20.298 --> 00:34:20.675 benefits. JULIANA C. DEANGELIS: Yes, that's correct. CHIEF JUSTICE 390 00:34:20.675 --> 00:34:24.611 RABNER: If you're correct that we don't know what his intent was don't sections 391 00:34:24.611 --> 00:34:29.220 twelve point two and twelve point three tell us the money goads to the estate because 392 00:34:29.220 --> 00:34:33.027 no one has has been designated the beneficiary? You. JULIANA C. 393 00:34:33.027 --> 00:34:39.046 DEANGELIS: Well, I think the Appellate Division found that we don't know 394 00:34:39.046 --> 00:34:44.399 whether he intended to designate -- there might very well have been a designation 395 00:34:44.399 --> 00:34:48.687 when he identifies his spouse at the time he filled outlet his application. 396 00:34:48.687 --> 00:34:52.275 CHIEF JUSTICE RABNER: Where is the designation. JULIANA C. DEANGELIS: 397 00:34:52.275 --> 00:34:57.048 When he if I would out the informational section marital versus survivor 398 00:34:57.048 --> 00:35:00.590 information. CHIEF JUSTICE RABNER: So if that argument doesn't prevail 399 00:35:00.590 --> 00:35:04.748 doesn't the statute tell us what happens next that the money goes to the estate? 400 00:35:04.748 --> 00:35:08.363 JULIANA C. DEANGELIS: Yes, after an evidentiary hearing as to what his 401 00:35:08.363 --> 00:35:11.423 intent was. CHIEF JUSTICE RABNER: Where does the statute tell us that 402 00:35:11.423 --> 00:35:15.131 that you need to have an evidentiary hearing. JULIANA C. DEANGELIS: Well, 403 00:35:15.131 --> 00:35:19.410 that's not in the statute purse. CHIEF JUSTICE RABNER: What does the 404 00:35:19.410 --> 00:35:23.070 statute tell us. JULIANA C. DEANGELIS: The statute says if there is no 405 00:35:23.070 --> 00:35:24.866 nomination but the Appellate Division is saying that there very well might have 406 00:35:24.866 --> 00:35:28.292 been a nomination. JUSTICE WAINER-APTER: But the statute the very, very 407 00:35:28.292 --> 00:35:32.832 speak of as to what a nomination could consist of. It specifically says upon 408 00:35:32.832 --> 00:35:43.025 the, did he, of a retirant any ununpaid benefit due him on are distinct from the 409 00:35:43.025 --> 00:35:46.555 survivor's benefits discussed in twelve point one; correct? JULIANA C. 410 00:35:46.555 --> 00:35:50.049 DEANGELIS: Correct. JUSTICE WAINER-APTER: Okay so any unpaid 411 00:35:50.049 --> 00:35:53.430 benefit due him shall be paid in the one lump sum if will give unresponsive about 412 00:35:53.430 --> 00:35:58.704 a shall have written by written designation duly executed and a files about 413 00:35:58.704 --> 00:36:02.862 the Board of Trustees otherwise tout executor or MTV of it nine retirant's 414 00:36:02.862 --> 00:36:09.072 estate. And so your opponent's position is here there is no written designation 415 00:36:09.072 --> 00:36:12.129 if you'll duly executed and filed with the Board of Trustees specifically 416 00:36:12.129 --> 00:36:18.804 nominating the former spouse to any unpaid by then and therefore the statute says 417 00:36:18.804 --> 00:36:25.141 it goes to the estate. How would a hearing help with little no matter what 418 00:36:25.141 --> 00:36:29.510 a hearing will not reveal any written designation duly aexecuted and a filed 419 00:36:29.510 --> 00:36:35.316 with the Board of Trustees nominating the Roxanne no longer specific unpaid benefits; 420 00:36:35.316 --> 00:36:43.663 correct? JULIANA C. DEANGELIS: Well, it's the board's position that 421 00:36:43.663 --> 00:36:48.792 his iPhones of her and his retirement application could have been his 422 00:36:48.792 --> 00:36:53.255 intention could have been to have nominated her for pension benefits generally which 423 00:36:53.255 --> 00:36:58.948 also includes the unpaid retrofunds. JUSTICE WAINER-APTER: But the legislature 424 00:36:58.948 --> 00:37:01.779 steams disagree with that in that the legislature is using very particular 425 00:37:01.779 --> 00:37:06.162 terms like written designation duly executed and filed with the Board of Trustees 426 00:37:06.162 --> 00:37:10.331 nominating someone to the specific unpaid benefits. The will only does not 427 00:37:10.331 --> 00:37:17.088 seem to be saying, you know, whoever the board decides or whatever the board on 428 00:37:17.088 --> 00:37:21.065 thinks should get it or whoever the decedent might have wished to get the benefits. 429 00:37:21.065 --> 00:37:26.421 So how will a hearing help us figure out if there was one of these rin written 430 00:37:26.421 --> 00:37:31.648 designations duly executed and filed with the board then nominated the former 431 00:37:31.648 --> 00:37:34.817 spouts to these unpaid benefits. JULIANA C. DEANGELIS: Well, I believe 432 00:37:34.817 --> 00:37:44.246 that -- it might be in part of the code but hold on one second. It discusses 433 00:37:44.246 --> 00:37:50.411 that a nomination shall be on a form satisfactory to the board and that's 434 00:37:50.411 --> 00:37:55.775 what the board's position was athat this retirement application was a form 435 00:37:55.775 --> 00:37:59.103 satisfactory to. CHIEF JUSTICE RABNER: Twelve point three first paragraph 436 00:37:59.103 --> 00:38:01.208 of twelve point three there. JULIANA C. DEANGELIS: That's correct, yes,. 437 00:38:01.208 --> 00:38:06.193 CHIEF JUSTICE RABNER: So the third paragraph any amounts due to which 438 00:38:06.193 --> 00:38:10.126 there is no beneficiary dot-dot-dot shall be payable to the estate. So we come back 439 00:38:10.126 --> 00:38:14.720 to the question has there been a designation of a beneficiary? And if not, 440 00:38:14.720 --> 00:38:19.658 doesn't the money go to the estate. JULIANA C. DEANGELIS: Again I think that 441 00:38:19.658 --> 00:38:24.776 the Appellate Division found that there very well might have been a designation. 442 00:38:24.776 --> 00:38:27.841 CHIEF JUSTICE RABNER: Were they right? JULIANA C. DEANGELIS: I believe so, 443 00:38:27.841 --> 00:38:32.770 yes. THE COURT: Okay. JULIANA C. DEANGELIS: So. JUSTICE 444 00:38:32.770 --> 00:38:35.723 WAINER-APTER: Even though here they're using the word beneficiary and so the whole 445 00:38:35.723 --> 00:38:39.903 application is only two pages long right. It's an Internet form and it's very, very 446 00:38:39.903 --> 00:38:44.031 brief and in the record it only appears to be two pages long; is that correct? 447 00:38:44.031 --> 00:38:45.493 JULIANA C. DEANGELIS: That's correct. JUSTICE WAINER-APTER: And the 448 00:38:45.493 --> 00:38:49.513 only use of the word beneficiary that I saw was the word primary beneficiaries 449 00:38:49.513 --> 00:38:54.865 listed under the section titled life insurance information; correct? 450 00:38:54.865 --> 00:38:59.567 JULIANA C. DEANGELIS: Route. That's that specific language correct. JUSTICE 451 00:38:59.567 --> 00:39:03.103 WAINER-APTER: And so there the decedent listed four of his eight children; 452 00:39:03.103 --> 00:39:06.560 correct? can. JULIANA C. DEANGELIS: Correct. JUSTICE WAINER-APTER: 453 00:39:06.560 --> 00:39:09.519 So again how could a hearing possibly indicate to us that the real beneficiary 454 00:39:09.519 --> 00:39:14.113 was rocks Han an when the only place on the form it even uses the word beneficiary 455 00:39:14.113 --> 00:39:20.010 is with regard to life insurance and the decedent lists his children and not 456 00:39:20.010 --> 00:39:25.277 Roxanne? JULIANA C. DEANGELIS: Because the preceding section does ask him 457 00:39:25.277 --> 00:39:29.879 to identify his spouse or the survivor. JUSTICE PIERRE-LOUIS: But we already 458 00:39:29.879 --> 00:39:34.254 degree and had board now concedes that survivor's benefits are completely different. 459 00:39:34.254 --> 00:39:40.449 Everything in in twelve point one has nothing to do about the bionts we're 460 00:39:40.449 --> 00:39:42.240 talking about right. JULIANA C. DEANGELIS: Right. JUSTICE 461 00:39:42.240 --> 00:39:47.632 PIERRE-LOUIS: And as Justice Wainer-Apter read legislature enacted where ard to 462 00:39:47.632 --> 00:39:54.166 how a nomination of a beneficiary for any unpaid funds shall be made. Can you tell us 463 00:39:54.166 --> 00:40:00.828 as attorney to the board how reTyre ease have made this beneficiary designation. 464 00:40:00.828 --> 00:40:05.560 I know you noted that going forward the board is going to do something to 465 00:40:05.560 --> 00:40:11.122 change the form to create a new form. It appears that there has never been a 466 00:40:11.122 --> 00:40:15.827 specific form or the disfigure nation of a beneficiary for unpaid benefits. In the 467 00:40:15.827 --> 00:40:22.950 past, how have retire ease made this designation that in twelve point two 468 00:40:22.950 --> 00:40:26.642 indicates it needs to be a written designation and then in twelve point 469 00:40:26.642 --> 00:40:31.228 three specifically notes that it shall be in writing on a form satisfactory to the 470 00:40:31.228 --> 00:40:36.826 retirement system. How have retire ease in the past made this designation 471 00:40:36.826 --> 00:40:42.097 and aside from the board's position that says it's on this form that has nothing 472 00:40:42.097 --> 00:40:44.493 about beneficiaries for those reported funds. JULIANA C. DEANGELIS: But 473 00:40:44.493 --> 00:40:50.810 that sands stands the designation for unpaid retrofunds what was in that sectionors 474 00:40:50.810 --> 00:40:55.518 marital information. JUSTICE PIERRE-LOUIS: So there's never been 475 00:40:55.518 --> 00:40:59.687 a Ryrie that submitted a another dayized letter or form indicating that if some or 476 00:40:59.687 --> 00:41:05.709 reason there are unpaid benefits that are due to me and I pa pass away before 477 00:41:05.709 --> 00:41:10.405 those benefits are paid I am designating and momnating this person as the beneficiary 478 00:41:10.405 --> 00:41:16.213 of those unpaid benefits? It's always been the case that whoever is listed 479 00:41:16.213 --> 00:41:20.686 Anders marital slash survivor information that doesn't say beneficiary at all. 480 00:41:20.686 --> 00:41:22.145 JULIANA C. DEANGELIS: To the best of my knowledge that's correct. CHIEF 481 00:41:22.145 --> 00:41:26.496 JUSTICE RABNER: Are there other cases like this one. JULIANA C. DEANGELIS: 482 00:41:26.496 --> 00:41:28.679 Not to my knowledge. CHIEF JUSTICE RABNER: So once the for many has 483 00:41:28.679 --> 00:41:32.003 clarity this will be a one-off. JULIANA C. DEANGELIS: Correct. And I would 484 00:41:32.003 --> 00:41:39.392 like to mention that these beneficiary forms are controlling even if decedent puts 485 00:41:39.392 --> 00:41:45.099 in their will that they want. JUSTICE PIERRE-LOUIS: But this isn't I 486 00:41:45.099 --> 00:41:48.917 think that's the problem. We have very specific language in a statute I understand 487 00:41:48.917 --> 00:41:52.301 your position is the Appellate Division is right. The Appellate Division said 488 00:41:52.301 --> 00:41:55.810 it correct we need to have a hearing. We're looking at statute and what the 489 00:41:55.810 --> 00:41:59.973 statute states. The statute indicates that a had a beneficiary needs to be 490 00:41:59.973 --> 00:42:05.426 designated and nominated by the Ryrie. We have a form here that says nothing about 491 00:42:05.426 --> 00:42:09.816 a beneficiary designation for unpaid benefits. JULIANA C. DEANGELIS: 492 00:42:09.816 --> 00:42:16.613 Correct and there could be most likely this would be a very short hearing on 493 00:42:16.613 --> 00:42:25.022 what his intent was. I would note-hour that while not before the record before 494 00:42:25.022 --> 00:42:32.008 Your Honors, before the sorry before the office of administrative law it was revealed 495 00:42:32.008 --> 00:42:36.820 that Roxanne had waived her elective share under the will and that she had 496 00:42:36.820 --> 00:42:40.105 spent the two hundred and eight thousand dollars because she was in receipt 497 00:42:40.105 --> 00:42:44.622 of that two hundred and eight thousand dollars she spent it partially auto 498 00:42:44.622 --> 00:42:49.216 tuition to for her children examine on joint property taxes on eligibility property 499 00:42:49.216 --> 00:42:55.194 that she owned with her decedent spouse and so that raises the inference that 500 00:42:55.194 --> 00:43:00.885 she and he May had a conversation as to okay well, you're getting this two 501 00:43:00.885 --> 00:43:05.376 hundred and eight thousand dollars and the rest of it is going to go under my will 502 00:43:05.376 --> 00:43:10.297 and I'm disinheriting you from that. So we don't know what can give them might 503 00:43:10.297 --> 00:43:18.520 have taken place. But certainly I believe are in favor of having some type of 504 00:43:18.520 --> 00:43:24.954 intent hearing to determine whether she was proper beneficiary. JUSTICE 505 00:43:24.954 --> 00:43:27.704 FASCIALE: Can you clarify for me the first time he leopard that he was entitled 506 00:43:27.704 --> 00:43:34.692 to unpaid benefits was after the board approved his application retroactive 507 00:43:34.692 --> 00:43:39.404 to some time in 2014 right. JULIANA C. DEANGELIS: Correct. JUSTICE 508 00:43:39.404 --> 00:43:45.658 FASCIALE: So tat if he wanted to designate his wife as the beneficiary and comply 509 00:43:45.658 --> 00:43:49.709 with his obligation under twelve point two, how would he do that. JULIANA C. 510 00:43:49.709 --> 00:43:54.871 DEANGELIS: If he wanted to designate his spouse for the unpaid retrofunds. 511 00:43:54.871 --> 00:43:56.271 JUSTICE FASCIALE: Right. JULIANA C. DEANGELIS: The board's position that 512 00:43:56.271 --> 00:44:01.633 he already did that. JUSTICE FASCIALE: I understand. I'm saying actually 513 00:44:01.633 --> 00:44:07.123 if he didn't even know he was entitled to unpaid funds but let's say he learned 514 00:44:07.123 --> 00:44:12.354 about it and it is board approved his application. What cohe have done at that 515 00:44:12.354 --> 00:44:17.068 point if he wanted to designate his wife nominate his wife to be the beneficiary 516 00:44:17.068 --> 00:44:19.786 of those unpaid funds. JULIANA C. DEANGELIS: He would have filled 517 00:44:19.786 --> 00:44:24.172 out a beneficiary designation form. JUSTICE FASCIALE: What is the form? What 518 00:44:24.172 --> 00:44:27.003 form. JULIANA C. DEANGELIS: The retirement application. JUSTICE 519 00:44:27.003 --> 00:44:31.829 FASCIALE: So he would have to fill out another application for retirement 520 00:44:31.829 --> 00:44:36.419 allowance even though he's already been approved before that. JULIANA C. 521 00:44:36.419 --> 00:44:42.010 DEANGELIS: No. Again, the board's position is that that the retirement application 522 00:44:42.010 --> 00:44:45.924 is a proper. JUSTICE FASCIALE: I understand that in respect but I'm 523 00:44:45.924 --> 00:44:51.960 trying to just practically think about what he could have done when the board 524 00:44:51.960 --> 00:44:56.428 finally approved his application if he wanted to name his wife as a beneficiary 525 00:44:56.428 --> 00:45:02.782 of of his unpaid funds what what does he do? What form does he use to do that? 526 00:45:02.782 --> 00:45:07.044 JULIANA C. DEANGELIS: I don't have an answer for that. I -- because. 527 00:45:07.044 --> 00:45:10.672 JUSTICE WAINER-APTER: Your answer I thought earlier was there was no such form there 528 00:45:10.672 --> 00:45:14.695 was no way for him to do that because the board had taken the position that there 529 00:45:14.695 --> 00:45:21.370 were no separate kinds of benefits and so you can't you couldn't designate 530 00:45:21.370 --> 00:45:26.408 someone for unpaid if you notice is that isn't that position that the board 531 00:45:26.408 --> 00:45:29.697 atook before. JULIANA C. DEANGELIS: The board's position was that this 532 00:45:29.697 --> 00:45:31.781 requirement application was of the designation. CHIEF JUSTICE RABNER: 533 00:45:31.781 --> 00:45:35.949 So pulp the haven't around. What if he wanted to designate his children tout 534 00:45:35.949 --> 00:45:40.293 retrofunds? How could he have done so. JULIANA C. DEANGELIS: I don't know. 535 00:45:40.293 --> 00:45:43.046 I don't believe he would have been able to. CHIEF JUSTICE RABNER: And 536 00:45:43.046 --> 00:45:47.612 that's because the only form he can use the form that has been approved and 537 00:45:47.612 --> 00:45:51.018 that form doesn't provide an option for that. JULIANA C. DEANGELIS: 538 00:45:51.018 --> 00:45:59.459 Correct. JUSTICE PIERRE-LOUIS: But the statute specifically allows for retiree 539 00:45:59.459 --> 00:46:04.139 by Bryn with on nomination and duly executed someone to to be the beneficiary. 540 00:46:04.139 --> 00:46:06.330 JULIANA C. DEANGELIS: Right. JUSTICE PIERRE-LOUIS: But if he wanted 541 00:46:06.330 --> 00:46:10.622 to he would not have been able to to do that even though the statute specifically 542 00:46:10.622 --> 00:46:14.437 allows him that ability. JULIANA C. DEANGELIS: Correct because the policy 543 00:46:14.437 --> 00:46:22.075 at the time was that they were pension benefits Fabiana Pierre-Louis so the policy 544 00:46:22.075 --> 00:46:27.647 did not follow the statute. JULIANA C. DEANGELIS: The policy followed 545 00:46:27.647 --> 00:46:32.460 the statutory framework of benefiting surviving spouse and children. 546 00:46:32.460 --> 00:46:35.091 JUSTICE PIERRE-LOUIS: We're talking about unpaid benefits under twelve point two, 547 00:46:35.091 --> 00:46:40.700 it's pretty clear that the the retirees has the ability. Whether it's a life 548 00:46:40.700 --> 00:46:46.061 insurance policy or designating people at beneficiaries it's usually nine case 549 00:46:46.061 --> 00:46:49.959 that if the holder of the policy the person in charge of the account they're 550 00:46:49.959 --> 00:46:56.973 able to change the beneficiary at any given point but it's your answer that it was 551 00:46:56.973 --> 00:47:00.584 the board policy that he could not do that. JULIANA C. DEANGELIS: That's 552 00:47:00.584 --> 00:47:04.946 correct organ. JUSTICE NORIEGA: Many it may a follow up for that. 553 00:47:04.946 --> 00:47:09.648 In the handbook it says in order to choose a beneficiary you should the group life 554 00:47:09.648 --> 00:47:15.112 insurance portion when a member is nod the new member's estate is a group life 555 00:47:15.112 --> 00:47:18.083 insurance beneficiary until they receive a news designation of beneficiary. 556 00:47:18.083 --> 00:47:25.636 That phrase designation of beneficiary is in eye Tal. P4: Is that a 557 00:47:25.636 --> 00:47:29.487 separate form with are we talking about the same one that's clued in the application 558 00:47:29.487 --> 00:47:36.562 for retirement benefits? JULIANA C. DEANGELIS: There is a separate form 559 00:47:36.562 --> 00:47:46.904 that very much follows the structure of the retirement application. JUSTICE 560 00:47:46.904 --> 00:47:50.025 NORIEGA: But is it labeled designation of beneficiary. JULIANA C. DEANGELIS: 561 00:47:50.025 --> 00:47:55.708 It is. JUSTICE NORIEGA: And does that specifically relate to group life insurance 562 00:47:55.708 --> 00:48:00.199 somewhere on there or does it simply say designation of beneficiary as a general 563 00:48:00.199 --> 00:48:08.527 form? JULIANA C. DEANGELIS: Just a moment. I don't want to speak out of 564 00:48:08.527 --> 00:48:12.449 turn. JUSTICE NORIEGA: Because if it exists then it's possible that the 565 00:48:12.449 --> 00:48:19.100 board did a form for choosing a beneficiary for various reasons if it didn't 566 00:48:19.100 --> 00:48:22.383 isolate group life insurance retrofunds. JULIANA C. DEANGELIS: I know 567 00:48:22.383 --> 00:48:32.117 that there's a bit on the form which is included in my certification that was 568 00:48:32.117 --> 00:48:37.809 provided to the Appellate Division, Judge Sabatino had asked for any information 569 00:48:37.809 --> 00:48:42.873 that would have been able able to you available to Mr. Isaac at the time he 570 00:48:42.873 --> 00:48:49.423 filled out heads application in relation to designations and beneficiaries. 571 00:48:49.423 --> 00:48:50.712 JUSTICE NORIEGA: Do you have an appendix citation. JULIANA C. DEANGELIS: 572 00:48:50.712 --> 00:48:54.755 Yes, so this was not a part of my Appellate Division appendix. This was like 573 00:48:54.755 --> 00:49:00.360 a separate set of documents that was provided to the Court upon request. It's 574 00:49:00.360 --> 00:49:10.407 dated March 6th, 2024. And it's Exhibit D designation of beneficiary form. And 575 00:49:10.407 --> 00:49:20.144 if you go to that form, on the top it says designation of beneficiary and this is 576 00:49:20.144 --> 00:49:27.418 obviously a form that members can use prior to filing an application for disability 577 00:49:27.418 --> 00:49:33.258 rudimentary or service retirement whatever it is for them to designate their 578 00:49:33.258 --> 00:49:37.641 group life insurance. Benefits is the physician section and it says. 579 00:49:37.641 --> 00:49:41.135 JUSTICE WAINER-APTER: Sorry can you say it again what's the title of the form. 580 00:49:41.135 --> 00:49:45.222 JULIANA C. DEANGELIS: Sure. Designation of beneficiary and the next section says 581 00:49:45.222 --> 00:49:50.652 group life insurance benefits and has primary beneficiaries and contingent 582 00:49:50.652 --> 00:49:57.021 beneficiaries. And that then the next section says pension benefits, primary 583 00:49:57.021 --> 00:50:02.948 beneficiaries and contingent beneficiaries. JUSTICE PATTERSON: Is that 584 00:50:02.948 --> 00:50:05.337 for this case, this situation? JULIANA C. DEANGELIS: I don't believe so 585 00:50:05.337 --> 00:50:08.620 on no. JUSTICE PIERRE-LOUIS: What does it cover? JULIANA C. DEANGELIS: 586 00:50:08.620 --> 00:50:16.696 This would cover a situation I think when you're unmarried and it's prior to you 587 00:50:16.696 --> 00:50:21.393 filling out your retirement application because you can if you're a member of 588 00:50:21.393 --> 00:50:27.535 PFRS and you're unmarried you can nominate someone other than your spouse to receive 589 00:50:27.535 --> 00:50:30.794 your pension benefits. CHIEF JUSTICE RABNER: But it only applies to 590 00:50:30.794 --> 00:50:33.521 the pension. JULIANA C. DEANGELIS: Pensionping benefits which the division 591 00:50:33.521 --> 00:50:39.544 at the time considered it to include survivor's benefits and any other unpaid 592 00:50:39.544 --> 00:50:44.472 retrofunds such as what's at issue here. JUSTICE PATTERSON: How usual 593 00:50:44.472 --> 00:50:53.216 or unusual is the setting we have here with with these unpaid retrofunds? 594 00:50:53.216 --> 00:50:58.471 JULIANA C. DEANGELIS: It's not something that happens a lot. I will say that when 595 00:50:58.471 --> 00:51:05.487 there is litigation between a member and his former employer, the division 596 00:51:05.487 --> 00:51:09.856 often stays a retirement application pending the outcome of the litigation because 597 00:51:09.856 --> 00:51:18.593 it could have an impact on the member's retirement allowance or receipt of 598 00:51:18.593 --> 00:51:29.455 retirement whatsoever. And so that does happen. But as far as a disagreement between 599 00:51:29.455 --> 00:51:36.432 the surviving spouse receiving these. JUSTICE PATTERSON: Yeah, I wasn't 600 00:51:36.432 --> 00:51:41.232 referring tor referring to that part of it but it seemed like a fairly unusual 601 00:51:41.232 --> 00:51:44.302 circumstances that led to this on problem. JULIANA C. DEANGELIS: It's 602 00:51:44.302 --> 00:51:49.213 unusual but it does occur. JUSTICE PATTERSON: Thank you. JUSTICE 603 00:51:49.213 --> 00:51:53.514 HOFFMAN: Counselor that form that you just identified be occurred arrived written 604 00:51:53.514 --> 00:51:57.110 designation duly disputed filed about the board. JULIANA C. DEANGELIS: 605 00:51:57.110 --> 00:51:59.715 Yes. JUSTICE WAINER-APTER: But there was no such form submitted in this 606 00:51:59.715 --> 00:52:03.798 case; correct? JULIANA C. DEANGELIS: Correct the only form well, the last 607 00:52:03.798 --> 00:52:09.456 form that we have regarding designation of beneficiaries is the controlling form 608 00:52:09.456 --> 00:52:16.150 and that is the retirement application. JUSTICE HOFFMAN: So if after Mr. Isaac 609 00:52:16.150 --> 00:52:20.824 had filled out the original form if he had filled out that form, and designated 610 00:52:20.824 --> 00:52:27.829 his children as the beneficiaries pour for pension who would have gotten the 611 00:52:27.829 --> 00:52:31.338 retrofunds? JULIANA C. DEANGELIS: His spouse. JUSTICE HOFFMAN: Even 612 00:52:31.338 --> 00:52:37.020 if he identified that he wanted them to receive the retrofunds specifically 613 00:52:37.020 --> 00:52:43.684 in that second form that you said would be considered a written designation duly 614 00:52:43.684 --> 00:52:46.870 executed and a filed about the board. JULIANA C. DEANGELIS: It's my 615 00:52:46.870 --> 00:52:53.248 understanding 245 if a member has a surviving spouse that the pension benefits which 616 00:52:53.248 --> 00:52:57.438 the division considered to be both survivor's benefits and unpaid 617 00:52:57.438 --> 00:53:04.532 retrofunds could go to the spouse regardless of what the member designated, 618 00:53:04.532 --> 00:53:10.988 say, in this form if he designated his children that wouldn't, a proper 619 00:53:10.988 --> 00:53:14.270 designation. CHIEF JUSTICE RABNER: Do you know what the new form is going to 620 00:53:14.270 --> 00:53:17.495 be available. JULIANA C. DEANGELIS: Of I don't know but I'm going to endeavor 621 00:53:17.495 --> 00:53:21.382 to get this done as soon as possible so that this issue doesn't continue to be 622 00:53:21.382 --> 00:53:24.855 an issue. CHIEF JUSTICE RABNER: Thank you. Other questions anyone? Anything 623 00:53:24.855 --> 00:53:31.337 you'd like to add counsel? JULIANA C. DEANGELIS: No, Your Honors. Thank 624 00:53:31.337 --> 00:53:33.434 you very much after which. CHIEF JUSTICE RABNER: Did you want to offer 625 00:53:33.434 --> 00:53:36.698 rebuttal. ERIC A. CAROSIA: No chief justice. CHIEF JUSTICE RABNER: 626 00:53:36.698 --> 00:53:39.698 Thank you. We'll take the matter under advisement.