Opinion

Avis Brown v. State of Florida, Department of Management Services, Division of Retirement

Court
District Court of Appeal of Florida
Filed
May 29, 2024
Status
Published
Cited by
0 cases

The opinion

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2023-0708

_____________________________

AVIS BROWN,

Appellant,

v.

STATE OF FLORIDA, DEPARTMENT

OF MANAGEMENT SERVICES,

DIVISION OF RETIREMENT,

Appellee.

_____________________________

On appeal from the Department of Management Services.

Pedro Allende, Secretary.

May 29, 2024

PER CURIAM.

Appellant challenges the final order of the Florida

Department of Management Services, Division of Retirement,

finding that Appellant is not entitled to additional retirement

benefit payments from her late former husband’s Florida

Retirement System (FRS) account. Because Appellant fails to

establish a statutory ground to set aside the final order, we must

affirm. See § 120.68(8), Fla. Stat. (2023).

The facts were undisputed. Appellant’s former husband

retired on July 1, 1998. Under section 121.091(6)(a), Florida

Statutes (1998), governing payout options for FRS pension plan

retirees, the former husband chose option 2 and named Appellant

as his beneficiary. Option 2 provides that a monthly retirement

benefit will be paid to the retiree for life, but if the retiree dies

during the first ten years after retirement, then the beneficiary

receives “the same monthly amount payable for the balance of such

10-year period.” § 121.091(6)(a)2., Fla. Stat.

As required by section 121.091(6)(a), Appellant was “notified

of” and “acknowledge[d] such election” made by the former

husband by signing at the appropriate line on her former

husband’s FRS application for retirement. That application listed

all four retirement options available to the former husband and

the benefits, if any, Appellant would receive upon his death. See

§ 121.091(6)(a)1.–4., Fla. Stat.

Appellant’s marriage to the former husband was dissolved in

2003 and the Qualified Domestic Relations Order (QDRO) entered

by the court required that Appellant remain the designated

beneficiary for purposes of the former husband’s FRS retirement

benefit. Under the QDRO, the former husband was prohibited

from removing Appellant as the beneficiary of his retirement

account during Appellant’s lifetime. However, the QDRO did not

and could not change benefits accrued under section

121.091(6)(a)2., including the ten-year window for a survivor

benefit elected by the former husband. See § 121.011(3)(d), Fla.

Stat. (stating that “the rights of members of the retirement system

established by this chapter are declared to be of a contractual

nature”).

June 2008 was ten years from the former husband’s

retirement date. At this point, section 121.091(6)(a)2. no longer

provided for any survivor benefits upon the death of the former

husband. The former husband died in 2017, more than nineteen

years after his retirement date, and the retirement benefits

payable to him expired upon his death. Thus, no retirement

benefits were payable to Appellant under section 121.091(6)(a)2.

The Department did not misinterpret section 121.091 or any

administrative rule promulgated to carry out the statute. See

§ 120.68(7)(d)–(e), Fla. Stat. The agency final action is therefore

AFFIRMED.

2

B.L. THOMAS, BILBREY, and TANENBAUM, JJ., concur.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

Antonio G. Hernández of Antonio G Hernández PA, Coral Gables,

for Appellant.

Kristen Larson, General Counsel, James Burkhart, Assistant

General Counsel, and Lee Damessous, Managing Attorney,

Department of Management Services, Tallahassee, for Appellee.

3

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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