The opinion
FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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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.
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B.L. THOMAS, BILBREY, and TANENBAUM, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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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.
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