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In re Orden

March 2, 2006

IN THE MATTER OF KENNETH VAN ORDEN, JR.


On appeal from a Final Administrative Determination of the Board of Trustees of the Public Employees' Retirement System, Department of the Treasury, PERS #2-10-191180.

The opinion of the court was delivered by: Levy, P.J.Ch. (temporarily assigned).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted September 14, 2005

Before Judges Stern, Fall and Levy.

Kenneth Van Orden, Jr. appeals from a final administrative decision of the Board of Trustees of the Public Employees' Retirement System (PERS) issued on August 19, 2004 denying his application to change his pension payment option after the thirty-day time period for making changes expired and after appellant began receiving his retirement allowance. PERS concluded that applicable statutes and regulations prevented it from granting the request. The facts are undisputed.

Appellant began public employment on April 1, 1976 and became a permanent employee of the Roxbury Township Board of Education on July 1, 1976. He enrolled in PERS as of November 1, 1976. On April 10, 2003, he filed an application with the Division of Pensions and Benefits (Division) seeking a retirement allowance based on his anticipated retirement from service as a veteran as of July 1, 2003.

At the time he filed for retirement, appellant was engaged in matrimonial litigation with his wife, Carol Van Orden, in the Family Part. In his retirement application, appellant selected a payment option that would provide him with maximum benefits during his life, but no payments to his wife in the event of his death. As set forth on the retirement application, the option stated:

MAXIMUM OPTION -- NO PENSION BENEFIT TO BENEFICIARY -- Largest allowance paid to you with no pension benefit paid to a beneficiary upon your death.

As required by N.J.S.A. 43:15A-50a, on April 14, 2003, the Division notified appellant's wife of her husband's selection and the fact that, because of that selection, she would not A-0540-04T1 receive any pension payments in the event of his death. In pertinent part, the Division's letter stated:

This is to notify you that your spouse has selected the maximum retirement allowance. Under this choice, the monthly retirement allowance is payable for the lifetime of the member only. Therefore, you will not receive any pension payments in the event of the death of your spouse. However, if your spouse dies before receiving the total amount of the member's pension contributions plus interest, the remaining balance will be paid to the designated beneficiary or estate.*fn1

Appellant's wife moved before the Family Part for pendente lite relief, arguing that appellant "unilaterally changed his pension designation" as evidenced by the letter from the Division of Pensions. Appellant opposed the motion and cross-moved for other relief.*fn2

Prior to the Family Part's decision on the motions, PERS, at its regular meeting on June 18, 2003, approved appellant's application for a veteran's retirement effective July 1, 2003, including the maximum retirement option with no survivor benefits.

By order dated June 20, 2003*fn3 , the Family Part judge required appellant to designate his wife "as beneficiary of his retirement plan, within three days, and [to] provide proof of such coverage to [her] as soon as possible." The court's reasons ...


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