On appeal from the Board of Trustees of the Police and Firemen's Retirement System, PFRS #3-10-25559.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2010
Before Judges Kestin and Coburn.
Thomas Saccone, a member of the Police and Firemen's Retirement System ("PFRS"), asked PFRS for permission to name a Supplemental Needs Trust for his son as his contingent beneficiary for monthly survivor benefits. Ultimately, the PFRS Board of Trustees issued a final administrative decision declining to answer the question on the ground that it was not obliged to issue an advisory opinion.
Saccone appeals, contending that he was entitled to a favorable determination on the merits.
After carefully considering the record and briefs, we affirm substantially for the reasons expressed by the Board of Trustees in its final administrative decision dated October 16, 2009. Nonetheless, we add the following comments.
The facts are not in dispute. Saccone retired in December 2000. He listed his wife as primary beneficiary, entitled on his death to collect $4,254.37 per month. As contingent beneficiary, he listed his son, Anthony Saccone. Eight years later, Saccone asked for permission to change his contingent beneficiary from his son Anthony to "Anthony Saccone Supplemental Benefits Trust under Article X of the document probated as his Last Will and Testament." He took this action so that his disabled son would remain eligible for unspecified public benefits while preserving the trust for Anthony's "supplemental" needs.
The Division repeatedly rejected Saccone's requests because the governing statute did not provide for payments to trusts and because the "Division cannot be party to an effort to enable . . . [Anthony] to continue to be eligible for public assistance by not reporting the benefit he receives as a beneficiary as taxable income."
The Board took note of the relevant statutory provision which provides for payments after the beneficiary's death to a spouse or "child." N.J.S.A. 43:16A-12.1. The statute says nothing about payments to a trust. However, the Board declined to rule on the merits that payments could only be made to a spouse or child as distinguished from a trust. Instead, the Board expressed its final determination in these words:
Since Mr. Saccone and his spouse are still living, the Board declined to offer an advisory opinion to aid you in estate planning. The statutory requirements for payment of benefits (both pension and life insurance) are adequately defined and require no further explanation as to the meaning of payments of the benefits upon Mr. Saccone's death.
In Donadio v. Cunningham, 58 N.J. 309, 325 (1971), the Court observed that "it is clear that relief by way of a declaratory judgment should be withheld when the request is in effect an attempt to have the court adjudicate in advance the validity of a possible [claim or] defense in some unexpected future lawsuit." And Crescent Park Tenants Ass'n v. Realty Equities Corp. of N.Y., 58 N.J. 98, 107 (1971), stands for the proposition that courts "will not render advisory opinions or function in the abstract" Thus, for example, we have held that an advisory opinion from the Director of Taxation to assessors and county tax board was "merely an advisory opinion rather than a final agency action," and not within the Tax Court's jurisdiction to review. Exxon Corp. v. Twp. of E. Brunswick, 192 N.J. Super. 329, 336 (App. Div. 1983), certif. denied, 96 N.J. 312-313 (1984).
The substantive issue raised by Saccone, whether a statute mandating compensation to a "child" of a retiree in these circumstances should be read as permitting the retiree to designate a trust for that child instead, is clearly hypothetical since Saccone and his wife are still alive and his son may or may not be ...