On appeal from the Board of Trustees, Police and Firemen's Retirement System, Department of the Treasury, PFRS No. 3-10-23469.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 9, 2011
Before Judges Axelrad, R. B. Coleman and Lihotz.
Appellant, Lawrence J. Ceres, Jr., appeals from a January 12, 2010 final decision of the Board of Trustees, Police and Firemen's Retirement System (the Board) denying his request that monthly pension benefits continue to be paid to his wife, Lisa Ceres, during his incarceration. The Board denied the request concluding appellant's wife did not rely on the pension payments for her maintenance, as required by N.J.S.A. 43:1-2. The Board found the couple did not marry until after appellant was incarcerated and Lisa's financial position remained unchanged from that which she experienced prior to her marriage. We affirm.
These facts are taken from the administrative hearing record. In 1999, appellant retired, after working for twenty-five years on the police force and achieving the rank of captain. Appellant applied for his pension provided through the Police and Firemen's Retirement System. He received a payment of approximately $3700 per month.
It is undisputed that in 2001 appellant was arrested for an unspecified "crime of moral turpitude." After being released on his own recognizance, but before trial, appellant left New Jersey for Florida. There he entered a seventy-five day, in-patient alcohol rehabilitation program. While in Florida, appellant met Lisa Adkins. The couple began residing together in February 2002 and were engaged in November 2004. Wedding plans were delayed when appellant was arrested in February 2005 on a fugitive warrant in Florida and extradited to New Jersey for trial. Appellant was convicted and sentenced on October 12, 2005 to a five-year period of incarceration.
The Board suspended appellant's pension benefits once he was incarcerated. When the payments ceased, Lisa vacated the parties' former Florida residence and moved into her friend's two-bedroom apartment. Lisa was not working and borrowed money to provide for her living expenses. Appellant submitted a written request to the Board seeking the continuation of his pension payments for the benefit of his fianceee. The Board denied the request, relying on N.J.S.A. 43:1-2, which permits continuation of retirement benefits for the sole benefit of a dependent parent, spouse, or minor child for whom "such pension is necessary for their maintenance[.]" Ibid. The Board's correspondence advised appellant that "[i]f you and Ms. Adkins become married between now and your release from prison, you may request reconsideration of this matter[.]"
The couple married on January 11, 2008. Appellant submitted a second request for resumption of his pension payments for the benefit of his wife. He attached his marriage license and a statement of Lisa's monthly living expenses totaling $3,228.93. The request was denied.
Appellant was released from prison in September 2008. His pension payments resumed the following month. N.J.S.A. 43:16A-6. Appellant appealed the Board's decision and the matter was transferred to the Office of Administrative Law as a contested case.
In the evidentiary hearing, appellant and Lisa testified. Appellant explained that in addition to his pension, he was the recipient of a trust fund, which paid him $755.38 quarterly; he was too young to collect social security; and he had dissipated his assets to pay for his criminal defense.
Lisa related that she had lost her job in New York City after the September 11, 2001 terrorist attacks. She moved to Florida and was employed as a commissioned furniture sales representative. The couple began sharing living expenses in February 2002. When appellant was incarcerated, Lisa had a different commissioned sales position, which she lost when her car was repossessed after she failed to make the payments. In 2008, Lisa's total income was $945, she was unemployed, had no assets and had accumulated some debt, although she had repaid most of her outstanding obligations by the date of the hearing.
The Administrative Law Judge (ALJ) found the continuation of appellant's pension was "necessary for [Lisa's] maintenance." The ALJ stated Lisa would have been destitute but for "the kindness of others" and recommended appellant's request be granted.
The Board filed exceptions to the ALJ's Initial Decision. On December 14, 2009, the Board rejected the ALJ's recommendation. After a review of the record, on January 12, 2010, the Board issued its own findings and conclusions, limiting the facts to the available resources at the time of the couple's marriage. The Board declined to adopt the ALJ's determination because it "was based, at least in part, on irrelevant facts, including ...