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Jean Brooks Marsh For John Marsh (Deceased v. Public Employees Retirement System

April 19, 2012


On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, Agency Docket No. PERS #2-10-185828.

Per curiam.


Submitted March 7, 2012

Before Judges Fuentes and Haas.

Appellant Jean Brooks Marsh is the widow of John Marsh, a former employee of Trenton Psychiatric Hospital. As a State employee, decedent was enrolled in the Public Employees Retirement System (PERS) Pension. The question raised in this appeal concerns PERS's demand for reimbursement of approximately $270 monthly overpayments received by decedent from November 2003 to April 2009, totaling $17,359.14.

Appellant does not question that decedent received overpayments during the relevant time period. Her challenge on appeal concerns only the demand for reimbursement. Relying on our decision in Indursky v. Board of Trustees, 137 N.J. Super. 335 (App. Div. 1975), appellant argues that the Division of Pension and Benefits should be estopped from seeking reimbursement here because she and decedent relied in good faith upon the correctness of the payments over a period of years. Under these circumstances, appellant argues it would be unduly punitive, unfair, and unjust to demand reimbursement. Characterizing the overpayments as a debt owed by decedent to PERS, appellant also questions the constitutionality of holding her responsible for her late husband's debt.

After reviewing the record before us and mindful of our standard of review, we affirm.


Appellant was decedent's second wife. Decedent divorced his first wife, Alice Marsh, via a final judgment of divorce issued by the Family Part in May 1996. As part of a settlement agreement in the matrimonial action, the court awarded Alice Marsh a $56,280.50 interest in decedent's pension plan. To effectuate this award, the court entered a Qualified Domestic Relations Order (QDRO) on January 30, 1997, directing that payments of Alice Marsh's $56,280.50 interest in decedent's Pension Plan commence upon decedent's retirement or his attainment of retirement age, whichever occurred first.

On May 6, 2002, decedent applied for early retirement,*fn1 and selected benefit "Option 2," which, upon his death, permits his sole beneficiary to continue to receive "a lifetime monthly retirement allowance equal to 100% of [decedent's $2,177.07] monthly allowance." Decedent listed his "friend,"*fn2 appellant Jean Gillardon Brooks, as his sole beneficiary. On September 18, 2002, the PERS Board of Trustees approved decedent's application for early retirement.

On November 19, 2002, the Division of Pensions and Benefits sent decedent a letter explaining that effective December 1, 2002, his monthly payment benefits would be reduced by $541.67, to $1,635.40, to reflect a court-ordered support obligation due to his former wife Alice Marsh. On December 9, 2002, decedent received a letter that provided the following itemization of the deductions taken from his monthly benefits payment: (1) federal income tax of $147.23; (2) NJ income tax of $40.00; (3) health benefits of $0.00; (3) loan repayment of $262.91; (4) dental insurance of $0.00; and (5) a "monthly allowance" payable to Alice Marsh of $541.67. The letter also noted that the amount payable to decedent after applying the deductions was $1,635.40 a month, subject to cost-of-living adjustments after being retired for two years.

On September 8, 2003, the Family Part entered a second QDRO directing the Division of Pensions and Benefits to withhold $540 from decedent's "monthly retirement allowance for equitable distribution payments to Alice Marsh up to a maximum of $65,145.50." By letter dated September 30, 2003, the Division confirmed to decedent that $540 would be deducted from his monthly retirement allowance as ordered by the court in the second QDRO.

The key error that triggered the overpayment to decedent appears to have occurred in a letter dated October 18, 2003, sent to decedent by Paul M. Makuch, Pension Benefits Specialist II, Retirement Bureau of the Division of Pensions and Benefits. In this letter (referenced: "Equitable Distribution/Termination of Support Allowance") Makuch confirmed to decedent that the Division was "in receipt of a Court Order" mandating the deduction of $540 from decedent's "gross monthly allowance." This $540 deduction would then be paid to "Alice Marsh for equitable distribution . . . [with a] ceiling of $65,145.00."

Of particular relevance here, Makuch also informed decedent that the Division had received "a Court Order" (presumably referring to an entirely separate order) directing it "to terminate the support allowance (CS40692445A) made payable to Ms. Alice Marsh, through the New Jersey Family Support Payment Center." Makuch noted that "these changes are effective on [decedent's] November 1, 2003 check reflecting the month of October." He concludes the letter ...

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