who fortunately is was able to be present with us today i know you're all conversant with the facts so i would like to speak right away to the other line decision of the mere existence protection board that brought us here today  myron dash now he is you know was divorced from his wife in one nine hundred ninety eight and he also remarried in one nine hundred ninety eight he passed away eleven years later and when his eligible for benefits of their divorce decree and divorce decree did not provide her any any rights to a survivor benefit and that was later agreed to by all parties that there was nothing just focuses in on where you board after the appeal and in our opinion as every state indicates that the notice was deficient and because the notice was deficient in the divorce to elect her now the notice was deficient so it didn't tell him that a divorce attorney to his election but it was also deficient to the fact that it didn't tell him that her election had continued so the final order is notice was deficient they say that it's it's assumed that he intended because of the increased risk for the deduction in his retirement benefit he was paying a premium so we were disputing whether or not the all the facts as we know them in the documentation and so forth point us to the fact that he intended given the failure of the notice to award it to the second wife as opposed to previous that's exactly our contention in the documents and the records make it very clear that he wrote several notices he wrote there were letters he responded it was between a period of two thousand and two and two thousand and eight but given that you've got a deficient note this isn't the kind of presumption in terms of what his intent was since he made no change and the first as if in the was his former wife and it wasn't just my wife it was didn't change her those are the facts he didn't change her and i presume because his notice was deficient it did not tell him that a divorce terminated that election he presumed in the divorce decree i have to assume that he didn't have to do anything that the divorce gave her no benefits gave her no right to have an election so because he wasn't notified properly what he had to do he also wasn't notified properly that he didn't have to do anything i don't think he assumed that the survivor previously designated for his first wife would automatically that and it was a specific with respect to a new individual it was only with respect to his current wife i do believe i do believe that his assumption was because the divorce decree made no provisions for her that it terminated and he wasn't notified otherwise so he also understood from a letter from o p m that he had a duty to provide copies or documents if you wanted to  name his just news about which he did it he and i think it's reasonable to assume that if it's his benefit and he wanted to name her as a beneficiary he could have done so right away he could  was the simpson case too for you the simpson case is and it's interesting how the cases have have developed over time to simpson case says the notice is insufficient and a pre determination before you get divorced have to be it have to be told you have to have a you have to the divorce is going to terminate  any election you made that's exactly what his notice did not say so that case tells us that although there was no remarriage in that case and if you look at how the cases have developed over the year most of them and till we get to the allen case and hernandez there's no remarriage so because the notice was insufficient because he didn't make a new election but there was no other evidence so you agree i mean simpson doesn't help you so the simpson case there was no out wine manifestation of his intent at any point and i think it's also significant that there was no remarriage so he was continuing to receive a reduced amo so he certainly was paying for someone to get that benefit and he didn't elect not to terminate that but he wasn't remarried again so what he could not have assumed it could have been for someone else so there was no remarriage so which i think is what is significant when we look at the case why is this is not remarriage is until you get to the ellen case or the hernandez case and i ask you just in terms of the way things went if you're it well if you're right about his assumption why would you ever contacted o p m first you know years down the road and i and maybe i'm not saying his assumption was that his new wife was automatically a beneficiary i'm saying his assumption was his divorce decree did not provide this benefit to his ex wife so when they do wars and they divided their property and i think it's clear that his retirement pension was merely property none of it was awar was remarried but like she probably thought i'll do it tomorrow or i have time or i'll get my my my things in order but she did not know he was not notified either way that he had a timeframe create a time limit but when he did get a letter they said ok senate they didn't say there's a time limit they didn't say getting that he wanted your client to win i believe i believe that they absolutely correct i believe if those documents would have made it into the record when it was julia packard i will just judge julia packard made that initially terminations would have been different because supply those documents to judge julia packard on her own she was pro se she she didn't have him a lawyer at that time and she was representing herself o p m did not have those same documents in their records that they provided judge perry so i bet they get the documents they got the documents when there was a cross appeal by o p m and then there was an appeal by rex ileana and that would have been in this is between the age it was between july two thousand and ten decision from judge packard and april nineteenth two thousand and eleven so at that time the board demanded o p m get their file together and get it to the board so that they could have a complete record so we're julia packard's decision o p m was required no no no no is that facts is that in the record i didn't see it when i went through is the fact that rocks iliana facts the facts in the record where p m realize that it wasn't part of the record that they had supply the they did write a letter and cross appeal and asking them to consider the documents and they presented more in addition to what rocks illyana had provided they even gave sufficient to notify him as to his rights and obligations with respect to providing survivor annuity for his new wife but that decision was inconsistent with this court's decision in simpson's because they did find one of the notices with sufficient right and they said it was the notice was the same that was provided imposed here the board said that that notice was insufficient according to this court's decision in simpson but only with respect to the retiree's rights an obligation with respect to his former wife the same exact notice the board looked at that same exact knows and said it's sufficient with respect to notify him of his right an obligation for the spec to his new wife even though the paragraph pertaining to former spouses and his thousands had virtually the same language both paragraphs suffered from the defect that this court identified in simpson and in hernandez both paragraphs fail to inform the retiree that his will survival benefit election was weighted upon his divorce and that if you want to provide a spouse will survive or knew he had he had to make a reelection so in the board errored because it found that the notice was same exact language was sufficient when it came to wire and second life is there is there no concept of detrimental reliance and in these circumstances and the  deceased receives a letter saying this is what you have to do and as far as i can see in the records he does it and then he is told good desa fission well detrimental reliance or language in this notice which is basically that the simpson language is insufficient as to a former specter the employee has a voice and court does not address the question of whether it's insufficient with respect to obligations with respect to rocks oleana that would have been required the board to look at myron's intent with respect to rock solid or the evidence would have been overwhelming every every he had indicated he wanted broccoli on the get there and just saying that the i mean the board would have been correct to state the notice was deficient with regard to every yes absolutely and then you look at it and kept exactly exactly they should have said it was deficient with respect to everyone and what what is the relevant time frame well ok well i think the court's decision suggest that the relative time frame of the entire time frame up until the time that the individual died because if the individual still alive they would have that moment you know that his overall intent so the fact that he allowed it to go for those years would be weighed against his a permanent expression of intent and in this case although yes there was a period of time that he allowed or reduced annuities to be to continue every single a permanent communication that this man have with l c s every single one was i want x only and it's get the benefits every single one and every time a pm came back to him and said ok well then if that's what you want you have to you know sign the bottom of that form and send it back to he did that every time he had a chance of her name he did that so when you looking at any given word didn't really get to the issue of intent with respect to rocks on the outer because of their error with respect the notice but if this court gets to that is rights that's true the answers have to be consistent that's also true now this court in would hernandez and harrison applied it to fold them now assess first you looked at the notices notices that the you know what it received are insufficient to inform him of the steps he has to take and the time in which he has to take them in order to designate a survivor beneficiary then this court looks to evidence of the new terms in time so applying this  and rocks a lot of case the merit board looked at the notices and found them to be sufficient to inform myron of what he must do that doesn't need a stylist we married after his retirement and when he had to do it namely within two years after the having found that myron did not inform o p m of his election within the two your limitation period the board of greed with the ministry of lodgers the rocks a lot i was not entitled to the benefits this was dispositive of the issue there was no need  to look at the evidence of my rents intense with regard to brooks or damn a who he married after his retirement this position was proper under the law applying the same analysis to teresa's case the board found that the notices were insufficient to inform iran of the fact that his divorce terminated his election have to reset as a survivor and that he was reelected or they haven't a beneficiary within two years of his divorce because the notices were insufficient the board looked to evidence of myron's intent with respect to risa and found that he knew that he was continuously receiving a reduced benefit and took no formative steps to change that until some four and a half years after the divorce and purportedly the opportunity to express his intention to terminate to eliminate to reset as his beneficiary he is told exactly what to do and when to do it and he does nothing his and pants with respect to risa remains unchanged after he is informed that he cannot doesn't that rocks a lot at this beneficiary he does not terminate a theresa's rights to his annuity apparently given the opportunity here's how you can eliminate teresa he does nothing in two thousand and two myron opie and the o p m are under the impression that teresa is the beneficiary myron's of nothing to change that and continues to receive reduced benefits he does to attempt to change that until two thousand and six eight years after the divorce and remarriage three and a half years after the two thousand and two correspondence sixteen years after his retirement and his attempt to replace t change from one from one to the other when he's told he can't to do it he continues in his intent to allow time to research to stay on he continues to receive reduced benefits the end of the matter where all the documentation everything that really does i mean there is there are certain things in this record that clearly point to an intent with regard to his second wife right so we are to ignore those that know if those are done outside outside the two years sufficient with respect to rock salaam and what he have to do with respect to group one and you say the notice was sufficient despite the fact that it was the same as the deficient notice well that's because i mean i don't think that's the  law isn't that if the if the notice doesn't inform you of what to do after a divorce or after death it doesn't vitiate the whole notice it doesn't invalidate the hold notice with in the board had indicated in their decision that they had some seat record at this point and they had access to these documents and they too found that there was no intent by myron and your question regarding the intent of myron when we look at the intent is is is something that i agree with counsel when she says you have to look at the overall intent because he was not given notification regarding what he had to his wife other than sending a copy of his documents and he he did send in his copy of his documents and it was clear that he wanted brock to liana to be his beneficiary as comfort suggested he had mentioned it over and over and over again in all of his correspondence and i think the final order ignores that the final order indicates very clearly that there is no outside inten mr dashwood to name rock to leon and apparently they're looking at the two year time period where if he hasn't done anything in two years his time is is over and there is no other alternative for him to to name a new