SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 1535
- 16T3 CHRISTINE MINSAVAGE for DAVID MINSAVAGE (deceased), Petitioner

- Appellant,

v. BOARD OF TRUSTEES, TEACHERS' PENSION AND ANNUITY FUND, Respondent
- Respondent.

______________________________ __ Argued May 30, 2018

– Decided June 15, 2018 Before Judges Hoffman and Mayer. On appeal from the Board of Trustees of the Teachers' Pension and Annuity Fund, Department of Treasury, TPAF No. 1
- 421704. Daniel J. Zirrith argued the cause for appellant (Law Offices of Daniel J. Zirrith, LLC, attorneys; Daniel J. Zirrith, of counsel and on the briefs; Jeffrey J. Berezny, on the briefs). Jeff S. Ignatowitz , Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Ass istant Attorney General, of counsel; Jeff S. Ignatowitz, Deputy Attorney General, on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36
- 3.2 A - 1535
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PER CURIAM Appellant Christine Minsavage sought to change the retirement option her deceased husband chose so she could receive survivor retirement benefits rather than reimbursement of her husband's pension contributions. Appellant now appeals from the November 4, 2016 final decision of respondent , the Board of Trustees of the Teachers' Pension and Annuity Fund (Board), denying her request
to change the reti rement option her husband selected. We affirm.

I David Minsavage (decedent) worked for nearly twenty
- five years at Han over Park High School (school) , beginning in 1990. In August 2014, decedent was diagnosed with terminal pancreatic

cancer. In Septembe r 2014, decedent contacted the Division of Pensions and Benefits (Division) for assistance in setting up his member benefits online system (MBOS) account. Around October 2014, decedent contacted the New Jersey Education Association (NJEA) to discuss his r etirement options. Appellant certifies she and decedent notified NJEA of decedent's terminal cancer diagnosis at that time. According to appellant, t he NJEA representative provided decedent with screen shots of a sample MBOS retirement application and in structed decedent on the options he should choose by highlighting selections on the sample application; d ecedent3 A - 1535
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followed the NJEA representative's directions, and " on or about November 17, 2014 , " filed an application for early retirement. 1
Decedent continued working a t the school until mid

- December
2014. On March 16, 2015, the school filed a certification of services and final salary retirement form, which indicated decedent would retire on July 1, 2015

— the date he would attain eligibility for ear ly re tirement, which requires twenty

- five years of service. On April 9, 2015, decedent passed away a f ter twenty - four years and ten months of service. Appellant notified the Division of her husband's passing the following day. On April 15, 2015,
the school certified to the Division that decedent's last day of active service was April 8, 2015 ; thus, decedent p assed away less
than three months before attaining eligibility for early retirement. On April 22, 2015, the Division wrote appellant notifying he r of her entitled benefits, which included return of pension contributions and a Group Lif e I nsurance Benefit. Appellant

1 Unaware decedent had previously filed his own application, in April 2015, appellant accessed decedent's MBOS account and filed a retirement application on his beha lf. According to appellant's certification, she also relied upon an NJEA representative's instructions in selecting the ea rly retirement option. She further certified no one advised either her or decedent about fi ling for ordinary disability.4 A - 1535
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contacted the Division in April and May inquiring into the letter's meaning and her benefit eligibility. Eventually, she learned she was only entitled to reimbursement of decedent's contributions
rather than survivor retirement benefits because decedent did not survive long enough to attain twenty

- five years of service. Appellant wrote the Division and requested permission to change decedent's retirement application from early retirement to ordinary disability retirement. In her correspondence, she stated, "Had we known how sick my husband really was and how quickly the cancer would cause his death[,] we would have filed for a retir ement benefit with a disability status." In response, the Division confirmed its determination that appellant was not entitled to survivor retirement benefits because decedent did not attain twenty

- five years of service. Subsequently, with the assistanc e of counsel, appellant filed an appeal with the Board . In her appeal, she requested to "reopen, amend, modify, and/or change retroactively" decedent's retirement application, based on the following arguments : (1) decedent "lacked sufficient information t o make an informed choice among his retirement options"; (2) decedent "was incapacitated by a combination of physical, psychological and emotional burdens that reasonably prevented him from making an informed decision"; (3) "there was a mutual mistake in h is retirement selection based upon5 A - 1535
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the lack of information and the detrimental reliance on the specific instructions which did not conform to [decedent's] true intent, which was to maximize benefits for his wife and children"; (4) " the Board should exercis e its discretionary authority to avoid an inequitable outcome affecting a retiree's innocent spouse and family"; and (5) appellant "acted with reasonable diligence in every step of the way in [decedent's] retirement situation
befo re and after his death." The Board denied appellant's request, finding "no evidence in the record that [decedent] relied upon any advice given to him
b y the Division to his detriment, " and denied culpability for the allegedly poor advice the NJEA provided. The Board also noted
d ecedent failed to attain twenty

- five years of service, as required by N.J.S.A. 18A:66
- 113.1. Finally, it noted the Division was unaware of decedent's terminal illness at the time he submitted his retirement application, but stated decedent "could have availed himself to the Fact Sheets[,] which provide information regarding the different retirement types available and the eligibility criteria required for each selection or seek guidance from the Division. " Appellant appealed the Board's f indings, repeating her prior arguments and further contending th ere existed good cause to alter the application. The Board denied her appeal and issued the final6 A - 1535
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administrative determination under review . In its determination,
the Board found "the statut es and regulations governing the [Teachers' Pension and Annuity Fund] do not permit the Board to grant [appellant's] request to change her husband's retirement type from [e]arly to [o]rdi nary [d]isability retirement. " It further found , " there was no evide nce in the record that [decedent] relied upon any advice given to him by the Division to his detriment. In fact, you advised that [decedent] sought the advice and assistance of the NJEA, who actually filed his retirement application on his behalf. " It al so repeated its prior reasoning, finding: The Board cannot comment on any advice that was provided to [decedent] by the [NJEA]. The Division was unaware that [decedent] had serious health problems when he filed his application for retirement. However, th e Board disagrees with your assertion the Division failed to provide him with sufficient information upon which he could have made an informed decision. Also, he could have availed himself to the Fact Sheets which provide information regarding the differe nt retirement types available and the eligibility criteria required for each selection or seek guidance from the Division. Finally , the Board again confirmed that d ecedent did not complete twenty - five years of service, rendering him ineligible for early

r etirement under N.J.S.A. 18A:66

- 113.1 . A ccordingly, it held it7 A - 1535
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was " without authority" to change decedent's retirement type from early retirement to ordinary disability. This appeal followed.

II On appeal, appellant argues she demonstrated good ca use for the Board to allow her to modify her husband's retirement application. She further argues that, at the time decedent completed his application, he lacked capacity due to sever e stress associated with his terminal diagnosis. Finally, appellant argues the Board's alleged failure to follow the requirements of N.J.A.C.
17:3
- 6.3 invalidates her husband's retirement benefits sel e ction, thereby allowing her to change the retirement application, and
cho o se ordinary disability benefits. Our review of an adm inistrative agency's decision is limited.
In re Herrmann , 192 N.J. 19 , 28 ( 2007 ). A reviewing court may

reverse o nly those administrative decisions that are arbitrary, capricious, unreasonable, or violative of expressed or implicit legislative policies . In re Musick , 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison , 81 N.J. 571, 579
- 80 (1980). Unfortunately for appellant, the Board's decision in the instant
matter is neither arbitrary nor violative of any legislative policy.
N.J.S.A. 18A:66
- 113.1

— early retirement

— provides in pertinent part :8 A - 1535
- 16T3 Should a member resign a fter having established [twenty

- five] years of creditable service before reaching age [sixty], he [or she] may elect 'early retirement,' provided that such election is co mmunicated by such member to the retirement system by filing a written application, duly attested, stating at what time subsequent to the execution and filing thereof he [or she] desires to be retired.
N.J.S.A. 18A:66
- 41

— ordinary disability allowances

— provides:

A member upon retirement for ordinary disability shall receive a retirement allowance which shall consist of: (a) an annuity which shall be the actuarial equivalent of his accumulated deductions at the time of his retirement together with reg ular interest after January 1, 1956; and (b) a pension in the amoun t which, when added to the member's annuity, will provide a tota l retirement allowance of 1.64 [percent] of final compensation multiplied by his [or her] number of years of creditable serv ice; and provided further, that in no event shall the allowance be less than 43.6 [percent] of final compensation. Upon the receipt of proper proofs of the death of a member who has retired on an ordinary disability retirement allowance, there shall be pa id to such member's benef iciary, an amount equal to [one - and
- one - half] times the compensation upon which contributions by the member to the annuity savings fund were based in the last year of creditable service o r in the year of the member's highest contra ctual salary, whichever is higher . . . . We first reject appellant's claim that decedent 's illness incapacitated him by the time he completed his retirement9 A - 1535
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application . The record lacks support for this claim . Appellant conceded both she and decedent failed to appreciate the progression of her husband's illness when he completed the application. At that time, early retirement represented the most sensible option because it provided greater benefits both befo re and after decedent's scheduled retirement. Although we are sympathetic to appellant's los s, we cannot rely on her hindsight to permit her
to alter or amend decedent's retirement application. Moreover, appellant's evidence support ing her incapacitation argument
— a doctor's letter stating terminal illness causes mental and emotional distress

— fell short of establish ing incapacitation. Additionally, we are not persuaded by appellant's arguments regarding the Board's alleged failure to follow N.J.A.C. 17:3
- 6.3 (a) , which states "a member shall have the right to withdraw, cancel, or change an application for retirement at any time before the member's retirement al lowance becomes due and payable . . . . " The plain language of N.J.A.C. 17:3
- 6.3 indicates i t only applies
to a retirement application the Board has already approved . Here, decedent was ineligible for early retire ment at the time he passed
away; therefore, the Division never approved his application.
Moreover , appellant cites inapposite case la w to support her assertion.10 A - 1535
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We conclude the record lacks evidence the Division knew of decedent's medical condition or that the Division provided decedent with any advice upon which he relied ; instead , if decedent relied upon any representations , the record indicates they came from the NJEA. Unfortunately, decedent passed away bef ore attaining twenty

- fi ve years of service . Thus , the Board did not act arbitrarily or contrary to legislative intent in denying appellant the ability to amend or modi fy decedent's retirement application. Affirmed.