RICHARD RASCZYK VS. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM (NEW JERSEY DEPARTMENT OF THE TREASURY)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0905-19

RICHARD RASCZYK,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,

Respondent-Respondent.
_________________________

Submitted March 3, 2021 – Decided April 6, 2021

Before Judges Whipple and Firko.

On appeal from the Board of Trustees of the Public
Employees' Retirement System, Department of the
Treasury, PERS No. x-xxxx958.

Richard Rasczyk, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Matthew Melton, Deputy Attorney
General, on the brief).

PER CURIAM
 Appellant Richard Rasczyk appeals from the September 23, 2019 final

administrative determination of the Board of Trustees (Board) of the Public

Employees' Retirement System (PERS) for return of the accumulated pension

deductions of his now-deceased mother, Karen 1 Rasczyk, which he claims were

mistakenly paid to his father, Robert Rasczyk (Mr. Rasczyk),2 pursuant to

N.J.S.A. 43:15A-41(c). We disagree and affirm.

I.

The record presents the following pertinent chronology of events. On July

1, 1997, Karen enrolled in the PERS as a result of her employment with Essex

County College. At the time, she was married to Mr. Rasczyk. On June 22,

2000, Karen completed her PERS enrollment application and listed Mr. Rasczyk

as her primary beneficiary for the return of accumulated deductions from her

PERS account and on her group life insurance policy. Richard and Robert , her

sons, were listed as contingent beneficiaries for both return of accumulated

deductions and group life insurance.

1
We use first names for ease of reference and intend no disrespect.
2
We refer to Richard's father and Karen's ex-husband as Mr. Rasczyk to avoid
confusion with their child Robert, who is Richard's brother.

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 When Karen and Mr. Rasczyk divorced in 2004, her attorney submitted a

Qualified Domestic Relations Order (QDRO) to the Division of Pensions and

Benefits (the Division), which provided that in the event she became eligible to

receive pension benefits during her lifetime, a percentage of her allowance—the

coverture fracture—would be paid to Mr. Rasczyk. Regrettably, Karen passed

away on September 21, 2008, and was working for Essex County College until

her death. Mr. Rasczyk retired in 2013 from working at East Side High School

in Newark. The return of Karen's accumulated pension deductions was paid to

Mr. Rasczyk, the original designee on her PERS enrollment beneficiary form.

Richard and Robert received the life insurance benefit of $79,115.94 as

contingent beneficiaries. N.J.S.A. 3B:3-14(a) revoked Karen's previous

beneficiary designation of Mr. Rasczyk as her group life insurance beneficiary

by operation of law.

The Division sent Richard a summary of survivor benefits on December

18, 2018, explaining Karen's beneficiary designations relative to the group life

insurance but not the return of pension contributions. Richard then notified the

Division that he contested the payment of the return of contributions to Mr.

Rasczyk, contending N.J.S.A. 3B:3-14(a) revoked his father as the primary

beneficiary. Richard appealed the Division's decision to the Board, claiming the

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QDRO served to give Mr. Rasczyk only the coverture portion of the pension

distribution and that PERS "did not properly revoke [Mr. Rasczyk] as [p]rimary

[b]eneficiary" in accordance with N.J.S.A. 3B:3-14.

On April 17, 2019, the Board determined that Karen's accumulated

pension deductions were rightfully returned to Mr. Rasczyk and denied

Richard's request to return the monies to him and his brother, Robert, instead of

Karen's designated beneficiary. Richard sought reconsideration of the Board's

determination. On August 21, 2019, the Board informed Richard there were "no

material facts in dispute" and there was "no need for an administrative hearing."

The Board directed the secretary and Attorney General's office to prepare

findings of fact and conclusions of law, which were presented and approved at

the September 18, 2019 PERS Board meeting.

On September 23, 2019, the Board issued its final administrative

determination. The Board considered Richard's personal statements, written

submissions, documentation, and the relevant statutes, regulations, and case law.

In its detailed factual findings and conclusions supporting its decision, the Board

concluded that PERS could not distribute the return of Karen's pension

contributions to Richard and his brother Robert. This appeal followed.

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 II.

Richard argues the following before us:

POINT I

N.J.S.A. 3B:3-14 AUTOMATICALLY REVOKES A
FORMER SPOUSE BENEFICIARY DESIGNATION
SUBSEQUENT TO DIVORCE.

POINT II

FRAUD BY [MR.] RASCZYK BY FALSIFYING
OBITUARY BY PAYING FOR FUNERAL AND
CONTROLLING THE VERBIAGE THAT KAREN
WAS SURVIVED BY CURRENT "HUSBAND
ROBERT."

Our role in reviewing the decision of an administrative agency is limited.

In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison,

81 N.J. 571, 579 (1980)). We accord a strong presumption of reasonableness to

an agency's exercise of its statutorily delegated responsibility, City of Newark

v. Nat. Res. Council, 82 N.J. 530, 539 (1980), and defer to its fact-finding, Utley

v. Bd. of Review, 194 N.J. 534, 551 (2008). We will not upset the determination

of an administrative agency absent a showing that it was arbitrary, capricious,

or unreasonable; that it lacked fair support in the evidence; or that it violated

legislative policies. Lavezzi v. State, 219 N.J. 163, 171 (2014); Campbell v.

Dep't of Civ. Serv., 39 N.J. 556, 562 (1963).

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 On questions of law, our review is de novo. In re N.J. Dept. of Envtl.

Prot. Conditional Highlands Applicability Determination, 433 N.J. Super. 223,

235 (App. Div. 2013) (citing Russo v. Bd. of Trs., Police & Firemen's Ret. Sys.,

206 N.J. 14, 27 (2011)). We are "in no way bound by the agency's interpretation

of a statute or its determination of a strictly legal issue." Mayflower Sec. Co. v.

Bureau of Sec., 64 N.J. 85, 93 (1973).

N.J.S.A. 3B:3-14(a) provides in pertinent part:

a. Except as provided by the express terms of a
governing instrument, a court order, or a contract
relating to the division of the marital estate made
between the divorced individuals before or after the
marriage, divorce or annulment, a divorce or
annulment:

(1) revokes any revocable:

(a) dispositions or appointment of property made by a
divorced individual to his former spouse in a governing
instrument and any disposition or appointment created
by law of in a governing instrument to a relative of the
divorced individual's former spouse;

(b) provision in a governing instrument conferring a
general or special power of appointment on the
divorced individual's former spouse, or on a relative of
the divorced individual's former spouse; and

(c) nomination in a governing instrument of a divorced
individual's former spouse or a relative of the divorced
individual's former spouse to serve in any fiduciary or
representative capacity; and

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 (2) severs the interests of the former spouses in
property held by them at the time of the divorce or
annulment as joint tenancies in common.

In the event of a divorce or annulment, provisions of a
governing instrument are given effect as if the former
spouse and relatives of the former spouse disclaimed all
provisions revoked by this section or, in the case of a
revoked nomination in a fiduciary or representative
capacity, as if the former spouse and relatives of the
former spouse died immediately before the divorce or
annulment. If provisions are revoked solely by this
section, they are revived by the divorced individual's
remarriage to the former spouse or by the revocation,
suspension or nullification of the divorce or annulment.
No change of circumstances other than as described in
this section and in N.J.S.[A.] 3B:7-1 effects a
revocation or severance.

Moreover, pursuant to N.J.S.A. 18A:66-38, "Upon the receipt of proper

proofs of the death of a member in service . . . there shall be paid to such

member's beneficiary":

(1) The member's accumulated deductions at the time
of death together with regular interest . . . ; and

(2) 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.

[N.J.S.A. 18A:66-38.]

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 Based upon or review of the record, we are satisfied that the Board's

decision is amply supported by substantial credible evidence in the record, and

we discern no reason to disturb it. N.J.S.A. 43:15A-57.1 mandates that:

The designation of beneficiary by a member or retirant
shall be made in writing on a form satisfactory to the
retirement system, and filed with the retirement system.
The member or retirant may, from time to time and
without the consent of his death benefit designee,
change the beneficiary by filing written notice of the
change with the system on a form satisfactory to it. The
new nomination will be effective on the date the notice,
in proper form, is received by the system, and any prior
nomination shall thereupon become void.

We have held "that the language of N.J.S.A. 43:15A-57.1 is unambiguous"

in requiring that changes of beneficiaries be filed in writing with the Division.

Estate of Boyle v. Bd. of Trs., 234 N.J. Super. 93, 97 (App. Div. 1989).

Moreover, the QDRO does not serve as a substitute to eliminate the express

statutory requirements of N.J.S.A. 43:15A-57.1. Karen had the option to change

her primary beneficiary designation for the return of accumulated deductions

from her PERS account but chose not to. Therefore, we find Richard's argument

under N.J.S.A. 3B:3-14 to be unpersuasive.

Further, a related regulation, N.J.A.C. 17:4-3.6(b), provides that "[i]f a

deceased member has an eligible surviving spouse, child or parent, then the

deceased member's aggregate contributions at the time of death shall be applied

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toward the payment of the benefit established at N.J.S.A. 43:16A-9(1)."

According to the regulatory history, "the purpose of N.J.A.C. 17:4-3.6 when

originally proposed was to ensure that members' most recent expression of

beneficiary designation is given effect." 32 N.J.R. 3581(a) (Oct. 2, 2000)

(emphasis added).

Although Karen divorced Mr. Rasczyk in 2004, she never removed him

from her beneficiary designation on file with PERS. Therefore, the Division

properly paid the return of accumulated deductions to the named beneficiary —

Mr. Rasczyk—on file at the time of Karen's death in accordance with N.J.S.A.

18A:66-38.3 For whatever reason or reasons, Karen did not eliminate Mr.

Rasczyk as the beneficiary of her return of accumulated deductions, and it is not

up to the courts or the Board to take matters into their own hands. In sum, the

3
The Division incorrectly cites N.J.S.A. 43:15A-48(c), however, the relevant
statute is N.J.S.A. 18A:66-38, which states:

(a) The member's accumulated deductions at the time
of death together with regular interest . . . ; and

(b) 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.

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Board's final decision was consonant with the governing law, and was neither

arbitrary nor capricious.

Richard's claim of fraud raised in Point II of his brief was not presented

to the Board and is deemed waived. See State v. Witt, 223 N.J. 409, 419 (2015).

Affirmed.

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