Hamlin v. Pub. Emps. Ret. Bd.

• Decision Date: 23 September 2015
• Docket Number: A155277.,121403
• Citation: 359 P.3d 581,273 Or.App. 796
• Parties: Karen HAMLIN, Petitioner, v. PUBLIC EMPLOYEES RETIREMENT BOARD, for the STATE of Oregon; and Mark Hamlin, personal representative of the Estate of Scott Hamlin, Respondents.
• Court: Oregon Court of Appeals

273 Or.App. 796

359 P.3d 581

Karen HAMLIN, Petitioner

v.PUBLIC EMPLOYEES RETIREMENT BOARD, for the STATE of Oregon; and Mark Hamlin, personal representative of the Estate of Scott Hamlin, Respondents.

121403

A155277.

Court of Appeals of Oregon.

Argued and Submitted May 7, 2015.

Decided Sept. 23, 2015.

Michael C. Peterson argued the cause for petitioner. With him on the briefs was Heltzel Williams PC.

Jennifer A. Costa argued the cause for respondent Mark Hamlin. With her on the brief was Barnhisel Willis Barlow & Stephens, PC.

Judy C. Lucas, Assistant Attorney General, argued the cause for respondent Public Employees Retirement Board. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before DUNCAN, Presiding Judge, and LAGESEN, Judge, and FLYNN, Judge.

Opinion

LAGESEN, J.

Petitioner Karen Hamlin is a public employee with a retirement account in the Public Employees Retirement System (PERS). When petitioner and her ex-husband divorced, the dissolution court ordered petitioner's PERS account divided between petitioner and her husband. However, neither petitioner nor her ex-husband ever gave PERS the paperwork it required in order to divide the account, so PERS did not divide it until after the ex-husband's death, when his estate provided the paperwork. After dividing the account, PERS distributed the account's balance attributable to the ex-husband's share to his estate. The questions before us in this judicial-review proceeding are these: did the death of petitioner's ex-husband eliminate PERS's authority to divide petitioner's PERS account in the manner required by the dissolution judgment? And does the fact that PERS did not divide the account before petitioner's ex-husband's death mean that PERS lacked authority to distribute the account to the estate?¹ In the order on review, the Public Employees Retirement Board (PERB) answered those questions no. We agree with PERB and affirm.

This case arises under ORS 183.482 on petitioner's petition for judicial review of PERB's final order in a contested case. In the order, PERB upheld the “letter of determination” by PERS that divided petitioner's PERS retirement account in accordance with the dissolution judgment and distributed that account to the estate of her ex-husband. PERB resolved the matter on cross-motions for summary determination, without making factual findings. OAR 137–003–0580.² We review PERB's order for errors of law. ORS 183.482(8)(a) ; Smith v. PERB, 235 Or.App. 159, 161, 230 P.3d 88 (2010) (reviewing PERB order for legal error when order resulted from grant of summary determination).

Under Oregon law, a retirement plan or pension “shall be considered as property” in the context of the division of marital property in a judgment of dissolution. ORS 107.105(1)(f)(A). Although, as a general rule, a PERS member's retirement account is not assignable,³ there is an exception to that rule when a judgment of dissolution of marriage directs the assignment. In such a case, the PERS member's former spouse becomes an “alternate payee” to whom the portion of the member's PERS benefits directed by the judgment may be paid. ORS 238.465(1) provides, in part:

“Notwithstanding ORS 238.445 or any other provision of law, payments under [ORS chapters 238 and 238A] of any * * * retirement allowance * * * that would otherwise be made to a person entitled thereto * * * shall be paid * * * to an alternate payee if and to the extent expressly provided for in the terms of any judgment of annulment or dissolution of marriage[.]”

The statute further contemplates that, when a dissolution judgment directs the division of a PERS account, PERS will create a separate account in the name of the alternate payee in the manner specified by PERB administrative rules.

ORS 238.465(3)(a). Those administrative rules, in turn, require that, to establish a separate account for an alternate payee, PERS must have in its records a “stamped” certified copy of the judgment establishing the alternate payee. OAR 459–045–0020(1) (“A final order must be received by PERS and approved as administrable before an alternate payee award can be established.”); OAR 459–045–0001(9) (A “final court order” is “a court order that has been signed by a judge and shows the stamp of the court clerk or trial court administrator indicating the order is a certified copy of the original record that is on file with the court”).

Under ORS 238.465(4), if an alternate payee predeceases the member before the alternate payee begins receiving benefits, then the alternate payee is treated as a member of PERS who died before retirement for the purpose of PERS death benefits. In turn, under ORS 238.390(2), when a PERS member dies before retiring without designating a beneficiary, PERS is required to pay “the amount of money, if any, credited at the time of death to the member account of the deceased member to the personal representative appointed for the estate of the deceased member.”

Petitioner is a PERS-covered Tier One employee.⁴ Petitioner and Scott Hamlin (Hamlin) were married from 1976 until they divorced on June 28, 2004. Petitioner and Hamlin dissolved their marriage by a stipulated judgment of dissolution, which divided the marital property and awarded Hamlin 50 percent of petitioner's PERS retirement account accrued to December 31, 2003. The judgment directed PERS to segregate Hamlin's portion of the account into a separate account in his name and to do so as soon as “administratively feasible.”⁵ The judgment required petitioner to cooperate with PERS “in taking any action necessary to carry out the provisions” of the judgment. The judgment's provisions relating to the division of petitioner's PERS account became effective upon entry of the judgment on July 1, 2004.

On July 8, 2004, petitioner's attorney mailed to PERS a signed copy of the judgment of dissolution, but that copy did not have the stamp of the circuit court clerk or administrator, as required by the applicable administrative rules. PERS requested a stamped copy from petitioner's attorney but did not receive one.

In October 2006, Hamlin inquired of PERS why he had not received any mail related to the PERS account, and a PERS representative told him that PERS did not yet have a certified copy of the judgment that had been stamped “filed.” In an attempt to comply, Hamlin then faxed to PERS a stamped “filed” copy of a supplemental judgment relating to another retirement account, but not the PERS account. Hamlin died on February 1, 2012. At the time of Hamlin's death, PERS did not yet have in its records a stamped certified copy of the judgment, and had not yet set up an “alternate payee” account for Hamlin.

Hamlin died without a will and without having designated a beneficiary for his PERS account. Hamlin's brother filed a small estate affidavit in Marion County Circuit Court to administer his estate. After the opening of Hamlin's estate, the estate sent PERS a stamped certified copy of the 2004 judgment of dissolution directing the creation of a separate PERS account for Hamlin. Upon receiving that copy of the 2004 judgment, PERS created a separate account for Hamlin as an alternate payee. Because Hamlin had not designated a beneficiary, PERS paid the benefits in the account to Hamlin's estate.

Petitioner disputed PERS's division of the account and its determination that Hamlin's account should be paid to Hamlin's estate. Petitioner requested a hearing before PERB, contending that PERS should pay Hamlin's PERS benefits to her. Before PERB, each of the parties (petitioner, PERS, and Hamlin's estate) sought a summary determination pursuant to OAR 137–003–0580, contending that the facts were undisputed and that each was entitled to prevail as a matter of law. In the alternative, petitioner contended that there was a genuine issue of material fact that precluded summary determination for the estate and PERB.⁶ PERB granted the estate's and PERS's motion for summary determination and upheld the PERS determination, rejecting petitioner's arguments that PERS lacked the statutory authority to divide her account in accordance with the 2004 judgment. Petitioner timely filed this petition for judicial review. On review, she reiterates her various arguments as to why PERS lacked the authority to divide her PERS account and pay Hamlin's portion to his estate. For the reasons that follow, we reject all of those arguments.

Petitioner first argues that PERS lacked statutory authority to divide her account because the 2004 judgment did not state explicitly that PERS would pay the benefits due under the judgment to Hamlin's estate if Hamlin died before PERS set up the alternate payee account for Hamlin. Petitioner notes that ORS 238.465(1) states that an account may be divided between a PERS member and a former spouse only “to the extent expressly provided for” in a dissolution judgment. Petitioner contends that, because the judgment of dissolution did not expressly address how the account would be divided in the event of Hamlin's death before a separate account had been created, the judgment did not “expressly provide” for the division of the account in that circumstance, and PERS lacked authority to create an account for Hamlin after his death.

Contrary to petitioner's argument, nothing in ORS 238.465 suggests that the parties were required to state specifically in the 2004 judgment that PERS was to divide the account even if Hamlin died after the judgment but before PERS set up the account. And, as PERB concluded, the 2004 judgment, by its terms, “expressly provided” for the division of petitioner's PERS account that PERS ultimately implemented. The property division portion of the 2004 dissolution judgment by its terms became effective upon its entry on July 1, 2004. It provided, “[Hamlin] is hereby assigned fifty percent (50%) of Wife's Oregon Public Employees' Retirement System (PERS) account[.]” By virtue of the award, Hamlin was an...