Shoenthal v. Shoenthal, A16A0398

• Decision Date: 22 June 2016
• Docket Number: A16A0398
• Citation: 337 Ga.App. 515,788 S.E.2d 116
• Parties: Shoenthal et al. v. Shoenthal et al.
• Court: Georgia Court of Appeals

337 Ga.App. 515

788 S.E.2d 116

Shoenthal et al.

v.Shoenthal et al.

A16A0398

Court of Appeals of Georgia.

June 22, 2016

Christopher Scott Anulewicz, Brooke Walker Gram, Balch & Bingham, Atlanta, for Appellants.

Barry L. Zimmerman, Bradford James Zimmerman, Zimmerman & Associates, Stanford G. Wilson, Atlanta, Richard Read Gignilliat, Richard Murray Escoffery, Elarbee, Thompson, Sapp & Wilson, for Appellees.

Peterson

, Judge.

Rachel and Rebecca Shoenthal (collectively, “Plaintiffs”), daughters of the late Judge Elliot Shoenthal, filed a complaint against the DeKalb County Employees Retirement System Pension Board, members of the Board (collectively, “the Board”), and Fran Shoenthal, alleging that the Board wrongfully disbursed and Fran improperly claimed their deceased father's entire pension benefits when their father had designated that benefits be paid to them. The trial court granted the Board's and Fran's motions for judgment on the pleadings on the ground that Judge Shoenthal did not provide notice to the Board of a change in beneficiaries. On appeal, Plaintiffs argue that the trial court erred (1) by interpreting the DeKalb County Pension Code (the “Pension Code”) to require an employee personally to provide notice of the change in beneficiaries; (2) by failing to use its equitable powers to effectuate Judge Shoenthal's expressed intent to change beneficiaries; (3) by failing to consider the merits of their individual claims; and (4) by considering matters outside the pleadings. We affirm because the trial court correctly determined that Judge Shoenthal did not provide written notice to the Board as required by the Pension Code, and thus did not effectuate the change in beneficiaries upon which Plaintiffs' claims rest.

“A motion for judgment on the pleadings should be granted only if the moving party is clearly entitled to judgment.” Trop, Inc. v. City of Brookhaven , 296 Ga. 85, 87(1), 764 S.E.2d 398 (2014)

(citation and punctuation omitted). On appeal, we construe the pleadings in the light most favorable to the appellants, drawing all reasonable inferences in their favor. Alexander v. Wachovia Bank, N.A. , 305 Ga.App. 641, 641, 700 S.E.2d 640 (2010). All allegations of the moving party that have been denied are taken as false, while all well-pleaded material allegations of the opposing party's pleadings are taken as true. Id.

So viewed, the pleadings show that Judge Shoenthal was married to Fran, and they had two daughters, the plaintiffs. Judge Shoenthal was employed by DeKalb County from July 1998 until he died on December 1, 2013, as a result of complications from a back surgery he had on November 27, 2013.

On October 25, 2013, about a month before his scheduled surgery, Judge Shoenthal changed the beneficiaries on employer-provided life insurance policies by reducing Fran's share of the benefit from 100 percent to 50 percent and designating that each of the Plaintiffs receive 25 percent of the benefit. On the morning of November 18, 2013, Judge Shoenthal e-mailed the clerk of the Board, inquiring about changing the beneficiaries on his pension plan. Specifically, Judge Shoenthal asked, “[w]hat happens to my pension if I die—does it go to my wife? Can I split it between my wife and my children? Second, if I'm able to split it, what do I need to do to modify the beneficiary?” The clerk responded on November 20, 2013, informing Judge Shoenthal that he could change designated beneficiaries by completing a form available on a county website. Judge Shoenthal replied that he would complete a new beneficiary form.

That same month, Judge Shoenthal told his sister that he had revised his will to reflect his “intention to leave everything to [Plaintiffs] and little to nothing to Fran.” At a November 23 lunch, Judge Shoenthal told his sister that he was in the process of changing the beneficiary designation for his pension. On November 25, 2013, Judge Shoenthal completed and signed the change-of-beneficiary form, designating the Plaintiffs as the sole beneficiaries. Judge Shoenthal also handwrote, “I want each of my children to receive 50% of my pension.” Attached to the change-of-beneficiary form was a Post–It note containing the Board's address. Judge Shoenthal placed the form on or in his desk. Over the next two days, Judge Shoenthal worked in his office and handled repairs to his car.

Judge Shoenthal had surgery on November 27, was released from the hospital the next day, and died from an embolism

on December 1, 2013. Judge Shoenthal never mailed or delivered the change-of-beneficiary form.

Around the time Judge Shoenthal was released from the hospital, Fran discovered that he had changed or intended to change the beneficiaries on his pension plan. About a week after Judge Shoenthal's death, Fran submitted an application to receive Judge Shoenthal's pension benefits. Later that month, the change-of-beneficiary form was found on or in Judge Shoenthal's desk, and Fran was told about it. On January 1, 2014, the Board began sending monthly pension payments to Fran. A few days later, one of the Plaintiffs hand-delivered the signed change-of-beneficiary form to the Board and requested that it be honored. The Board informed Plaintiffs that it would not recognize the change-of-beneficiary form, but did not provide a reason. Plaintiffs then filed this lawsuit.

In their suit, Plaintiffs sought a declaratory judgment that they were the lawful beneficiaries of Judge Shoenthal's pension benefits. Plaintiffs also requested mandamus to compel the Board to stop making payments to Fran and to begin making payments to Plaintiffs, and sought damages on the theory that the Board had breached Judge Shoenthal's employment contract, of which his pension benefits were a part. Plaintiffs raised claims of fraud, conversion, and money had and received against Fran, and sought attorneys' fees against all the defendants.

The Board moved for judgment on the pleadings, arguing that § 908 of the Pension Code unambiguously provided that changes to designated beneficiaries must be in writing and must be presented to the Board by the participant. The Board also argued that, even if the relevant code section was ambiguous, the trial court was required to defer to the Board's interpretation of that section as mandating the participant to present the form because such an interpretation was a reasonable construction. Fran also moved for judgment on the pleadings and adopted the Board's arguments. The trial court granted the Board's and Fran's motions, concluding that the completed change-of-beneficiary form did not constitute written notice from Judge Shoenthal, because neither he nor someone acting at his direction ever mailed or hand-delivered the form to the Board. The trial court also concluded that the completed form never converted to written notice because it was not hand-delivered or placed in the mail by Judge Shoenthal or by a third party at his direction. This appeal followed.¹

1. Trial court correctly determined that Judge Shoenthal did not provide written notice, as required by the Pension Code.

Plaintiffs argue that the trial court erred in granting judgment on the pleadings because it misconstrued § 908 of the Pension Code to require Judge Shoenthal actually and personally to deliver notice of the change-of-beneficiary form. Plaintiffs argue that § 908 requires the Board to change designated beneficiaries upon receiving any written notice, and nothing in the code section indicates that the Board must receive such notice directly from the participant. We disagree.

The grant of a motion for judgment on the pleadings is proper where there is a complete failure to state a cause of action and the allegations make clear that the opposing party would not be entitled to judgment under any state of provable facts. See Holland Ins. Grp., LLC v. Senior Life Ins. Co. , 329 Ga.App. 834, 836, 766 S.E.2d 187 (2014)

. Accepting Plaintiffs' allegations as true, Plaintiffs would show that Judge Shoenthal failed to send to the Board the completed change-of-beneficiary form prior to his death, and one of the Plaintiffs hand-delivered the form to the Board about a month after his death. Under these allegations, Plaintiffs failed to establish that the Board erred in declining to designate them as the beneficiaries of Judge Shoenthal's pension benefits. Because all of their claims rest on the presumption that they—not Fran—are the true beneficiaries, judgment on the pleadings is appropriate.

Regulations of a benefit association that provide the method of change of beneficiary must be complied with by the plan participant to make the change effectual, and the failure to comply with such regulations renders ineffectual an attempt to change the beneficiary. Faircloth v. Coleman , 211 Ga. 356, 359, 86 S.E.2d 107 (1955)

. Section 908 of the Pension Code pertinently provides:

All participants shall, on a form provided for that purpose, designate a person or persons to receive the benefits payable in the event of the death of the participant. Such person or persons shall be the beneficiary of the participant.

The participant may from time to time change the beneficiary by written notice to the pension board, and upon the receipt by the pension board of such change, the rights of all previously designated beneficiaries to receive any benefit under this plan shall cease.

Pension Code § 908(b)(9)(A).

The Pension Code is part of the “complete recodification of the ordinances of DeKalb County, Georgia[.]” See Code of DeKalb County as revised, 1988 (preface). Construction of an ordinance is a question of law, generally subject to canons of statutory construction. DeKalb Cty. v. Post Apartment Homes, L.P. , 234 Ga.App. 409, 411, 506 S.E.2d 899 (1998)

; City of Buchanan v. Pope , 222 Ga.App. 716, 717, 476 S.E.2d 53 (1996). When we consider the text of a statute or ordinance, we must afford the text its “plain and ordinary meaning,” view the text in the context in which it...