ALJDEC decisions subject to certification as final

18F-001-ARB · Arizona State Retirement System · 2017-10-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Wayne Senner

Appellant,

v.

Arizona State Retirement System,

Respondent.

Mimi Soran-Senner

Co-Respondent.

No. 18F-001-ARB

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 7, 2017 with the record held open until September 27, 2017.

APPEARANCES: Appellant Wayne Senner appeared on behalf of himself. Assistant Attorney General Vineet Shaw appeared on behalf of the Arizona State Retirement System. Mimi Soran-Senner appeared on behalf of herself.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On August 3, 2017, the Arizona State Retirement System (“ASRS”) issued a Notice of Hearing setting the above captioned matter for hearing on September 7, 2017. The Notice of Hearing provided that the issue was whether grounds exist to justify the ASRS’s appealable agency action and its application of A.R.S. §§ 38-712 (C), 38-765, and 38-791(F).

2. Appellant Wayne Senner is a member of the ASRS.

3. On or about August 2, 2002, Mr. Senner retired from the ASRS and began receiving a monthly pension benefit. See Exhibit B.

4. On May 6, 2014, Mr. Senner and Mimi Soran-Senner divorced.

5. On or about February 3, 2015, the ASRS received an Income Withholding Order dated January 29, 2015. Maricopa County Superior Court ordered Mr. Senner to pay child support in the sum of $554.23 per month directly from his pension payment. The Effective Date on the Order is January 1, 2015. See Exhibit L.

6. On or about March 1, 2015, the ASRS implemented the Order and began sending $554.23 per month in child support directly to Support Payment Clearinghouse. See Exhibit M.

7. On August 15, 2016, the ASRS received a new court document indicating the child support had ceased as of May 31, 2016. The court document was an Order of Termination of Income Withholding dated August 9, 2016. See Exhibit O.

8. On September 1, 2016, the ASRS implemented the Order of Termination and prospectively ceased child support deductions from Mr. Senner’s pension payment beginning with his September 2016 pension benefit. See Exhibit P.

9. On March 20, 2017, Mr. Senner appealed to the ASRS Director in the administrative appeals process and requested that the ASRS reimburse him directly for the child support deductions that were withheld beyond the child support termination date of May 31, 2016 for a total of $1,662.69 ($554.23 x 3 months). See Exhibit R.

10. On April 18, 2017, the ASRS responded to Mr. Senner’s appeal by denying his request and advising him to seek financial relief from his former spouse Mimi Soran-Senner in Maricopa County Superior Court if he believed that she received more funds in child support payments than she was entitled. See Exhibit S.

11. Mr. Senner continued his administrative appeal to the ASRS Appeals Committee of the ASRS Board and requested an administrative hearing at the Arizona Office of Administrative Hearings. See Exhibit T.

12. Based on the documents Mr. Senner provided to the ASRS during his appeal, the ASRS made a decision to grant his appeal and assess an overpayment of pension monies against his former spouse Mimi Soran-Senner who benefited from the overpaid child support deductions.

13. On May 9, 2017, the ASRS mailed two separate letters to 1) Mr. Senner stating ASRS was approving his appeal and he would receive a one-time reimbursement payment of $1,662.69, and 2) Mimi Soran-Senner stating she owed the ASRS an overpayment of $1,662.69 as a direct result of Wayne Senner’s successful appeal to the ASRS. See Exhibits U and V.

14. Based on the information known to the ASRS as of May 9, 2017, the ASRS processed the one-time reimbursement payment of $1,662.69 to Wayne Senner. This payment was issued on May 15, 2017 to Wayne Senner.

See Exhibit AA.

15. On May 12, 2017, Mimi Soran-Senner contacted ASRS employee Jenna Orozco with a voicemail message. The voicemail message stated this child support overpayment matter had already been resolved by Superior Court and that she had documentation to prove the resolution.

16. On May 15, 2017, Jenna Orozco spoke with Mimi Soran-Senner via telephone, and Ms. Senner provided two documents to Jenna, a Stipulation to Dismiss Petition for Contempt and Civil Claim (“Stipulation”) and a Chase Bank Cashier’s Check by Mimi Senner. See Exhibit X.

17. The Stipulation filed in Maricopa County Superior Court on December 5, 2016 states the following: “Petitioner, Mimi Senner, and Respondent, Wayne Senner, agree to resolve and cease all litigation actions connected with Case No. FC2014-092593 including expense reimbursement, reimbursement of child support, and taxes owed. We also agree to resolve and cease all litigation actions connected with Case No. CV2016-016645 and to not pursue further litigation regarding any matter connected with our previous marriage or divorce. Respondent also agrees to continue to sign tuition reduction approval for Erik Senner and Sean Senner any time they wish to utilize the benefit he receives as professor’s emeritus from Arizona State University. In return, Petitioner agrees pay Respondent the sum of $2,000. See Exhibit X.

18. On December 7, 2016, Mr. Senner and Ms. Soran-Senner filed a Stipulation to Consolidate and Dismiss Petition for Contempt and Civil Claim and Request to Vacate Trial.

19. The Stipulation filed in Maricopa County Superior Court on December 7, 2016, provides, in relevant part, as follows:

CV2016-016645 shall be consolidated with FC2014-092593 under the family law case. All pending petitions and claims filed in Case No. FC2014-092593 (including the consolidated civil case) shall be dismissed. Both parties waive any right to reimbursement or payment that are the subject of the current pending petition and claim in the above referenced case and further agree that neither shall pursue further litigation regarding any matter connected with their previous marriage or divorce. The parties agree and request this Court vacate any and all currently pending trials.

Respondent further agrees to sign a tuition reduction approval for Erik Senner and Sean Senner any time they wish to utilize the benefit Respondent receives as professor emeritus from Arizona State University. Petitioner has paid Respondent the total sum of $2,000 in exchange for his agreement to sign said tuition reductions. See Exhibit X, pages 4-5.

20. After receiving the information from Mimi Soran-Senner, the ASRS informed Wayne Senner that the ASRS was retracting the appeal approval provided in the letter dated May 9, 2017 from the ASRS to Wayne Senner.

21. On May 17, 2017, the ASRS informed Mr. Senner that it was reversing its position in the May 9, 2017 letter which authorized the reimbursement of the $1,662.69 child support deduction. See Exhibit Y. The May 17, 2017 letter provides, in relevant part, as follows:

You have been attempting to appeal a matter through the ASRS that has been resolved in the superior court. Based on this new and relevant evidence, the ASRS is retracting the statements and overturning its position in the ASRS letter to you dated May 9, 2017. Unfortunately, the ASRS processed a one-time payment of $1,662.69 to you prior to the ASRS receiving this material information on May 15, 2017. If the ASRS’s custodial bank is unsuccessful in canceling this payment, the full amount will be deducted from your subsequent ASRS pension check as authorized by Ariz. Rev. Stat. section 38-765.

22. After receiving the information from Mimi Soran-Senner, the ASRS attempted to cancel the $1,662.69 payment to Wayne Senner. The ASRS received confirmation on June 22, 2017 from its custodial bank State Street Bank that the bank was unable to cancel or reclaim the payment. See Exhibit AA.

23. On July 14, 2017, Mr. Senner reinstated his ASRS Board appeal.

24. The one-time payment of $1,662.69 to Wayne Senner that the ASRS was unable to cancel or reclaim has been deducted from his August 2017 ASRS pension payment.

25. At hearing, the Board presented the testimony of Jenna Orozco and submitted exhibits A through Exhibit AA. Ms. Soran-Senner testified on her own behalf and submitted exhibits I and 2. Mr. Senner testified on his own behalf.

26. Ms. Soran-Senner testified that she entered into a Stipulation with Mr. Senner because Mr. Senner stated that he wanted to pay her $2,000 to take care of everything. Ms. Soran –Senner testified that she filed the lawsuit (FC2014-092593 in Maricopa Superior Court which is the subject of the Stipulation. Mr. Soran-Senner testified that she did not file a claim for child support in her action. Mr. Soran-Senner testified that in a response to a Petition for Contempt of Court, Mr. Senner requested that the Court reimburse him for the three months of child support erroneously paid to Ms. Soran-Senner. Ms. Soran-Senner contended that because Mr. Senner requested child support reimbursement in Case No. FC2014-092593, the reference to “All pending petitions and claims” and “right to reimbursement” includes Mr. Senner’s request.

27. Ms. Soran-Senner testified that the last sentence of the Stipulation which states “Petitioner has paid Respondent the total sum of $2,000 in exchange from his agreement to sign said tuition reductions” erroneously omitted the child support reimbursement issue. Ms. Soran-Senner testified that the Stipulation signed on December 7, 2016 shows that Mr. Senner paid $2,000 to settle all maters connected to their previous marriage or divorce.

28. Mr. Senner testified that he told Ms. Soran-Senner that he would give her $2,000 to “stop all the fighting.” However, Mr. Senner testified that he did intend that the $2,000 be a settlement for the child support money that was erroneously taken out of his pension. Mr. Senner testified that he paid the $2,000 in exchange for his agreement to sign the tuition reductions as its stated in the December 7, 2016 Stipulation.

27. Ms. Senner testified that the Court vacated the trial in the matter involving Case No. FC2014-092593 based upon the Stipulations. See Administrative Record, Ms. Soran-Senner’s 9/7/2017 filing.

CONCLUSIONS OF LAW

1. Appellant bears the burden of proof and, as such, must establish by

a preponderance of the evidence that ASRS improperly determined that Appellant was overpaid $1,662.69.

2. “A preponderance of the evidence is such proof as convinces the trier of fact

that the contention is more probably true than not.” A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

3. Ariz. Rev. Stat. section 38-765 provides:

If any change or error in the records results in any member or beneficiary receiving from ASRS more or less than the member or beneficiary would have been entitled to receive if the records had been correct, ASRS shall correct the error and as far as practicable shall adjust the payments in a manner so that the actuarial equivalent of the benefit to which the member or beneficiary was correctly entitled is paid. ASRS shall correct any change or error and shall pay the appropriate monies to a member or beneficiary or shall recover monies from the member or beneficiary if the member or beneficiary is overpaid. ASRS shall recover monies by reducing any benefit otherwise payable by ASRS or the LTD program established by article 2.1 of this chapter to an active, inactive, person with a disability or retired member, survivor, contingent annuitant, beneficiary or alternate payee.

4. ASRS is not permitted to issue a monthly benefit that exceeds the amount permitted by statute.

5. The weight of the evidence presented at hearing established that a Superior Court Judge vacated a trial and dismissed all pending petitions and claims filed in a family court matter based upon a Stipulation between Appellant and MS. Senner to forgo any further litigation regarding any matter connected with his previous marriage or divorce.

6. The weight of the evidence presented at hearing shows that the payment of child support deducted from Appellant’s pension during the months of June, July and August of 2016, totaling $1,662.69, is a matter that is connected to the previous marriage or divorce.

7. The Department’s determination that Mr. Senner was overpaid $1,662.69 because he previously resolved all matters related to his marriage or divorce was not improper.

8. The Administrative Law Judge concludes that in the absence of controlling authority to the contrary, Appellant failed to establish by a preponderance of the evidence that ASRS improperly deducted $1,662.69 from his monthly pension to collect an overpayment.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the ASRS Board affirm its denial of Appellant’s appeal.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five (5) days from the date of that certification.

Done this day, October 17, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Paul Matson, Director

Arizona State Retirement System