ALJDEC decisions subject to certification as final

20F-003-ARB · Arizona State Retirement System · 2019-11-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 16, 2019 APPEARANCES: Nadean Burnes on her own behalf; Cassie Adams, Esq. for the Arizona State Retirement System ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT 1. On September 13, 2019, the Arizona State Retirement System (“ASRS”) issued an Amended Notice of Hearing setting the above- captioned matter for hearing at 8:00 a.m. on October 16, 2019 at the Office of Administrative Hearings in Phoenix, Arizona. The original Notice was issued on September 9, 2019, but did not include the starting time of the hearing. 2. Appellant is Nadean Burnes, who has also been known as Nadean Elliot and Nadean Burnes Gardin. 3. Ms. Burnes requested that ASRS provide to her a community property division of her now deceased, ex-husband Gerald Gardin’s ASRS account. 4. ASRS’s Director determined that Ms. Burnes was not entitled to such a community property division and Ms. Burnes filed an appeal. 5. Ms. Burnes appeared and testified on her own behalf. ASRS presented the testimony of member advocate Jenna Golab. 6. Mr. Gardin has twice been a member of ASRS. 7. On September 9, 1996, Mr. Gardin enrolled as a member for the first time. 8. Mr. Gardin named Ms. Burnes, who was then known as Nadean Elliot, as his beneficiary. Ms. Burnes was Mr. Gardin’s fiancée at that time. 9. On August 27, 2008, a “Judgment/Decree” was entered in Maricopa County Superior in the matter of Ms. Burnes’s and Mr. Gardin’s marriage. Through that decree their marriage was ended. 10. One of the issues addressed in the Judgment/Decree was Mr. Gardin’s account or membership in ASRS. 11. The Court ordered Mr. Gardin to provide Ms. Burnes with proof of the value of his account as of March 25, 2008 (the date of the petition for the dissolution of marriage) and that he pay to Ms. Burnes one-half the value of that account by October 1, 2009. 12. On June 10, 2009, Mr. Gardin filed with ASRS an “Application for Withdrawal of Contributions and Termination of Membership.” 13. In his Application for Withdrawal, Mr. Gardin requested that 100% of his funds in the system be paid directly to him. 14. On June 17, 2009, ASRS paid to Mr. Gardin $1667, which was his entire balance with the system. By withdrawing his contributions, Mr. Gardin’s first membership in the ASRS was terminated. 15. Ms. Burnes provided credible testimony that Mr. Gardin did not pay to her one-half the value of the account as the Court had ordered. 16. In June 2013, Mr. Gardin enrolled in the ASRS as a new member (i.e., this was his second membership in ASRS). 17. Mr. Gardin passed away on May 21, 2019. His spouse on that date was Cami Marlene Treadwell. 18. Through a letter dated July 9, 2019, Ms. Burnes asserted that because she never received half the value of Mr. Gardin’s first account, ASRS should pay that amount to her and half the value of Mr. Gardin’s second account, plus interest. 19. ASRS considered Ms. Burnes’s letter to be a Director Level appeal. 20. In support of her request, Ms. Burnes provided ASRS with the Superior Court’s Judgment/Decree requiring Mr. Gardin to pay her one-half the value of his first account, an Order entering judgment against Mr. Gardin for failure to pay spousal maintenance, and an eCalc report showing that as of May 2015, Mr. Gardin was over $45,000 in arrears on his child support obligations. 21. Ms. Burnes’s appeal letter shows her opinion to the effect that ASRS should not have allowed Mr. Gardin to take the entirety of his first account’s balance, but rather should have paid one- half to her because ASRS should have coordinated with the civil courts to get her the money she was owed. Her letter shows that she was also of the opinion that ASRS’s culpability included allowing Mr. Gardin to open and contribute to the second account/membership. 22. Through a letter dated July 22, 2019, ASRS informed Ms. Burnes that her appeal was denied because when Mr. Gardin closed his first account and terminated his membership, ASRS had no information on file showing that the couple had divorced or that there was to be a split of his first account. ASRS explained that in a divorce, it is incumbent on the ex-spouse to provide ASRS with any court documents regarding the member’s account if that account is to be divided between the two parties. ASRS concluded that when Mr. Gardin terminated his membership on June 10, 2009, it had properly followed the requirements of Ariz. Rev. Stat. section 38-740. 23. ASRS also informed Ms. Burnes that because Ms. Burnes and Mr. Gardin were divorced in June 2013 when Mr. Gardin became a member for the second time, she had no community property interest in his second account. 24. Through an Appeal to the ASRS Board filed on August 20, 2019, Ms. Burnes requested a hearing. 25. In her Appeal to the Board, Ms. Burnes provided information as to the actions she had taken to collect money the Superior Court found Mr. Gardin owed to her. Ms. Burnes also explained that she had not been aware that she could go to ASRS to get her half of Mr. Gardin’s first account, but had she known, she would have done so. 26. At the hearing, ASRS presented evidence to the effect that Ms. Burnes’s request for half of Mr. Gardin’s retirement account had been properly denied because (1) there was no court order directing ASRS to pay half of the first account’s balance to her and it had complied with section 38-740 when it paid to Mr. Gardin that money; and (2) because Ms. Burnes was not married to Mr. Gardin in June 2013 when he became an ASRS member for the second time, she had no community property (or other) right to that money. 27. Ms. Burnes testified to the effect that the Superior Court awarded her half of Mr. Gardin’s account balance and she had not received it as of the hearing date. She testified as to the hardship she has suffered as a result of Mr. Gardin’s failure to meet his obligations to pay child support, spousal maintenance, and half of his first account. This hardship was increased by the fact that she has suffered several severe illnesses, including cancer. 28. Ms. Burnes expressed her opinion that the “system” is broken when a man like Mr. Gardin can disregard court orders, leaving people like her and the children to suffer the consequences. CONCLUSIONS OF LAW 1. Ms. Burnes bears the burden of proof to show that ASRS erred when it denied her request that a portion of Mr. Gardin’s retirement fund to be awarded to her. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. Black’s Law Dictionary 1373 (10th ed. 2014).

3. The primary goal when construing statutes is to fulfill the intent of the legislature. Backus v. State of Arizona, 220 Ariz. 101, 203 P.3d 499 (2009). 4. An agency’s authority is limited to that which is found in its enabling legislation. Arizona State Board of Regents v. Arizona State Personnel Board, 195 Ariz. 173, 985 P.2d 1032 (1999). 5. The tribunal may not expand or extend a statute to include that which is not within its provisions. State ex rel. Morrison v. Anway, 87 Ariz. 206, 349 P.2d 774 (1960). 6. Ms. Burnes has not shown that ASRS erred in denying her request. 7. Regarding the first account, through the Superior Court’s Judgment/Decree, the court made Mr. Gardin, not ASRS responsible to pay her one half of the account balance. And because Ms. Burnes and Mr. Gardin were no longer married when he became an ASRS member the second time, she has no community interest in his account. 8. Although, Ms. Burnes’s frustration with, and criticism of, the “system” is understandable, she did not provide any substantial evidence or legal authority showing that ASRS violated, or failed to comply with any applicable statutes or rules. 9. Consequently, Ms. Burnes’s appeal should be dismissed. ORDER IT IS ORDERED that Nadean Burnes’s appeal is dismissed. 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 is five days after the date of that certification.

Done this day, November 18, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Paul Matson, Director Arizona State Retirement System -----------------------

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826