                        NOT FOR PUBLICATION WITHOUT THE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 internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1535-16T3

CHRISTINE MINSAVAGE for
DAVID MINSAVAGE (deceased),

        Petitioner-Appellant,

v.

BOARD OF TRUSTEES, TEACHERS'
PENSION AND ANNUITY FUND,

     Respondent-Respondent.
________________________________

              Argued May 30, 2018 – Decided June 15, 2018

              Before Judges Hoffman and Mayer.

              On appeal from the Board of Trustees of the
              Teachers' Pension and Annuity Fund, Department
              of Treasury, TPAF No. 1-421704.

              Daniel J. Zirrith argued the cause for
              appellant (Law Offices of Daniel J. Zirrith,
              LLC, attorneys; Daniel J. Zirrith, of counsel
              and on the briefs; Jeffrey J. Berezny, on the
              briefs).

              Jeff S. Ignatowitz, Deputy Attorney General,
              argued the cause for respondent (Gurbir S.
              Grewal, Attorney General, attorney; Melissa H.
              Raksa, Assistant Attorney General, of counsel;
              Jeff S. Ignatowitz, Deputy Attorney General,
              on the brief).
PER CURIAM

     Appellant Christine Minsavage sought to change the retirement

option her deceased husband chose so she could receive survivor

retirement benefits rather than reimbursement of her husband's

pension contributions.       Appellant now appeals from the November

4, 2016 final decision of respondent, the Board of Trustees of the

Teachers' Pension and Annuity Fund (Board), denying her request

to change the retirement option her husband selected.            We affirm.

                                      I

     David Minsavage (decedent) worked for nearly twenty-five

years at Hanover Park High School (school), beginning in 1990.             In

August    2014,   decedent   was   diagnosed   with   terminal   pancreatic

cancer.

     In    September   2014,   decedent    contacted    the   Division     of

Pensions and Benefits (Division) for assistance in setting up his

member benefits online system (MBOS) account.              Around October

2014, decedent contacted the New Jersey Education Association

(NJEA) to discuss his retirement options.        Appellant certifies she

and decedent notified NJEA of decedent's terminal cancer diagnosis

at that time.      According to appellant, the NJEA representative

provided decedent with screen shots of a sample MBOS retirement

application and instructed decedent on the options he should choose

by highlighting selections on the sample application; decedent

                                      2                             A-1535-16T3
followed the NJEA representative's directions, and "on or about

November 17, 2014," filed an application for early retirement.1

       Decedent continued working at the school until mid-December

2014.      On March 16, 2015, the school filed a certification of

services     and    final   salary   retirement   form,   which    indicated

decedent would retire on July 1, 2015 — the date he would attain

eligibility for early retirement, which requires twenty-five years

of service.

       On April 9, 2015, decedent passed away after twenty-four

years and ten months of service.           Appellant notified the Division

of her husband's passing the following day.             On April 15, 2015,

the school certified to the Division that decedent's last day of

active service was April 8, 2015; thus, decedent passed away less

than    three      months   before   attaining    eligibility     for     early

retirement.

       On April 22, 2015, the Division wrote appellant notifying her

of   her   entitled     benefits,    which   included   return    of    pension

contributions and a Group Life Insurance Benefit.                  Appellant


1
   Unaware decedent had previously filed his own application, in
April 2015, appellant accessed decedent's MBOS account and filed
a retirement application on his behalf. According to appellant's
certification, she also relied upon an NJEA representative's
instructions in selecting the early retirement option. She further
certified no one advised either her or decedent about filing for
ordinary disability.


                                       3                                A-1535-16T3
contacted the Division in April and May inquiring into the letter's

meaning and her benefit eligibility.       Eventually, she learned she

was only entitled to reimbursement of decedent's contributions

rather than survivor retirement benefits because decedent did not

survive long enough to attain twenty-five years of service.

     Appellant wrote the Division and requested permission to

change decedent's retirement application from early retirement to

ordinary   disability   retirement.       In   her   correspondence,    she

stated, "Had we known how sick my husband really was and how

quickly the cancer would cause his death[,] we would have filed

for a retirement benefit with a disability status."         In response,

the Division confirmed its determination that appellant was not

entitled to survivor retirement benefits because decedent did not

attain twenty-five years of service.

     Subsequently, with the assistance of counsel, appellant filed

an appeal with the Board. In her appeal, she requested to "reopen,

amend, modify, and/or change retroactively" decedent's retirement

application,   based    on   the   following   arguments:   (1)   decedent

"lacked sufficient information to make an informed choice among

his retirement options"; (2) decedent "was incapacitated by a

combination of physical, psychological and emotional burdens that

reasonably prevented him from making an informed decision"; (3)

"there was a mutual mistake in his retirement selection based upon

                                     4                             A-1535-16T3
the lack of information and the detrimental reliance on the

specific instructions which did not conform to [decedent's] true

intent, which was to maximize benefits for his wife and children";

(4) "the Board should exercise its discretionary authority to

avoid an inequitable outcome affecting a retiree's innocent spouse

and family"; and (5) appellant "acted with reasonable diligence

in every step of the way in [decedent's] retirement situation

before and after his death."

      The Board denied appellant's request, finding "no evidence

in the record that [decedent] relied upon any advice given to him

by the Division to his detriment," and denied culpability for the

allegedly poor advice the NJEA provided.            The Board also noted

decedent failed to attain twenty-five years of service, as required

by N.J.S.A. 18A:66-113.1.         Finally, it noted the Division was

unaware of decedent's terminal illness at the time he submitted

his   retirement   application,    but   stated   decedent   "could    have

availed himself to the Fact Sheets[,] which provide information

regarding   the    different   retirement   types    available   and   the

eligibility criteria required for each selection or seek guidance

from the Division."

      Appellant appealed the Board's findings, repeating her prior

arguments and further contending there existed good cause to alter

the application.    The Board denied her appeal and issued the final

                                     5                            A-1535-16T3
administrative determination under review.              In its determination,

the   Board    found   "the   statutes       and   regulations   governing   the

[Teachers' Pension and Annuity Fund] do not permit the Board to

grant [appellant's] request to change her husband's retirement

type from [e]arly to [o]rdinary [d]isability retirement."                      It

further found, "there was no evidence in the record that [decedent]

relied upon any advice given to him by the Division to his

detriment.     In fact, you advised that [decedent] sought the advice

and assistance of the NJEA, who actually filed his retirement

application on his behalf."

      It also repeated its prior reasoning, finding:

              The Board cannot comment on any advice that
              was provided to [decedent] by the [NJEA]. The
              Division was unaware that [decedent] had
              serious health problems when he filed his
              application for retirement.      However, the
              Board disagrees with your assertion the
              Division failed to provide him with sufficient
              information upon which he could have made an
              informed decision.      Also, he could have
              availed himself to the Fact Sheets which
              provide information regarding the different
              retirement types available and the eligibility
              criteria required for each selection or seek
              guidance from the Division.

Finally, the Board again confirmed that decedent did not complete

twenty-five years of service, rendering him ineligible for early

retirement under N.J.S.A. 18A:66-113.1.               Accordingly, it held it




                                         6                              A-1535-16T3
was "without authority" to change decedent's retirement type from

early retirement to ordinary disability.            This appeal followed.

                                       II

      On appeal, appellant argues she demonstrated good cause for

the   Board   to   allow   her    to   modify    her    husband's   retirement

application.       She further argues that, at the time decedent

completed his application, he lacked capacity due to severe stress

associated with his terminal diagnosis.           Finally, appellant argues

the Board's alleged failure to follow the requirements of N.J.A.C.

17:3-6.3 invalidates her husband's retirement benefits selection,

thereby allowing her to change the retirement application, and

choose ordinary disability benefits.

      Our review of an administrative agency's decision is limited.

In re Herrmann, 192 N.J. 19, 28 (2007).                 A reviewing court may

reverse only those administrative decisions that are arbitrary,

capricious, unreasonable, or violative of expressed or implicit

legislative policies.          In re Musick, 143 N.J. 206, 216 (1996);

Henry   v.    Rahway   State    Prison,     81   N.J.   571,   579-80   (1980).

Unfortunately for appellant, the Board's decision in the instant

matter is neither arbitrary nor violative of any legislative

policy.

      N.J.S.A. 18A:66-113.1 — early retirement — provides in

pertinent part:

                                       7                                A-1535-16T3
         Should   a   member   resign    after   having
         established [twenty-five] years of creditable
         service before reaching age [sixty], he [or
         she] may elect 'early retirement,' provided
         that such election is communicated by such
         member to the retirement system by filing a
         written application, duly attested, stating at
         what time subsequent to the execution and
         filing thereof he [or she] desires to be
         retired.

N.J.S.A. 18A:66-41 — ordinary disability allowances — provides:

         A   member  upon   retirement  for   ordinary
         disability   shall   receive   a   retirement
         allowance which shall consist of:

         (a) an annuity which shall be          the actuarial
         equivalent of his accumulated         deductions at
         the time of his retirement            together with
         regular interest after January        1, 1956; and

         (b) a pension in the amount which, when added
         to the member's annuity, will provide a total
         retirement allowance of 1.64 [percent] of
         final compensation multiplied by his [or her]
         number of years of creditable service; and
         provided further, that in no event shall the
         allowance be less than 43.6 [percent] of final
         compensation.

         Upon the receipt of proper proofs of the death
         of a member who has retired on an ordinary
         disability retirement allowance, there shall
         be paid to such member's beneficiary, 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 or in
         the year of the member's highest contractual
         salary, whichever is higher . . . .

    We first reject appellant's claim that decedent's illness

incapacitated   him   by   the   time   he   completed   his   retirement

                                    8                             A-1535-16T3
application.     The record lacks support for this claim.         Appellant

conceded both she and decedent failed to appreciate the progression

of her husband's illness when he completed the application.                    At

that time, early retirement represented the most sensible option

because    it   provided   greater   benefits   both    before    and     after

decedent's scheduled retirement.         Although we are sympathetic to

appellant's loss, we cannot rely on her hindsight to permit her

to alter or amend decedent's retirement application.              Moreover,

appellant's evidence supporting her incapacitation argument — a

doctor's    letter   stating   terminal    illness     causes    mental      and

emotional distress — fell short of establishing incapacitation.

     Additionally, we are not persuaded by appellant's arguments

regarding the Board's alleged failure to follow N.J.A.C. 17:3-

6.3(a), which states "a member shall have the right to withdraw,

cancel, or change an application for retirement at any time before

the member's retirement allowance becomes due and payable . . . ."

The plain language of N.J.A.C. 17:3-6.3 indicates it only applies

to a retirement application the Board has already approved.               Here,

decedent was ineligible for early retirement at the time he passed

away; therefore, the Division never approved his application.

Moreover, appellant cites inapposite case law to support her

assertion.



                                     9                                  A-1535-16T3
       We conclude the record lacks evidence the Division knew of

decedent's    medical    condition   or   that   the    Division   provided

decedent with any advice upon which he relied; instead, if decedent

relied upon any representations, the record indicates they came

from   the   NJEA.      Unfortunately,    decedent     passed   away    before

attaining twenty-five years of service.          Thus, the Board did not

act arbitrarily or contrary to legislative intent in denying

appellant the ability to amend or modify decedent's retirement

application.

       Affirmed.




                                     10                                A-1535-16T3
