Opinion
No. 78-1027
Decided March 22, 1979. Rehearings denied April 12, 1979. Certiorari granted June 11, 1979.
As the designated beneficiary of her deceased husband, plaintiff appealed a judgment dismissing her complaint for review of a Public Employee's Retirement Association decision which awarded certain death benefits to the son of her former husband from a prior marriage.
Reversed
1. PENSIONS — Public Employees' Retirement Association — Survivor Benefits — Children — Requirements — Age — School Enrollment — Time of Death. A surviving child of a member of the Public Employees' Retirement Association under the age of twenty-three must be a student in an accredited school at the time of the member's death in order to qualify for survivor benefits.
Appeal from the District Court of the City and County of Denver, Honorable James C. Flanigan, Judge.
Brauer Simons, P.C., Walter C. Brauer, III, for plaintiff-appellant.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Nathan B. Coats, Assistant Attorney General, for defendants-appellees Public Employees Retirement Association and Carl S. Wilkerson, Chairman.
Trott, Kunstle Hughes, Howard J. Kunstle, for defendant-appellee Scott Nichols.
As the designated beneficiary of her deceased husband, William J. Nichols, plaintiff, Charlotte Nichols, appeals from a judgment dismissing her complaint for review of a Public Employees' Retirement Association (PERA) decision which awarded certain death benefits to Scott Nichols, the son of her former husband. We reverse.
The pertinent facts were stipulated to in conjunction with a hearing before the PERA Board. Prior to his death on January 13, 1976, William J. Nichols was an employee of the City of Colorado Springs and was a member of PERA. See §§ 24-51-102 and 24-51-201, et seq., C.R.S. 1973. The deceased designated plaintiff as beneficiary of his PERA account. However, he was also survived by an 18-year-old son from a prior marriage, Scott Nichols.
Scott was employed at the time of his father's death. However, he enrolled in an accredited college approximately eight months later. Insofar as pertinent here, § 24-51-806, C.R.S. 1973, provided:
"If the said deceased member leaves an unmarried child . . . under age twenty-three if such child is found by the board to be enrolled in a duly accredited school, . . . such child shall receive an annuity . . . . Any such annuity payable to a child . . . shall terminate upon graduation or the child's twenty-third birthday, whichever occurs first . . . ."
Based upon the foregoing statute, the Board concluded that Scott should receive survivor benefits and that petitioner was entitled to any funds remaining after the award to Scott was satisfied. See § 24-51-217, C.R.S. 1973.
The single issue on appeal is whether a surviving child under age twenty-three must be a student in an accredited school at the time of the member's death in order to qualify for survivor benefits pursuant to § 24-51-806, C.R.S. 1973. We conclude that he must.
In Public Employees' Retirement Ass'n v. Greene, 195 Colo. 575, 580 P.2d 385 (1978), our Supreme Court held that a member's accumulated deductions must be transferred to the survivor's fund pursuant to § 24-51-806, C.R.S. 1973, when the deceased was survived by minor children, and that this requirement superseded the rights of a named beneficiary as set forth in § 24-51-217, C.R.S. 1973. The Court noted in Greene "that the General Assembly intended a specific statutory disposition of a member's accumulated deductions to occur at death." (emphasis supplied). We find that comment persuasive here.
[1] Section 24-51-806, C.R.S. 1973, was amended after William J. Nichols' death. See § 24-51-806, C.R.S. 1973 (1978 Cum. Supp.). The amended statute permits a surviving child under age twenty-three to enroll in school within six months following a member's death. We view this amendment as fortifying the observation of our Supreme Court in Greene, supra, because, "[w]hen a statute is amended, it is presumed that the legislature intended the statute to have a meaning different from that accorded to it before the amendment." Ridge Erection Co. v. Mountain States Telephone Telegraph Co., 37 Colo. App. 477, 549 P.2d 408 (1976). Thus, we hold that the effective date for determination of eligibility for a surviving child under § 24-51-806, C.R.S. 1973, is the date of the member's death.
The judgment is reversed and the cause remanded with directions to reinstate plaintiff's complaint and to grant the relief therein requested.
JUDGE SMITH and JUDGE STERNBERG concur.