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In re Petition of Malisos

Supreme Court of New Hampshire

September 12, 2014

Petition of Gregory Malisos (New Hampshire Retirement System)

Submitted March 6, 2014.

Editorial Note:

Under New Hampshire procedural rule this decision is subject to motion for rehearing, as well as formal revision before publication in the New Hampshire reports.


Gregory Malisos, self-represented party, by brief.

Foley Law Office, of Concord (Peter T. Foley on the brief), for the respondent.

BASSETT, J. DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.


Bassett, J.

The petitioner, Gregory Malisos, seeks review of a ruling of the respondent, the board of trustees (board) of the New Hampshire Retirement System (NHRS), that his legally separated spouse did not qualify for the medical subsidy benefit set forth in RSA 100-A:52, I (2013). We reverse.

The record supports the following facts. The petitioner retired effective July 1, 2008, after twenty-four years and eight months of creditable service as a police officer with the Town of Windham (Town). When he retired, the petitioner continued his and his wife's health insurance coverage through the Town's participation in the Local Government Center's Health Trust insurance plan (LGC Health Trust). As part of his retirement benefits, the petitioner is entitled to a medical subsidy whereby the retirement system contributes a specified amount to the cost of his continued participation in the LGC Health Trust. See RSA 100-A:52 (2013). In addition, his " spouse" is entitled to the medical subsidy " until death or remarriage." RSA 100-A:52, I(g). Accordingly, the NHRS provided the petitioner with a " two-person" medical subsidy beginning on July 1, 2008.

On September 17, 2009, the petitioner and his wife separated under a " Final Decree of Legal Separation" issued by the circuit court. The NHRS received notice of the petitioner's legal separation in March 2011. By letter dated April 18, 2011, the NHRS notified the petitioner that pursuant to NHRS policy, he was no longer eligible to receive the medical subsidy for his wife as of the date of the decree of legal separation. The letter stated: " It has been determined by NHRS counsel that a legal separation in the State of New Hampshire shall have in all respects the affect [ sic ] of a divorce ... . Consequently, a legally separated spouse is not entitled to the NHRS medical subsidy benefit." The letter also informed the petitioner that because the NHRS had made medical subsidy overpayments to the LGC Health Trust on the petitioner's behalf totaling $7,135.64, it would " process[ ] a future retroactive adjustment to collect the overpayment." Beginning in April 2011, the petitioner's medical subsidy benefit was reduced to the " one-person" amount.

On June 1, 2011, the petitioner filed an administrative appeal of the April 18 notice, and the parties agreed to file a stipulation of facts and to submit the case for a non-evidentiary adjudication. See N.H. Admin. Rules, Ret 204.08. On December 11, 2012, the hearings examiner recommended that the board uphold the determination by NHRS staff that the petitioner " was not entitled to the medical subsidy for his spouse after they were legally separated on 9/17/09." The hearings examiner reasoned that pursuant to RSA Chapter 458 (Annulment, Divorce and Separation), which states in Section 26, I, that a legal separation " shall have in all respects the effect of a divorce," RSA 458:26, I (2004), the NHRS was required " to treat the Petitioner's legal separation ... as if it were a divorce." The hearings examiner concluded that " [b]eginning on 10/1/09, the first of the month following the decree of legal separation, by action of law the Petitioner no longer had a 'spouse' even though he was not free to remarry. He ceased to be eligible for the medical subsidy for his legally separated wife." The board approved the hearing examiner's recommendation on February 12, 2013, and subsequently approved her recommendation that the petitioner's motion for reconsideration be denied. This appeal followed.

" Because RSA chapter 100-A does not provide for judicial review, a writ of certiorari is the sole remedy available to a party aggrieved by a decision of the NHRS." Petition of State Employees' Assoc., 161 N.H. 476, 478, 20 A.3d 269 (2011) (quotation and brackets omitted). " Our standard of review is whether the board acted illegally with respect to jurisdiction, authority or observance of the law, whereby it arrived at a conclusion which cannot legally or reasonably be made, or abused its discretion or acted arbitrarily, unreasonably, or capriciously." Id. (quotation omitted).

The petitioner argues that the board's interpretation of RSA 458:26, I, conflicts with the clear and unambiguous language of RSA:100-A:52, I, and that, because the legislature " did not choose to modify the term spouse" in RSA 100-A:52, I, the board impermissibly rewrote the statute. The board argues that it properly applied the plain language of RSA 458:26, I, in interpreting the medical benefit eligibility ...

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