SHOENTHAL et al.
DEKALB COUNTY SE-040 EMPLOYEES RETIREMENT SYSTEM PENSION BOARD et al.
DILLARD, C. J., RAY, P. J., and SELF, J.
third appearance of this case before this Court,
Rachel and Rebecca Shoenthal (collectively
"Plaintiffs"), daughters of the late Judge Elliott
Shoenthal, contend that the trial court erred in awarding
attorney fees to the DeKalb County Employees Retirement
System Pension Board ("the Board") pursuant to OCGA
§ 9-15-14. We agree and reverse.
underlying facts as set out in Shoenthal v.
Shoenthal, 337 Ga.App. 515 (788 S.E.2d 116) (2016)
(hereinafter "Shoenthal II") are:
On October 25, 2013, about a month before his scheduled
surgery, Judge Shoenthal changed the beneficiaries on
employer-provided life insurance policies by reducing [his
wife Fran's] share of the benefit from 100 percent to 50
percent and designating that each of the Plaintiffs receive
25 percent of the benefit. On the morning of November 18,
2013, Judge Shoenthal e-mailed the clerk of the Board,
inquiring about changing the beneficiaries on his pension
plan. Specifically, Judge Shoenthal asked, "[w]hat
happens to my pension if I die - does it go to my wife? Can I
split it between my wife and my children? Second, if I'm
able to split it, what do I need to do to modify the
beneficiary?" The clerk responded on November 20, 2013,
informing Judge Shoenthal that he could change designated
beneficiaries by completing a form available on a county
website. Judge Shoenthal replied that he would complete a new
That same month, Judge Shoenthal told his sister that he had
revised his will to reflect his "intention to leave
everything to [Plaintiffs] and little to nothing to
Fran." At a November 23 lunch, Judge Shoenthal told his
sister that he was in the process of changing the beneficiary
designation for his pension. On November 25, 2013, Judge
Shoenthal completed and signed the change-of-beneficiary
form, designating the Plaintiffs as the sole beneficiaries.
Judge Shoenthal also handwrote, "I want each of my
children to receive 50% of my pension." Attached to the
change-of-beneficiary form was a Post-It note containing the
Board's address. Judge Shoenthal placed the form on or in
his desk. Over the next two days, Judge Shoenthal worked in
his office and handled repairs to his car.
Judge Shoenthal had surgery on November 27, was released from
the hospital the next day, and died from an embolism on
December 1, 2013. Judge Shoenthal never mailed or delivered
the change-of-beneficiary form.
Around the time Judge Shoenthal was released from the
hospital, Fran discovered that he had changed or intended to
change the beneficiaries on his pension plan. About a week
after Judge Shoenthal's death, Fran submitted an
application to receive Judge Shoenthal's pension
benefits. Later that month, the change-of-beneficiary form
was found on or in Judge Shoenthal's desk, and Fran was
told about it. On January 1, 2014, the Board began sending
monthly pension payments to Fran. A few days later, one of
the Plaintiffs hand-delivered the signed
change-of-beneficiary form to the Board and requested that it
be honored. The Board informed Plaintiffs that it would not
recognize the change-of-beneficiary form, but did not provide
Id. at 516-517. Plaintiffs subsequently sued the
Board and their mother, Fran,
alleging that the Board wrongfully disbursed and Fran
improperly claimed their deceased father's entire pension
benefits when their father had designated that benefits be
paid to them. The trial court granted the Board's and
Fran's motions for judgment on the pleadings on the
ground that Judge Shoenthal did not provide notice to the
Board of a change in beneficiaries.
Id. at 516.
affirmed the trial court, finding that "Judge Shoenthal
did not provide written notice to the Board as required by
[Section 908 of the] Pension Code,  and thus did not effectuate
the change in beneficiaries upon which Plaintiffs' claims
rest." Id. at 516. The trial court then granted
the Board's motion for attorney fees under OCGA §
9-15-14 (a) and (b), on the ground that Plaintiffs'
claims against the Board "suffer from a complete absence
of any justiciable issue of law or fact" and that
"Plaintiffs lacked substantial justification for
bringing this action against [the Board], in that their
positions and claims against [the Board] are substantially
frivolous and substantially groundless." In awarding
$71, 318.71 in fees,  the trial court noted that
[t]here is simply no reasonable interpretation of Section 908
of the Pension Code that could conceivably support
Plaintiff's contention that the Pension Board received
the requisite written notice that they, and not Defendant
Fran Shoenthal, are ...