Carmona v. Carmona

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JANIS CARMONA, 

Plaintiff,

v.

JUDY CARMONA; HILTON HOTELS

CORPORATION, Retirement Plan,

Defendants,

v. No. 06-15581

NEVADA RESORT ASSOCIATION D.C. No.

INTERNATIONAL ALLIANCE OF  CV-04-01310-

THEATRICAL AND STATE EMPLOYEES KJD/RJJ

LOCAL 720 PENSION TRUST

(I.A.T.S.E. Trustees),

Cross-claimant-Appellant,

v.

JUDY CARMONA, Successor

representative of Lupe N.

Carmona deceased,

Cross-defendant-Appellee.



6661

6662 CARMONA v. CARMONA

JANIS CARMONA, a.k.a. JANIS  No. 06-15938

KESTER, D.C. No.

Plaintiff-Appellant, CV-04-01210-KJD/

v. RJJ

JUDY CARMONA, Successor

Representative of Lupe N.  ORDER

AMENDING

Carmona Deceased; HILTON OPINION AND

HOTELS CORPORATION, Retirement DENYING

Plan, REHEARING AND

Defendants-Appellees. AMENDED

 OPINION

Appeal from the United States District Court

for the District of Nevada

Kent J. Dawson, District Judge, Presiding

Argued and Submitted

March 11, 2008—Phoenix, Arizona

Filed September 17, 2008

Amended May 4, 2010

Before: Michael Daly Hawkins, Sidney R. Thomas, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton

CARMONA v. CARMONA 6665

COUNSEL

William E. Freedman (argued), William E. Freedman, Char-

tered, Las Vegas, Nevada, for plaintiff/appellant Janis Car-

mona.

Marshal S. Willick (argued), Willick Law Group, Las Vegas,

Nevada, for defendant/cross-defendant/appellee Judy Car-

mona.

6666 CARMONA v. CARMONA

Adam S. Segal (argued), Jessica C. Espinoza, Schreck Brig-

none, PC, Las Vegas, Nevada, for cross-claimant/appellant

Nevada Resort Association International Alliance of Theatri-

cal & State Employees Local 720.

Sheri Ann F. Forbes (argued), Thomas F. Kummer, Kummer

Kaempfer Bonner Renshaw & Ferrario, Las Vegas, Nevada,

for defendant/appellee Hilton Hotels Corporation, Retirement

Plan.

ORDER

This court’s opinion, filed September 17, 2008, is amended

as follows:

1. At pages 13098 (2 times), 13099, 13102, 13113 (3

times including 2 times within note 13) of the slip opinion

(544 F.3d at 998 (2 times), 1000, 1007 (3 times including 2

times within note 13)), replace <anti-alienation> with <antia-

lienation> (without hyphen) to conform to the usage in Ken-

nedy v. Plan Administrator for DuPont Savings & Investment

Plan, 129 S. Ct. 865 (2009).

2. On page 13090 of the slip opinion (544 F.3d at 993),

replace <the Nevada family court, perhaps without taking into

account the nature of the QJSA survivor annuities, granted>

with <the Nevada family court, perhaps without taking into

account either the nature of the QJSA survivor annuities or

the terms of the plans, granted>.

3. On page 13097 of the slip opinion (544 F.3d at 998),

following <ERISA pension plans must comply with participa-

tion, vesting, and funding requirements. Id.> add:

<The statute also established “a straightforward rule

of hewing to the directives of the plan documents,”

CARMONA v. CARMONA 6667

imposing on plan administrators a “bright-line

requirement to follow plan documents in distributing

benefits.” Kennedy v. Plan Administrator for DuPont

Savings & Investment Plan, ___ U.S. ___, 129 S. Ct.

865, 875, 876 (2009).>

4. Move the following language appearing on page 13100

of the slip opinion (544 F.3d at 999) to page 13099 of the slip

opinion (544 F.3d at 998), between <1096 n.5.> and <The

qualified>:

<A valid DRO can be any judgment, decree, or order

which (1) “relates to the provision of child support,

alimony payments, or marital property rights to a

spouse, former spouse, child, or other dependent of

a participant,” and (2) “is made pursuant to a State

domestic relations law.” 29 U.S.C. § 1056

(d)(3)(B)(ii).>

5. On page 13099 of the slip opinion (544 F.3d at 998),

following <Hamilton, 433 F.3d at 1096 (citing 29 U.S.C.

§ 1056(d)(3)(B)(i)(I)) (internal quotation marks omitted).>,

add a new footnote 6 (and renumber subsequent footnotes):

To be sure, a party can waive an entitlement to an

interest without expressing that waiver in the form of

a QDRO, as the Supreme Court recently held.

Although the Fifth Circuit had held a waiver by a

divorcing spouse expressed in a divorce decree inef-

fective under ERISA’s antialienation provision

because it was not expressed in a QDRO, the Court

held that such a waiver of rights could be effective

nonetheless. Kennedy, 129 S. Ct. at 870-74. That

ability to alter the entitlement to benefits outside of

a QDRO is limited to a waiver of rights, however. It

does not permit an assignment of interest to anyone

else or an identification of an alternate payee; that

6668 CARMONA v. CARMONA

still requires a QDRO to be effective under ERISA.

Id. at 873.

6. On page 13100 of the slip opinion (544 F.3d at 1000),

replace <Because Janis was Lupe’s spouse at the time of his

retirement, her remainder interests vested at the time of his

retirement and no QDRO can reassign the benefits.> with

<Because Janis was Lupe’s spouse at the time of his retire-

ment, IATSE argues that her remainder interests vested at the

time of his retirement and no QDRO can reassign the bene-

fits.>

7. On page 13107 of the slip opinion (544 F.3d at 1003),

in the citation to McGowan v. NJR Serv. Corp. replace

<(omitted).> with <(omitted), abrogated on other grounds by

Kennedy, 129 S. Ct. 865.>.

8. On pages 13110-11 of the slip opinion (544 F.3d at

1005-06), replace the five paragraphs that begin with <Judy

also argues that Janis waived her right> and end before the

heading <C. The Constructive Trust> with the following two

paragraphs:

Judy also argues that Janis waived her right to the

surviving spouse benefits by the property settlement

when the state court entered its divorce decree. As

the Supreme Court made clear in Kennedy, ERISA’s

antialienation provision does not prohibit a surviving

spouse beneficiary from waiving his or her interest

in plan benefits, but such a waiver must also con-

form to plan procedures and instruments. Indeed, the

Court concluded that the plan administrator in that

case was not, under the terms of the plan, required

to honor the waiver of benefits contained in the

divorce decree and that the continued payment of

benefits to the prior spouse was proper. See Ken-

nedy, 129 S. Ct. at 874-78. Under the so-called “plan

documents rule,” plan administrators must “hew[ ] to

CARMONA v. CARMONA 6669

the directives of the plan documents” rather than

“examin[ing] a multitude of external documents that

might purport to affect the dispensation of benefits”

and becoming “drawn into litigation like this over

the meaning and enforceability of purported waiv-

ers.” Id. at 876, 877 (internal quotation marks omit-

ted).

Both the IATSE plan documents and ERISA’s

statutory scheme allow for the waiver of surviving

spouse benefits with both spouses’ written consent

during the benefits election period prior to the partic-

ipant’s retirement. 29 U.S.C. § 1055(c)(3). That pro-

cedure was not followed here. Judy has identified

nothing in the IATSE plan documents which require

the plan administrator to redirect surviving spouse

benefits to Judy, who was not, at the time of retire-

ment and vesting, either a present or former spouse.

Even if it is assumed that Janis had the authority to

disclaim benefits, there is nothing that provides for

them to be assigned instead to Judy.

9. On page 13114 of the slip opinion (544 F.3d at 1007),

following the sentence <It may not be that all constructive

trusts instituted by state courts, particularly those that seek to

recover ill-gotten gains, will have a sufficient connection with

or reference to an ERISA plan to trigger ERISA’s preemption

provision.>, add a new footnote 15:

In Kennedy, the Court explicitly declined to

express a view on whether an action could have been

brought to obtain benefits from the former spouse

after they had been distributed to her. 129 S. Ct. at

875 n.10.

The opinion, as amended, will thus appear as attached.

With the opinion as amended, the petition for rehearing en

banc, filed October 2, 2008, is DENIED. If any party wishes

6670 CARMONA v. CARMONA

to file a new petition for rehearing and/or petition for rehear-

ing en banc, it may do so within 14 days from the date of this

order.

OPINION

CLIFTON, Circuit Judge:

This case requires us to once again navigate the complex

statutory scheme set out in the Employee Retirement Income

Security Act of 1974 (“ERISA”), 88 Stat. 832, as amended,

29 U.S.C. § 1001 et seq., and to answer an open question in

this Circuit: whether or not a participant to an ERISA regu-

lated Qualified Joint and Survivor Annuity (“QJSA”) plan

may change the surviving spouse beneficiary after the partici-

pant has retired and the annuity has become payable.

The conflict here arises between the final two wives of

Lupe Carmona, a participant in two ERISA regulated pension

plans, the Hilton Hotels Pension Plan (“Hilton”) and the

Nevada Resort Association International Alliance of Theatri-

cal and State Employees Local Pension Trust (“IATSE”).

Janis Carmona, Lupe’s eighth wife and his spouse at the time

of his retirement, appeals the district court’s dismissal of her

complaint for lack of jurisdiction against Hilton and Judy Car-

mona, Lupe’s ninth wife and his spouse at the time of his death.1

IATSE, Lupe’s second pension plan provider, appeals the dis-

trict court’s grant of summary judgment in favor of Judy on

its cross-claim. On the merits, both IATSE and Janis argue

that Janis, as Lupe’s spouse at the time of his retirement, is

the rightful surviving spouse beneficiary for the purposes of

Lupe’s retirement plan because her interest in surviving

spouse benefits irrevocably vested at the time of Lupe’s

retirement.

1

Because they share the same last name, in this opinion we refer to

Lupe, Janis, and Judy by their first names.

CARMONA v. CARMONA 6671

Joining the Fourth Circuit, as well as a number of other

jurisdictions, we hold that QJSA surviving spouse benefits

irrevocably vest in the participant’s spouse at the time of the

annuity start date—in this case the participant’s retirement2 —

and may not be reassigned to a subsequent spouse. Applying

that conclusion to the judgment entered by the district court

in this case, we affirm in part and reverse in part.

I. Background

The essential facts of this case are undisputed. Lupe Car-

mona married his eighth wife,3 Janis Carmona (nee Kester),

in 1988. While they were married, Lupe designated Janis as

his survivor beneficiary under two pension plans which pro-

vided QJSA benefits, Hilton and IATSE. Under the terms of

these plans, Janis would receive a portion of Lupe’s monthly

pension benefits upon his death if she survived him. After

naming Janis as the survivor beneficiary of both plans, Lupe

retired and began collecting pension benefits under the plans

in 1992. Then, in 1994, Lupe and Janis began divorce pro-

ceedings.

Prior to entry of the formal divorce decree, Lupe inquired

into whether he could remove Janis as the named survivor

2

“Annuity start date” and “retirement date” are the same date in this

case and we use the two terms synonymously. For the purposes of QJSA

benefits, the retirement date and the annuity start date are often the same.

As a result, most of the cases addressing this issue have also used “retire-

ment date” synonymously with “annuity start date.” We recognize that the

terms may not always be synonymous: for example, a participant could

retire early, but he or she may not receive benefit payments until a later

date. For the purposes of this opinion, however, we need not determine

what effect an early retirement would have on the vesting rules. We leave

to another day whether the same vesting rules apply to a participant’s early

retirement.

3

Although Lupe had many wives, the dispute in this case only concerns

wives number eight and nine. None of the previous seven wives are

involved in the present litigation.

6672 CARMONA v. CARMONA

beneficiary. The two plan administrators each refused to

change the designated survivor spouse beneficiary and indi-

cated that the designation was irrevocable upon Lupe’s retire-

ment. Nonetheless, in its 1997 divorce decree, the Nevada

family court, perhaps without taking into account either the

nature of the QJSA survivor annuities or the terms of the

plans, granted Lupe both the IATSE and Hilton pensions as

his sole and separate property. The family court awarded Janis

her own pension plan as her sole and separate property as

well. Because there was a difference between the value of the

pension awarded to Janis and the value of the pensions

awarded to Lupe, the court also ordered that Lupe pay Janis

$1500 “as and for an equalization of the values of the marital

portion of the pensions divided.”

In 1997, after his divorce from Janis had been finalized,

Lupe married Judy Carmona (nee Walkington), his ninth and

final spouse. He petitioned the family court for a Qualified

Domestic Relations Order (“QDRO”) revoking Janis’s desig-

nation as the survivor beneficiary of the IATSE and Hilton

pensions and substituting Judy, his new wife. Lupe died in

1999. Judy survived him, as did Janis. The day after Lupe’s

death, the family court concluded that Janis had waived her

right to Lupe’s pension plan benefits by the divorce decree’s

allocation of property and that Janis would be unjustly

enriched if she remained the survivor beneficiary. To avoid an

inequitable result, the court ordered the plan administrators to

change the survivor beneficiary from Janis to Judy. Alterna-

tively, if the plans refused or were unable to change the bene-

ficiary, the family court ordered the funds Janis received to be

placed in a constructive trust with Judy as the beneficiary.

Janis appealed the family court’s decision to the Nevada

Supreme Court. In 2003, that court affirmed the family court

order and concluded that ERISA did not preempt either the

family court’s order to change the beneficiaries or the con-

structive trust placed on the plan proceeds.4 Janis sought

4

While Janis was pursuing her original appeal through the Nevada sys-

tem, she also brought suit in Nevada federal district court seeking to

CARMONA v. CARMONA 6673

review of the decision by the United States Supreme Court,

but the Court denied certiorari.

In 2004, after the Nevada Supreme Court decision, the fam-

ily court issued another order requiring Janis to deposit the

survivor benefit funds into a constructive trust. At the same

time, the family court also entered two orders, each labeled as

a “Qualified Domestic Relations Order,” directing the two

plans to pay survivor benefits either to Judy or to the con-

structive trust. Janis attempted to remove the case to federal

court but the federal district court remanded the action back

to the family court, concluding that Janis had failed to timely

file for removal and, in any event, that the Rooker-Feldman

doctrine required the court to dismiss the suit for lack of juris-

diction.

This appeal originates from the most recent federal suit

filed by Janis against Judy, Hilton, and IATSE. Janis brought

suit under 29 U.S.C. § 1132(a)(3) seeking “to enjoin any act

or practice which violates any provision [of ERISA] or the

terms of the plan.” In response to Janis’s suit, IATSE Trustees

filed a cross-claim against Judy seeking declaratory relief.

The district court concluded that the Rooker-Feldman doc-

trine barred Janis’s suit against Judy and Hilton. The court

also concluded that neither Rooker-Feldman nor res judicata

recover benefits under the terms of the ERISA pension plan. See 29 U.S.C.

§ 1132(a)(1)(B). Janis named the family court judge, Judy’s attorneys, the

Hilton Plan administrators and Judy in the suit. In 2001, before the Nevada

Supreme Court made its final determination in the original case, District

Judge Philip M. Pro dismissed the suit against all the defendants except

for Hilton, concluding that the court lacked subject matter jurisdiction

under the Rooker-Feldman doctrine. The district court later dismissed Hil-

ton because Janis could not join Judy, an indispensable party.

Also during this time, Janis declared bankruptcy. The bankruptcy court

also concluded that Janis did not have a legal or equitable interest in the

survivor benefits from the two QJSAs.

6674 CARMONA v. CARMONA

barred IATSE’s claim because it was not a party to the prior

suits and was not in privity with Janis. On the merits, the dis-

trict court concluded that ERISA does not preclude a state

court from issuing a QDRO substituting an alternate payee for

a surviving spouse after a plan participant’s retirement.

IATSE appeals the district court’s denial of summary judg-

ment and subsequent dismissal of its complaint against Judy.

Janis appeals the district court’s decision that it lacked subject

matter jurisdiction over Janis’s claims against Hilton and

Judy. We consider both appeals together because they arise

from the same factual background.

II. Discussion

We review an application of the Rooker-Feldman doctrine

de novo. Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003).

The interpretation of ERISA, including whether ERISA pre-

empts state law, is a question of law which we also review de

novo. Metropolitan Life Ins. Co. v. Parker, 436 F.3d 1109,

1113 (9th Cir. 2006); Cleghorn v. Blue Shield of California,

408 F.3d 1222, 1225 (9th Cir. 2005).

A. The Rooker-Feldman Doctrine and Preclusion

We first consider whether any preclusion doctrine prevents

Janis from bringing her claims against Judy and Hilton, or

IATSE from bringing its declaratory judgment action. We

agree with the district court and conclude that the district

court lacked jurisdiction, under the Rooker-Feldman doctrine,

to adjudicate Janis’s claims against Judy and Hilton, but that

IATSE is not precluded from asserting its cross-claim here.

The Rooker-Feldman doctrine takes its name from two

Supreme Court cases: Rooker v. Fidelity Trust Co., 263 U.S.

413 (1923), and District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462 (1983). It stands for the relatively

straightforward principle that federal district courts do not

have jurisdiction to hear de facto appeals from state court

CARMONA v. CARMONA 6675

judgments. Noel, 341 F.3d at 1155. The jurisdictional prohibi-

tion arises from a negative inference drawn from 28 U.S.C.

§ 1257 which grants jurisdiction to review state court deci-

sions in the United States Supreme Court. Kougasian v.

TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004) (citation

omitted). Because it grants jurisdiction to the Supreme Court,

section 1257 impliedly prohibits lower federal courts from

reviewing state court decisions. Id.

[1] Stated simply, the Rooker-Feldman doctrine bars suits

“brought by state-court losers complaining of injuries caused

by state-court judgments rendered before the district court

proceedings commenced and inviting district court review and

rejection of those judgments.” Exxon Mobil Corp. v. Saudi

Basic Indust. Corp., 544 U.S. 280, 284 (2005). In practice, the

Rooker-Feldman doctrine is a fairly narrow preclusion doc-

trine, separate and distinct from res judicata and collateral

estoppel. See Noel, 341 F.3d at 1162-64.

We have previously explained how federal courts should

distinguish a forbidden de facto appeal of a state court deci-

sion that is barred by Rooker-Feldman from a suit that is

barred by other preclusion principles. A suit brought in fed-

eral district court is a “de facto appeal” forbidden by Rooker-

Feldman when “a federal plaintiff asserts as a legal wrong an

allegedly erroneous decision by a state court, and seeks relief

from a state court judgment based on that decision.” Id. at

1164. In contrast, if a plaintiff “asserts as a legal wrong an

allegedly illegal act or omission by an adverse party, Rooker-

Feldman does not bar jurisdiction.” Id.

[2] Although it is often misapplied, we agree with the dis-

trict court that Rooker-Feldman is applicable in this case, and

therefore the district court was correct in dismissing Janis’s

claims for lack of jurisdiction. According to her amended

complaint, Janis claimed that the family court orders were

based upon an erroneous application of ERISA preemption

law and that the family court unlawfully reassigned benefits

6676 CARMONA v. CARMONA

in which she had an irrevocable vested interest. She sought

relief from the state court orders and prayed for the federal

district court to “order that the proceedings in Family Court

in case number D181580 be dismissed with prejudice” and to

enjoin enforcement of the orders. Thus she was asserting both

that her injury was caused by a “legal error or errors by the

state court” and that the appropriate remedy was “relief from

the state court judgment.” Kougasian, 359 F.3d at 1140.

The types of claims Janis presented in this case parallel

those asserted in Feldman, 460 U.S. 462, one of the cases

from which the doctrine takes its name. In Feldman, the fed-

eral plaintiffs sought admission to the District of Columbia

bar. The local court refused to grant the plaintiffs waivers

from the local rule that only graduates from accredited law

schools could sit for the bar exam. The plaintiffs then filed

suit in federal court. The plaintiffs sought declaratory judg-

ments that the rule violated the Fifth Amendment, and injunc-

tions that would require the defendants to permit them to take

the examination. One of the plaintiffs also sought the alterna-

tive relief of admission to the bar or a determination of

whether his training provided him the same competence as

graduates of accredited law schools. See Feldman, 460 U.S.

at 468-69. The appeals were consolidated and the Supreme

Court held that the suit was a de facto appeal of the local

court order to the extent that it sought review of the local

court’s denial of waiver. As such the district court lacked sub-

ject matter jurisdiction to hear the appeal. Id. at 482.

[3] Like Feldman, Janis did not argue that either Judy or

Hilton caused her injury, claims that would not be within the

limits of Rooker-Feldman. See Noel, 341 F.3d at 1163.

Rather, Janis complained of a “harm caused by a state court

judgment that directly withholds a benefit from [her] . . .

based on an allegedly erroneous ruling by that court.” Id. Her

claim therefore fits within the narrow constraints of the Ninth

Circuit’s application of the Rooker-Feldman doctrine. We

agree with the district court that it lacked jurisdiction to hear

CARMONA v. CARMONA 6677

the merits of Janis’s claims against Hilton and Judy because

Janis’s suit was a forbidden de facto appeal of a state court

judgment.

[4] Janis also argues that Rooker-Feldman does not apply

to state court orders that conflict with ERISA because ERISA

grants exclusive jurisdiction to the federal courts. Rooker-

Feldman’s jurisdictional bar is one of congressional intent and

not constitutional mandate. Mozes v. Mozes, 239 F.3d 1067,

1085 n.55 (9th Cir. 2001). Where Congress explicitly grants

exclusive jurisdiction to federal courts, Rooker-Feldman can-

not bar collateral review of a state court order in federal court.

See In re Gruntz, 202 F.3d 1074, 1078-79 (9th Cir. 2000) (en

banc) (establishing that collateral review of state court pro-

ceedings in habeas and bankruptcy cases is not jurisdiction-

ally barred under Rooker-Feldman); see also Mozes, 239 F.3d

at 1085 n.55; G.C. and K.B. Inv., Inc. v. Wilson, 326 F.3d

1096, 1103 n.4 (9th Cir. 2003).

[5] Although the present suit, as pleaded, arises under the

exclusive jurisdiction of federal courts, when the parties pro-

ceeded initially, the state court had concurrent jurisdiction to

hear the ERISA claim under 29 U.S.C. § 1132(a)(1)(B). In the

state court proceedings, Janis failed to remove the proceed-

ings to federal court and thus implicitly subjected herself to

the final determination of the state court. Because Congress

had established concurrent jurisdiction at that time, we con-

clude that it did not intend to prevent the Rooker-Feldman

jurisdictional bar.

[6] Although Janis’s claims are barred, IATSE’s cross

claim against Judy is not, even though it raises the same legal

issue. Neither the law of the case doctrine nor state law res

judicata principles bar IATSE’s cross claim. The law of the

case doctrine only applies to successive appeals in the same

suit. See Hsu v. County of Clark, 173 P.3d 724, 730 n.26

(Nev. 2007). Where the suit involves a new party and new

6678 CARMONA v. CARMONA

claims, as it does here, it is only res judicata, and not the law

of the case doctrine, that may apply. See id.

[7] Similarly, res judicata does not preclude IATSE from

establishing its obligations with respect to Judy and Janis.

Under Nevada law, the party asserting res judicata must estab-

lish (1) the identical issue was already decided, (2) there was

a final judgment on the merits, and (3) the suit involved the

same party or their privies. See Holcombe v. Hosmer, 477

F.3d 1094, 1097-98 (9th Cir. 2007); Bennett v. Fid. & Deposit

Co. of Md., 652 P.2d 1178, 1180 (Nev. 1982). Res judicata

does not apply here because IATSE was not a party to the first

state court suit nor was it in privity with Janis. Although they

advance similar arguments with a similar goal in mind—to

establish that Lupe was precluded from changing Janis’s ben-

eficiary status after his retirement—they each maintain unique

interests. IATSE must concern itself with the correct adminis-

tration of its pension plans, and it has fiduciary duties distinct

from the interests of the wives in this case. See, e.g., 29

U.S.C. § 1104. Janis’s interest is merely in receiving the

remainder benefits to which she feels she is entitled. Because

Janis and IATSE do not share an identity of interests, Janis’s

prior suits have no preclusive effect on IATSE’s claim that

the state court QDROs were insufficient to transfer benefits.5

See Taylor v. Sturgell, 128 S.Ct. 2161 (2008) (overruling

5

In addition to illustrating the pitfalls of interpreting ERISA, this case

also illustrates the problems that arise when a plan trustee fails to join liti-

gation until the eleventh hour despite the plan’s ongoing interest in the

outcome. Although we conclude that no legal doctrine prohibits IATSE

from bringing the present declaratory judgment action, we agree with the

district court that the plan trustee’s failure to join itself to the litigation

earlier was unnecessary and could have spared the parties involved great

time and expense. We also note that while the result here may seem

anomalous—IATSE may pay out benefits to Janis while Hilton may pay

out benefits to Judy—we conclude that this is the result dictated by the

unusual circumstances before us. The application of preclusion doctrines

and jurisdictional bars cannot turn on the outcome of the underlying argu-

ments on the merits.

CARMONA v. CARMONA 6679

Kourtis v. Cameron, 419 F.3d 989, 998 (9th Cir. 2005) and

narrowly construing circumstances in which a non-party may

be bound by prior judgment); LaForge v. State, Univ. and

Cmty. College Sys. of Nev., 997 P.2d 130, 133 (Nev. 2000).

We turn now to the merits of the case, and the heart of the

ERISA question.

B. The Effect of a Domestic Relations Order on Survivor

Benefits

Congress originally enacted ERISA to protect the rights of

workers who earn pension benefits and to encourage plan par-

ticipation. PAUL J. SCHNEIDER, BRIAN M. PINHEIRO, ERISA: A

COMPREHENSIVE GUIDE §1.02 (3d ed. 2008). In addition to pro-

tecting plan participants, Congress also sought to protect plan

beneficiaries. See Boggs v. Boggs, 520 U.S. 833, 845 (1997).

In order to meet those ends Congress enacted an intricate,

comprehensive statute that governs both pension and welfare

plans. Id. at 841. ERISA pension plans must comply with par-

ticipation, vesting, and funding requirements. Id. The statute

also established “a straightforward rule of hewing to the

directives of the plan documents,” imposing on plan adminis-

trators a “bright-line requirement to follow plan documents in

distributing benefits.” Kennedy v. Plan Administrator for

DuPont Savings & Investment Plan, ___ U.S. ___, 129 S. Ct.

865, 875, 876 (2009).

More recently, Congress further refined the statutory

framework with the Retirement Equity Act of 1984 (“REA”),

Pub. L. No. 98-397, 98 Stat. 1426, which particularly sought

to protect the rights of surviving spouses. These amendments

modified and strengthened the expansive coverage for surviv-

ing spouses by providing economic security through “a stream

of income to surviving spouses,” even after the participant’s

death. Boggs, 520 U.S. at 843.

In order to protect surviving spouses in the event of the

plan participant’s death or divorce, ERISA provides for two

6680 CARMONA v. CARMONA

types of survivor annuity benefits. See Hamilton v. Wash.

State Plumbing & Pipefitting Indus. Pension Plan, 433 F.3d

1091, 1095 (9th Cir. 2006). If a vested participant dies before

the annuity start date and the participant is survived by a

spouse, the surviving spouse is entitled to a qualified prere-

tirement survivor annuity (“QPSA”). 29 U.S.C. § 1055(a)(2).

Because Lupe died after retirement, his annuity benefits were

paid in the form of the second type, a qualified joint and sur-

vivor annuity or “QJSA.” 29 U.S.C. § 1055(a)(1). QJSA ben-

efits arise when the participant does not die before the annuity

starting date. Id. These benefits are payable to the plan partici-

pant for his lifetime after the annuity start date and, if the plan

participant dies before his spouse, the surviving spouse will

receive no less than 50 percent of the amount of the annuity

for the remainder of her lifetime. See 29 U.S.C.

§ 1055(d)(1)(A).

[8] “ERISA requires that every [QJSA] include an annuity

payable to a nonparticipant surviving spouse.” Boggs, 520

U.S. at 842. These QJSA benefits are particular to the surviv-

ing spouse and may not be waived by the participant alone.

Id. In order for a participant’s spouse to waive her interests in

QJSA benefits, the spouse must consent in writing, and in the

presence of a plan representative or notary public, during the

applicable election period. See 29 U.S.C. § 1055(c). Under

these provisions, Janis, as Lupe’s surviving spouse at the time

of his retirement, was entitled to his QJSA benefits after his

death. She did not waive her interest in the surviving spouse

benefits during the applicable election period or consent to

have Judy designated as the beneficiary. See Boggs, 520 U.S.

at 842. We must determine, then, whether other provisions of

ERISA permit the Nevada family court to reassign the QJSA

survivor benefits from Janis to Judy.

ERISA contains an antialienation provision and a preemp-

tion provision that restrict the ability of state courts and plan

participants to transfer and alter interests in ERISA-governed

retirement benefits. See 29 U.S.C. § 1056 (d)(1) (“Each pen-

CARMONA v. CARMONA 6681

sion plan shall provide that benefits provided under the plan

may not be assigned or alienated.”); 29 U.S.C. § 1144(a)

(establishing that ERISA “supercede[s] any and all State laws

insofar as they may . . . relate to any employee benefit plan

. . . .”). Despite this broad preemption and antialienation

scheme, Congress has recognized that states, in some circum-

stances, should be able to enforce their own domestic rela-

tions laws with respect to ERISA pensions. As a result, state

domestic relations orders (“DROs”) that comply with statu-

tory requirements are exempt from both the antialienation and

preemption provisions of ERISA. 29 U.S.C. § 1144(b)(7); 29

U.S.C. § 1056 (d)(3); Hamilton, 433 F.3d at 1096 n.5. A valid

DRO can be any judgment, decree, or order which (1) “relates

to the provision of child support, alimony payments, or mari-

tal property rights to a spouse, former spouse, child, or other

dependant of a participant,” and (2) “is made pursuant to a

State domestic relations law.” 29 U.S.C. § 1056 (d)(3)(B)(ii).

The qualified domestic relations order, or QDRO, “is a subset

of domestic relations orders that recognizes the right of an

alternate payee to receive all or a portion of the benefits pay-

able with respect to a participant under the plan.” Hamilton,

433 F.3d at 1096 (citing 29 U.S.C. § 1056 (d)(3)(B)(i)(I))

(internal quotation marks omitted).6

Although state courts, via DROs, may create enforceable

interests in the proceeds of an ERISA plan, there are limita-

tions on the ability of state courts to create enforceable prop-

6

To be sure, a party can waive an entitlement to an interest without

expressing that waiver in the form of a QDRO, as the Supreme Court

recently held. Although the Fifth Circuit had held a waiver by a divorcing

spouse expressed in a divorce decree ineffective under ERISA’s antia-

lienation provision because it was not expressed in a QDRO, the Court

held that such a waiver of rights could be effective nonetheless. Kennedy,

129 S. Ct. at 870-74. That ability to alter the entitlement to benefits out-

side of a QDRO is limited to a waiver of rights, however. It does not per-

mit an assignment of interest to anyone else or an identification of an

alternate payee; that still requires a QDRO to be effective under ERISA.

Id. at 873.

6682 CARMONA v. CARMONA

erty interests in alternate payees. See Trs. of the Dirs. Guild

of Am.-Producer Pension Benefits Plans v. Tise, 234 F.3d

415, 420 (9th Cir. 2000). First, in order for a DRO to be con-

sidered a QDRO, the state courts must fulfill certain specific-

ity requirements. These requirements allow a plan

administrator to more easily administer the plan and reduce

the risk of making improper payments. See Hamilton, 433

F.3d at 1096-97 (citing In re Gendreau, 122 F.3d 815, 817-18

(9th Cir. 1997)). A DRO meets the requirements of a QDRO

and thus is enforceable only if the order “clearly specifies” (1)

the name and mailing address of both the participant and the

alternate payees, (2) the amount or percentage of the partici-

pant’s benefits to be paid to each alternate payee, (3) the num-

ber of payments to which the order applies, and (4) the plan

to which the order applies. 29 U.S.C. § 1056 (d)(3)(C). If the

state court fails to substantially comply with the statutory

QDRO requirements, even a valid domestic relations order is

not enforceable against a pension plan. See Hamilton, 433

F.3d at 1097.7

Second, the DRO itself must create an enforceable interest

that is permitted under ERISA’s statutory scheme. See Hamil-

ton, 433 F.3d at 1097-99. Among other things, a DRO is valid

under ERISA only if it recognizes the existence of an alter-

nate payee’s right to receive benefits “payable with respect to

a participant under a plan.” Id. at § 1056(d)(3)(B)(i)(I). Addi-

tionally, a DRO may not require a plan to provide any type

or form of benefit, or any option not otherwise provided by

the plan, or to provide increased benefits to an alternate

payee. Id. at § 1056(d)(3)(D).

The two limitations work together. The first limitation con-

cerns the form of the state court order: the state DRO may

7

It was argued in this appeal that the relevant orders entered by the

Nevada family court did not satisfy this specificity requirement, but we do

not need to resolve that issue, given our conclusion that the Nevada

court’s DROs did not create interests enforceable under ERISA’s scheme.

CARMONA v. CARMONA 6683

create an alternate payee’s enforceable interest, but the alter-

nate payee may not enforce that interest unless and until he

or she has complied with the QDRO specificity provisions.

See Tise, 234 F.3d at 421. The second limitation is substan-

tive: certain alterations to the benefits provided by a plan gov-

erned by ERISA are forbidden. Thus, in certain respects,

ERISA limits what a state family court can order. See Hamil-

ton, 433 F.3d at 1098-1110.

Based on these limitations, IATSE argues that the family

court’s orders cannot be valid QDROs and thus cannot divest

Janis of her interest in the QJSA’s survivor benefits because

the state court orders were issued after Lupe’s retirement.

According to IATSE, surviving spouse benefits pursuant to a

QJSA irrevocably vest in the participant’s spouse at the time

of the participant’s retirement and cannot be altered or

assigned. Because Janis was Lupe’s spouse at the time of his

retirement, IATSE argues that her remainder interests vested

at the time of his retirement and no QDRO can reassign the

benefits. Judy argues in response that ERISA contains no pro-

visions limiting when a state court can issue a DRO to trans-

fer QJSA benefits from a surviving spouse to an alternate

payee, and therefore so long as the state court fulfills the spec-

ificity requirements of a QDRO it may create an enforceable

interest at any time, even after a participant’s retirement.

[9] This case presents an issue of first impression in this

Circuit: whether a “plan participant’s retirement cuts off a

putative alternate payee’s right to obtain an enforceable

QDRO” with regard to the surviving spouse benefits of a

QJSA. Tise, 234 F.3d at 423 n.6. We are persuaded that

IATSE’s interpretation is correct and that the answer to this

question is “Yes.”

In Hopkins v. AT&T Global Info. Solutions Co., 105 F.3d

153 (4th Cir. 1997), the Fourth Circuit addressed a set of cir-

cumstances similar to the one presented here. In Hopkins, the

ERISA plan participant divorced his first wife, Vera, in 1986

6684 CARMONA v. CARMONA

and was ordered to pay her alimony. Id. at 154. In order to

collect the alimony, Vera obtained a judgment allowing her to

attach her ex-husband’s wages. Id. After his divorce from

Vera, the participant married his second wife, Sherry. There-

after, in 1993, he retired. At that time Vera attempted to attach

both his portion of the QJSA benefits and Sherry’s surviving

spouse benefits under the QJSA. Id.

The court closely examined 29 U.S.C. § 1056 and 29

U.S.C. § 1055, which regulate QDROs and QJSAs respec-

tively, and concluded that surviving spouse benefits under a

QJSA vest at the time of the participant’s retirement. Id. at

155-156. In order to be “qualified,” and thus enforceable, a

DRO must create an alternate payee’s right to benefits “pay-

able with respect to a participant under a plan.” Id.; 29 U.S.C.

§ 1056(d)(3)(B). According to Hopkins, if the surviving

spouse benefits vested upon the participant’s retirement, the

DRO would relate to a benefit payable with respect to a bene-

ficiary, not payable “with respect to a participant.” Id. at 156.

Thus, if the spouse’s interest in the benefits vested upon the

participant’s retirement, the domestic relations order could not

be qualified and could not be an exception to the preemption

and antialienation provisions. Id.

[10] The court then analyzed 29 U.S.C. § 1055 and con-

cluded that the participant spouse’s QJSA surviving spouse

rights “vest” upon the participant spouse’s retirement.8 Id.

Various changes to ERISA created by the REA indicate that

the participant’s retirement or the start of the annuity estab-

lishes a vesting point for the surviving spouse benefits. First,

the REA changed the QJSA surviving spouse benefits so that

benefits may be paid to a spouse who was married to a partici-

pant at the participant’s retirement, regardless of whether they

were married at the participant’s death. Id. Second, the REA

8

The Hopkins court did not distinguish between the annuity start date

and the participant’s retirement date. Indeed, in Hopkins, like the case

before us, the two dates are the same.

CARMONA v. CARMONA 6685

made it more difficult for a participant to replace a QJSA with

another type of benefit. The participant could only change the

benefit within ninety days prior to retirement and with the

spouse’s written consent.9 Id. at 156-57. Unless the participant

changes the form of benefit with his current spouse’s written

permission, the participant is locked into a QJSA at retire-

ment. Id. at 157. Moreover, after the retirement date, the form

of benefit cannot be changed even with the spouse’s consent.

Id. Based upon the language in ERISA, as well as the changes

made under the REA, the Fourth Circuit concluded that the

plan participant’s retirement created a vested interest in the

surviving spouse, and thus Vera’s DRO could never be “qual-

ified” for the purposes of a QDRO. Id.

Judy contends that we should not rely upon the Fourth Cir-

cuit’s reasoning in Hopkins because another Ninth Circuit

case compels an outcome in her favor here. In Tise, we

addressed the question whether an otherwise valid QDRO

assigning other ERISA benefits (i.e., not QJSA benefits) can

issue after the death of the plan participant. 234 F.3d at 415.

The plaintiff, the mother of the plan participant’s children,

obtained a child support judgment against the participant prior

to his death. Id. at 417-19. The plan participant died before

retirement (and after marrying the surviving spouse), but

before Tise was able to establish that the state court order met

the specificity requirements for a QDRO. Id. We held that a

state court order obtained prior to a participant’s death or

retirement creates an enforceable interest in the participant’s

surviving spouse benefits even if the alternate payee is unable

to qualify the DRO before the participant’s death. Id. at 423.

We came to this conclusion by analyzing the complex

ERISA framework and meticulously considering the provi-

sions of the statute that contemplate a situation in which a

valid QDRO does not issue until after benefits become pay-

9

Now, the applicable time period for an election of benefits is 180 days

prior to retirement. See § 1055(c)(7)(A).

6686 CARMONA v. CARMONA

able. We concluded that ERISA “specifically provides for sit-

uations in which no valid QDRO issues until after benefits

become payable. Once the pension plan is on notice that a

domestic relations order has issued that may be a QDRO, the

plan may take a reasonable period to determine whether the

order is a QDRO . . . .” Id. at 421. Furthermore, ERISA pro-

vides for further state court proceedings after the initial DRO

is issued to clarify and fix any technical defects in the original

DRO. Id. at 422 (citing 29 U.S.C. § 1056(d)(3)). Therefore,

we have held that so long as a valid DRO creates an alternate

payee’s legally enforceable property interest in QPSA bene-

fits, a QDRO can be obtained even after the plan participant’s

death. Id. at 423.

In holding that an alternate payee may obtain a valid

QDRO even after a plan participant’s death, we rejected the

first part of Hopkins’s logic, that once a spouse’s rights to an

annuity have vested a DRO cannot become a QDRO because

the order can no longer be “payable with respect to a partici-

pant under a plan.” Id. at 423-24. We concluded that “payable

with respect to a participant” includes benefits payable to a

participant as well as benefits payable to any beneficiaries

that may be eligible to receive such benefit. See id. at 423,

423 n.7. Therefore, section 1056(d)(3)(B)(I) does not, in and

of itself, prohibit the assignment of surviving spouse benefits

to an alternate payee, even after a plan participant has retired.

[11] While we recognize that Tise expressly, and we

believe rightly, rejected part of the Fourth Circuit’s reasoning

in Hopkins, we are nonetheless persuaded by the structure and

purpose of ERISA that the rule enunciated in Hopkins is the

proper rule for QJSA benefits. Indeed, we expressly left open

this possibility. See id. at 423 n.6, 423 n.7 (“Whether a QDRO

issued after a plan participant’s retirement may affect the dis-

tribution of surviving spouse benefits pursuant to 29 U.S.C.

§ 1055 implicates statutory provisions and policy consider-

ations other than those here applicable.”).

CARMONA v. CARMONA 6687

First, ERISA’s statutory scheme for QJSA benefits estab-

lishes the importance of the annuity start date, which is often

the participant’s retirement date, on the benefits at issue. The

plan providers must provide participants and their spouses

with a QJSA. §1055(a)(1). Under section 1055(c), QJSA ben-

efits are automatically provided to employees in all ERISA-

governed plans. The only way for the participant to opt out of

the QJSA is for the participant and his spouse together to

waive the QJSA benefit plan in writing. See 29 U.S.C.

§ 1055(c)(1)-(2). Both spouses, if they are going to decline

QJSA benefits, may only do so during the applicable election

period which is defined as “the 180-day period ending on the

annuity starting date.”10 Id. at § 1055(c)(2), (7). Thus, the

annuity starting date, which in this case is Lupe’s retirement

date, is the point at which the surviving spouse benefits vest

in the participant’s spouse.11

[12] We are also persuaded, as was the Fourth Circuit in

Hopkins, that a number of changes in ERISA, effectuated by

the REA, established the importance of the participant’s date

10

This statutory construction makes it difficult to adopt the alternative

rule that Judy urges. It is difficult to see how courts may reassign QJSA

surviving spouse benefits at any time given the fact that the statutory

scheme so diligently and strictly protects the interests of the participant’s

spouse at the time of the participant’s retirement by establishing that the

only way to avoid QJSA survivor benefits is by opting out in writing

before the retirement date.

11

The terms of the IATSE plan itself also suggest that the surviving

spouse’s interest vests at the time of Lupe’s retirement. The plan informed

Lupe that he would automatically be paid in the form of a QJSA if he was

married at least 12 months prior to the benefit starting date (his retirement)

unless he chose otherwise. It also established that the exact amount of

monthly benefits payable to him and his spouse under the QJSA depended

upon “the relative ages of you and your spouse at the time of your retire-

ment” (emphasis added). Thus the plan established both that the type of

plan and the amount of benefits were calculated at the time of retirement

and the amount was calculated based on the relative ages of him and his

spouse. This structure suggests that the benefits vested at retirement in the

surviving spouse.

6688 CARMONA v. CARMONA

of retirement as the moment at which the surviving spouse

benefits vest. The fact that the REA established that surviving

spouse benefits may now be paid to a spouse who is married

on the day of the participant’s retirement, regardless of

whether the participant and spouse are married at the partici-

pant’s death, suggests that the retirement date is the crucial

date for establishing the rights of the surviving spouse. Hop-

kins, 105 F.3d at 156. Following this reasoning, we conclude

that once a participant retires, the spouse at the time becomes

the “surviving spouse” entitled to the QJSA benefits.

In addition to finding support for the Hopkins rule from the

statutory scheme, we are also persuaded that the ultimate

objectives of Congress are served by recognizing the rule that

a QDRO may not reassign surviving spouse benefits after a

plan participant has retired. See Hamilton, 433 F.3d at 1099

(noting that congressional intent ultimately determines

whether or not a particular statutory interpretation applies to

surviving spouse benefits); Boggs, 520 U.S. at 843 (consider-

ing congressional intent when analyzing qualified joint and

survivor annuity benefits).

ERISA’s surviving spouse benefits established in section

1055 were created in part “to ensure a stream of income to

surviving spouses.” Boggs, 520 U.S. at 843. Specifically,

Congress was concerned with providing for spouses that were

not able to accrue their own set of retirement benefits inde-

pendent from their working spouses. Prior to ERISA there

was no requirement that retirement plans provide for an

employee’s spouse in the event that the employee predeceased

a spouse not working outside the home (“non-working

spouse”). Congress concluded that such a regime “[could]

result in a hardship where an individual primarily dependent

on his pension as a source of retirement income is unable to

make adequate provision for his spouse’s retirement years

should he predecease her.” H.R. Rep. No. 93-807, at 4732

(1974), reprinted in 1974 U.S.C.C.A.N. 4670, 4732. Like-

wise, in amending ERISA through the REA, Congress

CARMONA v. CARMONA 6689

adopted changes to the statutory scheme to take into account

“changes in work patterns, the status of marriage as an eco-

nomic partnership, and the substantial contribution to that

partnership of spouses who work both in and outside the

home.” Retirement Equity Act of 1984, Pub. L. No. 98-397,

98 Stat. 1426 (codified as amended in scattered sections of 29

U.S.C.). Congress created surviving spouse benefits, like

those found in QJSAs, to protect non-participant spouses, par-

ticularly those that may not work outside the home and thus

may not have independent retirement benefits.

The Hopkins rule applied in this case may not clearly pro-

tect a non-working spouse whose interest in the surviving

spouse benefits may have accrued over time, since Lupe was

not married to either Janis or Judy during most of his working

years when he earned the pension benefits. Nonetheless, such

a rule would protect a non-working spouse in many situations

involving a post-retirement attempt to transfer surviving

spouse benefits. The finely tuned congressional scheme would

not be served by state court DROs that attempt to divest a

non-working spouse’s interest in her surviving spouse bene-

fits. Similarly, congressional intent is not advanced by permit-

ting a subsequent post-retirement spouse to collect benefits

accrued during an economic partnership she or he was not a

part of.12

12

We note that this view is advanced by the legislative history of the

REA. The Senate Report notes that in theory “a qualified domestic rela-

tions order could provide that the former spouse is not entitled to any sur-

vivor benefits under the plan.” S. Rep. No. 98-575, at 15 (1984), reprinted

in 1984 U.S.C.C.A.N. 2547, 2562. While we recognize that this passing

note contradicts our conclusion that Janis’s surviving spouse benefits

vested at Lupe’s retirement, we are nonetheless convinced that the struc-

ture of the statute, the purposes and policies undergirding ERISA, and the

authority from other jurisdictions following this interpretation support our

conclusion. Furthermore the note does not contradict the outcome here

because Lupe did not seek to divest Janis of her surviving spouse rights,

but rather attempted to replace her with Judy, something that neither the

statutory language nor the legislative history permits.

6690 CARMONA v. CARMONA

Additionally, a vesting rule also promotes one of the princi-

pal goals underlying ERISA: “ensuring that plans be uniform

in their interpretation and simple in their application.” McGo-

wan v. NJR Serv. Corp., 423 F.3d 241, 246 (3d Cir. 2005)

(internal quotation marks and citations omitted), abrogated on

other grounds by Kennedy, 129 S. Ct. 865. While administra-

tive convenience is not entirely determinative of what is

required of pension plans under ERISA, we are convinced

that it should be a consideration when deciding whether the

statutory scheme requires pension plans to act in a certain

way.

Both the participant’s post-retirement pension benefits and

surviving spouse benefits under the QJSA are calculated

based upon the life of the two spouses at the time the benefits

become payable. The benefits payable to each are computed

based upon the “actuarial equivalent of a single annuity for

the life of the participant.” 29 U.S.C. § 1055(d)(1)(A)-(B)

(establishing that the participant receives pension benefits

“for the life of the participant with a survivor annuity for the

life of the spouse which is not less than 50 percent of . . . the

amount of the annuity which is payable during the joint lives

of the participant and the spouse”). The calculation and pay-

ment of the pension benefits mean that it is important for the

plan administrators to know, with some finality, who the

spouse is at the time that the benefits become payable:

Because the disbursement of plan benefits is based

on actuarial computations, the plan administrator

must know the life expectancy of the person receiv-

ing the Surviving Spouse Benefits to determine the

participant’s monthly Pension Benefits. As a result,

the plan administrator needs to know, on the day the

participant retires, to whom the Surviving Spouse

Benefit is payable.

Hopkins, 105 F.3d at 157 n.7. Allowing participants to change

surviving spouse beneficiaries after the participant has retired

CARMONA v. CARMONA 6691

and already begun receiving benefit payments would make it

difficult for trustees to administer plans based on the actuarial

value of both the participant and the surviving spouse. We

therefore agree with Hopkins, as well as with other courts that

have either implicitly or explicitly concluded that the surviv-

ing spouse benefits irrevocably vest in the current spouse

when the plan participant retires. See Hopkins, 105 F.3d at

157; see also Rivers v. Central and South West Corp., 186

F.3d 681 (5th Cir. 1999); Walsh v. Woods, 638 S.E.2d 85

(S.C. Ct. App. 2006); Hamilton, 433 F.3d at 1096 (noting that

problems in QDROs often go undetected “until the participant

dies or retires, that is, when the survivor benefits irrevocably

vest in the current spouse and it is too late to do anything

about it”) (quotation omitted); Anderson v. Marshall, 856 F.

Supp. 604, 607 (D. Kan. 1994); cf. Fox Valley & Vicinity

Constr. Workers Pension Fund v. Brown, 897 F.2d 275 (7th

Cir. 1990) (en banc) (allowing the waiver of surviving spouse

benefits as required in a divorce decree entered prior to the

participant’s retirement); but see Torres v. Torres, 60 P.3d

798 (Haw. 2003).

[13] Because the retirement of a plan participant ordinarily

creates a vested interest in the surviving spouse at the time of

the participant’s retirement, we conclude that a DRO issued

after the participant’s retirement may not alter or assign the

surviving spouse’s interest to a subsequent spouse. The

Nevada family court’s attempted transfer of interests in

Janis’s surviving spouse benefits to Judy is prohibited.

It is important to note that this opinion does not disturb our

prior holding in Tise. Fundamentally, Tise answers a very dif-

ferent question from the one presented here. In Tise, we deter-

mined when a DRO, which creates an enforceable interest in

an alternate payee, can be “qualified” for QPSA benefits. Tise

established that a state court domestic relations order may be

qualified even after a participant’s death, “[b]ecause a QDRO

only renders enforceable an already-existing interest.” 234

F.3d at 421. In contrast, here we ask whether there are any

6692 CARMONA v. CARMONA

restrictions as to when a state can create an enforceable inter-

est in an alternate payee for QJSA surviving spouse benefits.

We hold here only that a state DRO may not create an

enforceable interest in surviving spouse benefits to an alter-

nate payee after a participant’s retirement, because ordinarily

at retirement the surviving spouse’s interest irrevocably vests.13

Additionally, ERISA only permits state court DROs to

reassign surviving spouse benefits if they meet the require-

ments of 29 U.S.C. § 1056(d)(3)(F). Hamilton, 433 F.3d at

1099. Section 1056(d)(3)(F) governs the use of QDROs to

reassign benefits pursuant to 29 U.S.C. § 1055 and states that

“to the extent provided in any qualified domestic relations

order the former spouse of a participant shall be treated as a

surviving spouse of such participant . . . .” We have inter-

preted this provision as permitting a transfer of surviving

spouse benefits established under section 1055 only if the

QDRO expressly assigns surviving spouse rights to a former

spouse. See Hamilton, 433 F.3d at 1099. Here, Judy is not a

“former spouse” but rather is a “future” or “subsequent

spouse” because she married Lupe after his retirement. See

Hopkins, 105 F.3d at 157 n.6. No part of ERISA contemplates

reassignment of surviving spouse benefits to a future or sub-

sequent spouse. We take Congress’s silence with respect to

the rights of a future or subsequent spouse to obtain control

of surviving spouse benefits as “powerful support for the con-

clusion that the right does not exist.” Boggs, 520 U.S. at 847-

48.

Judy also argues that Janis waived her right to the surviving

spouse benefits by the property settlement when the state

13

We say “ordinarily” because we recognize that there may be other sit-

uations, not present in this case, in which a contrary result may be appro-

priate. For example, it is possible that a former spouse could obtain a DRO

prior to the annuity start date and present it to the plan, but the actual

determination of whether the DRO is a QDRO might not be finalized prior

to the date on which the benefit would normally become payable. See,

e.g., 29 U.S.C. § 1056(d)(3)(H).

CARMONA v. CARMONA 6693

court entered its divorce decree. As the Supreme Court made

clear in Kennedy, ERISA’s antialienation provision does not

prohibit a surviving spouse beneficiary from waiving his or

her interest in plan benefits, but such a waiver must also con-

form to plan procedures and instruments. Indeed, the Court

concluded that the plan administrator in that case was not,

under the terms of the plan, required to honor the waiver of

benefits contained in the divorce decree and that the contin-

ued payment of benefits to the prior spouse was proper. See

Kennedy, 129 S. Ct. at 874-78. Under the so-called “plan doc-

uments rule,” plan administrators must “hew[ ] to the direc-

tives of the plan documents” rather than “examin[ing] a

multitude of external documents that might purport to affect

the dispensation of benefits” and becoming “drawn into litiga-

tion like this over the meaning and enforceability of purported

waivers.” Id. at 876, 877 (internal quotation marks omitted).

Both the IATSE plan documents and ERISA’s statutory

scheme allow for the waiver of surviving spouse benefits with

both spouses’ written consent during the benefits election

period prior to the participant’s retirement. 29 U.S.C.

§ 1055(c)(3). That procedure was not followed here. Judy has

identified nothing in the IATSE plan documents which

require the plan administrator to redirect surviving spouse

benefits to Judy, who was not, at the time of retirement and

vesting, either a present or former spouse. Even if it is

assumed that Janis had the authority to disclaim benefits,

there is nothing that provides for them to be assigned instead

to Judy.

C. The Constructive Trust

IATSE also contends that it was impermissible for the state

court to create a constructive trust on the annuity proceeds.

We agree that a state law constructive trust cannot be used to

contravene the dictates of ERISA.

ERISA preemption supercedes “any and all state laws inso-

far as they may now or hereafter relate to any employee bene-

6694 CARMONA v. CARMONA

fit plan” covered by ERISA. 29 U.S.C. § 1144(a). The

Supreme Court has observed that the preemption provision is

“clearly expansive” but that it cannot be taken “to extend to

the furthest stretch of its indeterminacy.” Egelhoff v. Egelhoff,

532 U.S. 141, 146 (2001) (citations and internal quotation

marks omitted). A state law “relates to an ERISA plan if it has

a connection with or reference to such a plan.” Id. at 147

(citations and internal quotation marks omitted). To determine

whether a state law is preempted because it relates to an

ERISA plan, the courts look to the nature and effect of the

state law on ERISA plans as well as the objectives of the

ERISA statute. Id.

In Melton v. Melton, the Seventh Circuit observed that

“Egelhoff stands for the proposition that a state law cannot

invalidate an ERISA plan beneficiary designation by mandat-

ing distribution to another person.” 324 F.3d 941, 945 (7th

Cir. 2003) (citations omitted). The court applied that proposi-

tion to conclude that ERISA preempted a state court law that

permitted the imposition of a constructive trust on ERISA

proceeds. It concluded that the imposition of a constructive

trust to subvert ERISA-mandated beneficiaries was directly

controlled by Egelhoff and preempted by ERISA. Id. Thus the

court held that state law doctrines (including constructive

trusts) may not be invoked to assign benefits to parties other

than those designated as beneficiaries under ERISA. Id.

Furthermore, as the Supreme Court concluded in Boggs,

ERISA can preempt state law even after benefits have been

disbursed to beneficiaries. 520 U.S. at 842 (rejecting the argu-

ment that state law can apply when it affects “only the dispo-

sition of plan proceeds after they have been disbursed by [the

plan] and thus nothing is required of the plan”). Therefore a

state court cannot achieve through a constructive trust on the

proceeds of a pension plan what this court maintains it cannot

achieve through a QDRO. Any alternative rule would allow

for an end-run around ERISA’s rules and Congress’s policy

objective of providing for certain beneficiaries, thereby

CARMONA v. CARMONA 6695

greatly weakening, if not entirely abrogating, ERISA’s broad

preemption provision.

Judy relies upon our decision in Emard v. Hughes Aircraft

Co., 153 F.3d 949 (9th Cir. 1998), for the proposition that

once a plan distributes proceeds to the proper ERISA benefi-

ciary, a state law created constructive trust is too attenuated

to fall within the mandatory preemption provision. Id. at 954.

Emard, however, was abrogated by Egelhoff, 532 U.S. 141,

and thus Emard’s holding, to the extent it can be interpreted

as an end-run around ERISA’s mandates, no longer survives.14

[14] In this case, the constructive trust that the state court

created was explicitly an attempt to avoid ERISA’s QDRO,

preemption, and antialienation provisions. We conclude that

Congress did not intend to permit the reassignment of surviv-

ing spouse benefits and, therefore the constructive trust rem-

edy that the state court tried to impose is also preempted by

ERISA. It may not be that all constructive trusts instituted by

state courts, particularly those that seek to recover ill-gotten

gains, will have a sufficient connection with or reference to

an ERISA plan to trigger ERISA’s preemption provision.15

14

Additionally, Emard addressed insurance benefits and not pension

plan benefits. Emard, 153 F.3d at 953. As noted in Guidry v. Sheet Metal

Workers Nat’l Pension Fund, 493 U.S. 365 (1990), ERISA’s antialiena-

tion provision applies only to pension benefits and not welfare benefits.

Thus an independent reason (the antialienation provision) prohibits the use

of constructive trusts to garnish pension benefits in this case. See id. at

371-72. In Guidry, the Supreme Court concluded that a constructive trust

could not be used to disgorge a pension plan fiduciary’s ill-gotten gains

because it was prohibited by the antialienation provision of ERISA and

did not meet any of the statutory exceptions to the ERISA provision. See

id. at 372-376. On remand, the Tenth Circuit upheld the imposition of a

constructive trust and concluded that ERISA did not prohibit post-

payment garnishment of ill-gotten gains. See Guidry v. Sheet Metal Work-

ers Nat’l. Pension Fund, 39 F.3d 1078 (10th Cir. 1994) (en banc). This

decision, too, preceded both Egelhoff and Boggs, and may not survive.

15

In Kennedy, the Court explicitly declined to express a view on

whether an action could have been brought to obtain benefits from the for-

mer spouse after they had been distributed to her. 129 S. Ct. at 875 n.10.

6696 CARMONA v. CARMONA

But when a state court creates a constructive trust with the

explicit purpose of avoiding ERISA’s rules, it too must be

preempted.

Congress, through ERISA, has created a set of fixed prop-

erty rules state courts are bound to work within. State family

courts can and should distribute property in an equitable man-

ner upon divorce, but they must take into account ERISA’s

rules. ERISA prohibits the state family court from steering the

surviving spouse benefits from Janis to Judy, but ERISA did

not prohibit the state court from dividing other property or

making other adjustments mindful of the benefits provided

under the ERISA plan. In this instance, the state family court

provided for a transfer of $1500 from Lupe to Janis based

upon the premise that Lupe and Janis would each retain their

pension benefits as separate property. That premise may have

been faulty, but that does not justify disregarding the ERISA

limitations.

III. Conclusion

We conclude that Janis’s lawsuit against both Hilton and

Judy was properly dismissed by the district court for lack of

subject matter jurisdiction. Although Janis may have been

right on the underlying substantive issue, she already had her

day in court on the question and, under the circumstances, is

barred under the Rooker-Feldman doctrine from seeking

recourse in federal court at this time.

IATSE’s similar argument is not barred, however. We

agree with its contention that it is not required to make pay-

ment of the surviving spouse benefits to Judy or to the con-

structive trust ordered by the Nevada family court. Under

ERISA, Janis’s interest in the surviving spouse benefits

vested at Lupe’s retirement and federal law preempted the

state court orders directing the plans to change the beneficia-

ries and creating a constructive trust.

CARMONA v. CARMONA 6697

We remand the matter to the district court for whatever fur-

ther proceedings may be necessary and appropriate. Each

party is to bear its own costs on appeal.

AFFIRMED in part, REVERSED in part, and

REMANDED.