Appendix — Clark v. Clark

IN THE

SUPREME COURT OF THE UNITED'STATES

October Term, 1992

J]. RAYMOND CLARK

and

ANNE LEWIS CLARK

Petitioners

Vv

DANIELLE J. CLARK

Respondent

On Writ of Certiorari To The District Of Columbia

Court Of Appeals

APPENDICES TO

PETITION FOR WRIT OF CERTIORARI

J. Raymond Clark

157 St. Andrews Drive

St. Simons Island, Georgia 31522

(912) 638-6817

Pro Se and Counsel

Appendix I

DISTRICT OF COLUMBIA COURT OF APPEALS

NO. 90-FM-226

RAYMOND J. CLARK, et al., APPELLANTS,

Vv. D-2976-86

DANIEL J. CLARK, APPELLEE

Appeal from the Superior Court of the

District of Columbia

Family Division

(Hon. George H. Goodrich, Trial Judge)

(Argued March 31, 1992 Decided May 6, 1992)

Before STEADMAN, SCWELB and FARRELL, Associate Judges.

MEMORANDUM OPINION AND JUDGMENT

Appellee, the former wife of appellant, brought suit in

Superior Court for specific performance of a provision of a 1976

separation agreement purporting to entitle her to one half of

past and future payments by appellant into a Keogh (or

Qualified Retirement) Plan. Appellant defended against the suit

partly on the ground that enforcement of the provision would

contravene the anti-alienation provision of the Employees'

Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et

seq. (1974). While the present suit was pending, appellant filed

suit in the United States District Court for the District of

Columbia seeking to enjoin the Superior Court from further

action on the ground that the District Court had exclusive

jurisdiction of the matter under ERISA. The District Court

dismissed the suit, Clark v. Superior Court of the District of

Columbia, 702 F. Supp. 4 (D.D.C. 1988), and on appeal the

United States Court of Appeals for the District of Columbia

Circuit affirmed summarily. Clark v. Superior Court of the

District of Columbia, 284 U.S. App. D.C. 284, 905 F.2d 389 (1990).

The court held that ERISA "is inapplicable to the instant case

because the funds at issue [having been received by the husband

in a lump sum] do not constitute benefits under the protection

of an ERISA Plan." Id.' In the meantime, the Superior Court in

the present action had granted summary Judgment for appellee.

The court too found "that ERISA does not apply and that this

case should be decided by applying the principles of contract law

in this jurisdiction." Applying those principles, the court

concluded that under the terms of the contractual provision in

dispute, appellee was entitled to one half of the retirement

funds appellant had paid into the Keogh Plan but then

withdrawn in a single sum.

We hold first that the decision of the United States Court

of Appeals, establishing that ERISA does not apply to the funds

claimed by appellee under the separation agreement, is

determinative of appellant's ERISA defense to the present

lawsuit. See, e.g., Goldkind v. Snider Bros., 467 A.2d 468, 473-74

(D.C. 1983).’

We also uphold Judge Goodrich's determination --

applying District of Columbia contract law -- that upon receipt by

appellant of the $279,637.56 from the Keogh Plan, "one-half of

this sum became due and owing to plaintiff pursuant to their

Agreement." We agree with Judge Goodrich that the provision

of the agreement which the parties dispute (paragraph 4) is

unambiguous.’ It provides "that all payments made by Husband

under the so-called Keogh Plan (Qualified Retirement Plan) in

' The appellate court specifically held that the anti- alienation

provision of ERISA, which is at the heart of appellant's argument on

this point, is "inapplicable to this case." The district court had likewise

ruled that Mrs. Clark's suit in Superior Court "is clearly not related to

enforcement of ERISA or of the terms of Raymond Clark's [Keogh]

plan," 702 F. Supp. at 8, noting that "[b]ecause he has received his

benefits in a lump sum, he no longer ‘is or may become entitled to a

benefit."' Id. at 8 n.7 (citations omitted).

* The fact that Mrs. Clark was not a party to appellant's suit in

federal court does not mean the outcome of that suit may not bind

appellant. Parklane Hosiery v. Shore, 439 U.S. 322 (1979).

* When a document "is facially unambiguous its language should

be relied upon as providing the best objective manifestation of the

parties’ intent." 1010 Potomac Assocs. v. Grocery Mfrs. of America,

Inc., 485 A.2d 199, 205 (D.C. 1984).' The only portion of the agreement

cited by either party as bearing on the disputed issue is paragraph 4.

"(W]e treat the question of contractual interpretation, beginning with

the question of ambiguity, as one of law, and, hence, we make our own

de novo determination of the correctness of the trial court's ruling."

Cbhristacos v. Blackie's House of Beef, 583 A.2d 191, 194-95 n.3 (D.C.

1990) (citations and internal quotation marks omitted).

the past and to be made in the future, are the joint property of

the parties" (emphases added). It further provides that, "[a]t

such time as the Husband elects to receive benefits under this

plan, such benefits when received by Husband shall be divided

equally between the parties and any such payments shall be

considered to be alimony at that time.* Appellant’s argument

that Mrs. Clark was entitled to share in these "benefits" only if

he eventually received them as periodic payments "under [the]

plan" rather than as a lump sum upon termination of his

business is refuted by the plain language of the agreement,

which makes all past and future payments into the plan "the

joint property of the parties." It would rob this language of all

meaning if Mr. Clark could convert “joint property” into his

sole property by the simple expedient of withdrawing all benefits

from the plan in a single lump sum. Nor did appellant bring to

Judge Goodrich’s attention any evidence sufficient to create a

triable issue of fact on whether the parties intended to vest in

him such control -- simply by the manner of obtaining the funds

-- over whether his wife could ever receive her one-half share of

the "joint property."* We sustain the trial court’s reading of the

agreement.

We do think, however, that this case must be remanded

“When interpretation of this same separation agreement was

before us previously, Clark v. Clark, 535 A.2d 872 (D.C. 1987), (Clark 1),

we sustained the trial court’s finding that the parties intended Mr.

Clark’s alimony obligation to cease upon his retirement from his law

practice. In support of this finding the trial judge had noted, inter alia,

"the provision elsewhere in the Agreement for Mrs. Clark~s financial

security, . . . [namely,] the provision of paragraph 4 requiring Mr.

Clark to divide his Keogh Plan benefits. . . equally with Mrs. Clark. .

. ." Id. at 878-79.

*The plan-related documents appellant cites to support the parties’

intent to distinguish between "benefits" and ‘withdrawals" have not

been furnished to us on appeal. In any event, appellant's references to

them in the pleadings below demonstrate clearly that they are all dated

between 1984 and 1986, at least eight years after the agreement was

executed.

Moreover, the fact that paragraph 4 of the agreement left appellant

apparent discretion whether to make future payments into the Keogh

Plan (but see Clark I, supra, sustaining trial court’s finding that wife’s

share in retirement payments was partial quid pro quo for termination

of husband's alimony obligation upon retirement) does not affect our

analysis given that appellant had already made payments into the plan

by the time the agreement was reached and continued to do so

thereafter.

for further trial court consideration of one aspect of the

agreement. It appears that, under the agreement, the parties

intended that any such benefits received by the husband and

divisible equally between them would be "considered to be

alimony" and hence that payment to the wife would be in such

a fashion that he could claim a tax deduction (and she pay the

income tax) on her share.° Judge Goodrich did not appear to

dispute this understanding of the parties, stating that "[ilf

defendant is concerned about labeling this amount as alimony

for tax purposes, he may do so and claim his deduction with

plaintiff reporting this amount as income." Appellant asserts

that this is impossible under Internal Revenue Service

Regulations concerning “lump sum" alimony payments, and

that he has long since paid the federal income tax on the full

$279,637.56. In her brief on appeal, appellee did not dispute

either point. Thus, it appears that to effectuate the parties’

understanding in the agreement, appellant is entitled to a credit

against the approximately $139,819.00 owed appellee for the

amount of federal income tax he paid on that amount. The

parties should compute this figure and present it to the trial

court for consideration as a revision of the judgment. Finally,

there is ample basis in the record supporting both the order

adjudging appellant in contempt and the decision to make

appellant’s present spouse a party to the action, Super. Ct. Civ.

R. 19 (a) (1).

Accordingly, the case is remanded for the further

proceedings required by this opinion. In ail other respects the

judgment of the Superior Court is affirmed.

So ordered.

FOR THE COURT:

JOY A. CHAPPER

Acting Clerk

* Appellant proffered the deposition testimony of the drafting

attorney to this effect.

Copies to:

° . Hon. George H. Goodrich

Clerk, Superior Court

J. Raymond Clark, pro se

157 St. Andrews Drive

Saint Simons Island, GA 31522

Brian D. West, Esq.

8000 Towers Crescent Drive, #660

Vienna, VA 22182

Appendix II-A

IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

FAMILY DIVISION

DOMESTIC RELATIONS BRANCH

DANIELLE J. CLARK

Plaintiff

Vv.

J. RAYMOND CLARK

Defendant

ORDER

Upon consideration of Defendant's Motion to Dismiss

for Lack of Subject Matter Jurisdiction;

Upon consideration of the Opposition thereto;

Upon consideration of argument by counsel; it is by this court

ORDERED that the Defendant's Motion to Dismiss be,

and it hereby is denied, and that the Plaintiff be, and she hereby

is awarded dollars representing her attorney’s fees

and costs expended in defending this motion.

Judge

cc: Sandground Smolen Barondess

West & Plevy, P.C.

8000 Towers Crescent Drive

Suite 660

Vienna, VA 22180

Raymond Clark

157 St. Andrews Drive

St. Simons Island, Georgia31522

a Se

A Appendix II-B

\ y : IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

FAMILY DIVISION

DOMESTIC RELATIONS BRANCH

DANIELLE J. CLARK

1564 33rd Street, N.W.

Washington, D.C

Plaintiff

Vv. CIVIL ACTION NO. D2976-86

J. RAYMOND CLARK

157 St Andrews Drive

St. Simons Island, Georgia 31522

3S Defendant

ORDER

UPON CONSIDERATION of the Defendant's Motion for

, Reconsideration and Amendment of Order of Court; upon

yy consideration of the Opposition thereto; it is by this Court

'S ORDERED that the Defendant's Motion be, and it hereby

. : is, denied.

JUDGE

ENTRY DATE:

cc:

Sandground Smolen Barondess

West & Plevy, P.C.

Bar Assoc. No. 407844

1333 H Street, N.W., Suite 600

Washington, D.C. 20005

Counsel for Plaintiff

(703) 761-4200

J. Raymond Clark

157 St. Andrews Drive

St. Simons Island, Georgia 31522

Appendix II-C

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

FAMILY DIVISION

DOMESTIC RELATIONS BRANCH

DANIELLE J. CLARK,

Plaintiff

Vv. Case No. D 2976-86

J. RAYMOND CLARK,

Defendant

ORDER

This matter comes before the Court by virtue of the

Plaintiff's Motion for Leave to Join an Additional Necessary

Party filed on January 19, 1988 and the Defendant's Opposition

thereto filed on February 19, 1988; the Plaintiff's Motion for

Temporary Restraining Order, Preliminary Injunction and Other

and [sic] Further Judicial Relief filed on February 3, 1988 and the

Defendant's Opposition thereto filed on February 29, 1988; the

Plaintiff's Motion to Compel filed on February 3, 1988 and the

Defendant's Opposition thereto filed on April 12, 1988; the

Defendant's Motion for Summary Judgment filed on February

10, 1988 and the Plaintiff's Opposition to Defendant's Motion

for Summary Judgment and Plaintiff's Cross-Motion for

Summary Judgment filed on April 13, 1988; and a hearing held

regarding these matters on December 5, 1989 at which the

motions were taken under advisement. The Court now makes

the following:

I, FINDINGS OF FACT

Plaintiff Danielle J. Clark and defendant J. Raymond

Clark were divorced by this Court on February 27, 1979. Prior to

their divorce, the parties executed a written Separation and

Property Settlement Agreement [hereinafter "Agreement"] on

March 1, 1976. In a ruling on a previous unrelated dispute

regarding paragraph 8 of the Agreement, the Court of Appeals

explained that

The Agreement was drafted by an attorney

retained by Mrs. Clark following negotiations at

which Mr. Clark, an attorney, represented himself.

—

It purported to resolve all of the property issues

‘ : involving the parties. It was neither ratified,

approved by the Court, nor merged into the

divorce decree as the Agreement required.

Clark v. Clark, 535 A 2d 872, 874 (D.C. 1987).

The provision of the Agreement now in dispute is

paragraph 4 which reads as follows:

4. It is agreed that all payments made by Husband

under the so-called Keogh Plan (Qualified

Retirement Plan) in the past and to be made in

the future, are the joint property of the Parties. At

such time as Husband elects to receive benefits

under this plan, such benefits when received by

Husband shall be divided equally between the

Parties and any such payments made to Wife shall

be considered to be alimony at that time. The

foregoing provisions of this Paragraph 4 include

the shares of Putnam Growth Stock purchased

under the Keogh Plan which are registered in the

name of Wife.

Plaintiff's Complaint Exhibit A p. 6. The Keogh account was

completely paid out in November 1986 and the defendant

received the lump-sum amount of $279,637.56 at that time.

Plaintiff seeks specific performance and enforcement of

the separation agreement as well as damages. Defendant moved

to dismiss this action on the grounds that the Employees

Retirement Income Security Act of 1974 [hereinafter "ERISA"]

broadly preempts state law vesting exclusive jurisdiction in the

District Court. At a hearing on July 11, 1988, Judge Wertheim

denied defendant's Motion to Dismiss stating that

this is basically a contract action in which

the measure of damages, if any, will be by

reference to sums that were withdrawn from a

Keogh Flan, or received from a Keogh Plan. But,

the obligation that's sought to be enforced does

not arise out of any such plan, doesn't depend

upon the terms of any such plan, doesn't require

interpretation of any such plan. And, nor does

anyone on behalf of the plan, even if you knew

who that was, have to take any action as a result

of whatever may be wrapped in this case.

Transcript at 36-37. On August 30, 1988, Judge Wertheim

affirmed his ruling by denying the defendant's Motion for

|

Reconsideration and Amendment of Order of Court.

Defendant subsequently filed an action in the U.S.

District Court for the District of Columbia, asking the District

Court "to enjoin the Superior Court from continuing to act on

this matter, on the grounds that the District Court has exclusive

jurisdiction, pursuant to the provisions of the Employees

Retirement Income Security Act of 1974 (as amended) ("ERISA")

29 U.S.C. §§1001, et seq., 29 U.S.C. §1132." Judge Lamberth's

Memorandum Opinion, CA No. 88-2272, November 15, 1988 p.

2. In his Opinion, Judge Lamberth found that "jurisdiction is

not exclusive, and is at most concurrent. . ." id. atp.1l. Asa

result, J. Lamberth granted Danielle Clark's Motion to Dismiss

and denied Raymond Clark's Motion for a Preliminary

injunction as moot.’ On December 5, 1989, Judge Goodrich held

a motions hearing on all pending matters in this case. The

Court will discuss each motion separately.

Il, CONCLUSION OF LAW

A. Defendant's Motion for Summary

ludgment and Plaintiff's Cross Motion for

Summary Judgment

Defendant moves for Summary Judgment on the grounds

that plaintiff’s Complaint for Specific Performance is expressly

based upon provision 4 in their separation agreement, which is

allegedly void and unenforceable under 29 U.S.C. §1056(d)(3)(A)

because plaintiff failed to obtain a qualified domestic relations

order as required by ERISA. In opposition, plaintiff contends

that the Agreement is a contract governed by D.C. contract law

and not by federal law, ie. ERISA. Plaintiff argues that the

essential fact here is that the funds to be transferred pursuant to

the agreement were not to be transferred by a trustee of a

retirement fund or any third party, but rather it was to be a

transfer of an interest of monies when received by the

defendant, therefore making ERISA wholly inapplicable. When

considering a request for summary judgment, the Court must

consider the evidence in the light most favorable to the non-

moving party’ and determine (1) whether any genuine issue of

material fact exists and (2) whether plaintiff or defendant is

"Defendant's action in District Court is now pending an appeal.

* Here, the Court must carefully consider the positions set forth by both

sides since there are cross-motions for summary judgment.

entitled to judgment as a matter of law. Taylor v. Eureka

Investment Corp., 482 A.2d 354,357 (D.C. 1984): Holland v.

Haman, 456 A.2d 807,814 (D.C. 1983); See Super. Ct. Civ. R. 56

(c) (1987).

(1) Whether there are any genuine issues of

material fact.

Both parties acknowledge that their Agreement is a valid

contract. Defendant only disputes the validity of paragraph 4,

which is a matter of law. Thus, the Court finds that there are no

material facts in dispute and considers the second prong for a

determination of summary judgment.

(2) Whether plaintiff or defendant is

entitled to judgment as a matter of law.

In his Memorandum Opinion, J. Lamberth reasoned that

The holder of the qualified order becomes a

participant or beneficiary who seeks to recover

benefits due under the plan. Such enforcement

actions remain under §502(a) (1) (B) , and are thus

properly brought in state court, unless the action

is properly removed, to determine whether

Danielle Clark is such a beneficiary, and if so,

whether her claim is preempted and thus void for

failure to obtain the qualified Order before the

termination of the plan in 1986.

Judge Lamberth's Memorandum Opinion, CA No. 88 2277,

Nov. 15, 1988 pp. 10-11. Since this action has not been removed

to the District Court, this Court must, as Judge Lamberth

explained, first determine whether the plaintiff is a "beneficiary"

of the defendant's Keogh Plan.

It is the view of this Court that although plaintiff was

promised a portion of certain payments from the defendant's

Keogh Plan, plaintiff was never made a beneficiary of that Plan,

i.e. no arrangements were ever made to make plaintiff a direct

recipient of the benefits from the pension plan. Defendant was

the only person ever designated to receive funds from the

pension plan and as a result, plaintiff never became an assignee

or beneficiary of 6 - defendant's Keogh Plan as the term is used

in 29 U.S.C. §1056 (d) (3).

Basically, paragraph 4 acknowledges that the payments

made .into the Keogh Plan were "the joint property of the

Parties . - -" and provide that "[a]t such time as Husband elects

to receive benefits under this plan, such benefits when received

by .Husband shall be divided equally between the parties. . ."

a

The Agreement p. 6 para. 4 (emphasis added). Rather than

involving plaintiff in the Keogh Plan as a beneficiary, paragraph

4 merely determines when and how much plaintiff is to be paid

-- that plaintiff is to be laid when "such benefits [are] received by

Husband" and that the benefits "shall be divided equally." Here,

the Keogh Plan is involved only to establish a time and amount

that plaintiff should be paid for this jointly held property. Thus,

the Court finds that ERISA does not apply and that this case

should be decided by applying the principles of contract law in

this jurisdiction. See Spencer v. Spencer, 949 A.2d 1279, 1285

(D.C. 1985).

In accordance with the principles of contract law, the

disputed paragraph 4 had two conditions precedent that had to

be satisfied before plaintiff could receive payment -- that

"Husband elects to receive benefits" and that he receive the

benefits. Both of which were satisfied on November 6, 1986

when defendant received the lump sum amount of $279,637.56.

Upon his receipt of that amount, one-half of this sum became

due and owing to plaintiff pursuant to their Agreement.

There is no dispute over the contract itself, therefore, the

Court finds that defendant is in breach of the Agreement.

Accordingly, the Court denies the defendant's Motion for

Summary Judgment and grants the plaintiff's Cross Motion for

Summary Judgment.

B. Plaintiff's Motion for leave to Join an

Additional Necessary Party; Plaintiff's Motion for

Temporary Restraining Order; and_ Plaintiff's

Motion to Compel

As a result of the Court's decision above, these motions

are hereby denied as moot subject to the defendant's compliance

with the following Judgment.

JUDGMENT

Wherefore, it is by the Court this 14th day of December

1989

ORDERED THAT:

1. The defendant, J. Raymond Clark, pay the plaintiff, Danielle

J. Clark, the amount of one hundred thirty nine thousand eight

hundred nineteen and xx/100 dollars ($139,819.00), which is one-

half of the lump-sum he received from his Keogh Plan as

mentioned in paragraph 4 of the Agreement.

2. The defendant pay plaintiff reasonable attorney's fees, costs

and expenses incurred as a result of his breach of the Agreement

as specified on p.26 para. 21 of the Agreement.

JUDGE GEORGE HERBERT GOODRICH

Signed in Chambers

Copies to:

Brian West, Esquire

1333 H. Street, N.W.

Suite 660

Washington, D. C. 20005

J. Raymond Clark

Anne Lewis Clark

157 St. Andrews Drive

St. Simons Island, Georgia 31522

Lutz A. Prager, Esquire

Assistant Corporation Counsel

Appendix II-D

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

FAMILY DIVISION - DOMESTIC RELATIONS BRANCH

DANIELLE J. CLARK

Plaintiff,

V. CASE NO. D 2976-86

RAYMOND CLARK

Defendant.

ORDER

This matter comes before the Court by virtue of the

defendant's Motion for Reconsideration and Clarification

Amendment of Order and Judgment received on January 2, 1990

and the plaintiff's Opposition thereto received on January 18,

1990. The Order from which this motion stems was signed and

filed by this Court on December 15, 1989. In this Order, the Court

denied the defendant's Motion for Summary Judgment and

granted plaintiff's Cross-Motion for Summary Judgment. In

addition, the Court directed the defendant to pay the plaintiff

$139,819.00 as well as reasonable attorney's fees, costs and

expenses.

Defendant now asks the Court to reconsider, clarify, and

amend its December 15th Order. It is clear from defendant's

motion that he continues to apply the Employees Retirement

Income Security Act of 1974 [ERISA] to this case. On page 6 of

the December 15th Order, this Court explicitly stated that,

"ERISA does not apply and that this case should be decided by

applying the principles of contract law in this jurisdiction."

Defendant purposely misconstrues the December 15th Order by

applying ERISA to the Court's words where the Court is strictly

speaking in terms of contract law. Defendant's failure to apply

contract law rather than ERISA to this case and the December

15th Order naturally leads to a variety of questions.

Nevertheless, the defendant insists upon framing his questions

in terms of ERISA problems which do not exist.

The December 15th Order clearly explains the Court's

interpretation of the disputed paragraph 4 of the separation

ee

agreement. The Court found that the parties entered into an

agreement where the defendant was to pay the plaintiff a certain

sum of money. The amount was to be one-half the amount

defendant received from his Keogh plan and the amount was to

become due and owing upon the defendant's election to receive

benefits from his plan.

Since both conditions, that defendant elect to receive

benefits and that he receive the benefits, have occurred, one-half

the sum received by the defendant is now owed to plaintiff

pursuant to the Agreement. Defendant received $279,637.56 on

November 6, 1986, at that time, $139,819.00 became due and

owing to plaintiff.

If defendant is concerned about labeling this amount as

alimony for tax purposes, he may do so and claim his deduction

with plaintiff reporting this amount as income. Regardless of

what this sum of money is ultimately labeled, alimony or

otherwise, defendant owes plaintiff $139,819.00.

Defendant's motion raises a question regarding Putnam

Growth Stock, however, nothing concerning Putnam Growth

Stock has been presented to the Court so the Court has made no

decisions regarding any benefits that may or may not have been

received therefrom. Therefore, the Court does not see any

problem with its interpretation of the word “benefits” as it is

used in paragraph 4.

Defendant also misconstrues Judge Lamberth's opinion

of the District Court. Judge Lamberth never acknowledged that

the plaintiff is a "beneficiary" under ERISA. He merely made an

assumption for a hypothetical he was setting forth.

As for defendant's denial that he never received any

benefits, the Court points out that the evidence shows that he

received $279,637.56 from his Keogh Plan. Unless defendant can

rebut that evidence, the Court continues to hold that it is

sufficient to prove that he did receive benefits in that amount.

Finally, the Court has reviewed the motions which were denied

as moot subject to the defendant's compliance with this Court's

Judgment. Since it appears that the defendant's compliance

with the Judgment may require more effort on the part of the

plaintiff and for the reasons set forth in plaintiff's motions, the

Court now reinstates plaintiff's Motion for Leave to Join an

Additional Necessary Party and plaintiff's Motion to Compel for

a ruling by this Court.

Therefore, it is this 29th day of January 1990

ORDERED that defendant's Motion for Reconsideration

and Clarification and Amendment of Order and Judgment be

and hereby is denied. The Court hereby affirms its Order of

December 15th and directs defendant J. Raymond Clark to

comply with that Order, making payment to plaintiff Danielle J.

Clark within sixty (60) days of the date of this Order, and it is

FURTHER ORDERED that the plaintiff's Motion for

Leave to Join an Additional Necessary Party be and hereby is

granted and the defendant's present wife, Anne L. Clark, is

hereby joined as a necessary party defendant, and it is

FURTHER ORDERED that the plaintiff's Motion to

Compel be and hereby is granted, and the defendant is directed

to answer plaintiff's questions within sixty (60) days from the

date of this Order and it is

FURTHER ORDERED that plaintiff's Motion for a

Temporary Restraining Order be and hereby is denied as moot

since this Court has already rendered a final judgment regarding

this matter.

JUDGE GEORGE HERBERT GOODRICH

Signed in Chambers

Copies to:

Brian West, Esquire

1333 H. Street, N.W., Suite 600

Washington, D.C. 20005

J. Raymond Clark

157 St. Andrews Drive

St. Simons Island, Georgia 31522

Lutz A. Prager, Esquire

Assistant Corp. Counsel

APPENDIX IIE

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

FAMILY DIVISION - DOMESTIC RELATIONS BRANCH

DANIELLE J. CLARK

Plaintiff,

V.

RAYMOND CLARK

Defendant.

ORDER

This matter comes before the Court by Virtue of the

Defendant's Motion to Strike Plaintiff's Opposition to Motion

for Reconsideration and Clarification and Amendment of Order

and Judgment and Plaintiff's Motion to Grant Previously Filed

Motion to Add Third Party Defendant and Other Relief received

on February 1, 1990 and the Plaintiff's Reply thereto filed on

February 13, 1990, Plaintiff's Motion and Affidavit in Support of

Request for Attorney's Fees filed on February 23, 1990,

Defendant's Opposition thereto received on March 5, 1990, and

Plaintiff's Reply thereto filed on March 12, 1990; Defendant's

Motion for Relief From Judgment and Orders, For Stay of

Proceedings to Enforce Judgment and For Stay Pending Appeal

received on February 23, 1990 and Plaintiff's Opposition thereto

filed on March 8, 1990; Defendant's Motion to Strike Defamatory

Allegations in Plaintiff's Motion for Summary Judgment

received on March 23, 1990, Plaintiff's Opposition thereto, and

Defendant's Reply thereto received on April 10, 1990.

On December 15, 1989, this Court filed an Order denying

the defendant's Motion for Summary Judgment, granting the

plaintiff's Cross Motion for Summary Judgment and directing

defendant to pay plaintiff the amount of $139,819.00 as well as

reasonable attorney's fees, costs and expenses incurred as a result

of his breach of the Separation Agreement. In this Order,

plaintiff's Motion for Leave to Join an Additional Necessary

Party, plaintiff's Motion for Temporary Restraining Order, and

plaintiff's Motion to Compel were all denied as moot subject to

the defendant's compliance with the Court's ruling.

Defendant subsequently filed a Motion for Re-

consideration and Clarification and Amendment of Order and

the plaintiff filed an Opposition thereto. On January 30, 1990,

this Court filed an Order denying defendant's motion and

directing defendant to comply with this Court's December 15th

Order within sixty days of the date of the January 30th Order. In

addition the Court ruled on plaintiff's motions previously

denied as moot -- plaintiff's Motion for Leave to Join an

Additional Necessary Party was granted and defendant's wife

Anne L. Clark was joined as a necessary party defendant;

plaintiff's Motion to Compel was also granted and defendant

was directed to answer plaintiff's questions within sixty days

from the date of the January 30th Order; and plaintiff's Motion

for a Temporary Restraining Order was denied as moot since

this Court had already entered a final judgment in this case.

Numerous motions have been filed regarding the

rulings described above. The Court will discuss each motion

separately.

Motion of Defendant to Strike Plaintiff's

Opposition to Motion for Reconsideration and

Clarification and Amendment of Order and

Judgment _and_ Plaintiff's Motion to Grant

Previously Filed Motion to Add Third Party

Defendant and Other Relief

Defendant seeks to have plaintiff's opposition stricken

because it was not timely served, it supplements pleadings

previously argued before the Court, and it misstates the dates of

service of the pleadings upon the defendant. In opposition,

plaintiff denies each of defendant's allegations and argues that

defendant's motion was meant only to harass plaintiff and

increase her legal costs. In addition, plaintiff asserts that

defendant's motion was rendered moot by this Court's denial of

his Motion for Reconsideration.

Upon review of these pleadings, the Court hereby accepts

plaintiff's opposition as timely filed, affirms its Order of January

30th, and therefore denies defendant's Motion to Strike

Plaintiff's Opposition as moot.

Motion of Defendant For Relief From Judgment

and Orders, For Stay of Proceedings to Enforce

[Judgment and For Stay Pending Appeal

On March 1, 1990, defendant filed a Notice of Appeal for

review of this Court's December 15th Order and now seeks a stay

of this Court's Judgment and Orders pending this appeal. In

opposition, plaintiff argues that defendant has failed to come

forth with a supersedeas bond as required by Super. Ct. Dom.

Rel. Rule 62(b) and 62-I.

Upon review of these pleadings, the Court does not see

any reason why defendant's motion should not be granted, but

does feel that a supersedeas bond should be posted by the

defendant to ensure the availability of the Judgment awarded to

plaintiff should she prevail on appeal. Rule 62-I states that

the amount of the bond shall be fixed at such sum

as will cover the whole amount of the judgment

remaining unsatisfied, costs on the appeal,

interest, and damages for delay. . .

Accordingly, the Court hereby directs defendant to file a

supersedeas bond in the amount of one hundred forty thousand

and XX/100 dollars ($140 000 00)’ plus fifteen percent (15%) of

that amount to cover costs, interest, and possible damages for

delay” Thus, defendant's request for a stay of this Court's

Judgment is granted subject to his posting a supersedeas bond in

the amount of one hundred sixty one thousand and XX/100

dollars ($161,000.00).

Motion of Anne L. Clark For Reconsideration

and Amendment of Order

Anne L. Clark seeks a reconsideration and an

amendment of this Court's January 30th Order joining her in

this action as a necessary party defendant. In support of her

motion, Anne Clark argues that she lives more than 650 miles

from the District of Columbia and that this Court has no

jurisdiction over her. In opposition, plaintiff contends that the

Court does have jurisdiction over Anne Clark because the

subject matter of this litigation - - the pension benefits - - are

allegedly held in a joint bank account in her name along with

defendant Raymond Clark.

Whether or not the Court does have jurisdiction over

Anne Clark, the Court certainly has jurisdiction over the

pension benefits received by the defendant and this Court's

concern is that those benefits or at least the equivalent amount

' The amount of the judgment in the December 15th Order is 139,819.00.

* This amount may be adjusted at the conclusion of the appeal should

plaintiff be successful. Such adjustments may include greater expenses than

anticipated by the 15% or may return money to defendant for over anticipated

expenses.

I

of those benefits owed to plaintiff are produced. Inasmuch as

defendant is required to produce those benefits or their

equivalent in the form of a supersedeas bond, the Court finds

that Anne L. Clark may not be 'needed in plaintiff's attempts to

secure the benefits to which she is entitled. Accordingly, Anne

L. Clark's motion is hereby granted subject to defendant's

production of a supersedeas bond in the full amount.

Plaintiff's Motion and Affidavit in Support of

Request for Attorney's Fees

Plaintiff seeks $37,000.00 for attorney's fees and costs

incurred since the institution of this suit in May of 1986.

Plaintiff adds that her fees and costs were unnecessarily

increased by defendant's harassing actions. In opposition,

defendant contends that the fees and costs sought by plaintiff

include fees for services rendered to plaintiff for other matters

unrelated to this case.

Although reasonable attorney's fees have already been

granted to plaintiff in the Court's December 15th Order,

plaintiff's motion and affidavit in request of fees is now

somewhat premature with the stay of this Court's Judgment

pending the defendant's appeal. As a result, this Court will

deny this motion as premature and allow plaintiff to renew her

request upon an appellate ruling in her favor.

Pro Se Defendant's Motion to Strike Defamatory

Allegations in Plaintiff's Motion for Summary

Judgment

Defendant asks this Court to strike paragraph 4 of

plaintiff's Motion for Summary Judgment claiming that there is

no evidence to support plaintiff's allegations that defendant has

secreted the monies received from his pension plan in a joint

account with Anne Clark. In opposition, plaintiff stands by the

truthfulness of her allegations that defendant has acted in

concert with Anne Clark to adversely affect and impact

plaintiff's property interests.

This Court has already ruled above that Mr. Clark should

post a supersedeas bond which includes the full amount of this

Court's Judgment. As stated above, the posting of this bond will

eliminate any need for Anne Clark. As a result, defendant's

fears regarding plaintiff's allegations are essentially a moot

issue. Accordingly, defendant's Motion to Strike is hereby

denied as moot.

SO ORDERED on this 27th day of April 1990.

JUDGE GEORGE HERBERT GOODRICH

Signed in Chambers

Copies to:

J. Raymond Clark

Anne Lewis Clark

157 St. Andrews Drive

St. Simons Island, Georgia 31522

Brian West, Esquire

8000 Tavers Crescent Drive

Suite 660

Vienna, Virginia 22182

Lutz A. Prager, Esquire

Assistant Corporation Counsel

APPENDIX IIF

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

FAMILY DIVISION - DOMESTIC RELATIONS BRANCH

DANIELLE J. CLARK

Plaintiff,

Vv.

RAYMOND CLARK

Defendant.

ORDER

This matter comes before the Court by virtue of the

plaintiff's Motion for Contempt filed on July 10, 1990, the

defendant's Opposition thereto received in chambers on July 18,

1990, and the plaintiff's Supplemental Memorandum in

Support of Motion for Contempt filed on September 6, 1990.

Judge Goodrich signed an Order on January 29, 1990 (filed

on January 30, 1990) directing defendant to answer plaintiff's

deposition questions. Then on April 27, 1990, Judge Goodrich

signed another Order (filed on April 30, 1990) granting

defendant's Motion for a Stay of the January Order subject to the

defendant's posting of a supersedeas bond in the amount of

$161,000.00. Plaintiff now contends that defendant has failed to

post a supersedeas bond and that the Court's January 29th Order

therefore remains enforceable.

Upon consideration of plaintiff's request that defendant

be held in contempt, the Court hereby—directs all parties to

appear before this Court on October 15, 1990 at 9:30 a.m. At that

time defendant shall show cause why he should not be held in

contempt for his failure to either post a supersedeas bond or

answer plaintiff’s deposition questions as required by this court.

SO ORDERED on this 10th day of September 1990.

JUDGE GEORGE HERBERT GOODRICH

Signed in Chambers

Copies to:

J. Raymond Clark

Anne Lewis Clark

157 St. Andrews Drive

St. Simons Island, Georgia 31522

Brian West, Esquire

8000 Tavers Crescent Drive

Suite 660

Vienna, Virginia 22182

Lutz A. Prager, Esquire

Assistant Corporation Counsel

APPENDIX II-G

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

FAMILY DIVISION - DOMESTIC RELATIONS BRANCH

DANIELLE J. CLARK

Plaintiff,

Vv.

RAYMOND CLARK

Defendant.

ORDER

This matter comes before the Court by virtue of

Defendant's letter of September 20, 1990 which the Court treats

as an informal Motion to Reconsider the Court's order dated

September 11, 1990, requiring the defendant to appear to show

cause why he should not be held in contempt for failing to post

a supersedeas bond and for failing to respond to certain

discovery requests.

The parties were divorced by this Court on February 27,

1979. Prior to their divorce, the parties executed a written

Separation and Property Settlement Agreement [hereinafter,

"Agreement"] signed on March 1, 1976. The Agreement

provided that Plaintiff receive 1/2 of Defendant's retirement

benefits when Defendant elected to receive them. In November

1986, the Defendant received his retirement benefits in a lump

sum payment of $279,637.56. Thereafter, Plaintiff filed an action

in this Court seeking specific performance of the Agreement as

well as damages.

On December 15, 1989 this Court granted Plaintiff's Cross

Motion for Summary Judgment and ordered Defendant to pay

Plaintiff one hundred and thirty nine thousand, eight hundred

nineteen dollars ($139,819.00), which amounted to one half of

the retirement benefits received by Defendant. In its order, the

Court ruled on several additional motions filed by the parties.

Specifically, the Court denied as moot Plaintiff's Motion to Join

and Additional Necessary Party, Plaintiff's Motion for a

Temporary Restraining Order, and Plaintiff's Motion to Compel.

The Court specified, however, that the motions were denied

subject to Defendant's compliance with the judgment.

Thereafter, Defendant filed a Motion for Reconsideration

and Clarification and Amendment of the Order and the Plaintiff

filed and Opposition thereto. On February 1, 1990, this Court

filed an order denying Defendant's motion to reconsider the

December 15, 1989 ruling. At this time, since the defendant had

not satisfied the judgment, the Court reconsidered Plaintiff's

motions which were previously denied as moot and granted her

Motions to Join an Additional Necessary Part and to Compel the

Defendant to respond to discovery requests.’ Thereafter,

Defendant appealed the Court's decisions to the Court of

Appeals for the District of Columbia. Defendant also moved

this Court to stay the judgment pending appeal. On April 30,

1990 this Court granted Defendant's request to stay the judgment

on the express condition that Defendant post a supersedeas the

bond in the amount of one hundred and sixty one thousand

dollars and XX/100 ($161,000.00) as required by Super. Ct. Dom.

Rel. Rule 62 and 62-I.

Plaintiff has filed a Motion for Contempt on the grounds

that Defendant has neither satisfied the judgment nor posted

the bond and further, that Defendant has not complied with the

Court's order compelling him to provide discovery regarding

Defendant's use of the retirement funds. Defendant filed an

Opposition to Plaintiff's Motion on the grounds that the

discovery issue is moot because the case is on appeal. On

August 7, 1990 Judge Mitchell ordered the parties to appear

before the Court on August 29, 1990 for a hearing on Plaintiff's

Motion for Contempt and Defendant's opposition thereto.

Defendant failed to appear at this hearing.

Thereafter, the Court entered its show cause order setting the

hearing on these same motions for October 15, 1990.

Defendant's informal motion to reconsider this show

cause order merely reiterates the position he took in his

Opposition to Plaintiff's Motion to Compel that the discovery

issues are moot. As to the Court's order that Defendant show

cause why he has not posted a supersedeas bond, Defendant

argues that this issue is not properly before the Court. To

support his contention, Defendant states that Plaintiff has failed

"In her Motion to Join a Necessary Party Plaintiff contended that since the

defendant had deposited a portion of the retirement funds into a joint account

with his current wife, Anne Lewis Clark, in order to protect Plaintiff's interest it

was necessary to join Anne Lewis Clark in the action. In her Motion to Compel,

Plaintiff alleged that Defendant had likewise invested a portion of the funds in

various financial ventures in an effort to hide them from Plaintiff.

to properly plead this issue and moreover, that this Court is

without authority to find Defendant in Contempt for failing to

post the bond.

Rule 62 of the Superior Court Rules for Domestic

Relations Proceedings is identical to Superior Court Rule 62’

which provides for a stay of proceedings pending appeal. The

rule states in pertinent part:

(d) Stay pending appeal When an appeal is taken

the appellant by giving a supersedeas bond may

obtain a stay Cy to the exceptions contained in

subdivision (a) of this Rule. The bond may be

given at or after the time of filing the Notice of

Appeal or of procuring the order allowing the

appeal, as the case may be. The stay is effective

when the supersedeas bond is approved by the

court.

Super. Ct. Rule 62(d) (emphasis added) On April 30, 1990 this

Court granted Defendant's request for a stay of the judgment on

the express condition that Defendant post a _supersedeas the

bond in the amount of one hundred and sixty one thousand

dollars and XX/100 ($161,000.00) as required by Super. Ct. Dom.

Rel. Rule 62 and 62-I. Defendant suggests that pursuant to

Super. Ct. Rule 62-II, Plaintiff's only avenue for relief is to

move the Court to lift the stay. The rule also requires use of

certain forms which the Plaintiff did not use.

After carefully reviewing the rules, the Court finds that

although Defendant may correctly assess the Super. Ct. Rule 62-

II, because Defendant never actually posted the requisite bond,

the Court's stay was never effective in the first place. See Super.

Ct. Rule 62(d). Therefore, since the Defendant has likewise

failed to satisfy the judgment in this matter, the Court finds that

Plaintiff has in fact pursued the proper avenue for relief by filing

a Motion for Contempt. -

As to the issue of discovery, the Court rejects Defendant's

argument for two reasons. While it is true that this Court

would lack jurisdiction to hear substantive issues appealed, here

discovery is sought solely for the purposes of protecting

Plaintiff's interest in the judgment. Since the funds which are

the subject of this litigation have been deposited into various

accounts and have otherwise been invested in various financial

ventures, it has become necessary for Plaintiff to piece together

the location of the funds are in order to pursue measures

“See Super. Ct. Dom. Rel. Rule 62, comment.

necessary to enforce the Court's Judgment.

Moreover, Defendant has failed to convince this Court

that he in fact appealed the discovery issues. Although

Defendant's docketing statement reflects that he appeals from

various order entered by this Court, in his Motion to Stay

Execution of the Judgment filed with the Court of Appeals on

July 18, 1990, Defendant merely argues that this Court erred in

granting Plaintiff's Cross Motion for Summary Judgment. He at

no time moved the Court of Appeals to relieve him of this

Court's order to provide discovery. Furthermore, the Court of

Appeals denied Defendant's Motion on August 28, 1990.

Finally, in his informal motion Defendant states that he

is both physically and financially unable to travel to

Washington, D.C. to attend the hearing scheduled for October

15, 1990. Defendant has provided no medical proof whatsoever

to support his contention that he is physically unable to travel.

As to the costs involved, considering the fact that the judgment

in this matter is in excess of $139,000.00 and that Defendant has

neither satisfied it nor posted the requisite bond, the Court finds

Defendant's contention without merit.

Therefore; upon consideration of Defendant's informal

request to reconsider this Court's show cause order, the Court

finds that Defendant Raymond Clark must appear on October 15,

1990 to show cause why he should not be held in contempt.

SO ORDERED on this 4th day of October, 1990.

Judge George Herbert Goodrich

Signed in Chambers

Copies to:

J. Raymond Clark

Anne Lewis Clark

157 St. Andrews Drive

St. Simons Island, Georgia 31522

Brian West, Esquire

8000 Tavers Crescent Drive

Suite 660

Vienna, Virginia 22182

Lutz A. Prager, Esquire

Assistant Corporation Counsel

Appendix II-H

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

FAMILY DIVISION - DOMESTIC RELATIONS BRANCH

DANIELLE J, CLARK

Plaintiff,

V. CASE NO,D2976-86

J. RAYMOND CLARK,

Defendant.

ORDER

This matter comes before the Court by virtue of a phone

call received in the chambers of Judge Goodrich on October 15,

1990 from the defendant, Defendant stated that he could not

attend the show cause hearing which was scheduled October 15,

1990.

On September 10, 1990 Judge Goodrich entered an Order

requiring Defendant to appear to show cause why he should not

be held in contempt for, inter alia, failing to post a supersedeas

bond pending appeal of this matter. On September 22, 1990,

Judge Goodrich received a letter from Defendant requesting

reconsideration of the Court's September 10, 1990 Order. On

October 5, 1990, treating the letter as an informal Motion to

Reconsider, Judge Goodrich denied Defendant's request.

Defendant contends that he did not receive the order until

October 13, 1990, two days prior to the scheduled hearing.

Therefore, it is this 15th day of October, 1990;

ORDERED:

That the show cause hearing is continued to November

2, 1990, and the Defendant is directed to be present unless he can

provide the Court with proof of at least one of the following:

(1) That he has satisfied the judgment herein;

(2) That he has posted the requisite supersedeas bond;

(3) That he provide medical proof that he is unfit to travel;

(4) For some other satisfactory reason he is unable to attend

the hearing.

JUDGE GEORGE HERBERT GOODRICH

Signed in Chambers

Copies to:

J. Raymond Clark

Anne Lewis Clark

157 St. Andrews Drive

St. Simons Island, GA 31522

Brian West, Esquire

8000 Tavers Crescent Drive

Suite 660

Vienna, VA 22182

Lutz A. Praeger, Esquire

Assistant Corporation Counsel

Appendix II-I

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

FAMILY DIVISION - DOMESTIC RELATIONS

DANIELLE J. CLARK,

Plaintiff,

v. CASE NO. D 2976-86

J. RAYMOND CLARK,

Defendant.

ORDER

This matter comes before the Court by virtue of a letter

received in the chambers of Judge Goodrich on October 22, 1990,

from the Defendant which the Court treats as an informal

motion to vacate the Show Cause Orders entered on September

10, 1990 and October 15, 1990. The hearing was originally

scheduled for October 15, 1990, however, because Defendant

failed to appear on that date the hearing was continued to

November 2, 1990.

On October 15, 1990, this Court entered an order directing

Defendant to appear on November 2, 1990 unless he could

provide the Court with proof of at least one of the following:

(1) That he has satisfied the judgment herein;

(2) That he has posted the requisite supersedeas bond;

(3) That he provide medical proof that he is unfit to

travel;

(4) For some other satisfactory reason he is unable to

attend the hearing.

Defendant states that he is "de facto bankrupt" and

accordingly he is financially unable to satisfy the judgment, post

the bond or travel to Washington for a hearing in this matter.

Defendant has failed, however, to provide the Court with any

proof whatsoever to substantiate this contention. Likewise,

Defendant has failed to provide the Court with any medical

proof from a physician to substantiate his claim that he is

physically unfit to travel.

Based upon the foregoing, it is this 26th day of October,

1990, ORDERED:

That the Defendant is directed to appear before the Court

on November 2, 1990 to show cause why he should not be held

in contempt.

It is further ORDERED:

That the stay of judgment in this matter is hereby VACATED.

JUDGE GEORGE HERBERT GOODRICH

Signed in Chambers

copies to:

J. Raymond Clark

Anne Lewis Clark

157 St. Andrews Drive

St. Simons Island, GA 31522

Brian West, Esquire

8000 Tavers Crescent Drive

Suite 660

Vienna, VA 22182

Lutz A. Praeger, Esquire

Assistant Corporation Counsel

Appendix II-J

| SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA

FAMILY DIVISION

DANIELLE J. CLARK

Plaintiff

Vv. Case No. D 2976-86

J. RAYMOND CLARK

Defendant

ORDER

This matter comes before the Court by virtue of a Show

Cause hearing scheduled in this matter for November 2, 1990 at

which Defendant failed to appear. This was the third such

hearing in this matter at which Defendant has failed to appear.

Background

The parties were divorced by this Court on February 27,

1979. Prior to their divorce, the parties executed a written

Separation and Property Settlement Agreement [hereinafter,

Agreement] signed on March 1, 1976. The Agreement provided

that Plaintiff would receive 1/2 of Defendant's retirement

benefits when Defendant elected to receive them. In November

1986, the Defendant received these benefits in a lump sum

payment of $279,637.56. Thereafter, Plaintiff filed an action in

this Court seeking specific performance of the Agreement as

well as damages.

On December 15, 1989 this Court granted Plaintiff's Cross

Motion for Summary Judgment and ordered the defendant to

pay to Plaintiff one hundred and thirty nine thousand, eight

hundred nineteen dollars ($139,819.00), which amounted to one

half of the retirement benefits received by Defendant.

In its December 15, 1989 Order, the Court denied as moot

several pending Motions including Plaintiff's Motion to Join an

Additional Necessary Party, Plaintiff's Motion for a Temporary

Restraining Order, and Plaintiff's Motion to Compel Discovery.

The Court specified, however, that the motions were denied

subject to Defendant's compliance with the judgment.

Defendant did not satisfy the Judgment. On February 1,

|

1990, this Court issued an order wherein it denied a motion filed

by Defendant to reconsider the December 15, 1989 ruling.

Additionally, since the defendant had not satisfied the

judgment, the Court reconsidered Plaintiff's motions which

were previously denied as moot and granted her motion to join

an Additional Necessary Party and to Compel the Defendant to

response to discovery requests.' Thereafter, Defendant appealed

the Court's decisions to the Court of Appeals for the District of

Columbia.

Defendant also moved this Court to stay the judgment

pending appeal. On April 30, 1990 this Court granted

Defendant's request to stay the judgment on the express

condition that Defendant post a supersedeas the bond in the

amount of one hundred and sixty one thousand dollars and

XX/100 ($161,000.00) as required by Super. Ct. Dom. Rel. Rule

62 and 62-I.

Thereafter, Plaintiff filed a Motion for Contempt on the

grounds that Defendant neither satisfied the judgment nor

posted the bond and further, that Defendant has not complied

with the Court's order compelling him to provide discovery

regarding Defendant's use of the retirement funds. Defendant

objects to Plaintiff's motion on the grounds that the discovery

issue is moot because the case is on appeal.

On August 7, 1990, Judge Mitchell ordered the parties to

appear before the Court on August 29, 1990 for a hearing on

Plaintiff's Motion for Contempt and Defendant's opposition

thereto. Defendant did not appear at this hearing. On

September 11, 1990, the Court entered a show cause order setting

the hearing on these same motions for October 15, 1990.

On September 22, 1990, the Chambers of Judge Goodrich

received a letter from the Defendant which the Court treated as

an informal Motion to Reconsider the Order entered on

September 11, 1990. Upon consideration of Defendant's request,

Judge Goodrich entered an Order on October 5, 1990, directing

the Defendant to appear on October 15th as earlier ordered.

On October 15, 1990, the date of the show cause hearing,

the Chambers of Judge Goodrich received a phone call from the

‘In her Motion to Join a Necessary Party Plaintiff contended that

since the defendant had deposited a portion of the retirement funds

into a joint account with his current wife, Anne Lewis Clark, in order to

protect Plaintiff's interest it was necessary to join Anne Lewis Clark in

the action. In her Motion to Compel Discovery, Plaintiff alleged that

Defendant had likewise invested a portion of the funds in various

financial ventures in an effort to hide them from Plaintiff.

nt =

Defendant. Defendant stated that he did not receive the Court's

October 5th order until October 13th and that he was unable to

attend. Defendant requested to speak to Judge Goodrich

personally, however, the judge's law clerk took the call. At that

time Defendant was directed to provide the Court with proof of

one of the following:

(1) that he has satisfied the judgment herein;

(2) that he has posted a supersedeas bond;

(3) medical proof that he is unfit to travel to Washington for

the hearing;

(4) some other sufficient reason which would satisfy the

Court that the Show Cause hearing should be vacated.

On October 15, 1990, Judge Goodrich entered another

Order wherein he continued the hearing to November 2, 1990.

The Defendant was again directed to appear unless he could

provide the Court with the evidence listed above. It should be

noted that on August 28, 1990 the Court of Appeals denied

Defendant's motion to stay execution of the judgment. Further,

since Defendant had not posted the requisite bond, on October

15, 1990, the Court vacated the stay.

On October 26, 1990, Judge Goodrich again received a

letter from the Defendant wherein he made a variety of

statements to support his contention that he is unable to travel

to Washington for the hearing in this matter. Specifically,

Defendant contends that he can not afford to travel to

Washington from his home in Georgia. He also contends that

he is physically unable to make the trip. Defendant did not,

however, provide the Court with any proof whatsoever of his

contentions.

In response to Defendant's letter, Counsel for the

Plaintiff, Brian D. West, likewise wrote a letter to Judge

Goodrich stating that it was his belief that Defendant had not

substantiated his contentions to warrant the Court vacating the

show cause order. The Court did not respond to Defendant's

October 26th letter.

On November 1, 1990, the Chambers of Judge Goodrich

received, via express mail, an affidavit from the Defendant

wherein he alleges that Judge Goodrich is personally biased

against him. Defendant also contends that Judge Goodrich and

counsel for the Plaintiff have engaged in ex parte

communications in this matter. He bases his claim on a

statement made by Mr. West in his letter to Judge Goodrich

wherein Mr. West wrote, "If I might be of further assistance,

please do not hesitate to contact me."

The Court finds Defendant's allegations entirely without

merit. To be sure, Mr. West carbon copied his letter to the

Defendant. Moreover, if Defendant is going to allege ex parte

communications he should closely examine his own behavior

in this matter. As noted above, on October 15, 1990, Defendant

called Chambers and asked to speak with Judge Goodrich

personally. Further, although Defendant has sent copies to

counsel for Plaintiff, he has made a habit of writing letters to

Judge Goodrich rather than filing formal motions.

As to his allegations of personal bias or prejudice, the

Court likewise finds them without merit. The Court has gone

out of its way to permit the Defendant to provide some evidence

that would support the Court vacating the show cause order yet

all the Defendant has provided are bare statements that he can

not afford to travel and that he is physically unable to do Absent

these allegations, Defendant has provided no proof whatsoever

to reflect his financial position or physical condition. Defendant

is a retired attorney who knows or should know that bare

statements absent proof do not hold up in Court. Defendant

even admits that his doctors have not provided him with a

statement that he is physically unfit to travel. Similarly,

Defendant has provided no evidence whatsoever of his

financial situation other than his statement that he is "defacto"

bankrupt.

The Court has specifically directed the Defendant on at

least three occasions to provide the Court with proof of his

allegations and he has failed to do so. The Court has also

directed the Defendant to appear on three separate occasions and

he has likewise failed to do so. Based upon the foregoing, the

Court finds that it has no choice but to find the Defendant in .

contempt of Court.

WHEREFORE,

It is this 6th Day of November, 1990, ORDERED

(1) That Defendant is found to be in Contempt of Court;

(2) That Defendant can purge himself of this Contempt order

by providing the Court with proof of one of the

following:

(1) that he has satisfied the judgment herein;

(2) that he has posted a supersedeas bond;

(3) medical proof that he is unfit to travel to Washington

for the hearing;

(4) some other sufficient reason which would satisfy the

Court that the Show Cause hearing should be vacated.

JUDGE GEORGE HERBERT GOODRICH

Signed in Chambers

November 5, 1990

copies to:

J. Raymond Clark

Anne Lewis Clark

157 St. Andrew Drive

St. Simons Island, GA 31522

Brian West, Esquire

8000 Tavers Crescent Drive

Suite 660

Vienna, VA 22182

Lutz A. Praeger, Esquire

Assistant Corporation Counsel

Appendix II-K

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

FAMILY DIVISION - DOMESTIC RELATIONS BRANCH

DANIELLE J. CLARK,

Plaintiff,

V. CASE NO. D 2976-86

J. RAYMOND CLARK,

Defendant.

This matter comes before the Court by virtue of

Defendant's Motion for Reconsideration filed November 26,

1990; Plaintiff's Opposition thereto filed November 28, 1990 and

Defendant's Reply filed on December 3, 1990. .

In his Motion for Reconsideration Defendant provided

the Court with a signed affidavit in support of his contentions

that he is “defacto bankrupt." Inasmuch as Defendant has

provided no documentary evidence whatsoever to support his

affidavit the Court is not satisfied that the contempt order

entered on November 5, 1990 should be vacated.

WHEREFORE, it is this 20th day of December, 1990,

ORDERED:

That the Defendant's Motion for Reconsideration is hereby

DENIED.

JUDGE GEORGE HERBERT GOODRICH

Signed in Chambers

December 20, 1990

copies to:

J. Raymond Clark

Anne Lewis Clark

157 St. Andrew Drive

St. Simons Island, GA 31522

Brian West; Esquire

8000 Tavers Crescent Drive

Suite 660

Vienna, VA 22182

Lutz A. Praeger, Esquire

Assistant Corporation Counsel

Appendix II-L

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 89-7202

September Term, 1989

C.A. No. 88-02272

J. Raymond Clark,

Appellant

v.

Superior Court for the District of Columbia

BEFORE: Mikva, Buckley and D.H. Ginsburg, Circuit Judges

ORDER

Upon consideration of the courts’ orders to show cause

and the responses thereto, appellant's supplemental emergency

motion for stay, the response thereto and the reply, and

appellant's motion for remand, it is

ORDERED that the orders to show cause be discharged. Itis

FURTHER ORDERED, on the court's own motion, that

the district court's order, filed November 14, 1988 be summarily

’ affirmed. The Employees' Retirement Income Security Act

(ERISA), 29 U.S.C. 1001, et seq. (1974), is inapplicable to the

instant case because the funds at issue do not constitute benefits

under the protection of an ERISA Plan. Hence, both the anti-

alienation provision and general preemption clause of ERISA

are inapplicable to this case. See 29 U.S.C. § 1056(d)(1); § 1141.

Appellant received his benefits in a lump sum and therefore no

longer "is or may be entitled to a benefit" under the Act. 2 9

U.S.C. § 1002(7). See Kunt v. Reese, 785 F.ed 1410, 1411 (9th Cir.),

cert. denied, 479 U.S. 916 (1986). It is

FURTHER ORDERED that appellant's motion for

remand and emergency motion for stay be dismissed as moot.

The Clerk is directed to withhold issuance of the

mandate herein until seven days after disposition of any timely

petition for rehearing. See D.C. Cir. Rule 15.

Per Curiam

Appendix III-A

District of Columbia

Court of Appeals

No. 90-FM-226

RAYMOND J. CLARK, ET AL.,

Appellants, D2976-86

v.

DANIELLE J. CLARK,

Appellee.

BEFORE: Rogers, Chief Judge; Ferren, Terry, *Steadman,

*Schwelb, “Farrell, Wagner, King, and Sullivan, Associate

Judges.

ORDER

On consideration of appellants’ petition for rehearing or

rehearing en banc, it is

~ORDERED by the merits division* that the petition for

rehearing is denied; and it appearing that no judge of this court

has called for a vote on the petition for rehearing en banc, it is

FURTHER ORDERED that the petition for rehearing en

banc is denied.

PER CURIAM

Copies to:

Honorable George Herbert Goodrich

Clerk, Superior Court

Mr. Raymond J. Clark

157 St. Andrews Drive

Saint Simons Island, GA 31522

Brian D. West, Esquire

8000 Towers Crescent Drive

Suite 660

Vienna, VA 22182

sl

Appendix III-B

District of Columbia

Court of Appeals

No. 90-FM-226

RAYMOND J. CLARK, ET AL.,

Appellants,

V. D2976-86

DANIELLE J- CLARK,

Appellee.

BEFORE: Steadman, Schwelb, and Farrell, and Associate Judges.

ORDER

On consideration of appellants' motion for stay of

mandate, and appellee's motion to extend time to file

opposition to motion, and the lodged opposition, it is

ORDERED that appellants' motion for stay of mandate is

denied as moot and appellee's motion to extend time to file

opposition to motion is denied.

PER CURIAM.

Copies to:

Raymond J. Clark, Esquire -

157 St. Andrews Drive

Saint Simons Island, GA 31522

Brian D. West, Esquire

8000'Towers Crescent Drive

Suite 660

Vienna, VA 22182

kho

Appendix IV- Page 1

29 § 1056 LABOR Ch. 18

(d) Assignment or alienation of plan benefits

(1) Each pension plan shall provide that benefits provided

under the plan may not be assigned or alienated.

(2) For the purposes of paragraph (1) of this subsection, there

shall not be taken into account any voluntary and revocable

assignment of not to exceed 10 percent of any benefit payment,

or of any irrevocable assignment or alienation of benefits

executed before September 2, 1974. The preceding sentence shall

not apply to any assignment or alienation made for the purposes

of defraying plan administration costs. For purposes of this

paragraph a loan made to a participant or beneficiary shall not be

treated as an assignment or alienation if such loan is secured by

the participant's accrued nonforfeitable benefit and is exempt

from the tax imposed by section 4975 of Title 26 (relating to tax

on prohibited transactions) by reason of section 4975(d)(1) of

Title 26.

(3)(A) Paragraph (1) shall apply to the creation, assignment.

or recognition,of a right to any benefit payable with respect to a

participant pursuant to a domestic relations order, except that

paragraph (1) shall not apply if the order is determined to be a

qualified domestic relations order. pension plan shall provide

for the payment of benefits in accordance with the applicable.

requirements of any qualified domestic relations order.

(B) For purposes of this paragraph--

(i) the term "qualified domestic relations order" means a

domestic relations order-

(I) which creates or recognizes the existence of an

alternate payee's fight to, or assigns to an alternate payee

the right to receive all or a portion of the benefits payable

with respect to a participant under a plan, and

(1I) with respect to which the requirements ""

subparagraphs

(C) and (D) are met, and (ii) the term "domestic relations

order" ineans any judgment. decree, or order (including

* approval of a property settlement agreement) which--

(1) relates to the provision of child support, alimony

aati i i all |

payments, or marital property rights to a spouse, former

. spouse, child, other dependent of a participant, and

(II) is made pursuant to a State domestic relations

law (including a community property law).

(C) A domestic relations order meets the requirements of

this subpart graph only if such order clearly specifies--

(i) the name and the last known mailing address (if any)

of participant and the name and mailing address of each

alternate payee covered by the order,

(ii) the amount or percentage of the participant's benefits

to be paid by the plan to each such alternate payee, or the

manner in which amount or percentage is to be determined,

(iii) the number of payments or period to which such

order applies and

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Ch. 18 RETIREMENT INCOME SECURITY 29 § 1056

(iv) each plan to which such order applies.

(D) A domestic relations order meets the requirements of :

this subparagraph only if such order--

(i) does not require a plan to provide any type or form of

benefit, or any option, not otherwise provided under the

lan,

- (ii) does not require the plan to provide increased

benefits (determined on the basis of actuarial value), and

(iii) does not require the payment of benefits to an

alternate payee which are required to be paid to another

alternate payee under another order previously determined

to be a qualified domestic relations order.

(E)(i) In the case of any payment before a participant has-

separated from service, a domestic relations order shall not be

treated as failing to meet the requirements of clause (i) of

subparagraph (D) solely because such order requires that

payment of benefits be made to an alternate payee-

(I) on or after the date on which the participant ,.trains :

(or would have attained) the earliest retirement age,

(il.) as if the participant had retired on the date on which

such payment is to begin under such order (but taking into

account only the present value of benefits actually accrued

and not taking into account the present value of any

employer subsidy for early retirement), and

(III) in any form in which such benefits may be paid

under the plan to the participant (other than in the form of a

joint and survivor annuity with respect to the alternate

payee and his or her subsequent spouse).

For purposes of subclause (II), the interest rate assumption used

in determining the present value shall be the interest rate

specified in the plan or, if no rate is specified, 5 Percent

(ii) For purposes of this subparagraph, the term “earliest

retirement age" has the meaning given such term by section

1055 (h)(3) of this title, except that in the case of any individual

account plan, the earliest retirement age shall be the date which :

is 10 years before the normal retirement age. |

(F) To the extent provided in any qualified domestic relations

order-

(i) the former spouse of a participant shali be treated

as a surviving spouse of such participant for purposes of

section 1055 of this title, and(ii) if married for at least 1

year, the former spouse shall be treated as meeting the

requirements of section 1055(0 of this title.

(G)(i) In the case of any domestic relations order received by a

plan--

(I) the plan administrator shall promptly notify the

participant and any other alternate payee of the receipt of

such order and the plan's Procedures for determining the

qualified status of domestic relations orders, and

(II) within a reasonable period after receipt of such order,

the plan administrator shall determine whether such order

is a qualified domestic relations order and notify the

participant and each alternate payee of such determination.

i aii aa alee i

29§ 1056 LABOR tie. 18

(ii) Each plan shall establish reasonable procedures.

determine the qualified status of domestic relations orders and

to administer distributions under such qualified orders. Such .

procedures(I) shall be in writing,

(II) shall provide for the notification of each person

specified in a domestic relations order as entitled to

payment of benefits under the plan (at the address

included in the domestic relations order) of such

procedures promptly upon receipt by the plan of the

domestic relations order, and

(III) shall permit an alternate payee to designate a

representative for receipt of copies of notices that are sent

to the alternate payee with respect to a domestic relations

order.

(H)(i) During any period in which the issue of whether a

domestic relations order is a qualified domestic relations order is

being determined (by the plan administrator, by a court of

competent jurisdiction, or other. wise), the plan administrator

shall segregate in a separate account in the plan or in an escrow

account the amounts which would have been payable to the :

alternate payee during such period if the order had been

determined to be a qualified domestic relations order.

(ii) If within 18 months the order (or modification thereof) is

determined to be a qualified domestic relations order, the plan

administrator shall pay the segregated amounts (plus any

interest thereon) to the person or persons entitled thereto.

(iii) If within 18 months-

(I) it is determined that the order is not a qualified

domestic relations order, or

(II) the issue as to whether such order is a qualified

domestic relations order is not resolved,

then the plan administrator shall pay the segregated amounts

(plus any interest thereon) to the person or persons who would

have been entitled to such amounts if there had been no order.

(iv) Any determination that an order is a qualified domestic °

relations order which is made after the close of the 18-month '

period shall be applied prospectively only.

(I) If a plan fiduciary acts in accordance with part 4 of this

subtitle in-

(i) treating a domestic relations order as being (or not

being) a qualified domestic relations order, or

(ii) taking action under subparagraph (H),

then the plan's obligation to the participant and each alternate

payee shall be discharged to the extent of any payment made

pursuant to such act.

(J) A person who is an alternate payee under a qualified

domestic relations order shall be considered for purposes of any

provision of this chapter a beneficiary under the plan. Nothing

in the preceding sentence shall permit a requirement under

section 1301 of this title of the payment of more than 1 premium

with respect to a participant for any period.

Appendix IV-Page 4

RETIREMENT INCOME SECURITY 29 § 1056 :

(K) The term “alternate payee" means any spouse, former °

spouse, child, or other dependent of a participant who is

recognized by a domestic relations order as having a right to

receive all, or a portion of, the benefits payable under a plan

with respect to such participant.

(L) In prescribing regulations under this paragraph, the

Secretary shall with the Secretary of the Treasury.

(Pub. L. 93-406, Title 1. § 206, Sept. 2, 1974, 88 Star. 864; Pub. L.

98-397. Title 1, § 104(a), Aug. 23, 1984, 98 Star. 1433.)

§1132. Civil enforcement

(a) Persons empowered to bring a civil action

A civil action may be brought-

(1) by a participant or beneficiary- °

(A) for the relief provided for in subsection (c) of

this section, or-

(B) to recover benefits due to him under the terms

of his plan, to enforce his rights under the terms of the plan, or

to clarify

rights to future benefits under the terms of the plan;

(2) by the Secretary, or by a participant, beneficiary or

fiduciary for appropriate relief under section 1109 of this title;

(3) by a participant, beneficiary, or fiduciary (A) to enjoin

any act practice which violates any provision of this subchapter

or the terms the plan, or (B) to obtain other appropriate

equitable relief (i) to redress the terms of the plan;

(4) by the Secretary, or by a participant or bereficiary for

appropriate relief in the case of a violation of 1025(c) of this title.

(5) except as otherwise provided in subsection (b) of this

section, by the Secretary (A) to enjoin any act or practice which

violates any provision of this subchapter, or (B) to obtain other

appropriate equitable relief (i) to redress such violation or (ii) to ‘

enforce any provision of this subchapter; or |

(6) by the Secretary to collect any civil penalty under

subsection (i) of this section.

(e) Jurisdiction

(1) Except for actions under subsection (a)(1)(B) of this

section, the district courts of the United States shall have

exclusive jurisdiction of civil actions under this subchapter

brought by the Secretary or by a participant, beneficiary, or

fiduciary. State courts of competent jurisdiction and district

courts of the United States shall have concurrent jurisdiction of

actions under subsection (a)(1)(B) of this section.

(2) Where an action under this subchapter is brought in a

district court of the United States, it may be brought in the

district where the plan is administered, where the breach took

place, or where a defendant resides or may be found, and process

may be served in any other district where a defendant resides or

may be found.

Appendix IV-Page 5

§ 1144. Other laws

(a) Supersedure; effective date

Except as provided in subsection (b) of this section, the

provisions of this subchapter and subchapter III of this chapter

shall supersede any and all State laws insofar as they may now

or hereafter relate to any employee benefit plan described in

section 1003(a) of this title and not exempt under section 1003(b)

of this title. This section shall take effect on January 1, 1975.

(b) Construction and application

(1) This section shall not apply with respect to any cause of

action which arose, or any act or omission which occurred,

before January 1, 1975.

(2)(A) Except as provided in subparagraph (B), nothing in this

subchapter shall be construed to exempt or relieve any person

from any law of any State which regulates insurance, banking,

or securities.

(B) Neither an employee benefit plan described in section 1003(a)

of this title, which is not exempt under section 1003(b)) of this

title (other than a plan established primarily for the purpose of

providing death benefits), nor any trust established under such a

plan, shall be deemed to be an insurance company or other

insurer, bank, trust company, or investment company or to be

engaged in the business of insurance or banking for purposes of

any law of any State purporting to regulate insurance

companies, insurance contracts, banks, trust companies, or

investment companies.

(3) Nothing in this section shall be construed to prohibit use by

the Secretary of services or facilities of a State agency as

permitted under section 1136 of this title.

PERTINENT REGULATIONS

26 Code of Federal Regulations §1,401(a)-13

Assignmentoralienation of benefits

(b) No assignment or alienation-(1) General Rule. Under 401 (a)

(13), a trust will not be qualified unless the plan of which the

trust is a part provides that benefits provided under the plan

may not be anticipated, assigned (either at law or in equity),

alienated or subject to attachment, garnishment, levy, execution

or other legal or equitable process.

(d) Exceptions to general rule prohibiting assignments or

alienations(l) Certain voluntary and revocable assignments or

alienations ....

For purposes of this subparagraph, an attachment, garnishment,

levy, execution or other legal or equitable process is not

considered a voluntary assignment or alienation.

26 CFR §1,401(a)-14 Commencement of benefits under qualified

trusts .... (1) the attainment by the participant of age 65, or,if

earlier, the normal age specified under the plan, ......