# Appendix — Clark v. Clark

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 986

## Text

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

sa (iceman eta aacarenanneene ae

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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, ......

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2022%3A2. Public record. Not legal advice.