arista issue is probably not as interesting or charity as the case you just heard about sex trafficking but it is very important from the standpoint that what is before this court is whether or not the new jersey family court and whether or not bogan are obligated to follow her wrist or whether they are above the law bogan maintains and this is a very very important point that the division of the after schwartz learned that he had paid alimony far longer than he needed to it's in a went into this state court and the issue is not as argued by the  houdini like way to divert the attention of the court the issue is not whether this one thousand nine hundred eighty three judgment in decree was a quadrille or not acquired there's no dispute that a state court has concurrent jurisdiction to to ask you a preliminary question and it wasn't briefed by the parties but it's a question of jurisdiction i actually think there's a this is a very interesting case because there's a lot of interesting lurking issues here but the problem i'm having is why doesn't the record feldman doctrine preclude had jurisdiction to decide and to divvy up the assets why can't why are we not sitting as an appeal appeals court for the state court the state court decision of the state court that decided it very good question or in a very direct answer because the question is that the state court had jurisdiction to make that decision in this case congress left exclusive jurisdiction to decide whether there's a violation of a recess but the problem i'm having with that argument is if you read if your reader refs it limits the cause of actions to participants enforcing her divorce decree was to bring the case in new jersey right i mean she had no other option she couldn't come to federal court she she she couldn't come to federal court and argue that the alimony payments for twenty seven years reported by her on her tax returns as alimony for twenty seven years she couldn't come to federal court and claimed that that was a pension division that she had followed her wrists if she had not i don't disagree your honor that she could not come to federal court she was not a beneficiary she was not a participant and she was not a for the jury so by necessity to enforce the divorce decree that had to be within the jurisdiction of the state court and all of this i guess my point is all of this was litigated in the state court now maybe the state court judge got it wrong maybe the state court judge didn't understand what was going on all of those things may be true but it was all litigated in state court and the only place he could have let a gate it wasn't state court and so i can't figure out why a wrecker feldmann doesn't apply and be raised race judicata doesn't apply to things race judicata doesn't apply because the state court never decided never had jurisdiction to decide whether this scheme by bogan violated a recession and the fact that she cannot bring this invented claim twenty seven years later in state court is exactly why we're here state court did not have jurisdiction to simply say you don't have to follow  if you follow or receive you have this order if it's qualified you give it to the plan administrator the plan administrator then decides what those benefits are and the plan makes those payments so in your question you say she can't didn't need i just think that this is a matter of federalism you know i used to sit on a state court i think that your argument to strap sort of the balance between state and federal courts which is family law in divorce decrees are sort of exclusively within the province absent some of these other issues of state courts and what you're telling me is that she can go to court maybe and try to enforce a divorce decree but if she gets a judgment out of state court that somehow disrupts the arrests a plan she can't run to federal court to change that change the  you know to somehow alter the divorce decree or deal with the arrest your client has a sort of a trump card says but i can go to federal court and invoke arrest and undo what the state court did that's not how i think it works your honor that's is that's a separate issue you went ahead and said this would violate a rest again maybe the state court got it wrong but you when i hadn't let it get it there and you're essentially getting a second bite at the apple it's a good question also and it's not a question of whether they got it wrong because clearly without following the requirements of the hour which means you present the quadrate the plan administrator in the plan and makes those payments court didn't say that the state court did not have jurisdiction to decide violations of rights you agree that you  made some of the same arguments you're making in federal district court now you made in new jersey engine chile yes to this from the standpoint from the standpoint that what was said in new jersey is this argument they're bogans making here is prohibited by federal law you can't after twenty seven years take an alimony payment and now suddenly call it a pension payment and you'll note that the state court denied bowden's request to to require that the parties go arrest so for that reason we would ask that you carefully look at the facts the key facts and those include that bogun and i know i've said this several times claims that the pension was divided without a quadrille which in essence is an admission and ignalina meant that we're doing this in violation of a recession and there are tax laws  that combine with the risk for example if you're get any payment from a plan you have to file a ten ninety nine are your tax return you don't report it is alimony you report it as a pension claimant and they're asking the new jersey court to simply ignore all ahead and that is what created this federal cause of action there's no question that state decision laws preempted by a result is new jersey order is state decision law and that is what gave rise to the fully participated in a new jersey action where the new jersey court had jurisdiction over the parties to enforce a new jersey state court decree on page eight fifty eight of the joint equitable distribution a yearly some equal to twenty percent of husband's basic bell system management pension plan computed at the value of said pension plan on january one thousand nine hundred eighty six the new jersey court clearly had jurisdiction to enforce that provision i question as to whether or not the a receipt issue is a complete smokescreen for a domestic relations order in which the parties argued the issues as to whether or not mr ball mr schwartz had to continue as he had for over twenty seven years paying an equitable distribution to his wife the new jersey court determined that he did that judgment was not appealed it was a final judgment that's fatal to appellant's argument i believe it's also important to note that a risk if it applied and i'm not i think we've sort of been sidetracked into that argument that the new jersey court would have concurrent jurisdiction than the new jersey court was not without the ability to make a remedy to allow whatever order had to be entered to require mr schwartz to continue paying what he had been paying and the notion that an amount calculated on a valuation of twenty percent conflates to a quadrille may or may not be true i think it's irrelevant to the disposition of this case because it's a requirement that this man made every month there was not a plan administrator paying  bogan mr schwartz was getting the money the money was then divest it from the plant it wasn't coming out of his pension it was a aggregated with all of his other assets and he was paying to his wife fourteen hundred and twenty six dollars and thirty two cents every month and now twenty seven years after the fact this somehow the scheme is created not by my client but by the the appellant who unilaterally stopped making a payment for reasons that we didn't understand because the circumstances that made plain that he was paying that amount clearly indicated that he looked at the language of the parties agreement the contract they made that mr schwartz had performed for over twenty five years and enforced it and said that he was entitle to he was obligated to continue performing under that new jersey state contract jersey court didn't have to wrist action despite what i said earlier is there any significance to the fact that  that the that the decision was on appeal i guess there's two questions one is did they make that argument before the new jersey state court right you don't have jurisdiction to decide this issue which is important and it's really significant the fact that in the appeal it i think it's cruel they didn't appeal it and i think it's also you know arguably they could have taken the new jersey decision via petition of writ to the u s supreme court and said somehow we had  circuit in the geiger case that the district court used in its opinion were a partner was involved in a dispute with his law firm over division of planned payments to his ex wife there in in the first circuit there's the england rule in massachusetts where you can somehow ever reservation of a federal question in a state court action that didn't happen here and he didn't appeal it and he didn't dispute at the time that the dispute was going on that the new jersey court had jurisdiction over him he only disputed the new jersey court jurisdiction to enforce its order the mint modification of property settlement agreement after he lost and you hit on it exactly right he doesn't get a second chance because he's a participant in a plan the plan is irrelevant to his obligation i think and i think the issue of a risk clouds the issue i agree with you that this is a very interesting issue the whole notion as to whether or not any domestic relation orders ought to be in court you know you go from barbara v barber to overt fell  the see the whole panoply of cases it's fascinating it's really fascinating what the court does none of that is a political here because we have a case where a man made this agreement and the new jersey court enforced it and  pay your arrearages pay some attorneys fees and continue to pay it's you i give any thought to record feldman which is you know whether this was essentially an appeal of a state court decision because according the court it feldman to quote applies when claims are brought by state court losers complaining of entries caused by state court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments that's a quote from the supreme court i thought of it your honor and i i conceded my brief is fourteen pages long i have a client whose economic stake in this is seven hundred thousand dollars a year and the the nuances of these cases are it's fascinating it really is fascinating but i couldn't do it and i didn't bring it in part because i didn't believe the action had been big been created by the state court of judgment i didn't i believe that this was clear res judicata and the circuit in the u s supreme court says you look at new jersey law and what when you have a second case what did the law the first case say in the first case and one of the same was it the same lit igants absolutely it was the same litigants artist bogan schwartz was the issue the same issue yes was mr schwartz obligated to continue but only paying his wife fourteen hundred  twenty six dollars and thirty two cents new jersey court ruled on that was that decision is essential to the lower court or to the first court's finding that was the whole purpose of the first court filing and then was that judgment appealed it was not appealed i'm just trying to figure out what you know the supreme court has told us you can't assume hypothetical jurisdiction and so i'm trying to because ricker feldman sort of a jurisdictional doctrine and whether it applies i'm just trying to figure out whether we have to address that first or whether we can address race judicata first as a threshold issue and maybe that's for us to decide because you didn't bring the record feldman issue i think that the jurisdictional issue even the fundamental question as to whether or not a federal question is brought here you could address that i think the case can be disposed of under rule forty seven b because the district court made no clearer of law in ruling that the case should be dismissed on rule raised  know i like to dress for issues one of them directly responding to the question the judge ross asked in record feldman clearly the state court has to have jurisdiction for that to apply and our argument that under eleven thirty two eighty three the state court did not have jurisdiction to make a determination which it did that bogun did not have to follow the original requirements by presenting a plan to the planet or the quadro to a plan administrator and getting payments from the plan reporting those payments as under ten ninety nine arcs that are now your client to my response that is your client originally brought this action because you wanted to not that your client did not want to pay it paying for years and didn't want to pay someone who had remarried no sir that's that's not what happened my client in march of two thousand stops paying and then she came to court realize that he was paying alimony that he they you know he threw the decree in a drawer and didn't realize that he could have payment years earlier and i so the letter came in and she came to court my apologies for that but i guess my question still is is as to the same point which is did you ever argue to the new jersey state court hey you don't have jurisdiction we you're getting to close t you can't this is something we need to bring in federal court now we did not because until the state court took the action that it took and said we don't you don't have to follow or rescind his bogan you don't have to that's what created the cause of action and there's this question about whether we appeal that new jersey no we did not because appealing that new jersey still would not have given the new jersey court jurisdiction united asco that that that the court look and we cited this in our brief simons versus diamond shamrock corporation which is an eighth circuit case nine hundred eighty eight in which it involved arista the missouri court had made a decision they appealed it up to the missouri court of appeals and then the eighth circuit said preemptive effect extends to state decisional law as well as the states that and regulations thus the gerson decision becomes irrelevant to the action before yes so appealing the new jersey thing your honor we respect which it would have been irrelevant to this issue and that is under a lemon thirty two eighty three is that exclusive jurisdiction which is vested in the district court was not violated by the new jersey court and we say it was with respect to  the third issue as to concurrent jurisdiction when counsel said the new jersey court had concurrent jurisdiction very important to look at what concurrent jurisdiction does exist it exists only if you're trying to determine rights and benefits under the plan under the plan future benefits under the plan and it makes sense because if you're under the plan you're following us so you're not asking a state court to decide if the risk is being violated or not violated it clearly is and that is a major major distinction between the concurrent jurisdiction and there's lots of case law so you can decide whether north quadro we don't dispute that not the issue here well let me ask you this i've had some cases dealing with quadros when i was a state court judge and my question for you is are any relevant i've never dealt with a case where you had a division that preceded the introduction of sort of the rules on quadros and they make a point of saying well this all happened before the rules on quadros change recreate it does that make any difference here where you don't have to technically comply with all the requirements for a quadro well good question and in eighty one when they did the premarital settlement agreement you couldn't divide a pension no matter what right in eighty three when the order was entered you couldn't divide a pension no matter what in eighty four the law was changed and it said you could divide a pension if you do it by quadro you presented to the plan except you follow the rules and so what happened after that is  order and if it qualifies and that was the intent of that order you can present the plan administrator then the plan administrator goes forward and you can follow had they done that twenty seven years earlier when eighty nine when she got om starting when these monthly payments began decades ago over all these years who wrote the checks works out of out of personal out of a personal checking account y and he reported those payments as alimony and bogus reported those payments on her tax returns as received his own and did she ever receive any any distribution or payment from the plan itself