## F I L E D United States Court of Appeals Tenth Circuit 

### APR 23 2003 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BARBARA A. PATTON, formerly known as Barbara A. Phipers, Plaintiff-Appellee,

v. THE DENVER POST CORPORATION; DENVER POST-DENVER GUILD PENSION PLAN, Defendants-Appellants. No. 02-1040

Appeal from the United States District Court

for the District of Colorado (D.C. No. 00-K-1860)
Michael J. Hofmann (Mary Hurley Stuart with him on the briefs) of Holme Roberts & Owen LLP, Denver, Colorado, for Defendants-Appell ants. Daniel S. Hoffman of Hoffman Reilly Pozner & Willia mson, LLP, Denver, Colorado (Mary J. Kelly of Mary J. Kelly, P.C., Den ver, Colorado, with him on the brief), for Plaintiff-Appellee.

Before SEYMOUR , McKAY and MURPHY , Circuit Judges.

SEYMOUR , Circuit Judge.-2-

Eleven months after the death of Barbara Patton’s f ormer husband William Todd Phipers, Ms. Patton sought a declaration in fe deral court that a state domestic relations order granting her survivor bene fits in her former husband’s pension plan was a “qualified domestic relations or der” (QDRO) under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1056(d)(3). The state court had entered the domestic relations orde r after Mr. Phiper’s death, but nunc pro tunc to the date of their divorce eleven years prior to his death, because it concerned benefits from a plan not known about at t he time of the divorce settlement. The district court granted Ms. Patton’ s motion for summary judgment in a published decision. Patton v. Denver Post Corp ., 179 F. Supp. 2d 1232 (D. Colo. 2002). The Denver Post Corporation and the D enver Post-Denver Guild Pension Plan (collectively, “the Denver Post”) chal lenge that decision, contending the order was not a “qualified” domestic relations order under ERISA because it increases the liability of the plan and because it was not in existence as of the date of the participant’s death. We affirm.

I The marriage of Mr. Phipers and Ms. Patton was diss olved on February 10, 1988. During the mediation related to the dissolut ion of their marriage, the parties voluntarily produced financial information. In thi s regard, Mr. Phipers wrote to-3-

request information from his employer, the Denver P ost, regarding his retirement benefits. In response to his inquiry, the plan adm inistrator informed him of only one plan, the Newspaper Guild International PensionPlan, although in fact at that point he had two plans. There is no indication of an attempt on anyone’s part to conceal the existence of the second plan, but the D enver Post Pension Plan was nevertheless inadvertently omitted from the parties ’ division of marital assets. The parties divided the one disclosed plan in a QDRO, i n which Ms. Patton was designated as surviving spouse in the event of Mr. Phipers’ death. Ms. Patton’s interest in the disclosed plan was one half of the plan’s value attributable to the thirteen years of the parties’ marriage. Mr. Phipers died in 1999 at the age of 58. He died before retirement age and while still employed at the Denver Post. Underthese circumstances, ERISA provides that retirement plan benefits can only be paid to a surviving spouse. 29 U.S.C. § 1055(a)(2). Mr. Phipers had not remarried , so at the time of his death only Ms. Patton qualified as his surviving spouse u nder ERISA. 29 U.S.C. § 1056(a)(3)(F)(i). Ms. Patton filed with the plan a dministrator her QDRO covering the disclosed plan and received a lump sum payout, which appeared to her to be very low considering Mr. Phiper’s twenty-seven year s of service. When she inquired about this, she learned of the undisclosedplan. The plan administrator refused to divide the undisc losed plan according to-4-

the terms established in the QDRO for the disclosedplan, even though the plans had since merged into one. Believing the nondisclo sure of the second plan to have been inadvertent, Ms. Patton requested the state co urt to issue a nunc pro tunc domestic relations order for the undisclosed plan. She asked that the second plan be divided in the same way as the disclosed plan ha d been. The state court entered the nunc pro tunc order, effective on the date of the dissolution of the parties’ marriage. A domestic relations order must be qualified by the plan administrator in order to become a QDRO and in order for the benefit s to be distributed according to the terms of the QDRO. When Ms. Patton presente d the nunc pro tunc order to the plan administrator, however, the plan administr ator rejected it. Ms. Patton then filed for a declaratory judgment in federal di strict court, requesting enforcement of the order and distribution of the be nefits. The Denver Post appeals the district court’s grant of summary judgment in f avor of Ms. Patton.

II We review the district court’s grant of summary jud gment de novo , applying the same standard as the district court. Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs ., 165 F.3d 1321, 1326 (10th Cir. 1999). Summary judgment is appropriate if there is no genu ine issue of material fact and-5-

the moving party is entitled to a judgment as a matter of law. Id. We note at the outset that counsel for the two part ies made conflicting representations at oral argument as to whether ERIS A requires that notice of the entry of a QDRO be given to the plan administrator (i.e., whether the QDRO itself must be in the plan file) prior to the death of the participant. Neither side, either in the briefs or at oral argument, provided any spe cific citation to support its assertion. Nor have we been able to discover any p art of the statute itself or any interpretation of the statute in case law or second ary scholarly materials demonstrating to us that the statute requires such notice to be given. See, e.g. , Gary A. Shulman, Qualified Domestic Relations Order Handbook 54 (1993) (“Under ERISA or § 414(p) of the Code, there is no requirement that a domestic relations order be prepared or submitted either at the time of divorce or at any other particular time.”) The Denver Post asks us to infer a notice requireme nt, asserting the policy interests of ease of administration, predictability , and actuarial accounting. We decline to infer such a requirement. First, the pl an summary does not indicate that notice is required prior to the death of a particip ant, either concerning a change in marital status or concerning the existence of a dom estic relations order relevant to the plan. Second, the Denver Post concedes the pla n allows for post hoc determinations of whether the domestic relations or der is qualified (this much is1 For eighteen months from the date on which a payme nt would first have

been due, the decision about qualified status of a domestic relations order is retroactive. After eighteen months it is effective prospectively only, but there is no indication of a limitation on the time for makin g a decision past eighteen months. 29 U.S.C. § 1056(d)(3)(H)(I)-(v). -6- explicitly allowed by the statute 1 ), as well as post-death notification of the existence of an actual surviving spouse. That is, if there were an actual surviving spouse of which it had no notice prior to the deathof the participant, failure to notify the Denver Post of the spouse’s existence inadvance would not prevent the surviving spouse from receiving benefits. There is thus no difference to the Denver Post in terms of predictability of its liabi lity if there is no requirement that the parties inform the plan of any change prior to the death of the participant. Because the statute and the plan itself both clearl y contemplate making decisions regarding benefits after the death of the participa nt, the Denver Post’s arguments about predictability and actuarial calculations lac k weight.

III The domestic relations order in this case is a qual ified domestic relations order because it fits within the requirements of ERISA. ERISA requires that in order to be “qualified,” a domestic relations ordermay not provide a type or form of benefit or an option not otherwise provided by the plan, require the plan to provide increased benefits, or divest a beneficiaryunder an earlier established2 Plaintiff relies on this unpublished opinion. Und er 10th Cir. R. 36.3(B),

we cite an unpublished decision only if it has pers uasive value with respect to a material issue that has not been addressed by us ina published opinion and it assists us in our disposition. Both requirements are met with regard to this case. -7- QDRO. 29 U.S.C. § 1056(d)(3)(D)(i)-(iii). Neitherside argues that the domestic relations order in this case divests any other bene ficiary so we look to the other two requirements. While this case only purports to raise an argument regarding provision of increased benefits, analysis of the “n ot otherwise provided” requirement is also pertinent. Under the interpretation of this section of the statute in Payne v. GM/UAW Pension Plan Adm’r , No. Civ.A. 95-CV-73554DT, 1996 WL 943424 (E.D. Mi ch. May 7, 1996), which we find persuasive, there is no increase in liability or benefits. 2 In Payne , the former wife sought pension benefits pursuant to the terms of a divorce granting her a forty-five percent inte rest in her former husband’s plan. The divorce decree stated that a QDRO would issue w ithin thirty days, but the husband died before the entry of the QDRO. The plan rejected the posthumously entered order as a QDRO because it maintained that no provision of the plan allowed for establishment of surviving spouse afterthe death of the participant. It argued that allowing for such would provide a benef it not otherwise provided in the plan, in violation of ERISA § 1056(d)(3)(D)(i). The court noted that the plan could not point to a provision requiring notice to the administrator prior to death,-8-

and provided no authority for its proposition that a post-death amendment is invalid. Because the order was amended nunc pro tunc , the court held it was to be considered entered before the death of the particip ant and thus did not provide a benefit not otherwise provided. Payne , 1996 WL 943424 at *8. Payne’s analysis recognizes the validity of the state court ’s use of the nunc pro tunc doctrine to amend a QDRO. We are persuaded that i f that is true for § 1056(d)(3)(D)(i), it is true as well for § 1056(d)( 3)(D)(iii). Because the nunc pro
tunc order in the present case must be considered to have been entered before the death of the participant, it does not increase the benefits to be paid. Our conclusion that the domestic relations order inthis case did not confer different or increased benefits as prohibited by § 1056(d)(3)(D)(i)-(iii) is supported by solid case law and secondary materials . For example, benefits of a type or form not otherwise provided is best underst ood as referring to a lump sum payout rather than regular payments over a period o f years. See, e.g. , Dickerson v. Dickerson , 803 F. Supp. 127, 134 (E.D. Tenn. 1992); see also Shulman, Qualified Domestic Relations Order Handbook at 27. As to the meaning of an increase, case law similarly confirms that the increase must be re al rather than conceptual. Bailey v. New Orleans Steamship Ass’n , 100 F.3d 28 (5th Cir. 1996). In Bailey , a former spouse sought a portion of her former husband’s benefits ( half of which were already being distributed to his subsequent wi fe). The court determined that-9-

while it was theoretically possible that the benefi ts would have been greater in such a situation, in fact, due to the life expectan cies of the two women, the benefits would be lessened with the addition of the former wife and the domestic relations order would therefore not be disqualified . Here, Ms. Patton has not asked to receive funds in any manner different from that allowed for in the plan. Nor will she receive more benefits than she would h ave received if the second plan had been included in the original order. Other cases allow for the post-death entry of an or der, noting that such entry occurred within the eighteen months prescribed by the statute for determining whether a plan is qualified, see supraat n.1. In Hogan v. Raytheon, Co. , 302 F.3d 854, 857 (8th Cir. 2002), the court held that a dom estic relations order can be qualified posthumously. While Hogan noted that the plan had notice a QDRO might issue, such notice was not essential to its d etermination of the order’s validity. Id. Instead, the court held “[t]he fact that Mr. Hoga n died prior to the entry of the . . . Order is irrelevant.” Id. The Denver Post acknowledges that nunc pro tunc orders have a legitimate place in state law, but it maintains they cannot be used to rewrite historical facts. The nunc pro tunc order here does not attempt to rewrite historical facts. Rather, it is more akin to the correction of a clerical err or, which is an accepted use for nunc pro tunc orders. All that occurred in this case is that th e state court and the-10-

parties previously lacked full information as to th e assets to be distributed in the divorce settlement. When those assets were finallydiscovered, the court simply allotted them as it had intended under the original plan, i.e., as it would have done had it been aware of their existence at the time. The historical facts were not changed – two pension plans existed on the date of the divorce as well as the date of death. That is, once discovered, the second pla n simply was added to the list of assets and apportioned so as to achieve the same eq uitable division of marital assets originally intended by the domestic relation s court. No other person’s vested interest was upset by this action. Moreover, as to the Denver Post’s argument that the domestic relations order did not exist before the date of the particip ant’s death, the very point of a nunc pro tunc order is the creation of a legal fiction that the order did exist as of the date to which it is made effective. That ficti on is one which has been accepted in Colorado as a basic doctrine of law, such that i ts fictional quality does not diminish its binding effect. See Estate of Becker v. Becker , 32 P.3d 557, 559 (Colo. Ct. App. 2000) (“Court orders entered nunc pro tunc , or “now for then,” are normally for the purpose of correcting an omission from the court records and are deemed to have retroactive effect.”). See also , e.g. , B LACK ’ S L AW D ICTIONARY 1097 (7th ed. 1999); C.P. Jhong, Annotation, Entering Judgment or Decree of
Divorce Nunc Pro Tunc , 19 A.L.R.3d 648 (1968).-11-

The Denver Post advocates the position taken by the majority of a Third Circuit panel in Samaroo v. Samaroo , 193 F.3d 185 (3d Cir. 1999). The court held that a beneficiary’s entitlement had to be establis hed as of the day the participant died. It reasoned that a nunc pro tunc order entered after that date, even though back-dated to a date prior to death, was an attemptto obtain increased benefits and therefore could not be a QDRO. Based on our earlie r analysis, we disagree. The holding in Samaroo “work[s] an unwarranted interference with the stat es’ ability to administer their domestic relations law and to e ffectuate equitable divisions of marital assets.” Id. at 192 (Mansmann, J., dissenting). In dissent, Ju dge Mansmann noted, as we have, that the holding in Samaroo was not compelled by statute or case law, id. , nor was there a policy argument sufficiently weig hty to overcome the propriety of using the nunc pro tunc doctrine in these types of cases, id. at 193-94. We are further persuaded of the correctness of our decision by an article from the periodical of the ABA’s Family Law Section , written by Gary Shulman, author of the Qualified Domestic Relations Order Handbook . Mr. Shulman writes: Nunc pro tunc QDROs are desperately needed in the d omestic relations arena. There must be a way to secure a f ormer spouse’s property rights to a pension that could suddenly di sappear as a result of a technicality or a family law attorney’s inexpe rience in drafting QDROs. Gary Shulman, QDROs – The Ticking Time Bomb , 23 F AMILY A DVOCATE 26, 293 Due to its disclosure of only one plan, the DenverPost itself was arguably

responsible in part for Ms. Patton’s need to amend the divorce order after her exhusband’s death. Although there is no indication the omission was intentional, responsibility for the error still lies at least in part with the plan administrator who provided the partial information. We note, how ever, that the plan’s negligence in disclosure is not an essential element of the analysis for this type of claim. -12- (2001). In sum, this is precisely the type of situation, pa rticularly in the domestic relations arena, for which the nunc pro tunc doctrine is appropriate. 3 Courts in domestic relations contexts must have the power to effect equitable settlements by responding to newly acquired information or to chan ges in circumstances. If necessary changes once effected by the state court are not then recognized by plan administrators or by federal courts adjudicating di sputes, state courts are effectively stripped of their ability to equitably distribute marital assets in a divorce. Accordingly, we AFFIRM the district court’s grant of summary judgment in favor of Ms. Patton.