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26 ORDER REGARDING CROSS MOTIONS

FOR SUMMARY JUDGMENT - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

SONJA C. THUNEY,

Plaintiff,

v.

LOCALS 302 AND 612 OF THE

INTERNATIONAL UNION OF

OPERATING

ENGINEERS–EMPLOYERS

CONSTRUCTION INDUSTRY

RETIREMENT PLAN, et al.,

Defendants.

Case No. C05-1539RSL

ORDER REGARDING CROSS

MOTIONS FOR SUMMARY

JUDGMENT

I. INTRODUCTION

This matter comes before the Court on a motion for summary judgment (Dkt. #30)

filed by plaintiff Sonja C. Thuney. Sonja Thuney seeks an order declaring that a

California court’s May 20, 2005 order is a qualified domestic relations order (“QDRO”)

as that term is defined by the Employee Retirement Security Act of 1974 (“ERISA”),

thereby entitling Sonja Thuney to certain benefits. Defendant Kathleen Thuney has filed

a cross motion for summary judgment (Dkt. #39) for an order declaring that the order is

not a QDRO, dismissing plaintiff’s claims, directing the plan to resume payments to her,

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1

 Because the Court finds that this matter can be decided on the parties’

memoranda, declarations, and exhibits, the parties’ request for oral argument is denied.

ORDER REGARDING CROSS MOTIONS

FOR SUMMARY JUDGMENT - 2

and awarding her attorney’s fees and costs.

For the reasons set forth below, the Court denies plaintiff’s motion and grants

defendant’s motion.1

II. DISCUSSION 

A. Background Facts.

Plaintiff is the first wife of Terry Thuney, who died in an automobile accident in

October 2002. Their marriage ended in divorce in September 1990. 

Mr. Thuney participated in Locals 302 and 612 of the International Union of

Operating Engineers-Employers Construction Industry Retirement Plan (the “Plan”). 

The divorce decree, issued by the Shasta County Superior Court in California, stated that

the retirement plan was a community property asset and “[i]f liquidation is not possible

under the plan, [Sonja Thuney] shall receive one-half of all funds received by [Terry

Thuney] from and subsequent to the normal age of retirement.” The decree further

stated, “The Court reserves jurisdiction over this asset to enforce [Sonja Thuney’s] right

to receive her one-half interest in [Mr. Thuney’s] retirement plan.” Complaint, Ex. B. 

Mr. Thuney was a vested participant in the Plan. However, he died before retirement, so

he was not entitled to receive retirement benefits. 

Kathleen Thuney was married to Mr. Thuney from 1995 until his death. As a

result of Mr. Thuney’s death, Kathleen Thuney, as his surviving spouse, was entitled to

receive a 50% Spouse Option preretirement death benefit under the Plan. In lieu of that

benefit, Kathleen Thuney was entitled to and did elect a monthly preretirement death

benefit payable for 60 months. Kathleen Thuney began receiving preretirement death

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FOR SUMMARY JUDGMENT - 3

benefits under the Plan beginning in November 2002. 

In December 2003, Sonja Thuney notified the Plan that she was filing a motion to

obtain a QDRO. Sonja Thuney obtained a purported QDRO nunc pro tunc in May 2005

from Shasta County Superior Court. Complaint, Ex. G (the “2005 Order”). Kathleen

Thuney was not given notice of the California proceedings. 

Plaintiff subsequently submitted the purported QDRO to the Plan. The Plan

determined that the QDRO was not qualified, and notified Sonja Thuney of that

determination by letter dated July 8, 2005. Affidavit of Kathleen Thuney, (Dkt. ## 37,

41) (“K. Thuney Decl.”), Ex. E. The Plan’s determination was based primarily on two

factors: (1) the divorce decree did not award Sonja Thuney preretirement death benefits

or designate her as a surviving spouse, and (2) the surviving spouse’s right to preretirement death benefits irrevocably vests when the participant dies, and a QDRO

entered after the participant’s death cannot divest the surviving spouse of her right to

those benefits.

The Plan provided for benefits for 60 months. However, the Plan suspended

payment of benefits when plaintiff commenced this litigation.

Plaintiff filed her complaint with this Court on September 8, 2005 seeking the

declaratory judgment she seeks in this motion, a judgment against Kathleen Thuney for

the sums already paid to her under the Plan, and her attorney’s fees and costs. By

stipulation of the parties and order of the Court, the Plan was discharged from liability

except to pay the remaining benefits due, once the rightful beneficiary is determined.

B. Applicable Standards.

On a motion for summary judgment, the Court must “view the evidence in the light

most favorable to the nonmoving party and determine whether there are any genuine

issues of material fact.” Holley v. Crank, 386 F.3d 1248, 1255 (9th Cir. 2004). All

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2

 An “alternate payee” is “any spouse, former spouse, child, or other dependant 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.” 29

U.S.C. § 1056(d)(3)(K).

ORDER REGARDING CROSS MOTIONS

FOR SUMMARY JUDGMENT - 4

reasonable inferences supported by the evidence are to be drawn in favor of the

nonmoving party. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.

2002). “[I]f a rational trier of fact might resolve the issues in favor of the nonmoving

party, summary judgment must be denied.” T.W. Elec. Serv., Inc. v. Pacific Elec.

Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987).

In this case, there is no dispute regarding an interpretation of the Plan. Rather, the

dispute is based on whether the 2005 Order qualifies as a QDRO under federal law. 

Accordingly, the Court reviews the Plan’s determination de novo. See, e.g., Samaroo v.

Samaroo, 193 F.3d 185, 189 (3rd Cir. 1999) (reviewing plan’s QDRO determination de

novo because it was a legal conclusion and a question of statutory construction).

C. Analysis.

This case arises under ERISA, as amended by the Retirement Equity Act of 1984

(“REA”). 29 U.S.C. § 1056(d)(3). ERISA’s anti-alienation provision states that “each

pension plan shall provide that benefits provided under the plan may not be assigned or

alienated.” 29 U.S.C. § 1056(d)(1). The REA amended ERISA’s anti-alienation

provision to give effect, in some circumstances, to a “QDRO.” A QDRO is a “domestic

relations order . . . which creates or recognizes the existence of an alternate payee’s2

 right

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 which meets certain statutory

requirements. 29 U.S.C. § 1056(d)(3)(B)(I).

Plaintiff concedes that the 1990 divorce decree does not meet the statutory

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FOR SUMMARY JUDGMENT - 5

requirements for a QDRO. Plaintiff’s Motion at p. 18. Accordingly, it is not a QDRO.

Plaintiff contends that the 2005 Order is a QDRO, and that order appears to meet

the statutory requirements for a QDRO. Plaintiff argues that nothing in the statute or case

law requires a QDRO to be in place prior to the death of a plan participant. Plaintiff is

correct on that point. See, e.g., Trustees of the Dirs. Guild of Am.-Producer Pension

Benefits Plans v. Tise, 234 F.3d 415, 421 (9th Cir. 2000) (explaining that “a QDRO only

renders enforceable an already-existing interest” so there is no reason why a QDRO must

be obtained prior to the participant’s death or retirement). Plaintiff argues that, consistent

with Tise, the 2005 Order simply documented “a separate interest in a pension plan that

existed before the death of the plan participant.” Plaintiff’s Motion at pp. 2-3. However,

the divorce decree does not grant plaintiff any rights to preretirement death benefits or

surviving spouse benefits under the Plan. Instead, it entitled plaintiff to receive “one-half

of all funds received by [Mr. Thuney] from and subsequent to the normal age of

retirement.” Because Mr. Thuney had not retired on the date of his death, he was not

entitled to receive, and did not receive, retirements benefits under the Plan. As the Plan

noted in its denial letter, the divorce decree is silent regarding preretirement death

benefits to a surviving spouse, so that order did not grant plaintiff any right to those

benefits. There is also no evidence that Mr. Thuney and plaintiff ever discussed, much

less agreed to, payment of preretirement or surviving spouse benefits. These facts alone

doom plaintiff’s claim. See, e.g., Tise, 234 F.3d at 421 (explaining that a purported

beneficiary can submit a QDRO after the triggering event to enforce “an already-existing

interest”) (emphasis added); Hamilton v. Washington State Plumbing & Pipefitting Indus.

Pension Plan, 433 F.3d 1091, 1094 (9th Cir. 2006) (holding that a dissolution order

purporting to assign rights did not divest a surviving spouse of surviving spouse benefits

because the order “made no reference to surviving spouse rights”). As the Ninth Circuit

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3

 The holdings in Samaroo and Hopkins were based in part of the fact that if a

participant or beneficiary were permitted to change his or her benefits after the triggering

event occurred, it “would wreak actuarial havoc on administration of the Plan.” Samaroo,

193 F.3d at 190 and n.3. Similarly, in this case, the Plan’s Answer demonstrates that its

actuarial calculations would be disturbed if it were required to pay benefits to plaintiff. It

was paying Kathleen Thuney benefits of $5,922.46 per month based on her age, but

would pay Sonja Thuney a different, albeit lesser, amount. Answer at ¶ 41.

ORDER REGARDING CROSS MOTIONS

FOR SUMMARY JUDGMENT - 6

noted in Hamilton, “the surviving spouse benefit must be explicitly assigned to a former

spouse in a QDRO in order to overcome the surviving spouse’s right to an annuity under

ERISA.” Id.; see also Samaroo, 193 F.3d at 187 n.2 (determining that a divorce decree

did not entitle a participant’s ex-wife to preretirement surviving spouse benefits because

the decree “was silent on the issue of survivor’s rights”). These decisions and the lack of

an assignment in the divorce decree defeat plaintiff’s argument that she had any

preexisting right to surviving spouse benefits. 

Plaintiff argues that she is entitled to benefits based on Tise and Files v.

ExxonMobil Pension Plan, 428 F.3d 478 (3rd Cir. 2005). However, because plaintiff had

no legal interest in the surviving spouse benefits prior to Mr. Thuney’s death, plaintiff,

contrary to her assertion, is not in the same position as the plaintiffs in those cases. Also,

there was no surviving spouse in either of those cases. Nor did either case involve a

beneficiary to whom benefits were already being paid and who the plaintiff attempted to

divest of those benefits. In contrast, in cases where those facts existed, courts have held

that plaintiff was not entitled to the benefits. Samaroo, 193 F.3d at 190; Hopkins v.

AT&T Global Info. Solutions, Co., 105 F.3d 153, 156 (4th Cir. 1997) (declining to give

QDRO status to a state court order that an ex-wife obtained after the participant retired

and began drawing benefits);3

 Files, 428 F.3d at 487 n.12 (explaining that “the key

distinction between Hopkins and Files’s claim is that in Hopkins, there was an attempt to

divest benefits already vested in a subsequent spouse, whereas here, there was no such

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4

 See also Rivers v. Central and S.W. Corp., 186 F.3d 681 (5th Cir. 1999); Stahl v.

Exxon Corp., 212 F. Supp. 2d 657 (S.D. Tex. 2002); see also Hamilton, 433 F.3d at 1096

(citing and quoting Daniel N. Janich, When Remarriage Muddies the Waters, 24 Family

Advocate 39 (2000) (“Unfortunately, failure to include a survivorship provision in the

QDRO often goes undetected until the participant dies or retires, that is, when the

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

about it”)).

ORDER REGARDING CROSS MOTIONS

FOR SUMMARY JUDGMENT - 7

vesting”).4

Plaintiff also notes that the statute requires that, during the first eighteen months

after benefits become payable, the plan must segregate benefits that are potentially

payable to an alternate payee. 29 U.S.C. § 1056(d)(3)(H)(v). Plaintiff alleges that the

statutory 18-month period would be meaningless if the proceeds irrevocably vested at the

time of the participant’s death or retirement. The cases that have addressed that 18-

month period, however, have noted that its purpose is to allow a plan administrator to

segregate and hold the benefits while claims are analyzed and an individual is attempting

to “qualify” his or her QDRO. See, e.g., Tise, 234 F.3d at 422; Files, 428 F.3d at 489-90. 

None of the cases cited involved a situation where, as here, the plan had no notice of the

alternate payee’s asserted claim prior to the triggering event, properly began paying

benefits pursuant to the available paperwork, then was faced with an attempt to divest the

surviving spouse of benefits. Tise, 234 F.3d at 426 n.9 (“We do not decide whether a

QDRO could issue after a participant’s death if the plan had no notice of a DRO-created

interest before the death”). As set forth above, under those circumstances, the courts that

have considered that issue have held that the benefits belong to the surviving spouse.

Furthermore, requiring the Plan to pay benefits to plaintiff would require it to

violate the Plan itself. The Plan provides, “The Plan shall not make a determination that

an order is a QDRO if the order requires payment of benefits which were paid prior to the

Plan’s receipt of the QDRO.” K. Thuney Decl., Ex. E at p. 2 (Plan denial letter citing

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5

 The Court reviews the Plan’s interpretation of its own terms under an abuse of

discretion standard. See, e.g., Hamilton, 433 F.3d at 1102.

6

 Plaintiff also seeks to recoup the funds already paid to Kathleen Thuney. The

Court does not address that issue because both parties agree that it should be addressed in

the separately pending proceedings in Minnesota state court.

ORDER REGARDING CROSS MOTIONS

FOR SUMMARY JUDGMENT - 8

Plan Section 14.4). Plaintiff does not challenge the Plan’s determination on that issue.5

Finally, plaintiff alleges that because of various obstacles, including Mr. Thuney’s

concealment of his failure to complete the necessary paperwork, she was unable to submit

a QDRO to the Plan within 18 months after benefits became payable. Plaintiff argues

that her failure to do so does not make the QDRO unenforceable. Because the Court

finds that the QDRO is not enforceable for other reasons, it does not consider this

additional argument.6

Both parties have requested an award of reasonable attorney’s fees, costs, and

disbursements. Pursuant to the statute, the Court has discretion to allow an award of

reasonable attorney’s fee and costs to either party. 29 U.S.C. § 1132(g)(1). Because

defendant is the prevailing party, the Court considers only her request. See, e.g., Bekos

v. Providence Health Plans, 334 F. Supp. 2d 1248, 1258 (D. Or. 2004). The Court

considers the following factors:

(1) the degree of the opposing parties’ culpability or bad faith;

(2) the ability of the opposing party to satisfy an award of fees;

(3) whether an award of fees . . . would deter others from acting under similar

circumstances; 

(4) whether the parties requesting fees sought to benefit all participants and

beneficiaries of an ERISA plan or to resolve a significant legal question regarding

ERISA; and 

(5) the relative merits of the parties’ positions.

Elliot v. Fortis Benefits Ins. Co., 337 F.3d 1138, 1148 (9th Cir. 2003) (internal citation

and quotation omitted). The Ninth Circuit has stated, “We have frequently expressed our

disfavor of awards of attorney’s fees against individual ERISA plaintiffs who seek

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26 ORDER REGARDING CROSS MOTIONS

FOR SUMMARY JUDGMENT - 9

pension benefits to which they believe they are entitled.” Corder v. Howard Johnson &

Co., 53 F.3d 225, 231 (9th Cir. 1994) (citing numerous cases). Applying the factors, it is

unclear whether plaintiff could satisfy an award of fees. However, as an individual, she

is less likely to be able to do so than a corporate entity might be. The large amount of

unpaid child support and spousal maintenance owed to plaintiff leads the Court to believe

an award of fees would be a financial hardship for plaintiff. Defendant is not requesting

fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a

significant legal question regarding ERISA. Also, the underlying issue was a close call,

there is no evidence that plaintiff is culpable or acted in bad faith, and both parties’

positions were substantially supported by relevant authority. Furthermore, an award

might deter others from pursuing potentially meritorious claims for benefits. 

Accordingly, the Court declines to award fees and costs in this case. 

III. CONCLUSION

For all of the foregoing reasons, the Court GRANTS defendant’s motion for

summary judgment (Dkt. #39) and DENIES plaintiff’s motion for summary judgment

(Dkt. #30). The Plan shall resume paying benefits to Kathleen Thuney pursuant to the

terms of the Plan and consistent with this order. The Clerk of the Court is directed to

enter judgment in favor of defendant Kathleen Thuney and against plaintiff.

DATED this 4th day of June, 2007.

A

Robert S. Lasnik

United States District Judge

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