___________ No. 95-3137 No. 95-3230 No. 95-3231

___________ National Automobile Dealers * and Associates Retirement * Trust; Anthony Ursomarso; * Stephen M. Qua; Frank R. * Anderson, Jr.; William S. Dodge;* David E. Gezon; Ray Green; * Mark Miller; Jimmy C. Payton; * Jack T. Price; Richard R. Smith;* Frank E. McCarthy, * * Appeals from the United States * District Court for the * Eastern District of Missouri. Plaintiffs, * * * Patricia A. Arbeitman; Brooke * Ann Arbeitman; Christopher * Michael Arbeitman, * * Appellee/Cross-Appellants, * * v. * * Donna M. Arbeitman, * * Appellant/Cross-Appellee. *

___________ Submitted: March 19, 1996 Filed: July 10, 1996

___________ Before MCMILLIAN, JOHN R. GIBSON, and BOWMAN, Circuit Judges.

___________ JOHN R. GIBSON, Circuit Judge.

### The Honorable Terry I. Adelman, United States Magistrat e 1 

### Judge for the Eastern District of Missouri, tried the case b y consent of the parties. The terms of the Royal Parkway and Royal Gate plans are the 2 

### same. -2- Harold Arbeitman was employed by two Dodge dealerships, Royal P arkway Dodge, In c. and Royal Gate Dodge, Inc., both of which had pension fund s established under the Employee Retirement Income Security Act, 19 U.S.C. §§ 1001-1461 (1994). Harold died and the trustees of both funds filed thi s interpleader action to determine their liability to Patricia Arbeitman, hi s first wife from whom he was divorced, who was named as beneficiary in the Royal Parkway plan, and Donna Arbeitman, his surviving spouse. Th e magistrate judge awarded one-half of the Royal Parkway plan to the named 1 beneficiary, Patricia, and the remaining one-half, as well as all of the benefit s to the Royal Gate plan to the surviving spouse, Donna. In th e appeal and cross-appe al, Patricia and Donna both claim entitlement to all of both funds. In addition, Patricia and the children from her marriage to Harold claim error in failing to impose a constructive trust on th e Royal Parkway funds. We affirm. Harold Arbeitman died in August 1992. While employed by Roya l ParkwayDodge and Royal Gate Dodge, Harold participated in their pension and profit sharing plans. 2

Harold and Patricia were married in October 1966. They had tw o children, Brooke and Christopher. On August 27, 1982, Harold designated Patricia as the primary beneficiary of the Royal Parkway plan, with all of his livi ng children as contingent death beneficiaries. He did no t designate a death beneficiary for the Royal Gate plan.

An Illinois court dissolved Harold and Patricia's marriage in Jul y 1983 and entered a decree adopting their separation agreement

### -3-

in Decembe r 1983. In part, the agreement provided that upon Harold' s death, the obligations agreed to by the parties would survive as charges against h is estate. Further, Harold also agreed to maintain a lif e insurance policy sufficient to pay the balance of any support payments owe d at the time of his death. Donna and Harold also agreed to relinquish "any rig ht, title or interest in and to any earnings, accumulations, pensio n plans, profit sharingplans, future investments, money or property of the other . . . ."

Donna a nd Harold married in August 1987. Before the marriage the y ent ered into a prenuptial property agreement, the validity of which wa s later upheld by Missouri courts. The agreement listed the separat e property of Donna andHarold, and provided that each party agreed to keep and retain sole ownership of all property listed, "free and clear of any title, interests, rights, or claims of the other." Neither plan was liste d in Harold's schedule of property.

After his marriage to Donna, Harold and Patricia maintained a n amicable relationship . Harold did not change the beneficiary designation
on the Ro yal Parkway Plan. Harold also provided more than the require d level of support for Patricia and his children. After Harold's death , Patricia received her last support payment in Oc tober 1992. Harold failed to p rovide a life insurance policy sufficient to satisfy his suppor t obligations under the separation agreement.
Following Harold's death, the Trusts brought this interpleader action to have the court det ermine who was entitled to receive Harold's benefits under the pension plans. The benefits from the Royal Parkway plan wer e approxim ately$83,373, and from the Royal Gate plan, $48,665. Th e magist rate judge determined that both plans provided that as survivin g spouse , Donna should receive fifty percent of Harold's account balance

. Because Harold had fa iled to designate a beneficiary under the Royal Gate plan, the plan

### -4-

required the plan adm inistrator to distribute the remaining fifty percent of Harold's interest to the surviving spouse, Do nna. The magistrate judge held that the prenupt ial agreement between Harold and Donna did not waive Donna's rights as surviving spouse under the plans. Further, the cour t ref used to impose a constructive trust in favor of Patricia or th e children, who argued that Donna had breached the prenuptial agreement by claiming a right in the proceeds. Thus, the magistrate judge held tha t Donna should receive all of the proceeds from th e Royal Gate plan and onehalf of the proceeds from the Royal Parkway plan.

The mag istrate judge also concluded that Patricia, as name d benef iciary, should receive the remaining fifty percent of Harold' s interest in the Royal Parkway plan. The separation agreement lacked the specificitynecessary to waive her rights as named beneficiary under the plan, and it failed to satisfy the requirements of a qualified domesti c relations order under ERISA, which would preclude Donna from establishing
an interes t in the Royal Parkway plan. Finally, the magistrate judg e rejected Patricia's contention that the plan was intended to take the plac e of the life insurance policy required by the separation agreement.

The co urt ordered the proceeds of the plans to be distributed t o Donna and Patricia, and reasonable costs and fees to be paid to the Trusts

. Donna appeals the magistrate judge's decision awarding part of the Royal Parkway fund to Patri cia. Patricia, Brooke, and Christopher cross-appeal the decision awarding the balance of the proceeds to Donna.

I.
"[A] reviewing court should apply a de novo standard of review unless the plan gives the `a dministrator or fiduciary discretionary authority to determine eligibility for benefits or to constru e the terms of the plan.'" Donaho v. FMC Corp. , 74 F.3d 894, 898 (8th

### -5-

Cir. 1996) (quoting Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 11 5 (1989)). Here, the Administrator did not exerci se any such authority, but simplypaid the funds into the court in this interpleader action. Thus,
we revi ew the magistrate judge's interpretation of ERISA and the pla n provisions de novo. See Fox Valley & Vicinity Constr. Workers Pension Fun d

v. Brown , 897 F.2d 275, 278 (7th Cir.) (en banc), cert. denied , 498 U.S. 820 (1990).

A.

Donna first argues that the magistrate judge erred in awardin g Patricia fifty percent of the proceeds in the Royal Parkway Fund. Sh e contends that the magistrate judge failed to pro perly apply the provisions of the Royal Parkway plan, specifically, that th e magistrate judge ignored the plan requirement that she consent to designation of Patricia a s beneficiary.

ER ISAdefines the term qualified preretirement survivor annuity a s "an annuity for the l ife of the surviving spouse the actuarial equivalent of which is not less than 50 percent of the port ion of the account balance of the participant (a s of the date of death) to which the participant had a nonforfeitable right . . . ." 29 U.S.C. § 1055(e)(2) (1994).

The R oyal Parkway Plan creates a qualified preretirement survivo r annui tyin the event of the preretirement death of a plan participant

. Section 9.2.B of the plan provides:
if a Participant dies before the Annuity Starting d ate, then at lea st 50% of the Participant's vested account balance on th e date of death shall be applied toward the purchase of a n annuity for the life of the Surviving Spouse. The remainder of the Participant's vested account balance will be paid to th e Participant's designated Beneficiary in accordance with Sec

. 9.4; if the Participant's designated Beneficiary is th e Surviving Spouse, the entire vested account balance shall be

### -6- applied to ward the purchase of an annuity for the life of th e Surviving Spouse.
Section 9.4 of the plan provides for the distribution of proceeds in the event of a participant's death. Section 9.4 states:
Subject to the provisions in Sec. 9.2, in the event of th e deathof a Participant, the Participant's Beneficiary(ies ) designated by the Participant in accordance with Sec. 9.12 , shall have a nonforfeita ble right to at least 50% of the total value of the Participant's Employee Account as of the date of the Participant's death.

Section 9.2.B implements the requirements of ERISA, defining th e surviving spouse's qualified preretirement survivor annuity as an amount at le ast fifty percent of the decedent's account balance. Section 9. 4 specifies that a named beneficiary is also entitled to at least fift y percent of the accoun t. Thus, under the terms of the plan, when there is
a named beneficiary other than the spouse, the named beneficiary i s entitled to fifty percent and a qualified preretirement survivor annuity is e stablished on behalf of the surviving spouse for the other fift y percent.

Section 9.12 of the plan specifies the method for designatin g beneficiaries. The s ection states in part that "[e]ach Participant . . . may designate a Beneficiary . . . to receive ret irement benefits surviving his death as provided under this Plan, provided, however, that if a Participant is marrie d on the date of his death, such designation will be subject to the spousal consent requirements in Secs. 9.1 and 9.2."

Sectio n 9.1.A(6) is the only portion of Section 9.1 and 9.2 tha t relates to spousal consent. Under that section, a waiver of the qualified preretirement survivor annuity is not effective unless the spouse "consent s in writing," the "election designates

### -7-

a spec ific beneficiary", the "consent acknowledges the effect of th e election," and the "consent is witnessed by a plan representative or notar y publi c." Donna argues that these requirements were not met and, thus , Patricia cannot be entitled to fifty percent of the plan proceeds.

The requi rement in the plan for spousal consent relates only t o waiver of the qualified preretirement survivor a nnuity, which by the terms of section 9.2.B constitutes fifty percent of the vested account and i s paid to t he surviving spouse. Designation of a beneficiary for th e remaining fifty percent of the plan proceeds is not subject to the section 9.1.A(6) spousal cons ent requirement. Therefore, Donna's consent was not required for the designated beneficiary, Patricia, to receive the remainin g fifty percent of the plan proceeds.

B.

Donna next argues that Patricia forfeited her rights as designate d beneficiary when she executed a separation agree ment which stated that she "relinquishe[d] any right, title or interest in and to any . . . pension plans . . . ." The same paragraph also provides that the agreement wa s executed "in full sat isfaction of all property rights and all obligations for support otherwise arising out of the[ ] marital relationship."

In ou r circuit, "a property settlement entered into pursuant to a dissolution may divest former spouses of beneficiary rights in each other' s [ERISA benefits], if the agreement makes it clear that the former spouses
so intend." Mohamed v. Kerr , 53 F.3d 911, 914-15 (8th Cir.), cert. denied , 116 S. Ct. 185 (1995); Lyman Lumber

### In contrast, the Sixth Circuit in McMillan v. Parrot , 91 3 3 

### F.2d 310, 311-12 (6th Cir. 199 0), held that the statutory language of ERISA requires "ERISA plans [ ] to be administered according to th eir controlling documents." The court determined that ERIS A requir es a plan administrator to act in "accordance with th e documents and instruments governing the plan." Id. at 311 ( quoting 29 U.S.C. § 1104(a)(1)(D) (1985)). In the Sixth Circuit's view , this bright line rule simplifies administration, reduce s litigation, avoids double liability, and assures beneficiaries of their right to receive benefits. Id. at 312. -8- Co. v. Hil l , 877 F.2d 692, 693 (8th Cir. 1989). The "spouse's rights as 3

a bene ficiary are extinguished only by terms specifically divesting th e spouse's rights as a beneficiary under the policy or plan." Lyman Lumber Co. , 877 F.2d at 693. However, the word "beneficiary" is not required to be included in the te rms of the separation agreement divesting a spouse's rights in the plan. Mohamed , 53 F.3d at 915. W e must closely examine the facts and circumstances before us to determine i f the separation agreement divested Patricia of her rights as a beneficiary under the Royal Parkway plan. Id.

In Lyman Lumber Co. , 877 F.2d at 693 -94, we held that a provision in the divorce decree st ating that the husband should have his interest in a profit-sha ring plan free of any interest of the wife was not specifi c enough to revoke his earlier designation of the wife as beneficiary.

Later, in Mohamed , 53 F.3d at 912-13, we concluded that a provision in a marriage termina tion agreement stating that each party would receive full interest in pens ions, retirement plans, IRAs, mutual funds, and life insur ance policies free of claims by the other party was sufficient t o divest the former spouse of her rights as named beneficiary. In that case , the husban d named the wife as beneficiary of an employer's group lif e insurance policy. La ter, the husband became ill, and the wife instituted
an action to have a conservator appointed and to dissolve the marriage

. When

### Donna argues that the Seventh Circuit's decision in Fo x 4 

### Val ley& Vicinity Construction Workers Pension Fund , 897 F.2d a t 278-82, disposes of this issue. In that case the propert y settlement provided that the p arties waived "any interest or claim in and to any retirement, pension, profit-sharing and/or annuit y plans re sulting from the employment of the other party." Id. a t 277. The court distinguished the case from Lymanbecause th e language included a specific, not a general, waiver of pensio n rights

. Id. at 280. Our decision here is not inconsistent wit h that of the Seventh Circuit, when one considers the additiona l language contained in the sepa ration agreement here. See Mohamed , 53 F.3d at 915 (discussing the Fox Valley & Vicinity Constr

. Workers Pension Fund decision).
-9- the husband later died, the ex-wife, as named beneficiary, claimed th e proceeds of the life insurance policy. Id.
The facts surrounding the marriage and divorce strongly support ed our conclusion. We noted that the wife "could not g et away fast enough," once the husband was diagnosed with his illness. Id. at 916. "[S]he abandoned him to his illness." Id. Further, the marriage lasted only three years, ther e were no children, and the divorce severed all ties between th e couple. Id.
We distinguished the result reached in Lyman from the result reached in Fox Valley and Vic inity Construction Workers Pension Fund , 897 F.2d at 278-82, and Brandon v. Travelers Ins. Co. , 18 F.3d 1321 (5th Cir. 1994), cert. denied , 115 S. Ct. 732 (1995), because the language in these latter
cases relinquished both present and future claims. Mohamed , 53 F.3d a t 4 915. We held "that the language `full right, ti tle, interest and equity'" in the agreement "comprehends any beneficial interests or rights , notwithstanding that they are not expressly mentioned." Id.

The agreement here contains much of the same language as th e agreement in Mohamed

. Instead of stating that "each of the parties shall be awarded full right, title, interest and equity," Mohamed , 53 F.3d a t 912, it states that each party "relinquishes any right, title or interest. " Although these words could include Patricia's

### -10-

interest in the Royal Parkway plan, additional language in the agreement undermines this conclusion. The same paragraph of the separation agreemen t state s that the parties accept the provisions of the agreement i n satisfaction of property rights and support obli gations "otherwise arising out of the marital relationship " (emphasis added).

When read in light of the magistrate judge's factual findings, w e believe this language demonstrates that the separation agreement was not intended to, and it does not, modify Patricia's interest as the designated beneficiary of the Ro yal Parkway plan. See Lyman Lumber Co. , 877 F.2d at 693-94. Harold and Patricia executed the separation agreement to deal wit h their past marital obligations and property. Significantly, there is no mention of the plan b enefits in the separation agreement. The magistrate judge found that after the divorce, Harold maint ained Patricia as the plan beneficiary. Further, Harold and Patricia "maintained an amicabl e relationship" and Harold provided more support to Patricia and the childre n than he was legally obligated to provide.

This is a vastly different situation than we faced in Mohamed , an d the record demonstrates that Harold intended for Patricia to be th e beneficiaryof the Royal Parkway plan. The separation agreement did not waive her rights as the designated plan beneficiary. Thus, we hold that Patricia is entitled to receive fifty percent of the Royal Parkway plan.

II.
On cross-appeal, Patricia and the ch ildren first argue that Harold's children, not Donna, were entitled to fifty percent of the proceeds from the R oyal Gate plan, after Harold died without designating a pla n ben eficiary. They argue that section 9.12 gives the plan administrato r discretion in awarding proceeds from the plan wh en the participant has not designated a beneficiary.

### -11- Section 9.12 of the plan provides:

If any Participant shall fail to designate a Beneficiary fo r the purposes of this Section, . . . the Plan Administrato r shal l designate Beneficiaries on his behalf, but only fro m among persons with the following relationship to th e Part icipant, and only in the order named: (1) spouse, (2 ) chil dren, (3) other descendants, (4) parents, (5) othe r ancest ors, (6) brothers and sisters, (7) nephews and nieces , and (8) estate.

This section specifically requires the plan administrator t o designate the beneficiary when one has not been named, and it conclusively specifies the order o f selection. Pursuant to the terms of section 9.12, the surviving spouse, Donna, must be designated as the beneficiary.

Pat ricia and the children next argue that Donna should not b e entitled to the proce eds from either plan because she waived these rights in her prenuptial agreement with Harold. They argue that they are entitle d to equitable relief and that a constructive trus t should be established in their be half. They contend that once the plan proceeds have bee n distributed, imposing such an equitable arrangement does not circumvent th e requirements of ERISA.

Sectio n 9.2.B of both the Royal Parkway and the Royal Gate plan s provides that Donna, as surviving spouse, is to receive a qualifie d preret irement survivor annuity amounting to fifty percent of th e participant's account balance. In addition, under section 9.12 Donna is entitled to receive the remaining fifty percent of Harold's account in the Royal Gate plan. The prenuptial agreement does not alter this result. The prenuptial agreement stated that both parties wished to accep t the provisions of the agreement "in lieu of all rights which either of the m
wou ld otherwise acquire, by reason of the contemplated marriage, in th e property or estate of the other."

### -12-

The agreement also stated that "[n]either party shall have or establish or make claim to any title, interest, rights or claims, in the Separat e Property of the other , other than as donee or beneficiary under a written document."

Section 9.1.A(6) of the plan implements and is consistent wit h ERISA's statutory requirements for waiving a spouse's rights to benefits
un der the plan. See 29 U.S.C. § 1055(c). As discussed, waiver of a qualified preretirement survivor annuity require s the participant's spouse to consent in writing to the election, the election to designate a specifi c benefi ciary, the spouse's consent to acknowledge the effect of th e election, and the consent to be witnessed by a plan representative o r notary public.
The prenuptial agreement fails to sa tisfy any of these requirements. It was signed before the marriage, not by Donna after she became Harold's spouse and became entitled to receive surviving spouse benefits. See Zinn

v. Donald son Co. , 799 F. Supp. 69, 73 (D. Minn. 1992). The agreemen t neither designated a specific beneficiary nor acknowledged the effect of
a waiv er. In fact, it failed entirely to mention the pension plans

. Final ly, while space was provided for a notary to acknowledge th e agreement, this was not done. Thus, the prenuptial agreement failed t o satisfy the waiver requirements of ERISA or the plans.

However, Patricia and the children argue that even if thes e requirements were not met, ERISA does not preempt their equitable claims to the proceeds of the plans. The Second Circuit rejected a simila r argume nt in Hurwitz v. Sher , 982 F.2d 778, 781 (2d Cir. 1992), cert
. denied , 508 U.S. 912 (1993). The court held that a prenuptial agreement lacking the specific ERISA waiver requirements w as not an effective waiver under ER ISA, id. at 782, and any attempt to force compliance with th e terms of the prenuptial agreement in equity was "merely an attempt to evad e the clear

### We also not e that under section 9.12 of the Royal Gate plan, 5 

### Donna became the designated beneficiary of fifty percent of th e plan when Harold failed to designate a beneficiary. The pre nuptial agreement allows the parties to receive property as a beneficiary of a written document.
-13- statutory requirements." Id. at 783 (citing Zinn , 799 F. Supp. at 74).
In support of their equitable conten tions, Patricia and the children cite Callahan v. Hutsell, Callahan & Buchino P.S .C. Revised Profit Sharing Plan , Nos. 92-5796, 92-5797, and 92-5862, 1993 WL 533557 (6th Cir. 1993) (unpublished), which vacated and remanded a district court case relied on byDonna. While we may consider unpublished opinions when no publishe d opinion would serve as well, we believe that thi s case adds little support to Patricia and the children's argument and that Callahan's limited holdin g does not apply here. Further discussion of the case is not necessary. We concl ude that imposing a constructive trust in this case would b e inconsistent with the requirements of ERISA and the terms of the plans

. Theref ore, Donna was entitled to receive the fifty percent qualifie d preretirement survivo r annuity from both the Royal Parkway and Royal Gate plans. 5
We affirm the decision of the magistrate judge.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.