___________

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 Magistrate

1

Judge for the Eastern District of Missouri, tried the case by

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 Parkway

Dodge, Inc. and Royal Gate Dodge, Inc., both of which had pension funds

established under the Employee Retirement Income Security Act, 19 U.S.C.

§§ 1001-1461 (1994). Harold died and the trustees of both funds filed this

interpleader action to determine their liability to Patricia Arbeitman, his

first wife from whom he was divorced, who was named as beneficiary in the

Royal Parkway plan, and Donna Arbeitman, his surviving spouse. The

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

benefits to the Royal Gate plan to the surviving spouse, Donna. In the

appeal and cross-appeal, 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 the

Royal Parkway funds. We affirm. 

Harold Arbeitman died in August 1992. While employed by Royal

Parkway Dodge and Royal Gate Dodge, Harold participated in their pension

and profit sharing plans.2

Harold and Patricia were married in October 1966. They had two

children, Brooke and Christopher. On August 27, 1982, Harold designated

Patricia as the primary beneficiary of the Royal Parkway plan, with all of

his living children as contingent death beneficiaries. He did not

designate a death beneficiary for the Royal Gate plan. 

An Illinois court dissolved Harold and Patricia's marriage in July

1983 and entered a decree adopting their separation agreement 
-3-

in December 1983. In part, the agreement provided that upon Harold's

death, the obligations agreed to by the parties would survive as charges

against his estate. Further, Harold also agreed to maintain a life

insurance policy sufficient to pay the balance of any support payments owed

at the time of his death. Donna and Harold also agreed to relinquish "any

right, title or interest in and to any earnings, accumulations, pension

plans, profit sharing plans, future investments, money or property of the

other . . . ." 

Donna and Harold married in August 1987. Before the marriage they

entered into a prenuptial property agreement, the validity of which was

later upheld by Missouri courts. The agreement listed the separate

property of Donna and Harold, 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 listed

in Harold's schedule of property.

After his marriage to Donna, Harold and Patricia maintained an

amicable relationship. Harold did not change the beneficiary designation

on the Royal Parkway Plan. Harold also provided more than the required

level of support for Patricia and his children. After Harold's death,

Patricia received her last support payment in October 1992. Harold failed

to provide a life insurance policy sufficient to satisfy his support

obligations under the separation agreement.

Following Harold's death, the Trusts brought this interpleader action

to have the court determine who was entitled to receive Harold's benefits

under the pension plans. The benefits from the Royal Parkway plan were

approximately $83,373, and from the Royal Gate plan, $48,665. The

magistrate judge determined that both plans provided that as surviving

spouse, Donna should receive fifty percent of Harold's account balance.

Because Harold had failed to designate a beneficiary under the Royal Gate

plan, the plan 
-4-

required the plan administrator to distribute the remaining fifty percent

of Harold's interest to the surviving spouse, Donna. The magistrate judge

held that the prenuptial agreement between Harold and Donna did not waive

Donna's rights as surviving spouse under the plans. Further, the court

refused to impose a constructive trust in favor of Patricia or the

children, who argued that Donna had breached the prenuptial agreement by

claiming a right in the proceeds. Thus, the magistrate judge held that

Donna should receive all of the proceeds from the Royal Gate plan and onehalf of the proceeds from the Royal Parkway plan.

The magistrate judge also concluded that Patricia, as named

beneficiary, should receive the remaining fifty percent of Harold's

interest in the Royal Parkway plan. The separation agreement lacked the

specificity necessary to waive her rights as named beneficiary under the

plan, and it failed to satisfy the requirements of a qualified domestic

relations order under ERISA, which would preclude Donna from establishing

an interest in the Royal Parkway plan. Finally, the magistrate judge

rejected Patricia's contention that the plan was intended to take the place

of the life insurance policy required by the separation agreement.

The court ordered the proceeds of the plans to be distributed to

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 Patricia. 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 `administrator or fiduciary discretionary authority to

determine eligibility for benefits or to construe 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, 115

(1989)). Here, the Administrator did not exercise any such authority, but

simply paid the funds into the court in this interpleader action. Thus,

we review the magistrate judge's interpretation of ERISA and the plan

provisions de novo. See Fox Valley & Vicinity Constr. Workers Pension Fund

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 awarding

Patricia fifty percent of the proceeds in the Royal Parkway Fund. She

contends that the magistrate judge failed to properly apply the provisions

of the Royal Parkway plan, specifically, that the magistrate judge ignored

the plan requirement that she consent to designation of Patricia as

beneficiary.

ERISA defines the term qualified preretirement survivor annuity as

"an annuity for the life of the surviving spouse the actuarial equivalent

of which is not less than 50 percent of the portion of the account balance

of the participant (as of the date of death) to which the participant had

a nonforfeitable right . . . ." 29 U.S.C. § 1055(e)(2) (1994). 

The Royal Parkway Plan creates a qualified preretirement survivor

annuity in 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 date, then at

least 50% of the Participant's vested account balance on the

date of death shall be applied toward the purchase of an

annuity for the life of the Surviving Spouse. The remainder of

the Participant's vested account balance will be paid to the

Participant's designated Beneficiary in accordance with Sec.

9.4; if the Participant's designated Beneficiary is the

Surviving Spouse, the entire vested account balance shall be 
-6-

applied toward the purchase of an annuity for the life of the

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 the

death of a Participant, the Participant's Beneficiary(ies)

designated by the Participant in accordance with Sec. 9.12,

shall have a nonforfeitable 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 the

surviving spouse's qualified preretirement survivor annuity as an amount

at least fifty percent of the decedent's account balance. Section 9.4

specifies that a named beneficiary is also entitled to at least fifty

percent of the account. Thus, under the terms of the plan, when there is

a named beneficiary other than the spouse, the named beneficiary is

entitled to fifty percent and a qualified preretirement survivor annuity

is established on behalf of the surviving spouse for the other fifty

percent.

Section 9.12 of the plan specifies the method for designating

beneficiaries. The section states in part that "[e]ach Participant . . .

may designate a Beneficiary . . . to receive retirement benefits surviving

his death as provided under this Plan, provided, however, that if a

Participant is married on the date of his death, such designation will be

subject to the spousal consent requirements in Secs. 9.1 and 9.2."

Section 9.1.A(6) is the only portion of Section 9.1 and 9.2 that

relates to spousal consent. Under that section, a waiver of the qualified

preretirement survivor annuity is not effective unless the spouse "consents

in writing," the "election designates 
-7-

a specific beneficiary", the "consent acknowledges the effect of the

election," and the "consent is witnessed by a plan representative or notary

public." Donna argues that these requirements were not met and, thus,

Patricia cannot be entitled to fifty percent of the plan proceeds.

The requirement in the plan for spousal consent relates only to

waiver of the qualified preretirement survivor annuity, which by the terms

of section 9.2.B constitutes fifty percent of the vested account and is

paid to the surviving spouse. Designation of a beneficiary for the

remaining fifty percent of the plan proceeds is not subject to the section

9.1.A(6) spousal consent requirement. Therefore, Donna's consent was not

required for the designated beneficiary, Patricia, to receive the remaining

fifty percent of the plan proceeds.

B.

Donna next argues that Patricia forfeited her rights as designated

beneficiary when she executed a separation agreement 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 was

executed "in full satisfaction of all property rights and all obligations

for support otherwise arising out of the[ ] marital relationship."

In our 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, 913

3

F.2d 310, 311-12 (6th Cir. 1990), held that the statutory language

of ERISA requires "ERISA plans [ ] to be administered according to

their controlling documents." The court determined that ERISA

requires a plan administrator to act in "accordance with the

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, reduces

litigation, avoids double liability, and assures beneficiaries of

their right to receive benefits. Id. at 312.

-8-

Co. v. Hill, 877 F.2d 692, 693 (8th Cir. 1989). The "spouse's rights as 3

a beneficiary are extinguished only by terms specifically divesting the

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 terms of the separation agreement divesting a spouse's

rights in the plan. Mohamed, 53 F.3d at 915. We must closely examine the

facts and circumstances before us to determine if 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 stating that the husband should have his interest in a

profit-sharing plan free of any interest of the wife was not specific

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 termination agreement stating that each party would receive

full interest in pensions, retirement plans, IRAs, mutual funds, and life

insurance policies free of claims by the other party was sufficient to

divest the former spouse of her rights as named beneficiary. In that case,

the husband named the wife as beneficiary of an employer's group life

insurance policy. Later, 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 Fox

4

Valley & Vicinity Construction Workers Pension Fund, 897 F.2d at

278-82, disposes of this issue. In that case the property

settlement provided that the parties waived "any interest or claim

in and to any retirement, pension, profit-sharing and/or annuity

plans resulting from the employment of the other party." Id. at

277. The court distinguished the case from Lyman because the

language included a specific, not a general, waiver of pension

rights. Id. at 280. Our decision here is not inconsistent with

that of the Seventh Circuit, when one considers the additional

language contained in the separation 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 the

proceeds of the life insurance policy. Id.

The facts surrounding the marriage and divorce strongly supported our

conclusion. We noted that the wife "could not get 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,

there were no children, and the divorce severed all ties between the

couple. Id.

We distinguished the result reached in Lyman from the result reached

in Fox Valley and Vicinity 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 at

4

915. We held "that the language `full right, title, 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 the

agreement in Mohamed. Instead of stating that "each of the parties shall

be awarded full right, title, interest and equity," Mohamed, 53 F.3d at

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 agreement

states that the parties accept the provisions of the agreement in

satisfaction of property rights and support obligations "otherwise arising

out of the marital relationship" (emphasis added).

When read in light of the magistrate judge's factual findings, we

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 Royal Parkway plan. See Lyman Lumber Co., 877 F.2d at

693-94. Harold and Patricia executed the separation agreement to deal with

their past marital obligations and property. Significantly, there is no

mention of the plan benefits in the separation agreement. The magistrate

judge found that after the divorce, Harold maintained Patricia as the plan

beneficiary. Further, Harold and Patricia "maintained an amicable

relationship" and Harold provided more support to Patricia and the children

than he was legally obligated to provide.

This is a vastly different situation than we faced in Mohamed, and

the record demonstrates that Harold intended for Patricia to be the

beneficiary of 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 children first argue that Harold's

children, not Donna, were entitled to fifty percent of the proceeds from

the Royal Gate plan, after Harold died without designating a plan

beneficiary. They argue that section 9.12 gives the plan administrator

discretion in awarding proceeds from the plan when the participant has not

designated a beneficiary.
-11-

Section 9.12 of the plan provides:

If any Participant shall fail to designate a Beneficiary for

the purposes of this Section, . . . the Plan Administrator

shall designate Beneficiaries on his behalf, but only from

among persons with the following relationship to the

Participant, and only in the order named: (1) spouse, (2)

children, (3) other descendants, (4) parents, (5) other

ancestors, (6) brothers and sisters, (7) nephews and nieces,

and (8) estate.

This section specifically requires the plan administrator to

designate the beneficiary when one has not been named, and it conclusively

specifies the order of selection. Pursuant to the terms of section 9.12,

the surviving spouse, Donna, must be designated as the beneficiary.

Patricia and the children next argue that Donna should not be

entitled to the proceeds from either plan because she waived these rights

in her prenuptial agreement with Harold. They argue that they are entitled

to equitable relief and that a constructive trust should be established in

their behalf. They contend that once the plan proceeds have been

distributed, imposing such an equitable arrangement does not circumvent the

requirements of ERISA.

Section 9.2.B of both the Royal Parkway and the Royal Gate plans

provides that Donna, as surviving spouse, is to receive a qualified

preretirement survivor annuity amounting to fifty percent of the

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 accept

the provisions of the agreement "in lieu of all rights which either of them

would otherwise acquire, by reason of the contemplated marriage, in the

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 Separate

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 with

ERISA's statutory requirements for waiving a spouse's rights to benefits

under the plan. See 29 U.S.C. § 1055(c). As discussed, waiver of a

qualified preretirement survivor annuity requires the participant's spouse

to consent in writing to the election, the election to designate a specific

beneficiary, the spouse's consent to acknowledge the effect of the

election, and the consent to be witnessed by a plan representative or

notary public.

The prenuptial agreement fails to satisfy 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. Donaldson Co., 799 F. Supp. 69, 73 (D. Minn. 1992). The agreement

neither designated a specific beneficiary nor acknowledged the effect of

a waiver. In fact, it failed entirely to mention the pension plans.

Finally, while space was provided for a notary to acknowledge the

agreement, this was not done. Thus, the prenuptial agreement failed to

satisfy the waiver requirements of ERISA or the plans.

However, Patricia and the children argue that even if these

requirements were not met, ERISA does not preempt their equitable claims

to the proceeds of the plans. The Second Circuit rejected a similar

argument 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 was not an effective waiver

under ERISA, id. at 782, and any attempt to force compliance with the

terms of the prenuptial agreement in equity was "merely an attempt to evade

the clear 
 We also note that under section 9.12 of the Royal Gate plan, 5

Donna became the designated beneficiary of fifty percent of the

plan when Harold failed to designate a beneficiary. The prenuptial

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 contentions, 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

by Donna. While we may consider unpublished opinions when no published

opinion would serve as well, we believe that this case adds little support

to Patricia and the children's argument and that Callahan's limited holding

does not apply here. Further discussion of the case is not necessary. We

conclude that imposing a constructive trust in this case would be

inconsistent with the requirements of ERISA and the terms of the plans.

Therefore, Donna was entitled to receive the fifty percent qualified

preretirement survivor 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.