### The Honorable Gary A. Fenner, United States District Judge 1 

### for the Western District of Missouri, sitting by designation. Appellee, Anna Hinkel, references herself in this appeal as 2 

### appellee/cross appellant. However, in her brief on appeal, Anna Hinkel fails to challenge the judgment of the District Court in any respect and asks that said judgment be affirmed. Anna Hinkel presents no issues for review which challenge the judgment of the District Court and requests no relief from the judgment as required under FRAP 28(a)(7). Anna Hinkel is an appellee only and not a cross appellant. _________________ Nos. 96-3684/3770

_________________ Prudential Insurance Company, * * Plaintiff, * * v. * * Curtis R. Hinkel, * Appeals from the United States * District Court for the Appellant/Cross-Appellee,* Northern District of Iowa. * Anna Hinkel, a minor, * * Appellee/Cross-Appellant.*

__________ Submitted: June 11, 1997 Filed: July 30, 1997

___________ Before LOKEN and LAY, Circuit Judges, and FENNER, District Judge. 1

___________ FENNER, District Judge. Appellant, Curtis R. Hinkel, appeals the judgment of the Distric t Court w hich granted summary judgment in favor of appellee , Anna Hinkel
. 2 The judgment of the District Court is

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reversed and this cau se remanded with directions that summary judgment be granted in favor of appellant.
The underlying cause is an interplea der action brought by Prudential Life Insurance Company of America (Prudential). Prudential initiated this action in regard to a life insurance policy it had issued to Gail Hinkel in the a mount of $200,000, pursuant to the Servicemen’s Group Lif e Insurance Act, Title 38 U.S.C. § 1965 (SGLIA). At the time of the policy’ s issuance, Gail Hinkel listed her husband, Curtis Hinkel, as beneficiary. Subsequent to Gail’s designation of Curtis as beneficiary, the Hinkels wer e divorced. Upon dissolution of their marriage, C urtis and Gail Hinkel were granted joint custody of their minor child, Anna Hinkel, the appelle e herein. In the dissolution proceeding, Curtis and Gail Hinkel entered int o a Stipulation for Dissolution of Marriage, which was incorporated by the Decree of Dissolution. In this stipulation the parties agreed, among othe r matters, that each would maintain a life insuran ce policy on their life of at least $250,000, naming Anna Hinkel as the sole beneficiary. After the dissolution of her marriage, without changing th e beneficiary of her SGLIA policy from Curtis to Anna, Gail Hinkel died.
Upon Gail’s death, Curtis made claim to the SGLIA policy proceeds as his own property. Rather than pay Curtis, Prudential filed the petition in this cause as a stakeholder of the policy, and asked the Court to decid e whether Curtis Hinkel or Anna Hinkel would be the proper payee.

The issues presented came before the District Court on appellant’ s motion for judgment on the pleadings which was l ater converted to a motion for summary judgment with the consent of counsel for the parties herein. In its order, the District Court

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found Curtis Hinkel “bound by the stipulated Dissolution of Marriag e Settl ement Agreement and court ordered Decree of Dissolution which , together, clearly mandates the child should be the recipient of th e proceeds.” The District Court determined appell ee, Anna Hinkel, to be the beneficiary of the policy holding that under Iow a law a constructive trust should be imposed on the proceeds of the policy, and finding among other matters that Curtis Hinkel had exercised undue influence.

STANDARD OF REVIEW FROM SUMMARY JUDGMENT “In reviewing a decision of a district court to grant summar y judgment we must apply the same strict standard as the district court. . . [O]ur review is therefore do novo.” Robinson v. Monaghan , 864 F.2d 622, 624 (8th Cir. 1989) . A court should grant summary judgment if “there is
no genuin e issue of material fact” and “the moving party is entitled t o jud gment as a matter of law.” F ED .R.C IV .P. 56(c). The burden is on th e movant to establish the absence of a material fact issue by identifyin g portions of the pleadings, depositions, answers to interrogatories , admission on file, and affidavits. Celotex Corp. v. Catrett , 477 U.S. 317 , 323 (1986) . The burden then shifts to the nonmoving party to “set forth sp ecific facts showing that there is a genuine issue for trial. ” F ED .R.C IV .P. 56(e). On e of the principle purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses and the rule should be interpreted in a way that allows it to accomplish this purpose. Celote x Corp. v. Catrett , 477 U.S. at 323-24 . However, in ruling on a summary judgment motion, the Court views the facts in the ligh t most favorable to the nonmoving party and allows that party the benefit of all reasonable infere nces to be drawn from the evidence. Adickes v. S.H. Kress & Co. , 398 U.S. 144, 157 (1970)
.

### 4 APPEAL On appeal, appellant Curtis Hinkel argues that he is entitled t o judgment as a matter of law relying chiefly on the decision of the United States Supreme Court in Ridgway v. Ridgway , 454 U.S. 46 (1981) . We agree.

In Ridgway , Sergeant Ridgway and his first wife were divorced and he
was ord ered to keep in force the insurance policies on his life for th e benefit of the three children of the marriage. After his remarriage , Sergeant Ridgway changed the beneficiary designation on his SGLIA policy fromhis first wife, April, to his second wife, Donna. Both April an d Donna filed claims for the proceeds of the policy. April’s claim was on beha lf of the children, pursuant to the divorce decree. The Suprem e Judicial Court of Maine held that Donna must hold the policy proceeds as constructive trustee on behalf of the children. The United States Supreme Court reversed the decision of the Supreme Judicial Court of Maine
. Ridgway , 454 U.S. at 63.

In Ridgway , the Supreme Court held t hat a state divorce decree, like other law governing e conomic aspects of domestic relations, must give way to clearly conflicting federal enactments as a necessary consequence to th e supremacy clause. Ri dgway, 454 U.S. at 54-55 . The Supreme Court further held th at the controlling provisions of SGLIA, under which an insure d service member possesses the right freely to designate a beneficiary and to alter that choice at any time by communicating the decision in writing to the proper office, prevail over and displace inconsistent state law
. Ridgway , 454 U.S. at 55
. The imposition of a constructive trust in favor of Sergeant Rid gway’s three children by former marriage, in accordance with a

### The parties do not dispute that this language adequately 3 

### references the SGLIA policy in question. 5 state court divorce decree, upon proceeds of an insured’s SGLIA policy was found to be inconsistent with the SGLIA’s antiattachment provision, 3 8 U.S.C. § 770(g). Ridgway , 454 U.S. at 60 . Ther efore, any diversion of an insured’s SGLIA policy by means of a court-imposed constructive trust whic h is contrary to the insured’s beneficiary designation so that the polic y proceeds are to be pa id to someone other than the beneficiary at the time of the insured’s death, operates as forbidden “s eizure” of those proceeds. Ridgway , 454 U.S. at 60.
Appellee, Anna Hinkel, attempts to distinguish this case from R idgway by arguing that the language in the Stipulation of Dissolution in the case at bar created an express trust. The relevant l anguage in the case at bar provides as follows:

3.9 The Husband and Wife shall each maintain a policy o f life insurance on their life of at least $250,000 a nd the minor child shall be named as sole beneficiary of both the Husban d and Wife’s policies. 9.1 Each of the parties will ex ecute and deliver to the oth er party any documents that may be reasonably required t o accomplish the intent of this instrument and shall do all other things incident to this end. In the event either party fails to comply with the provisions of this paragraph within thirty (30) days hereof, this Agreement shall constitute an actua l grant, assignment and co nveyance of the property and rights in su chmanner and with such force and effect as shall b e nec essaryto effectuate the terms of this Agreement. Th e titles appearing in each numbered paragraph at the commencement thereof shall not be construed or considered as part of th e bod yof this Agreement but shall be considered as genera l id entification only of the contents of the respectiv e paragraphs. 3

### 6 Appellee argues that in Ridgway , there was no language in the d ivorce decree similar to paragraph 9.1 above declaring “an actual grant , assignment and conveyance of the property and rights in such manner an d withsuch force and effect as shall be necessary to effectuate the terms of this agreement.”
Appellee’s attempt to distinguish Ri dgway is of no avail. As clearly stated in Ridgway, the only way to change a bene ficiary under the SGLIA is to communicate that decision in writing to the proper office. Ridgway , 45 4 U.S. at 53
. This was never done by Gail Hinkel. To allow a change o f beneficiaryby other means would be contrary to the terms established by Congress as addressed in Ridgway
. Furthermore, SGLIA was intended by C ongress to be construed the same as the Federal Employ ees Group Life Insurance Act (FEGLIA). Mathews, 926 F.Supp. 650, 652 (citing Stribling v. United States , 419 F.2d 1350, 1353 (8th Cir. 1969)) . It has been consistently held in regard to FEGLIA that a divorce decree cannot operate as a waiver or r estriction of an insured’s right to change the beneficiary when federal regulations conflict. See, Metropo litanLife Insurance Company v. Christ , 979 F.2d 575 (7th Cir . 1992); De an v. Johnson, 881 F.2d 948 (10th Cir. 1989) cert. denied, 49 3 U.S. 1011 (1989); Metropolitan Life Insurance Company v. McMorris , 786 F.2 d 379 (10th Cir. 1986); Metropolitan Life Insurance Company v. McShan , 577 F.Supp. 165 (N.D. Cal . 1983); Knowles v. Metropolitan Life Ins. Co., , 514 F.Supp. 515 (N.D. Ga. 1981); Mathews v. Mathews , 926 F.Supp. 650 (N.D. Ohi o 1996)
.
Ad ditionally, appellee argues that the record in the case at ba r supports the finding of the District Court that appellant,

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Curtis Hinkel, exerted undue influence on his ex -wife in regard to her not changing the beneficiary on her SGLIA policy. Anna argues this establishe s an exception to the general principles of Ridgway
. In the case at bar, the District Court relying on Iowa law foun d that Curtis Hinkel had exercised undue influence in r egard to Gail not changing the beneficiary of her SGLIA policy from Curtis to Anna. In Ridgway , the Suprem e Court did recognize that it was not addressing “the lega l aspects of extreme fact situations or of instances where the beneficiary has obt ained the proceeds through fraudulent or illegal means as, fo r example, where the named beneficiary murders the insured service member.” Ridgway , 454 U.S. at 57 . However, the evidence presented in this case is not the type of fraud contemplated by Ridgway as presenting an extreme fac t situation which might cause an exception to the holding of Ridgway , nor is it even sufficient to establish undue influence under Iowa law.
In determining that there was undue influence in the case at ba r, the District Court reliedon the case of In re Matter of Estate of Welch , 534 N.W.2d 109 (Iowa App. 1995) . In In re Welch , th e Court of Appeals of Iowa stated, in pertinent part, as follows:

Undue influence is unfair persuasion of a party who is unde r the domination of the person exercising the persuasion or who by virtue of the relation between them is justifiedin assuming that the person will not act in a manner inconsistent with his or her welfare. Restatement (Second) of Contracts § 17 7 (19 81). The ultimate question is whether the result wa s produced by means that seriously impaired the free an d competent exercise of judgment. Id ., § 177 cmt. b; See Peoples Bank& Trust Co. v. Lala , 392 N.W.2d 179 (Iowa App. 1986)
. There are four elements necessary to sustain a find ing of undue influence. They are: (1) the grantor’s susceptibil ity to undue influence; (2) opportunity to

### The record reflects that the affidavit was received in 4 

### evidence without objection by appellant. 8 exerci se such influence and effect the wrongful purpose; (3 ) disposition to influence unduly for the purpose of procuring an improper favor; and (4) a result clearly the effect of undu e influence. Pence v. Rawlings , 453 N.W.2d 249, 252 (Iowa App. 1990)
. In re Matter of Estate of Welch , 534 N.W.2d at 112
. The only evidence of undue influence presented to the District Court
was an af fidavit from Gail Hinkel’s mother, Connie Loftus. In he r 4 affida vit, Ms. Loftus stated that after Gail’s dissolution from Curtis , Gail stated to her as follows:

“. . . that [Gail] had not changed the beneficiary form t o date. [Gail] indicated that she didn’t know if she was going to based on the fact that Curtis had told her that it would b e better for Anna if it was left as is and not changed.”

The affidavit of Connie Loftus does not establish a result which was clearly t he effect of undue influence. Curtis and Gail Hinkel wer e divorc ed which circumstance did not establish a relationship where Gai l would be justified in assuming that Curtis would act in a manner consisten t with her welfare. The affidavit is also clearly insufficient to establish that Gail’s free and competent exercise of judgm ent was seriously impaired byCurtis. Even considering the evidence in the light most favorable to appellee and allowing appellee the benefit of al l reasonable inferences to be drawn from the evidence, we find that there is no genuine issue o f material fact and that appellant is entitled to judgment as a matter o f law.

### 9 The ju dgment of the District Court is reversed and this cause i s remande d with directions that summary judgment be entered in favor o f Curtis Hinkel.
A true copy.

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