1 See No. H-93-3824, Kunin v. Feofanov (S.D.Tex. Mar. 16,

1995). We include the district court's opinion as an appendix.

1 United States Court of Appeals,

Fifth Circuit.

No. 95-20296

Summary Calendar.

Isaak KUNIN, Plaintiff-Counter Defendant-Appellee,

v.

Dmitry FEOFANOV, Defendant-Counter Claimant-Appellant.

Nov. 20, 1995.

Appeal from the United States District Court for the Southern

District of Texas.

Before KING, SMITH and BENAVIDES, Circuit Judges.

PER CURIAM:

In this diversit y case, Dmitry Feofanov appeals a summary

judgment in favor of Isaak Kunin. For essentially the reasons

contained in the district court's co mprehensive opinion, we

affirm. 1

Feofanov is the son from a previous ma rriage of Kunin's

deceased wife. During his marriage to Mrs. Kunin, Kunin

participated in two public pension plans, of which Mrs. Kunin was

the designated beneficiary. Upon Mrs. Kunin's death, Kunin filed

this action seeking a declaratory judgment that Feofanov has no

interest in the pension accounts as Mrs. Kunin's heir.

Under T EX .G OV ' T C ODE A NN

. § 804.101 (West 1994), a non-employee

spouse's interest in a public pension account te rminates at his

death. Feofanov concedes the applicability of § 804.101, but2

argues that the provision violates T EX

. C ONST

. art. XVI, § 15, which

prohibits the legislature from transforming the community property

of spouses into the separate property of one spouse. The district

court found that § 804.101 is constitutional, and we agree.

Feofanov relies upon Allard v. Frech, 754 S.W.2d 111

(Tex.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 788, 102 L.Ed.2d

779 (1989), holding that where no provision was made concerning the

rights of a deceased, non-employee spouse in a private retirement

plan, one-half of the pla n benefits acquired during the marriage

w ere properly included in the non-employee spouse's estate. The

district court found Allard inapp licable, however, as the A llard

court indicated that the legislature could properly adopt the

terminable interest rule, whereby the non-employee spouse's pension

interest terminates at the death of either spouse. I d. at 114-15.

Bec ause § 804.101 represents a legislative adoption of the

terminable interest rule, it is constitutional under Allard.

The district court also held that § 804.101 is constitutional

because it applies to public pension plans. Under Texas law,

public pensions are wholly statutory creations and are subordinate

to the state' s power to alter or abolish pension benefits. The

district court concluded that § 804.101 was a proper exercise of

the legislature's power to define pension benefits: "Section

804.101, however, does not recharacterize community property as

separate property but rather defines the non-member s pouse's

statutory property interest itself as one that terminates upon the

death of such non-member spouse."3

AFFIRMED.

APPENDIX

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ISAAK KUNIN, §

§

Plaintiff, §

§

v. § CIVIL ACTION NO. H-93-3824

§

DMITRY FEOFANOV, §

§

Defendant. §

MEMORANDUM AND ORDER

Pending is Defendant/Counter Plaintiff Dmitry Feofanov's

Motion for Partial Summary Judgment and/or Motion for Partial

Judgment on the Pleadings (Document No. 16), and Plaintiff/Counter

Defendant Isaak Kunin's Motion for Summary Judgment (Document No.

18) . Having carefully considered the summary judgment evidence,

arguments, and authorities submitted by counsel, the Court is of

the opinion that Plaintiff Isaak Kunin's motion should be GRANTED

and Defendant Dmitry Feofanov's motion should be DENIED.1 Defendant asserts that prior to this ceremonial marriage, a

common law marriage between Isaak and Inessa Kunin was

established on September 11, 1981. The Court need not address

whether a fact issue exists on this question, however, because

resolution of the issue only becomes relevant if Defendant has an

interest in the pensions, and, as discussed infra, the Court

concludes that he does not.

4 I. Background

The material facts of this case are not controverted and are

recounted as follows. From late 1979 or early 1980 to the present

time, and in conne ction with his employment as an engineering

professor at the University of Houston, Plaintiff Isaak Kunin has

participated in two pension plans available to employees of the

University. The pension plans are held with Mutual Life Insurance

Company of New York ("MONY") and consist of an Optional Retirement

Plan ("ORP") established by the State of Texas, see Tex.Gov't Code

Ann. § 801.001(2) (Vernon 1994), and a Tax Deferred Annuity Plan

("TDAP") established by the University of Houston, a

state-supported institution of higher education. S ee Tex.Educ.Code

Ann. § 111 et seq. (Vernon 1991 & Supp.1995). As such, Plaintiff

was a "member" of a "public retirement system." S ee Tex.Gov't Code

Ann. §§ 812.003, 804.001(3) (Vernon 1994).

Plain t iff married Inessa (Dvoskina) Kunin on February 2,

1982. 1 On June 16, 1993, Mrs. Kunin died, survived only by

Plaintiff, her husband, and Defendant Dmitry Feofanov, her son from

a previous marriage. Mrs. Kunin left a holographic will that did

not mention or attempt to devise any interest in Isaak Kunin's

pension accounts and did not have a residuary clause. At the time

of her death, Mrs. Kunin was the designated beneficiary of the2 Plaintiff alternatively alleges that federal question

jurisdiction exists because the employee benefit pensions at

issue are governed by the Employee Retirement Income Security Act

of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"). As discussed infra,

ERISA does not govern the pension accounts.

5 pension accounts. The total value of the pension accounts at that

time was apparently $280,273.63, consisting of $206,947.20 in the

ORP account and $73,326.43 in the TDAP account.

Plaintiff brings this action pursuant to the Court's diversity

jurisdiction under 28 U.S.C. § 1332 2 seeking a declaratory judgment

that Dmitry Feofanov has no right to or interest in the two

retirement pensio n accounts. Defendant has filed a counterclaim

seeking a declaration that he is entitled to a one-half interest in

the accounts for all benefits that reflect earnings by Isaak Kunin

during his marriage to Defendant's mother, Inessa Kunin.

II. Discussion

Rule 56(c) provides that "[summary judgment] shall be rendered

forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary

judgment bears the initial burden of informing the district court

of the basis for the motion, and identifying those portions of the

pleading, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, which the moving

party believes demonstrate the ab sence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 1066

S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The moving party has the

burden of showing that there is no genuine issue of material fact

a nd that the moving party is entitled to judgment as a matter of

law. W illis v. Roche Biomedical Lab., Inc., 21 F.3 d 1368, 1371

(5th Cir.1994).

Once the movant carries this burden, the burden shifts to the

nonmovant to show that summary judgment should not be granted.

Celotex, 477 U.S. at 323-26, 106 S. Ct. at 2553-54. A party

opposing a properly supported motion for summary judgment may not

rest upon mere allegations or denials of his pleading, but must set

forth specific facts showing the existence of a genuine issue for

trial. A nderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106

S.Ct. 2505, 2514-15, 91 L.Ed.2d 202 (1986). Unsubstantiated or

conclusory as sertions that a fact issue exists will not suffice.

See Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1442 (5th

Cir.1993); T homas v. Price, 975 F.2d 231, 235 (5th Cir.1992). The

nonmovant "must adduce admis sible evidence which creates a fact

issue concerning the existence of every essential component of that

party's case." Krim, 989 F.2d at 1442.

In considering a motion for summary jud gment, the district

court must view the evidence through the prism of the substantive

evidentiary burden. A nderson, 477 U.S. at 254-56, 106 S.Ct. at

2513-14. All justifiable inferences to be drawn from the

underlying facts must be viewed in the light most favorable to the

party opposing the motion. M atsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 587, 106 S.C t. 1348, 1356, 897

L.Ed.2d 538 (1986). "If the record, viewed in this light, could

n ot lead a rational trier of fact to find" for the nonmovant,

summary judgment is proper. K elley v. Price Macemon, Inc., 992

F.2d 1408, 1413 (5th Cir.1993), cert. denied,

--- U.S. ----, 114

S.Ct. 688, 126 L.Ed.2d 656 (1994), citing Matsushita, 475 U.S. at

577-78, 106 S.Ct. at 1351. On the other hand, if "the factfinder

could reasonably find in [the nonmovant's] favor, then summary

judgment is improper." Id., citing Anderson, 477 U.S. at 249-51,

106 S.Ct. at 2511.

Finally, even if the standards of Rule 56 are met, a court has

discretion to deny a motion for summary judgment if it believes

that "a better course would be to proceed to a full trial."

Anderson, 477 U.S. at 255-56, 106 S.Ct. at 2514. Accord, Veillon

v. Exploration Services, Inc., 876 F.2d 1197, 1200 (5th Cir.1989);

10A C. Wright, A. Miller & Mary Kay Kane, Federal Practice and

Procedure § 2728 (1983).

In his Motion for Summary Judgment, Plaintiff argues that the

pension plans at issue in this case are governed by Title 8 of the

Texas Government Code, and alternatively, that they are governed by

the Employee Retirement Income Security Act of 1974, 29 U.S.C. §

1001 et se q. ("ERISA"). ERISA does not apply, however, to an

employee benefit plan if it is a "governmental plan," 29 U.S.C. §

1003(b), which is defined as "a plan established or maintained for

its employees by the Government of the United States, by the

government of any State or political subdivision thereof, or by any

agency or instrumentality of any of the foregoing." 29 U.S.C. §8

1002(32). It is undisputed that the University of Houston is an

instrumentality of the State of Texas, see Tex.Educ.Code Ann. § 111

et seq. (Vernon 1991 & Supp.1995), and that the ORP and TDAP plans

each constitute a "public retirement system," which is defined as

"[a] continuing, organized program of service retirement,

disability retirement, or death benefits for officers or employees

of the state or a political subdivision, or of an age ncy or

instrumentality of the state or a p olitical subdivision and

includes the optional program governed by Chapter 830." Tex.Gov't

Code Ann. § 801.001(3) (Vernon 1994). Accordingly, the Court holds

as a matter of law that ERISA does not preempt Texas law regarding

the p ension accounts at issue in this case. S ee Roy v. Teachers

Insurance and Annuity Association, 878 F.2d 47 (2d Cir.1989);

Shirley v. Maxicare of Texas, Inc., 921 F.2d 565 (5th Cir.1991).

Sec tion 804.101 of the Texas Government Code declares that

"the death of a spouse of a member or retiree of a public

retirement system to which this chapter applies shall terminate the

interest of the ... spouse in that public retirement system."

Plaintiff accordingly argues that summary judgment in his favor is

warranted because his wife's death terminated any interest that she

might have had in the pension accounts. Defendant has offered no

argument or authority co ntradicting the express language of the

statute. The Court concludes that the plain meaning and import of

§ 804.101 is that n either the estate nor heirs of a non-member

spouse, upon the death of the non-member spouse, have an interest

in or claim to the public retirement system benefits of the member9

spouse.

In his Motion for Partial Summary Judgment and/or Partial

Judgment on the Pleadings, however, Defendant argues that § 804.101

should be disregarded as violative of Art. 16, § 15 of the Texas

Constitut ion, and, accordingly, Defendant should be permitted to

take Inessa Kunin 's community interest in the pension accounts

pursuant to the Texas law of intestate succession. Tex.Prob.Code

Ann. § 45 (Vernon Supp.1995). Art. 16, § 15 of the Texas

Constitution provides:

All property, both real and personal, of a spouse owned or

claimed before marriage, and that acquired afterward by gift,

devise or descent, shall be the separate property of that

spouse; and laws shall be passed more clearly defining the

rights of the spouses, in relation to separate and community

property; ... and spouses may agree in writing that all or

part of their community property becomes the property of the

surviving spouse on the death of a spouse.

Defendant asserts that the first clause of Section 15 defines

the category of separate property, and the last clause describes

the exclusive means by which a survivorship right in community

property may be created. Defendant claims that under § 804.101, a

non-member spouse's recognized community property in terest in a

retirement plan is, without written consent of the non-member

spouse, unconstitutionally recharacterized as the member spouse's

separate property.

In a diversity case, the Court must strive to reach the

decision that a Texas state court would reach. Jackson v. JohnsMansville Sales Corp., 781 F.2d 394, 396-98 (5th Cir.1986), cert.

denied, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986). The

Court is aware of no published opinions addressing the3 One source not available to this Court is certification of

the question to the Texas Supreme Court. Such a procedure is

available only to appellate federal courts. Tex. Const. art. V,

§ 3-c.

4 Defendant correctly notes that Justice Ray's concurring

opinion in Allard suggests that even a terminable interest rule

enacted by the Texas Legislature might violate Art. 16, § 15 of

the Texas Constitution. Id. at 115-16 (Ray, J., concurring).

The Court cannot conclude from a single justice's remark, made in

a concurring opinion not joined by any other member of the Court,

10 constitutionality of § 804.101 or its predecessor statute,

Tex.Rev.Civ.Stat.Ann. 110B, § 78.001, an d, indeed, has found no

cases even citing either statute. In such a situation, the Court

may consider "all available legal sources" in attempting to predict

the course of the Texas Supreme Court. 3 J ackson, 781 F.2d at 398,

quoting 19 C. Wright, A. Miller & E. Cooper, Federal Practice and

Procedure § 4507, at 100-03 (1982).

In Allard v. Frech, 754 S.W.2d 111 (Tex.1988), cert. denied,

488 U.S. 1006, 109 S.Ct. 788, 102 L.Ed.2d 779 ( 1989), the Texas

Supreme Court held that where no provision was made concerning the

rights of a deceased, non-employee spouse in a private retirement

plan, one-half of the plan benefits acquired during the marriage

were properly included in the non-employe e spouse's estate. The

Allard Court declined judicially to adopt a terminable interest

rule, whereby the non-employee spouse's pension i nterest would

terminate at the death of either spouse. I d. at 114-15. The Court

stated that "such matter is better left to the legislature." Id.

at 115. Thereafter, the Texas Legislature enacted § 804.101,

a dopting a terminable interest rule to public retirement systems

upon the death of the spouse of a member. 4that the Texas Supreme Court would find § 804.101

unconstitutional. Moreover, Allard did not involve a public

retirement plan. See infra.

5 Although, Lack is a pre- Allard case, Lack remains good law

relevant to the issues involved in this case because: (1) Lack,

like the instant case and unlike Allard, involves a public

pension plan, (2) Allard does not overrule Lack, and (3) Duckett

v. Board of Trustees, 832 S.W.2d 438, 441-42 (Tex.App.—Houston

[1st Dist.] 1992, writ denied), a post- Allard case, cites Lack

approvingly and reaches its result.

11 Of additional significance in this case is the fact that §

804.101 involves a legislatively-created terminable interest rule

for public pensions. Public pensions are wholly statutory

creations. Texas law is clear that a person's property right in a

public pension is subordinate to the state's power to determine to

whom benefits are to be paid, to set conditions for receiving such

benefits, to modify benefits paid, or to abolish the pension and

accrued benefits altogether. See City of Dallas v. Trammell, 129

Tex. 150, 101 S.W.2d 1009, 1012-13 (1937); D uc kett v. Board of

Trustees, 832 S.W.2d 438, 441-42 (Tex.App.—Ho uston [1st Dist.]

1992, writ denie d); L ack v. Lack, 584 S.W.2d 896

(Tex. Civ.App.—Dallas 1979, writ ref'd n.r.e.); C ook v. Employee

Retirement System of Texas, 514 S.W.2d 329 (Tex.Civ.App.—Texarkana

1974, writ ref'd n.r.e.).

In Lack, the ex-wife of a deceased fireman asserted that she

was entitled to death benefits payable from a public pension plan. 5

584 S.W.2d 896. The L ack Court held that although contributions to

the plan were made with the community funds of the fireman and his

then wife, the right to receive benefits under the plan depended

upon the provisions of the statute, which provided that "[u]pon the6 Section 804.101 does not terminate a non-member spouse's

interest in a public retirement system upon divorce. Provided

certain procedural requirements are met, Title 8 preserves the

non-member ex-spouse's interest. Tex.Gov't Code Ann. § 804.003

(Vernon 1994). This divorce/death distinction made by the Texas

Legislature is in keeping with the purpose of retirement

benefits. See Allard, 754 S.W.2d at 119 (Spears, J., dissenting)

("At divorce, each spouse's needs for ongoing financial support

continue, and thus, retirement benefits are properly divided

between the spouses. By contrast, when the spouse of a retired

employee dies, his or her need for financial support ends. The

retired employee, however, continues to depend on retirement

benefits for economic survival.") (citations omitted).

12 remarriage of the widow,

... the pension shall cease." I d. at 899,

quoting Tex.Rev.Civ.Stat.Ann. art. 6243a, § 10 (Vernon Supp.1977-

78). Likewise, the provisions of Title 8 end a non-employee

spouse's interest in a public pension plan upon his or her death. 6

Defendant argues, though, that § 804.101 unconstitutionally

recharacterizes community property of one spouse as s eparate

property of the other spouse much like the statute at i ssue in

Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925). In Arnold,

the Texas Supreme Court struck down as unconstitutional an Act of

t he Texas Legislature declaring that income earned from a wif e's

separate property remained her separate property. The Court held

that the statute impermissibly expanded the wife's separate estate

beyond the specific parameters of Art. 16, § 15 of the Texas

Constitution, which limited a spouse's separate esta te to

pre-marriage property plus post-marriage property acquired by gift,

devise or descent. Section 804.101, however, does not

recharacterize community property as separate property but rather

defines the non-member spouse's statutory property interest itself

as one that terminates upon the death of such non-member spouse.13

The non-member's statutorily-created property interest thus in

effect is a life estate measured by the life of the non-member.

Or, in other words, the condition precedent to a non-member

spouse's interest in a public pension becoming fully choate is that

the non-member spouse must be alive when the benefits are realized.

For the foregoing reasons, the Court concludes that § 804.101

of the Texas Government Code does not violate the Art. 16, § 15 of

the Constitution of the State of Texas, that under the statute

Inessa Kunin never acquired any interest in her husband's pension

accounts that was capable of surviving her on death, and that no

interest in Plaintiff's pensions passed to Defendant Dmitry

Feofa nov under the laws of Texas intestate distribution upon the

death of Inessa Kunin.

III. ORDER

For the foregoing reasons, it is ORDERED as follows:

1. Defendant/Counter Plaintiff Dmitry Feofanov's Motion for

Partial Summary Judgment and/or Motion for Partial Judgment on the

Pleadings (Document No. 16) is DENIED.

2. Plaintiff/Counter Defendant Isaak Kunin's Motion for

Summary Judgment (Document No. 18) is GRANTED.

3. Because of the application of Title 8 of the Texas

Government Code, Defendant/Counter Plaintiff Dmitry Feofanov has no

right to or interest in Plaintiff/Counter Defendant Isaak Kunin's

government pension plans and benefits held with Mutual Life

Insurance Company of New York under the

Texas community property laws or the laws of intestacy of the14

State of Texas.

The Clerk will enter this Order and send copies to all counsel

of record.

SIGNED at Houston, Texas, this 15th day of March, 1995.

/s/ Ewing Werlein, Jr.

EWING WERLEIN, JR.

UNITED STATES DISTRICT JUDGE