632 F.2d 740 (9th Cir. 1980), 78-2313, Stone v. Stone

Docket Nº:78-2313.
Citation:632 F.2d 740
Party Name:Noel Zeona STONE, Plaintiff-Appellee, v. Ward Herbert STONE, Defendant, and Seafarers International Union, Pacific District, Pacific Maritime Association Pension Plan, Defendant-Appellant, and Carpenters Pension Trust for Southern California, Intervenor-Appellant.
Case Date:September 29, 1980
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 740

632 F.2d 740 (9th Cir. 1980)

Noel Zeona STONE, Plaintiff-Appellee,

v.

Ward Herbert STONE, Defendant,

and

Seafarers International Union, Pacific District, Pacific

Maritime Association Pension Plan, Defendant-Appellant,

and

Carpenters Pension Trust for Southern California,

Intervenor-Appellant.

No. 78-2313.

United States Court of Appeals, Ninth Circuit

September 29, 1980

Argued July 9, 1980.

Submitted July 23, 1980.

Rehearing Denied Nov. 24, 1980.

Page 741

Lawrence Teplin and John S. Miller, Jr., Los Angeles, Cal., Michael H. Salinsky, San Francisco, Cal., argued, for defendant-appellant; Edward A. Scallet, Washington, D. C., Dennis Daniels, Ernst & Daniels, John Paul Jennings, Noble K. Gregory, San Francisco, Cal., on brief.

Dennis R. Pedersen, Walnut Creek, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before WRIGHT, GOODWIN and WALLACE, Circuit Judges.

WALLACE, Circuit Judge:

Seafarers International Union, Pacific District-Pacific Maritime Association Pension Plan (the Plan) appeals from the district court's grant of summary judgment in favor of Noel Zeona Stone (Noel). Stone v. Stone, 450 F.Supp. 919 (N.D.Cal.1978). On the merits, the case presents the question whether the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001, et seq., preempts California community property laws insofar as they require ERISA-regulated employee benefit plans to pay part of a participant's benefits directly to his or her divorced spouse. Also raised is the question whether the district court has jurisdiction over Noel's claim. We affirm.

I

In 1973, Noel instituted dissolution proceedings against her husband, Ward Herbert Stone (Ward), in the California Superior Court for the County of Alameda. On September 25, 1974, that court entered an interlocutory judgment dissolving the marriage. In its interlocutory order, the court ruled that one of the Stones' community assets was a $425 monthly pension pursuant to which the Plan has made payments to Ward since his retirement in 1970. The superior court awarded to Noel a 40% interest in these monthly payments. On October 17, 1974, the court entered a final judgment of dissolution, incorporating the provisions of the interlocutory decree.

From October 1974 to May 3, 1977, Ward failed to comply with the terms of the decree. In particular, he failed to pay to Noel her share of his monthly pension benefits. Noel tried unsuccessfully to join the Plan to her dissolution suit by moving in 1976 to modify the final judgment.

On May 3, 1977, Noel filed suit in the California Superior Court for the County of Alameda against both Ward and the Plan. She alleged that she was the "owner" of 40% of Ward's share in the fund operated by the Plan, and that Ward and the Plan were converting her property each and every month for the use of Ward. Noel sought an order requiring the Plan to pay 40% of Ward's monthly pension benefits directly to her. The Plan petitioned for removal of Noel's civil action to the district court. Noel did not move to remand the action to state court, and has not otherwise objected to removal. Ward did not appear. Ward has left the country, lives in Mexico, is beyond the reach of state court process, and has no property to be levied upon.

The parties stipulated to the facts for purposes of cross-motions for summary judgment. The issue presented in these motions was whether ERISA preempts a state court from ordering an ERISA-regulated pension plan to pay a plan participant's pension benefits directly to his or her ex-spouse. After determining that it had jurisdiction, the district court held that ERISA does not preempt such state-court orders. Accordingly, the district court granted Noel's motion for summary judgment

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against the Plan. The district court also held that it lacked pendent jurisdiction over Noel's claim against Ward, and that even if pendent jurisdiction were present, it would be an abuse of discretion to exercise it. Hence, the district court remanded the state claim against Ward to state court.

II

The district court's ruling on the merits was clearly correct. As our decision in Carpenters Pension Trust v. Kronschnabel, 632 F.2d 745 (9th Cir. 1980), demonstrates, the Supreme Court's summary dismissal of the appeal in In re Marriage of Campa, 444 U.S. 1028, 100 S.Ct. 696, 62 L.Ed.2d 664 (1980) (Campa ), binds district and circuit courts to the view that ERISA does not preempt state-court orders requiring a pension plan to pay a community property share of a plan participant's monthly benefit payments directly to his or her ex-spouse. The sole question presented by the instant appeal, therefore, is whether the district court properly exercised jurisdiction to reach the merits in this case.

III

As indicated above, Noel did not object to the Plan's removal of the entire case to the district court. It is well-established

that where after removal a case is tried on the merits without objection and the federal court enters judgment, the issue in subsequent proceedings on appeal is not whether the case was properly removed...

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