Kerbow v. Kerbow

• Decision Date: 09 October 1976
• Docket Number: Civ. A. No. CA 4-76-121,CA 4-76-122.
• Citation: 421 F. Supp. 1253
• Parties: Vicki KERBOW v. Sammy KERBOW and General Motors Corp. Mary RICHARDSON v. Bennie RICHARDSON and General Motors Corp.
• Court: U.S. District Court — Northern District of Texas

421 F. Supp. 1253

Vicki KERBOW v. Sammy KERBOW and General Motors Corp.

Mary RICHARDSON v. Bennie RICHARDSON and General Motors Corp.

Civ. A. Nos. CA 4-76-121, CA 4-76-122.

United States District Court, N. D. Texas, Fort Worth Division.

October 9, 1976.

COPYRIGHT MATERIAL OMITTED

Carmen Glazner, Fort Worth, Tex., for plaintiffs.

Ira Butler, Fort Worth, Tex., for defendants.

MEMORANDUM AND ORDER

MAHON, District Judge.

These two cases present a common issue of jurisdiction under Title I of the Employee Retirement Income Security Act of 1974, Pub.L. 93-406 (2 Sept. 1974), 29 U.S.C. § 1001 et seq. hereinafter "the Act". Both cases were originally filed in state court and removed to this federal district court by the common Defendant, General Motors Corporation hereinafter "Defendant".¹ Contemporaneously with the filing of its petitions and bonds for removal of these two causes of actions, Defendant filed its answers and motions to dismiss. Plaintiffs subsequently filed motions to remand. The motions to remand and to dismiss came on for hearing before the Court on 31 August 1976. Having carefully considered the pleadings, briefs, and arguments of counsel for all parties, the Court is of the opinion that the above-referenced causes of action should be remanded to state court.

I.

Both of these cases arise out of divorce proceedings between male participants in an employee benefit plan and their wives.

On 14 December 1973, Plaintiff Vicki Kerbow petitioned for divorce from her husband, Defendant Sammy Kerbow. On 10 March 1975, Domestic Relations Court No. 3 of Tarrant County, Texas, entered a decree of divorce, granting the divorce and dividing the community property pertinent to the present lawsuit as follows:

The Court finds that the parties own community property. Based on Respondent's representation to the Court that the combined value of his General Motors shares of stock and interest in a General Motors Retirement Fund is Eight Hundred and No/100 ($800.00) Dollars, and that Series E. Government Bonds in Respondent's name, purchased with community funds, have a total face value of Six Hundred Seventeen and 04/100 ($617.04) Dollars, the Court finds the following division of community property equitable.

IT IS THEREFORE ORDERED AND DECREED that Respondent is awarded the following:

* * * * * *

(b) General Motors stock.

(c) General Motors Retirement Fund.

* * * * * *

Petitioner is awarded the following:

(a) One Thousand Four Hundred and No/100 ($1,400.00) Dollars in lieu of General Motors stock and General Motors Retirement Fund.

* * * * * *

(c) 1965 Volvo automobile.

* * * * * *

All property not disposed of by this Decree shall be owned jointly by Petitioner and Respondent.

On 11 August 1972, Plaintiff Mary Richardson petitioned for divorce from her husband, Defendant Bennie Richardson. On 24 January 1974, the Domestic Relations Court No. 4 of Tarrant County, Texas, entered a decree of divorce, granting the divorce and dividing the community property pertinent to the present lawsuit as follows:

10. That BENNIE RICHARDSON and MARY RICHARDSON hereby agree and stipulate that BENNIE RICHARDSON was employed by General Motors Corporation, November 27, 1953, and that BENNIE RICHARDSON has contributed to the Pension Plan as agreed between General Motors Corporation and United Auto Workers since November 27, 1953; that BENNIE RICHARDSON is past sixty years of age; that BENNIE RICHARDSON could voluntarily retire with pension benefits at age sixty; that MARY RICHARDSON is entitled forty per cent (40%) of pension benefits to which BENNIE RICHARDSON is presently entitled; that BENNIE RICHARDSON's employer, General Motors Corporation and/or the United Auto Workers Union are in exclusive possession of information whereby the amount of retirement benefits could be ascertained as of the date of this decree; that said General Motors Corporation and/or the United Auto Workers Union fail and refuse to calculate the amount of retirement benefits due BENNIE RICHARDSON until the date BENNIE RICHARDSON retires.

11. That BENNIE RICHARDSON agrees to ascertain from his said employer and/or said Union at the time he retires the amount of pension benefits he would have received had he retired as of the date of this divorce decree and to instruct the payor of such benefits to withhold from each retirement payment an amount equal to forty per cent of the amount he would have received had he retired as of the date of this decree and to forward said forty per cent to MARY RICHARDSON.

12. BENNIE RICHARDSON agrees that should he not ascertain the amount certain as set forth in the preceding paragraph for whatever reason, then the amount due MARY RICHARDSON as her community interest in his Retirement Pension Benefit shall be forty per cent (40%) of each payment he receives and shall become due and owing each time he receives a Retirement Pension payment.

On 19 April 1976, Plaintiff Vicki Kerbow filed her original petition in County Court at Law in and for Tarrant County, Texas, praying for judgment defining her interest in a deposit fund for the purchase of stocks and bonds to be delivered to Sammy Kerbow, and naming both Sammy Kerbow and General Motors Corporation as Defendants. Plaintiff Vicki Kerbow's state court petition makes no mention of the Act and sets forth no claim that Plaintiff Vicki Kerbow is a beneficiary under the Act.

On the same date, Plaintiff Mary Richardson filed her original petition in the District Court of Tarrant County, Texas (17th Judicial District), naming both Bennie Richardson and General Motors Corporation as Defendants. In part, her petition states:

The Defendant, General Motors Corporation, has refused to honor the judgment of the Domestic Relations Court, and refused to pay or withhold for Plaintiff any percentage of the pension payments accruing to Bennie Richardson, who retired after the divorce. General Motors Corporation assigns for its dishonor of the judgment a clause of the pension plan forbidding alienation by any employee benefited. Counsel for General Motors overlook the community property law of Texas, that the division of vested rights in the pension plan was simply partition, no "alienation" by either party. The Plaintiff demands of the Defendant, General Motors Corporation, what sum it has paid to Bennie Richardson regardless of the divorce judgment and of sums to accrue to him under the pension plan.

* * * * * *

And the Plaintiff demands judgment for general relief in the premises.

The petition does not mention the Act and sets forth no claim that Plaintiff is a beneficiary under the Act, other than the language quoted above.

Defendant petitioned for removal in both cases on 13 May 1976. In its petitions, Defendant stated:

Said action referred to above and filed in the State Court is one in which the United States District Court has exclusive jurisdiction, in that the said action is one which must be brought under the Labor provisions of the Pension Reform Act, specifically 29 U.S.C.A., § 1132(d)(2) and (f), as more fully appears from the allegations contained in Plaintiff's Original Petition and Citation, copies of which are attached hereto, marked Exhibit "A" and made a part of this Petition.

Nowhere do Defendant's petitions for removal claim that either Plaintiff is a beneficiary under Defendant's Pension Plan. Indeed, Defendant has orally argued that neither Plaintiff is a beneficiary under the Plan, though it construes their petitions to include claims to be such beneficiaries.

Defendant's motions to dismiss are based on its claim that all disbursements of funds under its pension plan are handled exclusively by the National Bank of Detroit, as trustee. Defendant claims, and presented evidence in support thereof, that Defendant has no control over the payment of sums due under the agreement it has with the National Bank of Detroit, which makes all decisions concerning payment under the employee benefit plans.

In their motions to remand, Plaintiffs claim for the first time that they are beneficiaries under the Act. They claim, however, that the real issue in the cases is one of Texas community property law and that, therefore, the Court should remand under motions of comity. In its response to the motions to remand, Defendant has argued that Plaintiffs cannot be construed as beneficiaries under the Act.

II.

The congressional declaration of policy underlying the Act is set forth in 29 U.S.C. § 1001, which provides in pertinent part:

(b) It is hereby declared to be the policy of this Act to protect interstate commerce and the interests of participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto, by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.

Civil enforcement is provided for in 29 U.S.C. § 1132, which states in relevant part:

(a) A civil action may be brought—

(1) by a participant or beneficiary —

* * * * * *

(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.

III.

It is an often stated principle of first importance that the federal courts are courts of limited jurisdiction, which can hear cases only where empowered to do so by the Constitution or by act of Congress. 13 Wright, Miller & Cooper, Federal Practice and Practice § 3522. Where that power is granted by statute, the federal courts must scrupulously confine their jurisdiction to the precise limits that the federal statute has defined. Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971); Turner v. President, Directors & Co. of the Bank of North America, 4 Dall....