Kunin v. Feofanov

• Decision Date: 20 November 1995
• Docket Number: No. 95-20296,95-20296
• Parties: Isaak KUNIN, Plaintiff-Counter Defendant-Appellee, v. Dmitry FEOFANOV, Defendant-Counter Claimant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 59

69 F.3d 59

Isaak KUNIN, Plaintiff-Counter Defendant-Appellee, v. Dmitry FEOFANOV, Defendant-Counter Claimant-Appellant.

No. 95-20296

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Nov. 20, 1995.

Allan David Goldstein, Morris, Lendais, Hollrah & Brown, Houston, TX, for Kunin.

C. Greg Goodrum, Houston, TX, for Feofanov.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, SMITH and BENAVIDES, Circuit Judges.

PER CURIAM:

In this diversity case, Dmitry Feofanov appeals a summary judgment in favor of Isaak Kunin. For essentially the reasons contained in the district court's comprehensive opinion, we affirm. ¹

Feofanov is the son from a previous marriage 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 TEX.GOV'T CODE ANN. Sec. 804.101 (West 1994), a non-employee spouse's interest in a public pension account terminates at his death. Feofanov concedes the applicability of Sec. 804.101, but argues that the provision violates TEX. CONST. art. XVI, Sec. 15, which prohibits the legislature from transforming the community property of spouses into the separate property of one spouse. The district court found that Sec. 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 plan benefits acquired during the marriage were properly included in the non-employee spouse's estate. The district court found Allard inapplicable, however, as the Allard 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. Id. at 114-15. Because Sec. 804.101 represents a legislative adoption of the terminable interest rule, it is constitutional under Allard.

The district court also held that Sec. 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 Sec. 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 spouse's statutory property interest itself as one that terminates upon the death of such non-member spouse."

AFFIRMED.

APPENDIX

                                 UNITED STATES DISTRICT COURT
                              FOR THE SOUTHERN DISTRICT OF TEXAS
                                       HOUSTON DIVISION
                ISAAK KUNIN,                    Sec
                                                Sec
                                    Plaintiff,  Sec
                                                Sec
                v.                              Sec.   CIVIL ACTION NO. H-93-3824
                                                Sec.
                DMITRY FEOFANOV,                Sec.
                                                Sec.
                                    Defendant.  Sec.
                ----------
                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.

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 connection 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. Sec. 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. See Tex.Educ.Code Ann. Sec. 111 et seq. (Vernon 1991 & Supp.1995). As such, Plaintiff was a "member" of a "public retirement system." See Tex.Gov't Code Ann. Secs. 812.003, 804.001(3) (Vernon 1994).

Plaintiff married Inessa (Dvoskina) Kunin on February 2, 1982. ¹ On June 16, 1993, Mrs. Kunin died, survived only by Plaintiff, Plaintiff brings this action pursuant to the Court's diversity jurisdiction under 28 U.S.C. Sec. 1332 ² seeking a declaratory judgment that Dmitry Feofanov has no right to or interest in the two retirement pension 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.

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 the 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.

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 absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 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 and that the moving party is entitled to judgment as a matter of law. Willis v. Roche Biomedical Lab., Inc., 21 F.3d 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. Anderson 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 assertions that a fact issue exists will not suffice. See Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1442 (5th Cir.1993); Thomas v. Price, 975 F.2d 231, 235 (5th Cir.1992). The nonmovant "must adduce admissible 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 judgment, the district court must view the evidence through the prism of the substantive evidentiary burden. Anderson, 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. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "If the record, viewed in this light, could not lead a rational trier of fact to find" for the nonmovant, summary judgment is proper. Kelley 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 Sec. 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. Sec. 1001 et seq. ("ERISA"). ERISA does not apply, however, to an employee benefit plan if it is a "governmental plan," 29 U.S.C. Sec. 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. Sec. 1002(32). It is undisputed that the University of Houston is an instrumentality of the State of...