Carmona v. Carmona

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JANIS CARMONA, 
Plaintiff,
v.
JUDY CARMONA; HILTON HOTELS
CORPORATION, Retirement Plan,
Defendants,
v. No. 06-15581
NEVADA RESORT ASSOCIATION D.C. No.
INTERNATIONAL ALLIANCE OF  CV-04-01310-
THEATRICAL AND STATE EMPLOYEES KJD/RJJ
LOCAL 720 PENSION TRUST
(I.A.T.S.E. Trustees),
Cross-claimant-Appellant,
v.
JUDY CARMONA, Successor
representative of Lupe N.
Carmona deceased,
Cross-defendant-Appellee.


13083
13084 CARMONA v. CARMONA

JANIS CARMONA, a.k.a. JANIS 
KESTER,
Plaintiff-Appellant,
No. 06-15938
v.
D.C. No.
JUDY CARMONA, Successor  CV-04-01310-KJD/
Representative of Lupe N. RJJ
Carmona Deceased; HILTON
OPINION
HOTELS CORPORATION, Retirement
Plan,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding

Argued and Submitted
March 11, 2008—Phoenix, Arizona

Filed September 17, 2008

Before: Michael Daly Hawkins, Sidney R. Thomas, and
Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton
 CARMONA v. CARMONA 13087

COUNSEL

William E. Freedman (argued), William E. Freedman, Char-
tered, Las Vegas, Nevada, for plaintiff/appellant Janis Car-
mona.

Marshal S. Willick (argued), Willick Law Group, Las Vegas,
Nevada, for defendant/cross-defendant/appellee Judy Car-
mona.

Adam S. Segal (argued), Jessica C. Espinoza, Schreck Brig-
none, PC, Las Vegas, Nevada, for cross-claimant/appellant
Nevada Resort Association International Alliance of Theatri-
cal & State Employees Local 720.
13088 CARMONA v. CARMONA
Sheri Ann F. Forbes (argued), Thomas F. Kummer, Kummer
Kaempfer Bonner Renshaw & Ferrario, Las Vegas, Nevada,
for defendant/appellee Hilton Hotels Corporation, Retirement
Plan.

OPINION

CLIFTON, Circuit Judge:

This case requires us to once again navigate the complex
statutory scheme set out in the Employee Retirement Income
Security Act of 1974 (“ERISA”), 88 Stat. 832, as amended,
29 U.S.C. § 1001 et seq., and to answer an open question in
this Circuit: whether or not a participant to an ERISA regu-
lated Qualified Joint and Survivor Annuity (“QJSA”) plan
may change the surviving spouse beneficiary after the partici-
pant has retired and the annuity has become payable.

The conflict here arises between the final two wives of
Lupe Carmona, a participant in two ERISA regulated pension
plans, the Hilton Hotels Pension Plan (“Hilton”) and the
Nevada Resort Association International Alliance of Theatri-
cal and State Employees Local Pension Trust (“IATSE”).
Janis Carmona, Lupe’s eighth wife and his spouse at the time
of his retirement, appeals the district court’s dismissal of her
complaint for lack of jurisdiction against Hilton and Judy Car-
mona, Lupe’s ninth wife and his spouse at the time of his death.1
IATSE, Lupe’s second pension plan provider, appeals the dis-
trict court’s grant of summary judgment in favor of Judy on
its cross-claim. On the merits, both IATSE and Janis argue
that Janis, as Lupe’s spouse at the time of his retirement, is
the rightful surviving spouse beneficiary for the purposes of
Lupe’s retirement plan because her interest in surviving
1
Because they share the same last name, in this opinion we refer to
Lupe, Janis, and Judy by their first names.
 CARMONA v. CARMONA 13089
spouse benefits irrevocably vested at the time of Lupe’s
retirement.

Joining the Fourth Circuit, as well as a number of other
jurisdictions, we hold that QJSA surviving spouse benefits
irrevocably vest in the participant’s spouse at the time of the
annuity start date—in this case the participant’s retirement2 —
and may not be reassigned to a subsequent spouse. Applying
that conclusion to the judgment entered by the district court
in this case, we affirm in part and reverse in part.

I. Background

The essential facts of this case are undisputed. Lupe Car-
mona married his eighth wife,3 Janis Carmona (nee Kester),
in 1988. While they were married, Lupe designated Janis as
his survivor beneficiary under two pension plans which pro-
vided QJSA benefits, Hilton and IATSE. Under the terms of
these plans, Janis would receive a portion of Lupe’s monthly
pension benefits upon his death if she survived him. After
naming Janis as the survivor beneficiary of both plans, Lupe
retired and began collecting pension benefits under the plans
in 1992. Then, in 1994, Lupe and Janis began divorce pro-
ceedings.
2
“Annuity start date” and “retirement date” are the same date in this
case and we use the two terms synonymously. For the purposes of QJSA
benefits, the retirement date and the annuity start date are often the same.
As a result, most of the cases addressing this issue have also used “retire-
ment date” synonymously with “annuity start date.” We recognize that the
terms may not always be synonymous: for example, a participant could
retire early, but he or she may not receive benefit payments until a later
date. For the purposes of this opinion, however, we need not determine
what effect an early retirement would have on the vesting rules. We leave
to another day whether the same vesting rules apply to a participant’s early
retirement.
3
Although Lupe had many wives, the dispute in this case only concerns
wives number eight and nine. None of the previous seven wives are
involved in the present litigation.
13090 CARMONA v. CARMONA
Prior to entry of the formal divorce decree, Lupe inquired
into whether he could remove Janis as the named survivor
beneficiary. The two plan administrators each refused to
change the designated survivor spouse beneficiary and indi-
cated that the designation was irrevocable upon Lupe’s retire-
ment. Nonetheless, in its 1997 divorce decree, the Nevada
family court, perhaps without taking into account the nature
of the QJSA survivor annuities, granted Lupe both the IATSE
and Hilton pensions as his sole and separate property. The
family court awarded Janis her own pension plan as her sole
and separate property as well. Because there was a difference
between the value of the pension awarded to Janis and the
value of the pensions awarded to Lupe, the court also ordered
that Lupe pay Janis $1500 “as and for an equalization of the
values of the marital portion of the pensions divided.”

In 1997, after his divorce from Janis had been finalized,
Lupe married Judy Carmona (nee Walkington), his ninth and
final spouse. He petitioned the family court for a Qualified
Domestic Relations Order (“QDRO”) revoking Janis’s desig-
nation as the survivor beneficiary of the IATSE and Hilton
pensions and substituting Judy, his new wife. Lupe died in
1999. Judy survived him, as did Janis. The day after Lupe’s
death, the family court concluded that Janis had waived her
right to Lupe’s pension plan benefits by the divorce decree’s
allocation of property and that Janis would be unjustly
enriched if she remained the survivor beneficiary. To avoid an
inequitable result, the court ordered the plan administrators to
change the survivor beneficiary from Janis to Judy. Alterna-
tively, if the plans refused or were unable to change the bene-
ficiary, the family court ordered the funds Janis received to be
placed in a constructive trust with Judy as the beneficiary.

Janis appealed the family court’s decision to the Nevada
Supreme Court. In 2003, that court affirmed the family court
order and concluded that ERISA did not preempt either the
family court’s order to change the beneficiaries or the con-
 CARMONA v. CARMONA 13091
structive trust placed on the plan proceeds.4 Janis sought
review of the decision by the United States Supreme Court,
but the Court denied certiorari.

In 2004, after the Nevada Supreme Court decision, the fam-
ily court issued another order requiring Janis to deposit the
survivor benefit funds into a constructive trust. At the same
time, the family court also entered two orders, each labeled as
a “Qualified Domestic Relations Order,” directing the two
plans to pay survivor benefits either to Judy or to the con-
structive trust. Janis attempted to remove the case to federal
court but the federal district court remanded the action back
to the family court, concluding that Janis had failed to timely
file for removal and, in any event, that the Rooker-Feldman
doctrine required the court to dismiss the suit for lack of juris-
diction.

This appeal originates from the most recent federal suit
filed by Janis against Judy, Hilton, and IATSE. Janis brought
suit under 29 U.S.C. § 1132(a)(3) seeking “to enjoin any act
or practice which violates any provision [of ERISA] or the
terms of the plan.” In response to Janis’s suit, IATSE Trustees
filed a cross-claim against Judy seeking declaratory relief.

The district court concluded that the Rooker-Feldman doc-
4
While Janis was pursuing her original appeal through the Nevada sys-
tem, she also brought suit in Nevada federal district court seeking to
recover benefits under the terms of the ERISA pension plan. See 29 U.S.C.
§ 1132(a)(1)(B). Janis named the family court judge, Judy’s attorneys, the
Hilton Plan administrators and Judy in the suit. In 2001, before the Nevada
Supreme Court made its final determination in the original case, District
Judge Philip M. Pro dismissed the suit against all the defendants except
for Hilton, concluding that the court lacked subject matter jurisdiction
under the Rooker-Feldman doctrine. The district court later dismissed Hil-
ton because Janis could not join Judy, an indispensable party.
Also during this time, Janis declared bankruptcy. The bankruptcy court
also concluded that Janis did not have a legal or equitable interest in the
survivor benefits from the two QJSAs.
13092 CARMONA v. CARMONA
trine barred Janis’s suit against Judy and Hilton. The court
also concluded that neither Rooker-Feldman nor res judicata
barred IATSE’s claim because it was not a party to the prior
suits and was not in privity with Janis. On the merits, the dis-
trict court concluded that ERISA does not preclude a state
court from issuing a QDRO substituting an alternate payee for
a surviving spouse after a plan participant’s retirement.
IATSE appeals the district court’s denial of summary judg-
ment and subsequent dismissal of its complaint against Judy.
Janis appeals the district court’s decision that it lacked subject
matter jurisdiction over Janis’s claims against Hilton and
Judy. We consider both appeals together because they arise
from the same factual background.

II. Discussion

We review an application of the Rooker-Feldman doctrine
de novo. Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003).
The interpretation of ERISA, including whether ERISA pre-
empts state law, is a question of law which we also review de
novo. Metropolitan Life Ins. Co. v. Parker, 436 F.3d 1109,
1113 (9th Cir. 2006); Cleghorn v. Blue Shield of California,
408 F.3d 1222, 1225 (9th Cir. 2005).

A. The Rooker-Feldman Doctrine and Preclusion

We first consider whether any preclusion doctrine prevents
Janis from bringing her claims against Judy and Hilton, or
IATSE from bringing its declaratory judgment action. We
agree with the district court and conclude that the district
court lacked jurisdiction, under the Rooker-Feldman doctrine,
to adjudicate Janis’s claims against Judy and Hilton, but that
IATSE is not precluded from asserting its cross-claim here.

The Rooker-Feldman doctrine takes its name from two
Supreme Court cases: Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923), and District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462 (1983). It stands for the relatively
 CARMONA v. CARMONA 13093
straightforward principle that federal district courts do not
have jurisdiction to hear de facto appeals from state court
judgments. Noel, 341 F.3d at 1155. The jurisdictional prohibi-
tion arises from a negative inference drawn from 28 U.S.C.
§ 1257 which grants jurisdiction to review state court deci-
sions in the United States Supreme Court. Kougasian v.
TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004) (citation
omitted). Because it grants jurisdiction to the Supreme Court,
section 1257 impliedly prohibits lower federal courts from
reviewing state court decisions. Id.

[1] Stated simply, the Rooker-Feldman doctrine bars suits
“brought by state-court losers complaining of injuries caused
by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and
rejection of those judgments.” Exxon Mobil Corp. v. Saudi
Basic Indust. Corp., 544 U.S. 280, 284 (2005). In practice, the
Rooker-Feldman doctrine is a fairly narrow preclusion doc-
trine, separate and distinct from res judicata and collateral
estoppel. See Noel, 341 F.3d at 1162-64.

We have previously explained how federal courts should
distinguish a forbidden de facto appeal of a state court deci-
sion that is barred by Rooker-Feldman from a suit that is
barred by other preclusion principles. A suit brought in fed-
eral district court is a “de facto appeal” forbidden by Rooker-
Feldman when “a federal plaintiff asserts as a legal wrong an
allegedly erroneous decision by a state court, and seeks relief
from a state court judgment based on that decision.” Id. at
1164. In contrast, if a plaintiff “asserts as a legal wrong an
allegedly illegal act or omission by an adverse party, Rooker-
Feldman does not bar jurisdiction.” Id.

[2] Although it is often misapplied, we agree with the dis-
trict court that Rooker-Feldman is applicable in this case, and
therefore the district court was correct in dismissing Janis’s
claims for lack of jurisdiction. According to her amended
complaint, Janis claimed that the family court orders were
13094 CARMONA v. CARMONA
based upon an erroneous application of ERISA preemption
law and that the family court unlawfully reassigned benefits
in which she had an irrevocable vested interest. She sought
relief from the state court orders and prayed for the federal
district court to “order that the proceedings in Family Court
in case number D181580 be dismissed with prejudice” and to
enjoin enforcement of the orders. Thus she was asserting both
that her injury was caused by a “legal error or errors by the
state court” and that the appropriate remedy was “relief from
the state court judgment.” Kougasian, 359 F.3d at 1140.

The types of claims Janis presented in this case parallel
those asserted in Feldman, 460 U.S. 462, one of the cases
from which the doctrine takes its name. In Feldman, the fed-
eral plaintiffs sought admission to the District of Columbia
bar. The local court refused to grant the plaintiffs waivers
from the local rule that only graduates from accredited law
schools could sit for the bar exam. The plaintiffs then filed
suit in federal court. The plaintiffs sought declaratory judg-
ments that the rule violated the Fifth Amendment, and injunc-
tions that would require the defendants to permit them to take
the examination. One of the plaintiffs also sought the alterna-
tive relief of admission to the bar or a determination of
whether his training provided him the same competence as
graduates of accredited law schools. See Feldman, 460 U.S.
at 468-69. The appeals were consolidated and the Supreme
Court held that the suit was a de facto appeal of the local
court order to the extent that it sought review of the local
court’s denial of waiver. As such the district court lacked sub-
ject matter jurisdiction to hear the appeal. Id. at 482.

[3] Like Feldman, Janis did not argue that either Judy or
Hilton caused her injury, claims that would not be within the
limits of Rooker-Feldman. See Noel, 341 F.3d at 1163.
Rather, Janis complained of a “harm caused by a state court
judgment that directly withholds a benefit from [her] . . .
based on an allegedly erroneous ruling by that court.” Id. Her
claim therefore fits within the narrow constraints of the Ninth
 CARMONA v. CARMONA 13095
Circuit’s application of the Rooker-Feldman doctrine. We
agree with the district court that it lacked jurisdiction to hear
the merits of Janis’s claims against Hilton and Judy because
Janis’s suit was a forbidden de facto appeal of a state court
judgment.

[4] Janis also argues that Rooker-Feldman does not apply
to state court orders that conflict with ERISA because ERISA
grants exclusive jurisdiction to the federal courts. Rooker-
Feldman’s jurisdictional bar is one of congressional intent and
not constitutional mandate. Mozes v. Mozes, 239 F.3d 1067,
1085 n.55 (9th Cir. 2001). Where Congress explicitly grants
exclusive jurisdiction to federal courts, Rooker-Feldman can-
not bar collateral review of a state court order in federal court.
See In re Gruntz, 202 F.3d 1074, 1078-79 (9th Cir. 2000) (en
banc) (establishing that collateral review of state court pro-
ceedings in habeas and bankruptcy cases is not jurisdiction-
ally barred under Rooker-Feldman); see also Mozes, 239 F.3d
at 1085 n.55; G.C. and K.B. Inv., Inc. v. Wilson, 326 F.3d
1096, 1103 n.4 (9th Cir. 2003).

[5] Although the present suit, as pleaded, arises under the
exclusive jurisdiction of federal courts, when the parties pro-
ceeded initially, the state court had concurrent jurisdiction to
hear the ERISA claim under 29 U.S.C. § 1132(a)(1)(B). In the
state court proceedings, Janis failed to remove the proceed-
ings to federal court and thus implicitly subjected herself to
the final determination of the state court. Because Congress
had established concurrent jurisdiction at that time, we con-
clude that it did not intend to prevent the Rooker-Feldman
jurisdictional bar.

[6] Although Janis’s claims are barred, IATSE’s cross
claim against Judy is not, even though it raises the same legal
issue. Neither the law of the case doctrine nor state law res
judicata principles bar IATSE’s cross claim. The law of the
case doctrine only applies to successive appeals in the same
suit. See Hsu v. County of Clark, 173 P.3d 724, 730 n.26
13096 CARMONA v. CARMONA
(Nev. 2007). Where the suit involves a new party and new
claims, as it does here, it is only res judicata, and not the law
of the case doctrine, that may apply. See id.

[7] Similarly, res judicata does not preclude IATSE from
establishing its obligations with respect to Judy and Janis.
Under Nevada law, the party asserting res judicata must estab-
lish (1) the identical issue was already decided, (2) there was
a final judgment on the merits, and (3) the suit involved the
same party or their privies. See Holcombe v. Hosmer, 477
F.3d 1094, 1097-98 (9th Cir. 2007); Bennett v. Fid. & Deposit
Co. of Md., 652 P.2d 1178, 1180 (Nev. 1982). Res judicata
does not apply here because IATSE was not a party to the first
state court suit nor was it in privity with Janis. Although they
advance similar arguments with a similar goal in mind—to
establish that Lupe was precluded from changing Janis’s ben-
eficiary status after his retirement—they each maintain unique
interests. IATSE must concern itself with the correct adminis-
tration of its pension plans, and it has fiduciary duties distinct
from the interests of the wives in this case. See, e.g., 29
U.S.C. § 1104. Janis’s interest is merely in receiving the
remainder benefits to which she feels she is entitled. Because
Janis and IATSE do not share an identity of interests, Janis’s
prior suits have no preclusive effect on IATSE’s claim that
the state court QDROs were insufficient to transfer benefits.5
5
In addition to illustrating the pitfalls of interpreting ERISA, this case
also illustrates the problems that arise when a plan trustee fails to join liti-
gation until the eleventh hour despite the plan’s ongoing interest in the
outcome. Although we conclude that no legal doctrine prohibits IATSE
from bringing the present declaratory judgment action, we agree with the
district court that the plan trustee’s failure to join itself to the litigation
earlier was unnecessary and could have spared the parties involved great
time and expense. We also note that while the result here may seem
anomalous—IATSE may pay out benefits to Janis while Hilton may pay
out benefits to Judy—we conclude that this is the result dictated by the
unusual circumstances before us. The application of preclusion doctrines
and jurisdictional bars cannot turn on the outcome of the underlying argu-
ments on the merits.
 CARMONA v. CARMONA 13097
See Taylor v. Sturgell, 128 S.Ct. 2161 (2008) (overruling
Kourtis v. Cameron, 419 F.3d 989, 998 (9th Cir. 2005) and
narrowly construing circumstances in which a non-party may
be bound by prior judgment); LaForge v. State, Univ. and
Cmty. College Sys. of Nev., 997 P.2d 130, 133 (Nev. 2000).
We turn now to the merits of the case, and the heart of the
ERISA question.

B. The Effect of a Domestic Relations Order on Survivor
Benefits

Congress originally enacted ERISA to protect the rights of
workers who earn pension benefits and to encourage plan par-
ticipation. PAUL J. SCHNEIDER, BRIAN M. PINHEIRO, ERISA: A
COMPREHENSIVE GUIDE §1.02 (3d ed. 2008). In addition to pro-
tecting plan participants, Congress also sought to protect plan
beneficiaries. See Boggs v. Boggs, 520 U.S. 833, 845 (1997).
In order to meet those ends Congress enacted an intricate,
comprehensive statute that governs both pension and welfare
plans. Id. at 841. ERISA pension plans must comply with par-
ticipation, vesting, and funding requirements. Id.

More recently, Congress further refined the statutory
framework with the Retirement Equity Act of 1984 (“REA”),
Pub. L. No. 98-397, 98 Stat. 1426, which particularly sought
to protect the rights of surviving spouses. These amendments
modified and strengthened the expansive coverage for surviv-
ing spouses by providing economic security through “a stream
of income to surviving spouses,” even after the participant’s
death. Boggs, 520 U.S. at 843.

In order to protect surviving spouses in the event of the
plan participant’s death or divorce, ERISA provides for two
types of survivor annuity benefits. See Hamilton v. Wash.
State Plumbing & Pipefitting Indus. Pension Plan, 433 F.3d
1091, 1095 (9th Cir. 2006). If a vested participant dies before
the annuity start date and the participant is survived by a
spouse, the surviving spouse is entitled to a qualified prere-
13098 CARMONA v. CARMONA
tirement survivor annuity (“QPSA”). 29 U.S.C. § 1055(a)(2).
Because Lupe died after retirement, his annuity benefits were
paid in the form of the second type, a qualified joint and sur-
vivor annuity or “QJSA.” 29 U.S.C. § 1055(a)(1). QJSA ben-
efits arise when the participant does not die before the annuity
starting date. Id. These benefits are payable to the plan partici-
pant for his lifetime after the annuity start date and, if the plan
participant dies before his spouse, the surviving spouse will
receive no less than 50 percent of the amount of the annuity
for the remainder of her lifetime. See 29 U.S.C.
§ 1055(d)(1)(A).

[8] “ERISA requires that every [QJSA] include an annuity
payable to a nonparticipant surviving spouse.” Boggs, 520
U.S. at 842. These QJSA benefits are particular to the surviv-
ing spouse and may not be waived by the participant alone.
Id. In order for a participant’s spouse to waive her interests in
QJSA benefits, the spouse must consent in writing, and in the
presence of a plan representative or notary public, during the
applicable election period. See 29 U.S.C. § 1055(c). Under
these provisions, Janis, as Lupe’s surviving spouse at the time
of his retirement, was entitled to his QJSA benefits after his
death. She did not waive her interest in the surviving spouse
benefits during the applicable election period or consent to
have Judy designated as the beneficiary. See Boggs, 520 U.S.
at 842. We must determine, then, whether other provisions of
ERISA permit the Nevada family court to reassign the QJSA
survivor benefits from Janis to Judy.

ERISA contains an anti-alienation provision and a preemp-
tion provision that restrict the ability of state courts and plan
participants to transfer and alter interests in ERISA-governed
retirement benefits. See 29 U.S.C. § 1056 (d)(1) (“Each pen-
sion plan shall provide that benefits provided under the plan
may not be assigned or alienated.”); 29 U.S.C. § 1144(a)
(establishing that ERISA “supercede[s] any and all State laws
insofar as they may . . . relate to any employee benefit plan
. . . .”). Despite this broad preemption and anti-alienation
 CARMONA v. CARMONA 13099
scheme, Congress has recognized that states, in some circum-
stances, should be able to enforce their own domestic rela-
tions laws with respect to ERISA pensions. As a result, state
domestic relations orders (“DROs”) that comply with statu-
tory requirements are exempt from both the anti-alienation
and preemption provisions of ERISA. 29 U.S.C. § 1144(b)(7);
29 U.S.C. § 1056 (d)(3); Hamilton, 433 F.3d at 1096 n.5. The
qualified domestic relations order, or QDRO, “is a subset of
domestic relations orders that recognizes the right of an alter-
nate payee to receive all or a portion of the benefits payable
with respect to a participant under the plan.” Hamilton, 433
F.3d at 1096 (citing 29 U.S.C. § 1056 (d)(3)(B)(i)(I)) (internal
quotation marks omitted).

Although state courts, via DROs, may create enforceable
interests in the proceeds of an ERISA plan, there are limita-
tions on the ability of state courts to create enforceable prop-
erty interests in alternate payees. See Trs. of the Dirs. Guild
of Am.-Producer Pension Benefits Plans v. Tise, 234 F.3d
415, 420 (9th Cir. 2000). First, in order for a DRO to be con-
sidered a QDRO, the state courts must fulfill certain specific-
ity requirements. These requirements allow a plan
administrator to more easily administer the plan and reduce
the risk of making improper payments. See Hamilton, 433
F.3d at 1096-97 (citing In re Gendreau, 122 F.3d 815, 817-18
(9th Cir. 1997)). A DRO meets the requirements of a QDRO
and thus is enforceable only if the order “clearly specifies” (1)
the name and mailing address of both the participant and the
alternate payees, (2) the amount or percentage of the partici-
pant’s benefits to be paid to each alternate payee, (3) the num-
ber of payments to which the order applies, and (4) the plan
to which the order applies. 29 U.S.C. § 1056 (d)(3)(C). If the
state court fails to substantially comply with the statutory
QDRO requirements, even a valid domestic relations order is
not enforceable against a pension plan. See Hamilton, 433
F.3d at 1097.6
6
It was argued in this appeal that the relevant orders entered by the
Nevada family court did not satisfy this specificity requirement, but we do
not need to resolve that issue, given our conclusion that the Nevada
court’s DROs did not create interests enforceable under ERISA’s scheme.
13100 CARMONA v. CARMONA
Second, the DRO itself must create an enforceable interest
that is permitted under ERISA’s statutory scheme. See Hamil-
ton, 433 F.3d at 1097-99. A valid DRO can be any judgment,
decree, or order which (1) “relates to the provision of child
support, alimony payments, or marital property rights to a
spouse, former spouse, child, or other dependant of a partici-
pant,” and (2) “is made pursuant to a State domestic relations
law.” 29 U.S.C. § 1056 (d)(3)(B)(ii). Among other things, a
DRO is valid under ERISA only if it recognizes the existence
of an alternate payee’s right to receive benefits “payable with
respect to a participant under a plan.” Id. at § 1056(d)(3)(B)
(i)(I). Additionally, a DRO may not require a plan to provide
any type or form of benefit, or any option not otherwise pro-
vided by the plan, or to provide increased benefits to an alter-
nate payee. Id. at § 1056(d)(3)(D).

The two limitations work together. The first limitation con-
cerns the form of the state court order: the state DRO may
create an alternate payee’s enforceable interest, but the alter-
nate payee may not enforce that interest unless and until he
or she has complied with the QDRO specificity provisions.
See Tise, 234 F.3d at 421. The second limitation is substan-
tive: certain alterations to the benefits provided by a plan gov-
erned by ERISA are forbidden. Thus, in certain respects,
ERISA limits what a state family court can order. See Hamil-
ton, 433 F.3d at 1098-1110.

Based on these limitations, IATSE argues that the family
court’s orders cannot be valid QDROs and thus cannot divest
Janis of her interest in the QJSA’s survivor benefits because
the state court orders were issued after Lupe’s retirement.
According to IATSE, surviving spouse benefits pursuant to a
QJSA irrevocably vest in the participant’s spouse at the time
of the participant’s retirement and cannot be altered or
assigned. Because Janis was Lupe’s spouse at the time of his
retirement, her remainder interests vested at the time of his
retirement and no QDRO can reassign the benefits. Judy
argues in response that ERISA contains no provisions limiting
 CARMONA v. CARMONA 13101
when a state court can issue a DRO to transfer QJSA benefits
from a surviving spouse to an alternate payee, and therefore
so long as the state court fulfills the specificity requirements
of a QDRO it may create an enforceable interest at any time,
even after a participant’s retirement.

[9] This case presents an issue of first impression in this
Circuit: whether a “plan participant’s retirement cuts off a
putative alternate payee’s right to obtain an enforceable
QDRO” with regard to the surviving spouse benefits of a
QJSA. Tise, 234 F.3d at 423 n.6. We are persuaded that
IATSE’s interpretation is correct and that the answer to this
question is “Yes.”

In Hopkins v. AT&T Global Info. Solutions Co., 105 F.3d
153 (4th Cir. 1997), the Fourth Circuit addressed a set of cir-
cumstances similar to the one presented here. In Hopkins, the
ERISA plan participant divorced his first wife, Vera, in 1986
and was ordered to pay her alimony. Id. at 154. In order to
collect the alimony, Vera obtained a judgment allowing her to
attach her ex-husband’s wages. Id. After his divorce from
Vera, the participant married his second wife, Sherry. There-
after, in 1993, he retired. At that time Vera attempted to attach
both his portion of the QJSA benefits and Sherry’s surviving
spouse benefits under the QJSA. Id.

The court closely examined 29 U.S.C. § 1056 and 29
U.S.C. § 1055, which regulate QDROs and QJSAs respec-
tively, and concluded that surviving spouse benefits under a
QJSA vest at the time of the participant’s retirement. Id. at
155-156. In order to be “qualified,” and thus enforceable, a
DRO must create an alternate payee’s right to benefits “pay-
able with respect to a participant under a plan.” Id.; 29 U.S.C.
§ 1056(d)(3)(B). According to Hopkins, if the surviving
spouse benefits vested upon the participant’s retirement, the
DRO would relate to a benefit payable with respect to a bene-
ficiary, not payable “with respect to a participant.” Id. at 156.
Thus, if the spouse’s interest in the benefits vested upon the
13102 CARMONA v. CARMONA
participant’s retirement, the domestic relations order could not
be qualified and could not be an exception to the preemption
and anti-alienation provisions. Id.

[10] The court then analyzed 29 U.S.C. § 1055 and con-
cluded that the participant spouse’s QJSA surviving spouse
rights “vest” upon the participant spouse’s retirement.7 Id.
Various changes to ERISA created by the REA indicate that
the participant’s retirement or the start of the annuity estab-
lishes a vesting point for the surviving spouse benefits. First,
the REA changed the QJSA surviving spouse benefits so that
benefits may be paid to a spouse who was married to a partici-
pant at the participant’s retirement, regardless of whether they
were married at the participant’s death. Id. Second, the REA
made it more difficult for a participant to replace a QJSA with
another type of benefit. The participant could only change the
benefit within ninety days prior to retirement and with the
spouse’s written consent.8 Id. at 156-57. Unless the participant
changes the form of benefit with his current spouse’s written
permission, the participant is locked into a QJSA at retire-
ment. Id. at 157. Moreover, after the retirement date, the form
of benefit cannot be changed even with the spouse’s consent.
Id. Based upon the language in ERISA, as well as the changes
made under the REA, the Fourth Circuit concluded that the
plan participant’s retirement created a vested interest in the
surviving spouse, and thus Vera’s DRO could never be “qual-
ified” for the purposes of a QDRO. Id.

Judy contends that we should not rely upon the Fourth Cir-
cuit’s reasoning in Hopkins because another Ninth Circuit
case compels an outcome in her favor here. In Tise, we
addressed the question whether an otherwise valid QDRO
7
The Hopkins court did not distinguish between the annuity start date
and the participant’s retirement date. Indeed, in Hopkins, like the case
before us, the two dates are the same.
8
Now, the applicable time period for an election of benefits is 180 days
prior to retirement. See § 1055(c)(7)(A).
 CARMONA v. CARMONA 13103
assigning other ERISA benefits (i.e., not QJSA benefits) can
issue after the death of the plan participant. 234 F.3d at 415.
The plaintiff, the mother of the plan participant’s children,
obtained a child support judgment against the participant prior
to his death. Id. at 417-19. The plan participant died before
retirement (and after marrying the surviving spouse), but
before Tise was able to establish that the state court order met
the specificity requirements for a QDRO. Id. We held that a
state court order obtained prior to a participant’s death or
retirement creates an enforceable interest in the participant’s
surviving spouse benefits even if the alternate payee is unable
to qualify the DRO before the participant’s death. Id. at 423.

We came to this conclusion by analyzing the complex
ERISA framework and meticulously considering the provi-
sions of the statute that contemplate a situation in which a
valid QDRO does not issue until after benefits become pay-
able. We concluded that ERISA “specifically provides for sit-
uations in which no valid QDRO issues until after benefits
become payable. Once the pension plan is on notice that a
domestic relations order has issued that may be a QDRO, the
plan may take a reasonable period to determine whether the
order is a QDRO . . . .” Id. at 421. Furthermore, ERISA pro-
vides for further state court proceedings after the initial DRO
is issued to clarify and fix any technical defects in the original
DRO. Id. at 422 (citing 29 U.S.C. § 1056(d)(3)). Therefore,
we have held that so long as a valid DRO creates an alternate
payee’s legally enforceable property interest in QPSA bene-
fits, a QDRO can be obtained even after the plan participant’s
death. Id. at 423.

In holding that an alternate payee may obtain a valid
QDRO even after a plan participant’s death, we rejected the
first part of Hopkins’s logic, that once a spouse’s rights to an
annuity have vested a DRO cannot become a QDRO because
the order can no longer be “payable with respect to a partici-
pant under a plan.” Id. at 423-24. We concluded that “payable
with respect to a participant” includes benefits payable to a
13104 CARMONA v. CARMONA
participant as well as benefits payable to any beneficiaries
that may be eligible to receive such benefit. See id. at 423,
423 n.7. Therefore, section 1056(d)(3)(B)(I) does not, in and
of itself, prohibit the assignment of surviving spouse benefits
to an alternate payee, even after a plan participant has retired.

[11] While we recognize that Tise expressly, and we
believe rightly, rejected part of the Fourth Circuit’s reasoning
in Hopkins, we are nonetheless persuaded by the structure and
purpose of ERISA that the rule enunciated in Hopkins is the
proper rule for QJSA benefits. Indeed, we expressly left open
this possibility. See id. at 423 n.6, 423 n.7 (“Whether a QDRO
issued after a plan participant’s retirement may affect the dis-
tribution of surviving spouse benefits pursuant to 29 U.S.C.
§ 1055 implicates statutory provisions and policy consider-
ations other than those here applicable.”).

First, ERISA’s statutory scheme for QJSA benefits estab-
lishes the importance of the annuity start date, which is often
the participant’s retirement date, on the benefits at issue. The
plan providers must provide participants and their spouses
with a QJSA. §1055(a)(1). Under section 1055(c), QJSA ben-
efits are automatically provided to employees in all ERISA-
governed plans. The only way for the participant to opt out of
the QJSA is for the participant and his spouse together to
waive the QJSA benefit plan in writing. See 29 U.S.C.
§ 1055(c)(1)-(2). Both spouses, if they are going to decline
QJSA benefits, may only do so during the applicable election
period which is defined as “the 180-day period ending on the
annuity starting date.”9 Id. at § 1055(c)(2), (7). Thus, the
annuity starting date, which in this case is Lupe’s retirement
9
This statutory construction makes it difficult to adopt the alternative
rule that Judy urges. It is difficult to see how courts may reassign QJSA
surviving spouse benefits at any time given the fact that the statutory
scheme so diligently and strictly protects the interests of the participant’s
spouse at the time of the participant’s retirement by establishing that the
only way to avoid QJSA survivor benefits is by opting out in writing
before the retirement date.
 CARMONA v. CARMONA 13105
date, is the point at which the surviving spouse benefits vest
in the participant’s spouse.10

[12] We are also persuaded, as was the Fourth Circuit in
Hopkins, that a number of changes in ERISA, effectuated by
the REA, established the importance of the participant’s date
of retirement as the moment at which the surviving spouse
benefits vest. The fact that the REA established that surviving
spouse benefits may now be paid to a spouse who is married
on the day of the participant’s retirement, regardless of
whether the participant and spouse are married at the partici-
pant’s death, suggests that the retirement date is the crucial
date for establishing the rights of the surviving spouse. Hop-
kins, 105 F.3d at 156. Following this reasoning, we conclude
that once a participant retires, the spouse at the time becomes
the “surviving spouse” entitled to the QJSA benefits.

In addition to finding support for the Hopkins rule from the
statutory scheme, we are also persuaded that the ultimate
objectives of Congress are served by recognizing the rule that
a QDRO may not reassign surviving spouse benefits after a
plan participant has retired. See Hamilton, 433 F.3d at 1099
(noting that congressional intent ultimately determines
whether or not a particular statutory interpretation applies to
surviving spouse benefits); Boggs, 520 U.S. at 843 (consider-
ing congressional intent when analyzing qualified joint and
survivor annuity benefits).
10
The terms of the IATSE plan itself also suggest that the surviving
spouse’s interest vests at the time of Lupe’s retirement. The plan informed
Lupe that he would automatically be paid in the form of a QJSA if he was
married at least 12 months prior to the benefit starting date (his retirement)
unless he chose otherwise. It also established that the exact amount of
monthly benefits payable to him and his spouse under the QJSA depended
upon “the relative ages of you and your spouse at the time of your retire-
ment” (emphasis added). Thus the plan established both that the type of
plan and the amount of benefits were calculated at the time of retirement
and the amount was calculated based on the relative ages of him and his
spouse. This structure suggests that the benefits vested at retirement in the
surviving spouse.
13106 CARMONA v. CARMONA
ERISA’s surviving spouse benefits established in section
1055 were created in part “to ensure a stream of income to
surviving spouses.” Boggs, 520 U.S. at 843. Specifically,
Congress was concerned with providing for spouses that were
not able to accrue their own set of retirement benefits inde-
pendent from their working spouses. Prior to ERISA there
was no requirement that retirement plans provide for an
employee’s spouse in the event that the employee predeceased
a spouse not working outside the home (“non-working
spouse”). Congress concluded that such a regime “[could]
result in a hardship where an individual primarily dependent
on his pension as a source of retirement income is unable to
make adequate provision for his spouse’s retirement years
should he predecease her.” H.R. Rep. No. 93-807, at 4732
(1974), reprinted in 1974 U.S.C.C.A.N. 4670, 4732. Like-
wise, in amending ERISA through the REA, Congress
adopted changes to the statutory scheme to take into account
“changes in work patterns, the status of marriage as an eco-
nomic partnership, and the substantial contribution to that
partnership of spouses who work both in and outside the
home.” Retirement Equity Act of 1984, Pub. L. No. 98-397,
98 Stat. 1426 (codified as amended in scattered sections of 29
U.S.C.). Congress created surviving spouse benefits, like
those found in QJSAs, to protect non-participant spouses, par-
ticularly those that may not work outside the home and thus
may not have independent retirement benefits.

The Hopkins rule applied in this case may not clearly pro-
tect a non-working spouse whose interest in the surviving
spouse benefits may have accrued over time, since Lupe was
not married to either Janis or Judy during most of his working
years when he earned the pension benefits. Nonetheless, such
a rule would protect a non-working spouse in many situations
involving a post-retirement attempt to transfer surviving
spouse benefits. The finely tuned congressional scheme would
not be served by state court DROs that attempt to divest a
non-working spouse’s interest in her surviving spouse bene-
fits. Similarly, congressional intent is not advanced by permit-
 CARMONA v. CARMONA 13107
ting a subsequent post-retirement spouse to collect benefits
accrued during an economic partnership she or he was not a
part of.11

Additionally, a vesting rule also promotes one of the princi-
pal goals underlying ERISA: “ensuring that plans be uniform
in their interpretation and simple in their application.” McGo-
wan v. NJR Serv. Corp., 423 F.3d 241, 246 (3d Cir. 2005)
(internal quotation marks and citations omitted). While
administrative convenience is not entirely determinative of
what is required of pension plans under ERISA, we are con-
vinced that it should be a consideration when deciding
whether the statutory scheme requires pension plans to act in
a certain way.

Both the participant’s post-retirement pension benefits and
surviving spouse benefits under the QJSA are calculated
based upon the life of the two spouses at the time the benefits
become payable. The benefits payable to each are computed
based upon the “actuarial equivalent of a single annuity for
the life of the participant.” 29 U.S.C. § 1055(d)(1)(A)-(B)
(establishing that the participant receives pension benefits
“for the life of the participant with a survivor annuity for the
life of the spouse which is not less than 50 percent of . . . the
amount of the annuity which is payable during the joint lives
of the participant and the spouse”). The calculation and pay-
11
We note that this view is advanced by the legislative history of the
REA. The Senate Report notes that in theory “a qualified domestic rela-
tions order could provide that the former spouse is not entitled to any sur-
vivor benefits under the plan.” S. Rep. No. 98-575, at 15 (1984), reprinted
in 1984 U.S.C.C.A.N. 2547, 2562. While we recognize that this passing
note contradicts our conclusion that Janis’s surviving spouse benefits
vested at Lupe’s retirement, we are nonetheless convinced that the struc-
ture of the statute, the purposes and policies undergirding ERISA, and the
authority from other jurisdictions following this interpretation support our
conclusion. Furthermore the note does not contradict the outcome here
because Lupe did not seek to divest Janis of her surviving spouse rights,
but rather attempted to replace her with Judy, something that neither the
statutory language nor the legislative history permits.
13108 CARMONA v. CARMONA
ment of the pension benefits mean that it is important for the
plan administrators to know, with some finality, who the
spouse is at the time that the benefits become payable:

Because the disbursement of plan benefits is based
on actuarial computations, the plan administrator
must know the life expectancy of the person receiv-
ing the Surviving Spouse Benefits to determine the
participant’s monthly Pension Benefits. As a result,
the plan administrator needs to know, on the day the
participant retires, to whom the Surviving Spouse
Benefit is payable.

Hopkins, 105 F.3d at 157 n.7. Allowing participants to change
surviving spouse beneficiaries after the participant has retired
and already begun receiving benefit payments would make it
difficult for trustees to administer plans based on the actuarial
value of both the participant and the surviving spouse. We
therefore agree with Hopkins, as well as with other courts that
have either implicitly or explicitly concluded that the surviv-
ing spouse benefits irrevocably vest in the current spouse
when the plan participant retires. See Hopkins, 105 F.3d at
157; see also Rivers v. Central and South West Corp., 186
F.3d 681 (5th Cir. 1999); Walsh v. Woods, 638 S.E.2d 85
(S.C. Ct. App. 2006); Hamilton, 433 F.3d at 1096 (noting that
problems in QDROs often go undetected “until the participant
dies or retires, that is, when the survivor benefits irrevocably
vest in the current spouse and it is too late to do anything
about it”) (quotation omitted); Anderson v. Marshall, 856 F.
Supp. 604, 607 (D. Kan. 1994); cf. Fox Valley & Vicinity
Constr. Workers Pension Fund v. Brown, 897 F.2d 275 (7th
Cir. 1990) (en banc) (allowing the waiver of surviving spouse
benefits as required in a divorce decree entered prior to the
participant’s retirement); but see Torres v. Torres, 60 P.3d
798 (Haw. 2003).

[13] Because the retirement of a plan participant ordinarily
creates a vested interest in the surviving spouse at the time of
 CARMONA v. CARMONA 13109
the participant’s retirement, we conclude that a DRO issued
after the participant’s retirement may not alter or assign the
surviving spouse’s interest to a subsequent spouse. The
Nevada family court’s attempted transfer of interests in
Janis’s surviving spouse benefits to Judy is prohibited.

It is important to note that this opinion does not disturb our
prior holding in Tise. Fundamentally, Tise answers a very dif-
ferent question from the one presented here. In Tise, we deter-
mined when a DRO, which creates an enforceable interest in
an alternate payee, can be “qualified” for QPSA benefits. Tise
established that a state court domestic relations order may be
qualified even after a participant’s death, “[b]ecause a QDRO
only renders enforceable an already-existing interest.” 234
F.3d at 421. In contrast, here we ask whether there are any
restrictions as to when a state can create an enforceable inter-
est in an alternate payee for QJSA surviving spouse benefits.
We hold here only that a state DRO may not create an
enforceable interest in surviving spouse benefits to an alter-
nate payee after a participant’s retirement, because ordinarily
at retirement the surviving spouse’s interest irrevocably vests.12

Additionally, ERISA only permits state court DROs to
reassign surviving spouse benefits if they meet the require-
ments of 29 U.S.C. § 1056(d)(3)(F). Hamilton, 433 F.3d at
1099. Section 1056(d)(3)(F) governs the use of QDROs to
reassign benefits pursuant to 29 U.S.C. § 1055 and states that
“to the extent provided in any qualified domestic relations
order the former spouse of a participant shall be treated as a
surviving spouse of such participant . . . .” We have inter-
preted this provision as permitting a transfer of surviving
12
We say “ordinarily” because we recognize that there may be other sit-
uations, not present in this case, in which a contrary result may be appro-
priate. For example, it is possible that a former spouse could obtain a DRO
prior to the annuity start date and present it to the plan, but the actual
determination of whether the DRO is a QDRO might not be finalized prior
to the date on which the benefit would normally become payable. See,
e.g., 29 U.S.C. § 1056(d)(3)(H).
13110 CARMONA v. CARMONA
spouse benefits established under section 1055 only if the
QDRO expressly assigns surviving spouse rights to a former
spouse. See Hamilton, 433 F.3d at 1099. Here, Judy is not a
“former spouse” but rather is a “future” or “subsequent
spouse” because she married Lupe after his retirement. See
Hopkins, 105 F.3d at 157 n.6. No part of ERISA contemplates
reassignment of surviving spouse benefits to a future or sub-
sequent spouse. We take Congress’s silence with respect to
the rights of a future or subsequent spouse to obtain control
of surviving spouse benefits as “powerful support for the con-
clusion that the right does not exist.” Boggs, 520 U.S. at 847-
48.

Judy also argues that Janis waived her right to the surviving
spouse benefits by the property settlement when the state
court entered its divorce decree. In confronting this issue we
note that there is currently a split among the circuits as to
whether plans must recognize such a waiver in the absence of
a QDRO. McGowan, 423 F.3d at 244.

In McGowan, the Third Circuit rejected a similar argument
in a case involving the distribution of the unique set of surviv-
ing spouse pension benefits at issue here. McGowan and his
second wife, Rosemary, were divorced three years after
McGowan retired from his job. McGowan, 423 F.3d at 243.
As a part of the Marital Settlement Agreement, Rosemary
agreed to “waive [ ] any and all rights, title, interest or claims
. . . to the New Jersey Gas Company Employee Pension Plan
of the Husband.” Id. Shortly after Rosemary signed the settle-
ment agreement, McGowan attempted to have the plan trustee
replace Rosemary with his third and current wife, Donna, as
the surviving spouse beneficiary. Id. The plan refused to
change the beneficiary status and litigation ensued. Id. at 243-
44.

The Third Circuit held that ERISA does not require the
plan trustee to recognize this waiver. “[I]t is the documents on
file with the Plan, and not outside private agreements between
 CARMONA v. CARMONA 13111
beneficiaries and participants, that determine the rights of the
parties.” Id. at 246. In support of its conclusion, the court
noted that the comprehensive nature of ERISA, coupled with
the statute’s “silence with respect to the right to waive bene-
fits supports the conclusion that such a right does not exist.”
Id. at 249.

We see no reason to depart from this sound reasoning,
which we discussed favorably in one of our own recent deci-
sions. See Hamilton, 433 F.3d at 1100 n.10 (citing McGowan
favorably and noting that when ERISA fails to provide a
right, that fact is evidence that such a right does not exist).
ERISA’s statutory scheme allows for the waiver of surviving
spouse benefits with both spouses’ written consent in the ben-
efits election period prior to the participant’s retirement. 29
U.S.C. § 1055(c)(3). Lupe and Janis failed to avail themselves
of this waiver option—the only waiver option explicitly avail-
able to alter QJSA benefits. ERISA also provides that QDROs
may establish enforceable rights and reassign benefits in cer-
tain circumstances—evidence that private waivers are insuffi-
cient to alter ERISA benefits. As established above, the
QDRO was unavailable to Lupe in this instance because
Janis’s surviving spouse benefits had already vested at the
time he retired.

[14] ERISA has established ways in which parties can
transfer property interests in ERISA benefit plans, neither one
of which is through private waivers. We therefore reject
Judy’s argument that the divorce decree was a valid waiver of
Janis’s right to her surviving spouse benefits. See also Walsh,
638 S.E.2d at 90 (concluding that “upon [the participant’s]
retirement, the Surviving Spouse Benefits became irrevocable
and could not be changed [even by a] waiver of the desig-
nated beneficiary”) (internal quotations and citations omitted).

C. The Constructive Trust

IATSE also contends that it was impermissible for the state
court to create a constructive trust on the annuity proceeds.
13112 CARMONA v. CARMONA
We agree that a state law constructive trust cannot be used to
contravene the dictates of ERISA.

ERISA preemption supercedes “any and all state laws inso-
far as they may now or hereafter relate to any employee bene-
fit plan” covered by ERISA. 29 U.S.C. § 1144(a). The
Supreme Court has observed that the preemption provision is
“clearly expansive” but that it cannot be taken “to extend to
the furthest stretch of its indeterminacy.” Egelhoff v. Egelhoff,
532 U.S. 141, 146 (2001) (citations and internal quotation
marks omitted). A state law “relates to an ERISA plan if it has
a connection with or reference to such a plan.” Id. at 147
(citations and internal quotation marks omitted). To determine
whether a state law is preempted because it relates to an
ERISA plan, the courts look to the nature and effect of the
state law on ERISA plans as well as the objectives of the
ERISA statute. Id.

In Melton v. Melton, the Seventh Circuit observed that
“Egelhoff stands for the proposition that a state law cannot
invalidate an ERISA plan beneficiary designation by mandat-
ing distribution to another person.” 324 F.3d 941, 945 (7th
Cir. 2003) (citations omitted). The court applied that proposi-
tion to conclude that ERISA preempted a state court law that
permitted the imposition of a constructive trust on ERISA
proceeds. It concluded that the imposition of a constructive
trust to subvert ERISA-mandated beneficiaries was directly
controlled by Egelhoff and preempted by ERISA. Id. Thus the
court held that state law doctrines (including constructive
trusts) may not be invoked to assign benefits to parties other
than those designated as beneficiaries under ERISA. Id.

Furthermore, as the Supreme Court concluded in Boggs,
ERISA can preempt state law even after benefits have been
disbursed to beneficiaries. 520 U.S. at 842 (rejecting the argu-
ment that state law can apply when it affects “only the dispo-
sition of plan proceeds after they have been disbursed by [the
plan] and thus nothing is required of the plan”). Therefore a
 CARMONA v. CARMONA 13113
state court cannot achieve through a constructive trust on the
proceeds of a pension plan what this court maintains it cannot
achieve through a QDRO. Any alternative rule would allow
for an end-run around ERISA’s rules and Congress’s policy
objective of providing for certain beneficiaries, thereby
greatly weakening, if not entirely abrogating, ERISA’s broad
preemption provision.

Judy relies upon our decision in Emard v. Hughes Aircraft
Co., 153 F.3d 949 (9th Cir. 1998), for the proposition that
once a plan distributes proceeds to the proper ERISA benefi-
ciary, a state law created constructive trust is too attenuated
to fall within the mandatory preemption provision. Id. at 954.
Emard, however, was abrogated by Egelhoff, 532 U.S. 141,
and thus Emard’s holding, to the extent it can be interpreted
as an end-run around ERISA’s mandates, no longer survives.13

[15] In this case, the constructive trust that the state court
created was explicitly an attempt to avoid ERISA’s QDRO,
preemption, and anti-alienation provisions. We conclude that
Congress did not intend to permit the reassignment of surviv-
ing spouse benefits and, therefore the constructive trust rem-
edy that the state court tried to impose is also preempted by
ERISA. It may not be that all constructive trusts instituted by
13
Additionally, Emard addressed insurance benefits and not pension
plan benefits. Emard, 153 F.3d at 953. As noted in Guidry v. Sheet Metal
Workers Nat’l Pension Fund, 493 U.S. 365 (1990), ERISA’s anti-
alienation provision applies only to pension benefits and not welfare bene-
fits. Thus an independent reason (the anti-alienation provision) prohibits
the use of constructive trusts to garnish pension benefits in this case. See
id. at 371-72. In Guidry, the Supreme Court concluded that a constructive
trust could not be used to disgorge a pension plan fiduciary’s ill-gotten
gains because it was prohibited by the anti-alienation provision of ERISA
and did not meet any of the statutory exceptions to the ERISA provision.
See id. at 372-376. On remand, the Tenth Circuit upheld the imposition of
a constructive trust and concluded that ERISA did not prohibit post-
payment garnishment of ill-gotten gains. See Guidry v. Sheet Metal Work-
ers Nat’l. Pension Fund, 39 F.3d 1078 (10th Cir. 1994) (en banc). This
decision, too, preceded both Egelhoff and Boggs, and may not survive.
13114 CARMONA v. CARMONA
state courts, particularly those that seek to recover ill-gotten
gains, will have a sufficient connection with or reference to
an ERISA plan to trigger ERISA’s preemption provision. But
when a state court creates a constructive trust with the explicit
purpose of avoiding ERISA’s rules, it too must be preempted.

Congress, through ERISA, has created a set of fixed prop-
erty rules state courts are bound to work within. State family
courts can and should distribute property in an equitable man-
ner upon divorce, but they must take into account ERISA’s
rules. ERISA prohibits the state family court from steering the
surviving spouse benefits from Janis to Judy, but ERISA did
not prohibit the state court from dividing other property or
making other adjustments mindful of the benefits provided
under the ERISA plan. In this instance, the state family court
provided for a transfer of $1500 from Lupe to Janis based
upon the premise that Lupe and Janis would each retain their
pension benefits as separate property. That premise may have
been faulty, but that does not justify disregarding the ERISA
limitations.

III. Conclusion

We conclude that Janis’s lawsuit against both Hilton and
Judy was properly dismissed by the district court for lack of
subject matter jurisdiction. Although Janis may have been
right on the underlying substantive issue, she already had her
day in court on the question and, under the circumstances, is
barred under the Rooker-Feldman doctrine from seeking
recourse in federal court at this time.

IATSE’s similar argument is not barred, however. We
agree with its contention that it is not required to make pay-
ment of the surviving spouse benefits to Judy or to the con-
structive trust ordered by the Nevada family court. Under
ERISA, Janis’s interest in the surviving spouse benefits
vested at Lupe’s retirement and federal law preempted the
 CARMONA v. CARMONA 13115
state court orders directing the plans to change the beneficia-
ries and creating a constructive trust.

We remand the matter to the district court for whatever fur-
ther proceedings may be necessary and appropriate. Each
party is to bear its own costs on appeal.

AFFIRMED in part, REVERSED in part, and
REMANDED.