Lasche v. George W. Lasche Basic Profit Sharing Plan

United States Court of Appeals,

Eleventh Circuit.

No. 96-4277.

Madeline LASCHE, Plaintiff-Appellee,

v.

GEORGE W. LASCHE BASIC PROFIT SHARING PLAN, a.k.a. George W.
Lasche Keogh Trust, Defendant-Appellant,

Theresa Wenisch, Defendant-Third Party Plaintiff-Appellant,

Patricia Clements, individually, and as Co-Personal
Representatives of the Estate of George W. Lasche and as Successor
Plan Administrators of the George W. Lasche Basic Profit Sharing
Plan, Defendant-Appellant,

Patricia Lasche Clements, as Trustee of the George W. Lasche
Trust, Defendant-Third Party Plaintiff-Appellant,

Theresa Lasche Wenisch, as Trustee of the George W. Lasche Trust,
Defendant-Appellant,

Kathryn Lasche Berggren, Third Party Plaintiff,

Merrill Lynch, Pierce, Fenner & Smith, Inc., Third Party
Defendant-Appellee.

May 6, 1997.

Appeal from the United States District Court for the Southern
District of Florida. (No. 93-8645-CIV-JAG), Jose A. Gonzalez, Jr.,
Judge.

Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and FAY,
Senior Circuit Judge.

FAY, Senior Circuit Judge:

In this appeal, we will decide whether a spouse legally waived

her rights to her deceased spouse's retirement plan. The district

court found that the spouse did not waive her rights to her late

husband's retirement plan because the spouse's waiver did not

comply with the ERISA requirement that a spouse's consent be

"witnessed by a plan representative or a notary public," 29 U.S.C.
§ 1055(c)(2)(A)(iii), and because the waiver language was too

general to be effective. Because the district court was correct in

concluding that the waiver failed to comply with the requirements

of ERISA, we affirm.

BACKGROUND

George Lasche and appellee Madeline Baker Lasche were married

in August of 1985. Prior to being married, George and Madeline

entered into a Prenuptial Agreement. Under the terms of the

Prenuptial Agreement, both George and Madeline agreed to waive any

rights to the other's property. Following their marriage, both

George and Madeline executed a First Amendment to Pre-Nuptial

Agreement ("Amendment"). In the Amendment, George and Madeline

specifically waived any interest to the other's retirement benefit

plan and agreed to execute any documentation required to confirm

their waiver in the other's retirement benefit plan.1

Several years before getting married to Madeline, George

adopted a "Keogh" retirement plan. This plan was reformed several

times mainly because George transferred his retirement funds to

different financial institutions. In 1989, George, for the last

time, transferred funds from a Dean Witter & Company retirement

plan to Merrill Lynch, Pierce, Fenner & Smith Incorporated

("Merrill Lynch") and its "Basic Retirement Program."

1
Specifically, paragraph (c) in the Amendment stated: Each
party waives and releases any claim, demand or interest in any
pension, profit sharing, KEOGH or other retirement benefit plan
qualified under ERISA and the Internal Revenue Code of the other
party and agrees to execute any documentation to verify and
confirm this fact with the administrator of such plan.

R1-39-Exhibit 1.
 In connection with the opening of a Merrill Lynch Basic

Retirement Program, Merrill Lynch required George to execute a

document entitled "Basic Retirement Plan New Participant Form"

("Form"). The Form designated George's three daughters from a

previous marriage: Patricia Clements, Theresa Wenisch, and Kathryn

Berggren as his beneficiaries. Because George designated his

daughters as beneficiaries, instead of his spouse Madeline,

Madeline was required to sign part four of the Form, which states:

Spouse's Consent to Beneficiary Designation:

I am the spouse of the participant who made the beneficiary
designation on this form and I consent to it. I understand
that if someone other than me has been designated beneficiary,
my consent means that I give up rights I may have under the
Plan and applicable law (other than rights I may later have as
the survivor in a joint annuity with the participant) to
receive those amounts payable under the Plan by reason of the
participant's death to which I would otherwise be entitled if
I were the Participant sole beneficiary.

R2-49-Exhibit E-Part 4. Madeline signed part four of the form.

Part four also contains a designated space where the signature of

an "employer2" or notary public is needed to confirm the consenting

spouse's signature. This space was left blank. George signed part

five of the form as the Plan's Administrator.

George died in 1993 before receiving any benefits from the

Merrill Lynch retirement plan. After George's death, Madeline

requested a distribution of the plan's benefits from the

administrators of the plan, George's daughters. The daughters

2
We note that the Merrill Lynch waiver form provides that
the signature of the spouse be witnessed by an "employer or
notary public." We do not know why the term "employer" is used
when the law specifically provides for plan representative.
Under the facts of this case, whether such a difference in
terminology is material is not before us.
refused. Subsequently, Madeline filed suit against Defendants-

Appellants George W. Lasche Basic Profit Sharing Plan a/k/a George

W. Lasche Keogh Trust, Theresa Lasche Wenisch, and Patricia Lasche

Clements. The gist of Madeline's complaint is that under the

Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§

1001-1461 (1994), she, as George's surviving spouse, is entitled to

receive the benefits of George's retirement plan.

Prior to trial, both sides filed motions for summary judgment.

In Madeline's motion, she argued that her waiver was legally

defective, while Defendants asserted the opposite; Madeline's

waiver was legally valid. After conducting a hearing on the

cross-motions, the district court entered an order granting

Madeline's motion for summary judgment, consequently denying

Defendants' motion. In the order, the district court found as a

matter of law that Madeline's waiver "did not meet the ERISA

requirement that the consent be "witnessed by a plan representative

or a notary public,' " R3-85-6, and that the waiver language

contained in part four of the Form failed to disclose to Madeline

which specific rights were being relinquished by the waiver. R3-

85-4. In accordance with the ruling, the district court found that

Madeline was entitled to George's entire account balance under the

retirement plan.3 29 U.S.C. § 1055(a) (1994).

3
Following the district court's order granting Madeline's
motion for summary judgment, George's three daughters obtained
leave of court to file a Third Party Complaint against Merrill
Lynch. In the Third Party Complaint, the daughters allege that
Merrill Lynch breached its duty by failing to provide and execute
a legally effective Spousal Consent. The daughters also moved to
join Merrill Lynch to the original suit as an indispensable party
and to stay the execution of the final judgment pending Merrill
Lynch's joinder. The district court denied the motion. The
 Final judgment was entered after Madeline voluntarily

dismissed a remaining count which was not resolved by the district

court's summary judgment order. Defendants appeal from this final

judgment. On appeal, Defendants contend that the district court

erred as a matter of law in holding that the waiver and consent

executed by Madeline failed to comply with the requirements of

ERISA.

STANDARD OF REVIEW

A motion for summary judgment may be granted only if no

genuine dispute remains as to any material fact and the moving

party is entitled to judgment as a matter of law. Fed.R.Civ.P.

56(c). Since the facts of this case are not in dispute, we need

only consider whether Madeline was entitled to summary judgment as

a matter of law. As with all questions of law, we review the

district court's order granting summary judgment under the de novo

standard of review. International Union, United Mine Workers v.

Jim Walter Resources, 6 F.3d 722, 724 (11th Cir.1993).

ANALYSIS

Because at issue in this appeal is whether Madeline legally

waived her rights to George's retirement plan, we will first set

forth the ERISA requirements of an effective waiver. To establish

an effective waiver of benefits under ERISA requires that:

(i) the spouse of the participant consents in writing to such
election, (ii) such election designates a beneficiary (or a
form of benefits) which may not be changed without spousal
consent (or the consent of the spouse expressly permits
designation by the participant without any requirement of
further consent by the spouse), and (iii) the spouse's consent

daughter's Third Party Complaint against Merrill Lynch remains
pending.
 acknowledges the effect of such election and is witnessed by
a plan representative or a notary public....

29 U.S.C. § 1055(c)(2)(A). Thus, ERISA mandates that a spouse's

consent be "witnessed by a plan representative or a notary public."

29 U.S.C. § 1055(c)(2)(A)(iii). In our case, the space provided

for an "employer" (see supra note 2) or notary public to sign next

to Madeline's signature under the waiver clause was left blank.

Applying this undisputed fact to ERISA requirement 29 U.S.C. §

1055(c)(2)(A)(iii), the district court ruled that Madeline's waiver

failed as a matter of law. We agree.4

The statutory language of ERISA requirement 29 U.S.C. §

1055(c)(2)(A)(iii) is unambiguous. Strictly applying this

requirement to the facts of our case, the district court was

correct in concluding that Madeline's waiver was legally defective.

In an attempt to make Madeline's waiver legally valid, Defendants

urge us to consider that since Madeline acknowledges signing the

waiver, the purpose behind a plan representative or notary public

witnessing her signature is served. In support of this argument,

Defendants rely on Butler v. Encyclopaedia Britannica, Inc., 843

F.Supp. 387 (N.D.Ill.1994), aff'd in part and rev'd in part, 41

F.3d 285 (7th Cir.1994).

In Butler, a spouse designated her daughter, instead of her

husband, as the beneficiary of pension benefits. Because the

spouse designated her daughter as the beneficiary, rather than her

4
As to the district court's other basis for granting summary
judgment, the waiver language was too general, because we affirm
the district court on the basis that Madeline's waiver was not
"witnessed by a plan representative or a notary public....," we
find it unnecessary to address whether the waiver language was
legally effective.
husband, the husband needed to sign a consent form, which he

acknowledged doing. The notary portions of the consent forms were

notarized. Following the spouse's death and after the pension plan

administrator awarded benefits to the husband, the daughter filed

suit.

The husband challenged the designation of the daughter as

beneficiary, arguing among other grounds, that his consent to the

waiver of benefits is not valid because his signature was not

signed in the presence of a notary public. In awarding the

daughter the benefits, the district court dismissed the husband's

argument stating a "benefit fund may accept as valid a designation

form that a spouse admits signing, but which was signed by the

spouse outside the presence of the witnessing notary public or plan

representative, without defeating any substantive statutory

objective." Butler, 843 F.Supp. at 396. The husband appealed the

district court's order. On appeal, the Seventh Circuit declined to

address whether the husband signature was witnessed by a notary

public because the husband "lacked sufficient evidence to prove

that the consent form he signed was not properly witnessed."

Butler, 41 F.3d at 294.

Butler is distinguishable from our case on the basis that in

Butler a notary signed the consent form. The Seventh Circuit in

finding that the husband's consent form was valid relied on the

fact that the husband's signature was notarized. See Butler, 41

F.3d at 294-95 ("A notary public's certificate of acknowledgment,

regular on its face, carries a strong presumption of validity.").

In our case, neither a notary nor a plan representative ever signed
the form witnessing Madeline's signature. This omission is fatal

to Defendant's reliance on Butler. While Defendants argue that

Butler stands for the proposition that an acknowledged waiver is

valid "even if not signed in the presence of notary," we disagree.

To extend Butler as Defendants suggest and now allow a spouse's

acknowledged signature waiver to be effective absent the signature

being witnessed by a notary public or plan representative, is a

precedential path we refuse to travel. To hold otherwise would

contravene the explicit waiver requirements of ERISA that Congress

has enacted.

Defendants also assert that George's signature as the Plan's

Administrator in part five of the Form satisfies ERISA's

requirement that Madeline's consent be witnessed by a notary public

or plan representative. As an initial reason for rejecting this

contention is Defendants' failure to raise this issue before the

district court. See Narey v. Dean, 32 F.3d 1521, 1526-27 (11th

Cir.1994) (Court generally will not consider on appeal issues not

raised before the district court.). Moreover, George's signature

was in a different section than the spouse's consent section of the

Form. Part four of the Form contained the space where a notary

public or plan representative was required to sign the form

confirming Madeline's signature, not part five, a completely

different section. Thus, the fact that George signed part five of

the form as the Plan's Administrator is irrelevant to the

undisputed fact that the "employer" or notary public signature

space in part four of the Form was blank.

Defendants also argue that Madeline's intent to waive her
rights to George's retirement plan as evidenced by the Prenuptial

Agreement, the First Amendment to the Prenuptial Agreement, and by

her signature in the spousal consent section of Merrill Lynch's New

Participant Form should be considered in determining whether a

valid waiver took place. We disagree. Congress in enacting 29

U.S.C. § 1055(c)(2)(A) explicitly set forth certain requirements

that must be followed. A person's subjective intent is irrelevant

to whether these requirements were followed. In our case, the

parties failed to exactly comply with the requirements of ERISA,

unfortunately resulting in an outcome that may be contrary to both

George's and Madeline's intent.

Finally, we note the public policy of protecting spouses'

rights to spousal retirement benefits. See S.Rep. No. 98-575, at

1 (1984), reprinted in 1984 U.S.C.C.A.N. 2547, 2547. This policy

is consistent with the general policy of protecting spousal rights.

See, e.g., Via v. Putnam, 656 So.2d 460, 464 (Fla.1995) ("Florida

... has always maintained a strong public policy in favor of

protecting a surviving spouse of a marriage in existence at the

time of a decedent's death."). Thus, these strict ERISA

requirements designed to ensure a valid waiver of a spouse's

retirement plan are consistent with the legislative policy of

protecting spousal rights. Therefore, we believe any waiver of

retirements benefits by a spouse must strictly comply with the

consent requirements set forth in ERISA.

CONCLUSION

For the foregoing reasons, we affirm the district court's

order granting summary judgment.
AFFIRMED.