Thrivent Financial for Luthera v. Johanna Anderson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

THRIVENT FINANCIAL FOR  No. 11-35437
LUTHERANS,
Plaintiff-Appellee, D.C. No.
1:10-cv-00156-RFC
v. District of Montana,
LUCIA E. ANDRONESCU, FKA Lucia Billings
E. Anderson,
Defendant-cross-defendant-  ORDER
CERTIFYING
Appellee, QUESTION TO
v. THE SUPREME
JOHANNA M. ANDERSON, COURT OF THE
Defendant-cross-claimant- STATE OF


Appellant. MONTANA

Filed July 3, 2012

Before: Barry G. Silverman and Mary H. Murguia,
Circuit Judges, and Cynthia Holcomb Hall,
District Judge.*

ORDER

I.

Pursuant to Rule 15(3) of the Montana Rules of Appellate
Procedure, we respectfully request the Montana Supreme
Court to exercise its discretion to adjudicate the following
question of Montana law:

*The Honorable Janet C. Hall, United States District Judge for the Dis-
trict of Connecticut, sitting by designation.

7793
7794 THRIVENT FINANCIAL v. ANDRONESCU
Does Mont. Code Ann. § 72-2-814 serve to revoke a life
insurance policy owner’s designation of an ex-spouse as the
beneficiary of the insurance policy where the divorce
occurred prior to the enactment of Mont. Code Ann. § 72-2-
814 and the policyholder died after the enactment of Mont.
Code Ann. § 72-2-814?

II.

Pursuant to Mont. Rule App. Proc. 15(6)(a)(ii), we provide
a brief summary of the facts relevant to the certified question.
Appellant/Defendant/Cross-claimant Johanna Anderson
(“Johanna”) appeals the district court’s judgment in favor of
Appellee/Defendant/Cross-defendant Lucia Andronescu
(“Lucia”) in a diversity interpleader action brought by insurer
Thrivent Financial For Lutherans. Lucia is the former spouse
of Brent Anderson (“Brent”). Following Brent’s death,
Johanna and Lucia made competing claims for the proceeds
of Brent’s life insurance policy, and Thrivent interpleaded the
insurance proceeds. The district court awarded the insurance
proceeds to Lucia, and this appeal followed.

In August 1990, Brent purchased life insurance in Arizona.
As beneficiaries of the policy, Brent named first, his then-
wife Lucia, second, his parents Andrew (now deceased) and
Johanna Anderson, and third, his sister. In June 1993, Brent
and Lucia were divorced in Arizona. Pursuant to the divorce
decree, Brent received the insurance policy on his life and
Lucia received the insurance policy on her life.

Later that year, Montana enacted Mont. Code Ann. § 72-2-
814, which became effective October 1, 1993. The provision,
entitled “Revocation of probate and nonprobate transfers by
divorce—no revocation by other changes of circumstances,”
is taken from the Uniform Probate Code. See Unif. Probate
Code § 2-804. Under § 72-2-814, a divorce automatically
revokes a revocable instrument. Id. § 72-2-814(2)(a)(i). Spe-
cifically, a divorce revokes “disposition or appointment of
 THRIVENT FINANCIAL v. ANDRONESCU 7795
property made by a divorced individual to the individual’s
former spouse in a governing instrument . . . .” Id.

Brent died in Montana on August 1, 2010, having never
changed the name of the beneficiaries on his life insurance
policy. Thrivent brought this interpleader action so that the
court could determine whether Lucia or Johanna was the
rightful beneficiary. The district court granted judgment on
the pleadings and awarded the proceeds to Lucia based on its
conclusions that: (1) although the divorce decree awarded the
policy to Brent, it did not change the designation of Lucia as
beneficiary, and (2) Mont. Code Ann. § 72-2-814 does not
apply to Brent and Lucia’s divorce.

III.

There is no controlling court decision or statute on whether
Mont. Code Ann. § 72-2-814 revokes a beneficiary designa-
tion where the designation and divorce occurred prior to § 72-
2-814’s effective date, but the death of the policyholder
occurred after it. The answer may be determinative of the
appeal pending before us. Mont. Rule App. Proc. 15(3).

We acknowledge that the Montana Supreme Court may
reformulate the question, and that our phrasing of the question
is not intended to restrict your Court’s consideration of the
request. See Mont. Rule App. Proc. 15(6)(a)(iii).

IV.

The clerk of this court shall forward a copy of this order,
under official seal, to the Montana Supreme Court, along with
copies of all briefs and excerpts of record that have been filed
with this court.

The parties shall notify the clerk of this court within 14
days of any decision by the Montana Supreme Court to accept
or decline certification. If the Montana Supreme Court
7796 THRIVENT FINANCIAL v. ANDRONESCU
accepts certification, the parties shall then notify the clerk of
this court within 14 days of the issuance of that Court’s opin-
ion. Submission of this appeal will be vacated by a separate
order pending the Montana Supreme Court’s response to our
request.

V.

The following is a list of counsel appearing in this matter:

Counsel for Plaintiff-Appellee Thrivent Financial For
Lutherans:

Frederick Matthew Ralph
Dorsey & Whitney, LLP
50 South 6th Street, Suite 1500
Minneapolis, MN 5540

Counsel for Defendant-Cross-defendant-Appellee Lucia E.
Andronescu:

Gary M. Zadick
Ugrin Alexander Zadick & Higgins, PC
P.O. Box 1746
Great Falls, MT 59403-1746

Counsel for Defendant-Cross-claimant-Appellant Johanna
M. Anderson:

Roberta Anner-Hughes
Anner-Hughes Law Offices
P.O. Box 1156
Billings, MT 59103-1156

QUESTION CERTIFIED.