1. UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 06-15938
Janis Carmona, aka Janis Kester,
Plaintiff-Appellant
go
Judy Carmona, Successor Representative of Lupe N. Carmona, deceased; Hilton
Hotels Corporation Retirement Plan,
Defendants-Appellees
Appeal from the United States District Court
District of Nevada, The Honorable Kent J. Dawson
Presiding District Court Case No. CV-S-04-1310-KJD
APPELLEE'S ANSWERING BRIEF
Hilton Hotels Corporation, Retirement Plan
Thomas F. Kummer
Sheri Ann F. Forbes
KUMMER KAEMPFER BONNER RENSHAW & FERRARIO
3800 Howard Hughes Parkway
Seventh Floor
Las Vegas, NV 89169
(702) 792-7000
Attorneys for
Defendant/Appellee
Hilton Hotels Corporation, Retirement Plan

2. III.
IV.
TABLE OF CONTENTS
Jurisdiction 1
Standard of Review 1
Summary of the Argument 3
Argument 3
A. The District Court properly applied the Rooker-Feldman
Doctime 3
1. Janis sought review in U.S. District Court of a state court
decision, not a legal wrong committed by an adverse
party 3
2. State court jurisdiction was not preempted by ERISA 5
3. The constructive trust was not preempted by ERISA 9
4. The courts' findings that Janis waived her survivor
benefits did not give the U.S. District Court jurisdiction
to review the Nevada Supreme Court's decision 10
B. Janis's appeal of the denial of her Motion for Summary
Judgment is not properly before this Court 11
1. Hilton did not breach its fiduciary duties to Janis 12
a. A valid QDRO is exempted from ERISA 12
b. Hilton properly, and in good faith, determined the
QDRO Order meets the requirements under REA 15
e. Hilton is bound by the Nevada Family Court's
QDRO 18
Conclusion 22
Related Cases 22
228817__1 .DOC 11248.2 2

3. TABLE OF AUTHORITIES
Federal Cases
Ablamis v. Roper, 937 F.2d 1450 (9th Cir. 1991) 6, 7, 14
Boggs v. Boggs, 520 U.S. 833 (1997) 5, 6, 7, 9
Coyle v. P.T. Garuda Indonesia, 363 F.3d 979, 984 n.7 (9th Cir. 2004) 2
Gendreau v. Gendreau, 122 F.3d 815,817 (9th Cir. 1997) 13
Hopkins v. AT&T Global Info. Solutions Co., 105 F.3d 153,156 (5th Cir.
1999) 20
Maldonado v. Hams, 370 F.3d 945, 949 (9th Cir. 2004) 1, 2
Mathews v. Chevron Corp., 362 F.3d 1172, 1178 (9th Cir. 2004) 2
Metropolitan Life Ins. Co. v. Marsh, 119 F.3d 415 (6th Cir. 1997) 16, 17
Metropolitan Life Ins. v. Taylor, 481 U.S. 58, 64 (1987) 14
Metropolitan Life Insurance v. Wheaton, 42 F.3d 1080, 1085 (7th Cir. 1994) 17
National Automobile Dealers and Associates Retirement Trust v. Arbeitman,
89 F.3d 496 (8th Cir. 1996) 9, 10, 11
Noel v. Hall, 341 F.3d 1148, 1154 (ith Cir. 2003) passim
Padfield v. AIG Life Insurance Company, 290 F.3d 1121, 1124 (9th Cir.
2002) passim
Patton v. Denver Post Corporation, 179 F. Supp. 2d 1232, 1235 (D. Colo.
2002) 8
Rivers v. Central & Southwest Corp., 186 F.3d 681,683 (Sth Cir. 1999) 20
Stewart v. Thorpe Holdings Company Profit Sharing Plan, 207 F.3d 1143,
1149 (9th Cir. 2000) passim
Trustees of the Directors Guild of America-Producer Pension Benefits Plans
v. Tise, 234 F.3d 415,420 (9th Cir. 2000) passim
State Cases
Baker v. Baker, 251 Cal. Rptr. 126, 127 (1988) 18, 19
Torres v. Torres, 417, 60 P.3d 798, 818, 100 Hawaii 397 (2003) 20
Federal Statutes
1974 U.S.C.C.A.N. 4639 13
29 U.S.C. § 1055(c) 9
29 U.S.C. § 1056((d)(3)(a) 13
29 u.s.c. § 1056(d)(3)(A) 20
29 U.S.C. § 1056(d)(3)(C) 15
29 U.S.C. § 1056(d)(3)(G) 13
29 U.S.C. § 1144(a) 13
29 U.S.C. § 1144(b)(7) 14
P.L. 98-397 15
U.S.C. § 1056(d)(3)(B) 6
228817_1.DOC 11248.2 3

4. Federal Rules
QDRO under 29 6
228817_1.DOC 11248.2 4

5. I. JURISDICTION
The U.S. District Court did not have subject matter jurisdiction of Appellant
Janis Carmona aka Janis Kester's ("Janis") Complaint and the District Court
properly dismissed Janis's Complaint pursuant to the Rooker-Feldman Doctrine.
See in depth discussion in Section IV(A) infra.
With regard to Janis's appeal of the District Court's dismissal of Janis's
Complaint, Appellee Hilton Hotels Corporation Retirement Plan (Hilton") agrees
generally with Janis's analysis of this Court's jurisdiction to hear Janis's appeal
from the dismissal of her Complaint.
However, Janis also appears to appeal the denial of her Motion for Summary
Judgment, disposed of in the same District Court Order. A denial of a motion for
summary judgment is unappealable, and this Court does not have jurisdiction to
hear Janis's appeal from the denial of her Motion for Summary Judgment. See
Padfield v. AIG Life Insurance Company, 290 F.3d 1121, 1124 (9 th Cir. 2002).
II. STANDARD OF REVIEW
The United States District Court for the District of Nevada dismissed Janis's
Complaint pursuant to the Rooker-Feldman Doctrine. Janis's Excerpt of Record
("Janis's ER") at 165-166. The Rooker-Feldman Doctrine provides that a federal
trial court does not have subject matter jurisdiction to review a final judgment of a
state court. Maldonado v. Harris, 370 F.3d 945,949 (9 th Cir. 2004); Noel v. Hall,
228817_1.DOC 11248.2

6. 341 F.3d 1148, 1154 (ith Cir. 2003). A dismissal of an action based on the
Rooker-Feldman Doctrine is reviewed by this Court de novo. Maldonado, 370
F.3d at 949. Additionally, subject matter jurisdiction is reviewed de novo. See
Coyle v. P.T. Garuda Indonesia, 363 F.3d 979, 984 n.7 (9 th Cir. 2004).
Janis claims in her appeal that the application of EPdSA precludes
application of the Rooker-Feldman Doctrine to dismiss her Complaint. Janis's
Opening Brief at 2-3. The interpretation of ERISA is also reviewed de novo by
this Court. SeeMathews v. Chevron Corp., 362 F.3d 1172, 1178 (9 t• Cir. 2004).
Janis appears to also be appealing from the District Court's denial of her
Motion for Summary Judgment, denied by the same District Court Order as moot.
See Janis's Opening Brief at 3, 20-27; Hilton Hotels Corporation Retirement Plan's
Excerpt of Record ("Hilton's ER") at 1-6; Janis's ER at 161-168. However, the
denial of a motion for summary judgment is unappealable unless it is coupled with
a grant of summary judgment to the opposing party. Padfield v. AIG Life
Insurance Company, 290 F.3d 1121, 1124 (9 th Cir. 2002) (citing Abend v. MCA,
Inc., 863 F.2d 1465, 1482 n.20 (9 th Cir. 1988)). In the present case however, the
District Court denied Janis's Motion for Summary Judgment (Docket #35) as
moot, and also denied Hilton's Countermotion for Summary Judgment (Docket
#41, Hilton's ER at 7-20) as moot, due to the dismissal of Janis's Complaint.
Janis's ER at 168:7-15. Thus, the Motion and Countermotion for Summary
228817_1.DOC 11248.2 2

7. Judgments were never reviewed by the District Court and are not properly before
this Court for review. See Padfield, 290 F.3d at 1124.
III. SUMMARY OF THE ARGUMENT
The District Court properly dismissed Janis's Complaint for lack of subject
matter jurisdiction. The Rooker-Feldman Doctrine precluded the District Court's
review of the Nevada Supreme Court's final decision, and Janis's only recourse, a
petition to the Untied States Supreme Court for certiorari was denied.
Janis's Motion for Summary Judgment was denied as being moot, thus the
issues raised in Janis's Motion are not properly before this Court.
IV. ARGUMENT
Janis appeals from the District Court's Order dismissing her Complaint filed
in case CV-S-04-1310-KJD (RJJ) on the basis that the Rooker-Feldman Doctrine
precluded the District Court from reviewing the Nevada state courts' decisions.
A. The District Court properly applied the Rooker-Feldman Doctrine.
1. Janis sought review in U.S. District Court of a state court decision, not a
legal wrong committed by an adverse party_.
The Rooker-Feldman Doctrine states that a federal district court does not
have subject matter jurisdiction to review a state court final judgment. Noel v.
Hall, 341 F.3d 1148, 1154 (9 th Cir. 2003). Janis's federal Complaint at issue here
followed state court proceedings, initiated by Janis, that adjudicated Janis's and
Judy Carmona's ("Judy") rights to the survivor benefits of Lupe Carmona's
228817_1.DOC 11248.2 3

8. ("Lupe") pension plans. Janis's ER at 18-21, 27-31, 45-52, 75-83. A disappointed
litigant, Janis sought relief from the U.S. District Court by filing a Complaint
alleging that Lupe had "in bad faith" sought and received a constructive trust from
the Nevada family court (Janis's ER at 78 ¶ 20-26); that the Nevada family court
denied Janis's request to toll its orders (Janis's ER at 79 ¶ 27-28); that Janis's
appeal to the Nevada Supreme Court resulted in an Order of Affirmance that
"disregarded" federal law and upheld the constructive trust imposed by the Nevada
family court (Janis's ER at 79 ¶ 30); that despite the Nevada court orders directing
it to do so, Hilton has deposited the survivor benefit funds into the constructive
trust account "in violation of' ERISA (Janis's ER at 80 ¶ 33); and that Judy should
be enjoined from enforcing the Nevada court orders (Janis's ER at 81 ¶ 39-40, 42).
However, despite crafting her allegations to implicate Judy and Hilton as having
COlImaitted a legal wrong against Janis, she is, in reality, seeking to overturn the
Nevada court orders being followed by Judy and Hilton because, she argues, the
Nevada courts lacked jurisdiction. This is not permitted under the Rooker-
Feldman Doctrine.
Janis's proper remedy to review a disappointing state court decision was to
petition the United States Supreme Court for certiorari. Noel, 341 F.3d at 1154.
"The United States Supreme Court is the only federal court with jurisdiction to
hear such an appeal [from the final judgment of a state court]." Id. "A party
228817_1DOC 11248.2 4

9. binding on this Court.
discusses the narrow
amendments.
disappointed by a decision of the highest state court in which a decision may be
had may seek reversal of that decision by appealing to the United States Supreme
Court." Id. at 1155. However, Janis has already attempted the proper review by
the United States Supreme Court, and her petition for certiorari was denied,
effectively exhausting all her remedies. Janis's ER at 80 ¶ 31. Janis's Complaint
was properly dismissed pursuant to the Roolcer-Feldman Doctrine.
2. State court jurisdiction was not preempted by ERISA.
Janis further argues inaccurately that because ERISA preempts state law, the
Rooker-Feldman Doctrine is inapplicable in the present case. Janis's Opening
Brief at 17-18. However, this is a gross misstatement of the case law that is
Janis fails to take into account authoritative case law that
exceptions to ERISA preemption afforded by the REA
The REA was created to amend ERISA to provide the QDRO exception to
ERISA's broad preemption provisions as well as to its anti-assignment provisions.
Stewart v. Thorpe Holdings Company Profit Sharing Plan, 207 F.3d 1143, 1149
(9 th Cir. 2000); Trustees of the Directors Guild of America-Producer Pension
Benefits Plans v. Tise, 234 F.3d 415, 420 (9 th Cir. 2000). In the case ofBoggs v.
Boggs, 520 U.S. 833 (1997), the Court ruled that ERISA preempted state statutes
regarding the ability of a beneficiary who predeceases the plan participant to
228817_1.D0C 11248.2 5

10. bequeath her survivor's benefits under the ERISA plan to her heirs. Id. However,
the Court acknowledged that the amendments to ERISA under REA provide that a
QDRO can alter who is eligible for benefits, where as state law regarding
testamentary assignments of such benefits cannot. Id. at 854. The U.S. Supreme
Court acknowledged that the QDRO is exempt from "ERISA's general pre-
emption clause." Id. at 847. Similarly, in the case ofAblamis v. Roper, 937 F.2d
1450 (9 th Cir. 1991), this Court held that a predeceased spouse of a plan participant
could not, by operation of state
community property interests in
benefits. Ablamis, 937 F.2d 1450.
law, make a testamentary transfer of her
the still living participant's future pension
But as with the U.S. Supreme Court, this Court
recognized the narrow exceptions afforded by QDROs. This Court specifically
stated that "the REA creates an express statutory exception to the prohibition on
assignment and alienation in the case of distribution made pursuant to certain
state court orders..." Id. at 1455 (emphasis added). This Court went on to state,
"Because orders providing for such allocations [meeting the requirements of a
QDRO under 29 U.S.C. § 1056(d)(3)(B)] are not subject to the anti-assignment
provisions, no preemption issue arises as to them. Id.
This Court has specifically held, "The QDRO provision is an exception not
only to ERISA's rule against assignment of plan benefits but also to ERISA's
broad preemption of state law. State family law can, therefore, create enforceable
228817_1.DOC 11248.2 6

11. interests in the proceeds of an ERISA plan, so long as those interests are
articulated in accord with the QDRO provision's requirements." Tise, 234 F.3d
at 420 (emphasis added). This Court went on to state, "Under this scheme, then,
whether an alternative payee has an interest in a participant's pension plan is a
matter decided by a state court according to the state's domestic relations law."
Id. at 421 (emphasis added); see also •4blarnis, 937 F.2d at 1455. Thus, the Nevada
state courts were not preempted by ERISA from issuing and upholding the QDP•Os
obtained by Judy. Janis's only recourse for review of the Nevada state court orders
was to petition the U.S. Supreme Court for certiorari, which she did, and her
petition was denied. Noel, 341 F.3d at 1154; Janis's ER at 80 ¶ 31.
Janis also argues that because Hilton abided by the Nevada family court's
QDRO, which was affirmed by the Nevada Supreme Court, Hilton's actions
created a new federal claim against Hilton. Janis's Opening Brief at 20. However,
as discussed above, a QDRO is an exception to the broad preemption of state law
by ERISA. Boggs, 520 U.S. at 847; Tise, 234 F.3d at 420; •Iblamis, 937 F.2d at
1455. A state court has jurisdiction to issue a QDRO and a plan administrator has
authority to determine if it is qualified under the requirements of ERISA. See Tise,
234 l:.3d at 421. A plan administrator's determination is reviewable by the courts,
but once Janis sought review from the Nevada Supreme Court, her only remedy
228817_1.DOC 11248.2 '7

12. was to petition the U.S. Supreme Court for certiorari, Noel, 341 F.3d at 1154,
which she did, and her petition was denied. Janis's ER at 80 ¶ 31.
Janis further argues that the Rooker-Feldman Doctrine has no application to
the review of QDROs and cites the United States District of Colorado case Patton
v. Denver Post Corporation, 179 F. Supp. 2d 1232, 1235 (D. Colo. 2002), to
support her argument. Janis's Opening Brief at 20-21. However, Janis reads the
holding in this case incorrectly. First, in Patton, the plaintiff sought review of a
plan administrator's determination that a court order was not qualified under
ERISA. Patton, 179 F. Supp. 2d at 1234. The plaintiff sought this review in the
first instance in a U.S. District Court, not the state supreme court as Janis did in the
present case. Id. Second, the Patton court specifically acknowledged that whether
the QDRO was qualified under ERISA was not addressed or decided by the state
court and thus the QDRO was not entitled to full faith and credit on an issue that
was not decided by the state court. /d. at 1235 n.1. Therefore, the Rooker-
Feldman Doctrine was inapplicable because the U.S. District Court was not being
asked to review a final state court order. Id. Therefore, Patton does not support
Janis's argument, and in fact, supports Hilton's argument in the present case that
the U.S. District Court had no subject matter jurisdiction over Janis's Complaint.
Id.
228817_1.DOC 11248.2 8

13. 3. The constructive trust was not preempted by ERISA.
In the same vein, Janis also argues inaccurately that the imposition of a
constructive trust by the Nevada state courts is in conflict with the mandates of
ERISA. Janis's Opening Brief at 17-19. For this proposition, Janis cites Boggs
and the Eighth Circuit Court case of National Automobile Dealers and Associates
Retirement Trust v. Arbeitman, 89 F.3d 496 (8 th Cir. 1996). As discussed above,
Boggs specifically acknowledged that the QDRO was a narrow exception that
could alter who is eligible for benefits under ERISA. Boggs, 520 U.S. at 854.
Thus, having issued a QDRO that was qualified by Hilton, it was within the court's
discretion and jurisdiction to create a constructive trust to receive the funds from
the two plans at issue. Arbeitman also does not support Janis's argument. At issue
was a prenuptial agreement entered into by the defendant and her deceased spouse,
the plan participant, who had been previously married to the plaintiff, wherein the
defendant waived any rights she had to the decedent's separate property
enumerated in the prenuptial agreement. Arbeitman, 89 F.3d at 498. The
decedent's pension plans were not included in the prenuptial agreement. Id.
Because the prenuptial agreement did not meet the specificity requirements of 29
U.S.C. § 1055(c), the Court held the agreement failed to satisfy the waiver
requirements under ERISA. Arbeitman, 89 F.3d at 501. As a result, the Court held
that the plaintiff's request that a constructive trust be imposed would be
228817_1.DOC 11248.2 9

14. inconsistent with the requirements of ERISA "in this case." Id. (emphasis added).
Thus the Arbeitman Court did not state that a constructive trust would never be
consistent with ERISA, but simply that because the underlying agreement did not
qualify as a waiver under ERISA, the imposition of a constructive trust under the
facts of that case would not be consistent with ERISA. Thus, neither case cited by
Janis support her argument, and the Nevada courts' jurisdiction was not preempted
by ERISA.
4. The courts' findings that Janis waived her survivor benefits did not give
the U.S. District Court jurisdiction to review the Nevada Supreme
Court's decision.
Janis next argues that the U.S. District Court erred in holding that the
Nevada Supreme Court held that Janis executed a valid waiver. Janis's Opening
Brief at 18-20. However, Janis's assertion ignores the next paragraph in the
Nevada Supreme Court's Order, where it found that the family court made that
finding. Janis's ER at 50 (wherein the Nevada Supreme Court acknowledged that
the family court found waiver). The Nevada family court's specific finding in its
April 16, 1999 Order stated,
During the settlement conference both parties agreed
Lupe would receive the entirety of his plans upon
payment to Janis of $1,500. At that time, Janis did not
assert that her interest as survivor beneficiary must be
maintained. Accordingly, it is the opinion of the Court
that Janis conceded that Lupe would receive every aspect
of his retirements, just as she received every aspect of
hers.
228817_1.DOC 11248.2 10--

15. Janis's ER at 30 ¶ 16. In accord with the Nevada family court's finding, it issued a
QDRO validly effectuating Janis's waiver of survivor benefits under the Hilton
Plan. Janis's ER at 59-60 ¶ 6. Thus, the U.S. District Court did not err in its
holding.
Janis continues her argument by asserting that the U.S. District Court always
has jurisdiction to determine whether a waiver in a state domestic relations order is
qualified under ERISA. Janis's Opening Brief at 19-20. However, this argument
ignores the fact that the QDRO had already been reviewed and affirmed by the
Nevada Supreme Court, and that the U.S. District Court had no jurisdiction to
review the Nevada Supreme Court's decision, as discussed in Section 2 supra.
Janis's only remedy was to petition the U.S. Supreme Court for certiorari, Noel,
341 F.3d at 1154, which she did, and her petition was denied. Janis's ER at 80 ¶
31.
B. Janis's appeal of the denial of her Motion for Summary Judgment is not
properly before this Court.
As discussed above, Janis appears to be appealing from the District Court's
denial of her Motion for Summary Judgment, denied by the District Court as moot.
See Janis's Opening Brief at 3, 20-27; Hilton's ER at 1-7; Janis's ER at 161-168.
However, as discussed more thoroughly in Section II above, Janis's Motion was
never reviewed by the District Court because it was found to be moot once the
District Court dismissed Janis's Complaint. Janis's ER at 168:8-15. Thus, the
228817_1.DOC 11248.2 --1!

16. issues raised in Janis's Motion for Summary Judgment are not properly before this
Court. See Padfield, 290 F.3d at 1124; Abend, 863 F.2d at 1482 n.20.
However, in the event this Court disagrees with the above analysis, Hilton
advances the following arguments in response to Janis's assertion that Hilton
breached its fiduciary duty.
1. Hilton did not breach its fiduciary duties to Janis.
Hilton has continually maintained the same position. Until a valid QDRO
was entered, Hilton, as the plan administrator, could not change the beneficiary
under the retirement plan, despite Lupe's requests. In this case, after six years of
litigation over this matter, a valid QDRO was entered. Janis's ER at 58-61. Hilton
simply followed the court's order by dispersing the funds into the constructive trust
set up for the benefit of Judy. Hilton has not breached its fiduciary duties because
(A) a valid QDRO is exempted from ERISA; (B) Hilton believes the April 2, 2004
Family Court Order constitutes a valid QDRO; and (C) Hilton believes that it is
bound by the April 2, 2004 QDRO.
a. A valid QDRO is exempted from ERISA.
Congress passed ERISA in order to establish a comprehensive federal
scheme for the protection of pension plan participants and their beneficiaries.
Stewart, 207 F.3d at 1148. According to the drafters, ERISA was enacted to
"assure American workers that they may look forward with anticipation to a
228817_1.DOC 11248.2 12--

17. retirement with financial security and dignity, without fear that this period will be
lacking in the necessities to sustain them as human beings within our society." Id.
(quoting S. Rep. No. 93-127 (1974) reprinted in 1974 U.S.C.C.A.N. 4639, 4849).
In order for this aim to be met, Congress required all plans falling under ERISA to
include anti-assignment provisions. Id. Additionally, "ERISA's preemption
provision specifically provides that ERISA supercedes any state law regarding
employee benefit plans." Id. at 1149 (citing 29 U.S.C. § 1144(a)).
After the enactment of ERISA, Congress created the Retirement Equity Act
of 1984 ("REA") because of confusion among the different states concerning
domestic orders and the anti-alienation provisions of ERISA. REA amended
ERISA by creating an exception to its anti-assignment provisions for state
domestic relations orders that meet the requirements of a QDRO. 29 U.S.C. §
1056((d)(3)(a).
"The QDRO exception was enacted to protect the financial security of
divorcees." Gendreau v. Gendreau, 122 F.3d 815, 817 (9th Cir. 1997). The
QDRO exception was also enacted to reduce the expense to plan providers and
protect them from suits for making improper payments. Id. As a result, Congress
requires that QDROs be specific and clear and give plan administrators
independent discretion to approve the QDRO before they would be required to act
in accordance with it. 29 U.S.C. § 1056(d)(3)(G); see also Stewart, 207 F.3d. at
228817_1.DOC 11248.2 13--

18. 1149 ("the purpose of the specificity requirements is to reduce the expense of
ERISA plans by sparing plan administrators the grief they experience when
because of uncertainty concerning the identity of the beneficiary they pay the
wrong person, or arguably the wrong person, and are sued by a rival claimant.").
As a result of QDRO's exemption from EPdSA, a federal court does not
have subject matter jurisdiction to hear disputes concerning a valid QDRO. In
Flaherty v. Flaherty, the federal district court of Massachusetts examined a motion
to remand. Flaherty v. Flaherty, 1992 WL 201103. The defendants' removal was
"based upon the preemptive effect of [ERISA], which generally makes a suit for
benefits under a plan subject to ERISA a federal question." Id. "However, ERISA
specifically exempts disputes involving qualified domestic relations orders from its
preemption provision." Id. (citing 28 or 29 U.S.C. § 1144(b)(7)). After reviewing
the QDRO, the court found that "[t]his case arises out of a divorce agreement
which meets the criteria for a qualified domestic relations order." /d. (citing 29
U.S.C. § 1056(d)(3)(B)(i)). Accordingly, the court held that "[s]ince the action is
not preempted by ERISA, the case must be remanded to the state court." Id.
(citing Metropolitan Life Ins. v. Taylor, 481 U.S. 58, 64 (1987)); see also Tise, 234
F.3d at 420; Ablamis, 937 F.2d at 1455.
Here, the order from the Family Court is a QDRO ordering Hilton to pay
Judy Carmona the benefits her deceased husband, Lupe Carmona, accrued under a
228817_1.DOC 11248.2 ]4--

19. pension plan while he worked for Hilton. Janis's ER at 58-61. Specifically, the
court order provides that "[i]t is intended that this Order shall qualify as a
Qualified Domestic Relations Order under the Retirement Equity Act of 1984, P.L.
98-397." /d. Thus, the Hilton Plan Administrator is required to determine if the
April 2, 2004 QDRO is valid. Tise, 234 F.3d at 421. If the QDRO is valid, the
Hilton Plan Administrator must comply with the court order.
b. Hilton properly, and in good faith, determined the QDRO
Order meets the requirements under REA.
To qualify under the statute, a marital dissolution order must meet four
specific requirements: (1) the name and the last known mailing address (if any) of
the participant and the name and mailing address of each alternate payee covered
by the order; (2) the amount or percentage of the participant's benefits to be paid
by the plan to each such alternate payee, or the manner in which such amount or
percentage is to-be determined; (3) the number of payments or period to which
such order applies; and (4) each plan to which such order applies. 29 U.S.C. §
1056(d)(3)(C).
Here, the court order meets the first requirement of § 1056(d)(3)(c) since the
address of the participant and alternate payee is given in the order. According to
the court order, "The Participant and Alternate Payee Judy Carmona designated the
following attorney as representative for receipt of copies of notices pertaining to
228817_1.DOC 11248.2 15

20. this Order: Law Office of Marshal S. Willick, P.C., 3551 E. Bonanza Road, Suite
101, Las Vegas Nevada, 89110-2198." Janis's ER at 58-61.
Like the first requirement, the court order meets the second and third
requirements of § 1056(d)(3)(c); this is true, even though the specific amount or
percentage of the participant's benefits to be paid to the alternate payee and the
number of payments or period to which the order applies is not specifically given
in the order. When deciding whether a purported QDRO satisfies the requirements
of REA, courts often liberally construe the requirements. Stewart, 207 F.3d at
1151. "As long as a formula within a plan can be clearly and easily followed,
courts have not hesitated to find ERISA's specificity requirements satisfied despite
the fact that the decree calls for some modicum of interpretation." Id. at 1153 n.7
(citing Williams, 50 F. Supp. 2d at 960). "The default position for an administrator
with regard to such interpretation would be to follow ERISA and the plan's
mandates." /d.
In Stewart, the QDRO also "did not provide for periodic payments of
benefits." 207 F.3d at 1152. Notwithstanding this deficiency, the order was valid
because it "contain[ed] the information specified in the statute that a plan
administrator would need to make an informed decision." Id. at 1154. In
Metropolitan Life Ins. Co. v. Marsh, 119 F.3d 415 (6 th Cir. 1997), a case cited with
approval by the Ninth Circuit in Stewart, the Sixth Circuit held that a QDRO,
228817_1.DOC 11248.2 16--

21. which simply stated that the participant's two children were to receive two-third's
of the participant's ERISA benefits, "substantially complied with ERISA's
requirements." Marsh, 119 F.3d at 422. According to the Marsh court, the QDRO
was valid because it lacked "no essential information." Id. Along these lines, the
Seventh Circuit observed,
It is asking too much of domestic relations lawyers and judges to
expect them to dot every i and cross every t in formulating divorce
decrees that have ERISA implications. Ideally, every domestic
relations lawyer should be conversant with ERISA, but it is unrealistic
to expect all of them to be. We do not think Congress meant to ask
the impossible, not the literally, but the humanly, impossible, or to
make a suit for legal malpractice the sole recourse of an ERISA
beneficiary harmed by a lawyer's failure to navigate the treacherous
shoals with which the modem state-federal law of employee benefits
abounds.
Metropolitan Life Insurance v. Wheaton, 42 F.3d 1080, 1085 (7th Cir.
1994); see also Stewart, 207 F.3d at 1154 n.8 (quoting Marsh). Here, the
QDRO order provides, "Any periodic benefits of the Participant's pension
now being paid or that might be paid to Janis Carmona a/k/a Janis Kester,
are to be paid to Alternate Payee Judy Carmona, the Participant's surviving
spouse (widow), whether or not Judy is designated as the beneficiary of
those benefits." Janis's ER at 58-61. Although the order does not give the
amount or the percentage or the number of payments or period to which the
order applies, the QDRO clearly orders the plan administrator to substitute
Judy for Janis. Further, the Hilton Plan provides for the percentage amount
228817_1.D0C 11248.2 17--

22. and the number of payments. Therefore, like Stewart, notwithstanding these
deficiencies, all the relevant information is provided for the plan
administrator to make an informed decision. See Stewart, 207 F.3d 1143.
Finally, the court order also meets the fourth requirement. According to the
QDRO, the "Plan to which this Order applies is stated in item 2 hereof, as it now
exists or may from time to time be amended,, or any successor plan thereto."
Janis's ER at 58-61. Item 2 of the QDRO references Lupe's interest in the Hilton
Plan. Janis's ER at 58-61. Thus, Hilton properly determined all the requirements
are satisfied and the April 2, 2004 court order constituted a valid QDRO under
ERISA. See Stewart, 207 F.3d 1143.
c. Hilton is bound by the Nevada Family Court's QDRO.
Based on the fact that a valid QDRO was entered, Hilton did not breach its
fiduciary duty to Janis by properly paying Lupe's Hilton Plan benefits into the
constructive trust, pursuant to the Family Court order. See Janis's ER at 58-61. In
accord with Boggs, Tise and Ablamis, discussed in Section IV(A)(2) supra, a
California court reached a determination that federal law does not preempt state
court action dividing marital interests in employee benefit plans, nor does it require
that an action to enforce a state order dividing such benefits be brought in federal
court. Baker v. Baker, 251 Cal. Rptr. 126, 127 (1988). Further, the court
concluded that "Congress has clearly declared its intent that state courts in a
228817_1.DOC 11248.2 18

23. martial dissolution action can issue an order which, if a QDRO, is binding upon the
plan administrator, even though the plan is not a party to the action in which the
order is issued." Id. at 133. Therefore, "the federal statutory scheme binds the
plan to distribute benefits pursuant to a state court order which is a QDRO, even
though the plan is not a party to the dissolution action." Id.
In the instant case, Hilton, similar to Baker, was not a party to the preceding
litigation between Lupe and Janis. However, on April 2, 2004, the Family Court
issued an order directing Hilton to remove Janis as an Alternate Payee and "replace
her" with Judy. Janis's ER at 58-61. Because the QDRO was served on the Hilton
Plan, Hilton simply followed the court's instruction.
Hilton recognizes that IATSE and Janis believe the April 2, 2004 QDRO
was not valid. Janis argues that the QDRO exception was enacted to protect only
an ex-spouse. See Janis's Opening Brief at 22-24 Based on this reasoning, Janis
contends that since Judy is not an ex-spouse, rather a widow, the QDRO provisions
of § 1056 have no application to Judy. Id.. However, Janis' interpretation of §
1056 is inaccurate. In fact, § 1056(d)(3)(K) provides that an alternative payee
under a QDRO means "any spouse, former spouse, child, or other dependent of a
participant who is recognized by a domestic relations order as having a right to
receive all, or a portion of, the benefits payable under a plan with respect to such
participant." Judy is the surviving spouse of Lupe. As § 1056 clearly indicates
228817_1.DOC 11248.2 19--

24. "any spouse" can be named an alternative payee under a valid QDRO. In this case
a valid QDRO was entered, whereby it named Judy, Lupe's surviving spouse, as
the named beneficiary.
Similarly, IATSE argues that pension benefits irrevocably vest on the date of
the participant's retirement. See IATSE's Answering Brief at 12 in Appeal No. 06-
15581 (citing Rivers v. Central & Southwest Corp., 186 F.3d 681, 683 (5 th Cir.
1999), and Hopkins v. AT&T Global Info. Solutions Co., 105 F.3d 153, 156 (5 th
Cir. 1999)). Resting on this decision, IATSE argues that Janis was married to
Lupe on the date of his retirement and therefore Lupe's pension plans irrevocably
vested in Janis on the date of his retirement.
However, both IASTE and Janis fail to recognize the thorough, persuasive
discussion and analysis in Torres v. Torres, 417, 60 P.3d 798, 818, 100 Hawaii 397
(2003), which the Nevada Supreme Court correctly analyzed and on which it based
its decision. In Torres, the court concluded that nothing in the structure of ERISA
supports the claim that survivor benefits "vest" at the participant's retirement.
Torres, 60 P.3d at 818, 100 Hawaii at 417. Rather, state courts have jurisdiction
under ERISA to divide martial interests in employee benefit plans in dissolution
actions. In fact, 29 U.S.C. § 1056(d)(3)(A) provides that a "pension plan shall
provide for the payment of benefits in accordance with the applicable requirements
of any qualified domestic relations orders." As outlined above, the Family Court
228817_1.DOC 11248.2 20--

25. determined that Lupe's Hilton Plan is separate property. Thereafter, the Family
Court entered a valid QDt•O.
Moreover, Tise specifically held that "there is no conceptual reason why a
QDRO must be obtained before the plan participant's benefits become payable on
account of his retirement or death." Tise, 234 F.3d at 421. As this Court pointed
out in Tise, several provisions of the ERISA Statute confirm no such requirement.
Id.
Thus, although the Tise Court left the determination of whether a QDRO
issued after a participant's retirement may affect survivor benefits, Tortes provides
strong arguments that this Court should so rule. See Tortes, 630 P.3d at 818, 100
Hawaii at 417.
Furthermore, as argued in Section II supra, this Court need not make that
determination in this appeal as this issue is not properly before this Court. See
Padfield, 290 F.3d at 1124.
///
///
///
///
///
///
228817_1.DOC 11248.2 21

26. V. CONCLUSION
For the foregoing reasons, Appellee Hilton respectfully requests that this
Court affirm the U.S. District Court's dismissal of Appellant Janis's Complaint.
VI. RELATED CASES
This appeal is related to Appeal No. 06-15581. Both appeals arise out of the
same facts and circumstances and the same court actions below.
KUMMER KAEMPFER BONNER RENSHAW & FERRARIO
By:
T•HOMAS F. KUMI•IER
Nevada Bar No. 1200
SHERI ANN F. FORBES
Nevada Bar No. 7337
3800 Howard Hughes Parkway
Seventh Floor
Las Vegas, Nevada 89169
Attorneys for Defendant/Appellees
HILTON HOTELS CORPORATION RETIREMENT PLAN
228817_1,DOC 11248.2 22--

27. CERTIFICATE OF SERVI•(
The undersigned hereby certifies that on the
_• day of August, 2006, I
mailed a true and correct copy of the foregoing APPELLEE'S ANSWERING
BRIEF, in a sealed envelope, to the following with postage fully prepaid thereon:
William E. Freedman
411 S. Sixth St.
Las Vegas, NV 89101-6915
Attorneys for Plaintiff
Marshal S. Willick
Willick Law Group
3551 E. Bonanza Rd., Suite 101
Las Vegas, NV 89110-2198
Attorneys for Defendant Judy Carmona
as Successor Representative of Lupe N.
Carmona, Deceased
Adam P. Segal
Schreck Brignone
300 S. Fourth St., Suite 1200
Las Vegas, NV 89101
Attorneys for Defendant Nevada Resort
Association International Alliance of
Theatrical and Stage Employees Local
720 Pension Trust (I.A.T.S.E.)
An Employee of Kummer Kaempfer
Bonner Renshaw & Ferrario
228817_I.DOC 11248.2
23