Robinette v. Hunsecker

HOTTEN, J. “The alphabet soup world of pension benefits has spawned a dizzying array of acronyms, like ERISA, QDRO, and QPSA, and a complex web of interrelated statutory provisions” that collide at the intersection of federal statutes with State domestic relations law. Hamilton v. Wash. State Plumbing and Pipefitting Indus. Pension Plan, 433 F.3d 1091 (9th Cir.2006).

In this case of first impression, we are asked to resolve contentions relating to the entry of a domestic relations order and the existence of an equitable remedy in the form of a ⁸⁰ constructive trust when a party to a divorce fails to obtain a qualified domestic relations order prior to the pre-retirement death of a former spouse, when that former spouse remarries and—prior to pre-retirement death—designates his or her surviving spouse as sole beneficiary of his/her pension. Lori A. Robinette, appellant, appeals from the judgment of the Circuit Court for Frederick County granting summary judgment and awarding a constructive trust and partial pension benefits to her deceased husband’s former spouse, Luan Hunsecker, appellee. On appeal, appellant presents two questions for our review: 1 I. Did the circuit court err by entering an order for the alienation of pension benefits after the death of the plan participant?

II

Did the circuit court err by creating a constructive trust to alienate pension benefits after the death of the plan participant? For the reasons outlined below, we answer both questions in the negative, and affirm the judgment of the circuit court. I. FACTUAL AND PROCEDURAL HISTORY The essential facts pertinent to this appeal are undisputed. On June 6, 1981, appellee, Luan Hunsecker (“Ms.Hunsecker”), was married to the decedent, Roger Robinette (“Mr.Robinette”).

During their marriage, Mr. Robinette was employed by Montgomery County Public Schools (“MCPS”) and a par ⁸¹ ticipant in its pension plan. After nearly seventeen years of marriage, Ms. Hunseeker and Mr. Robinette executed a voluntary separation agreement on April 16, 1998. Pursuant to that agreement, Ms. Hunseeker transferred and assigned all her rights, title, and interest in the marital home, with the proviso that the proceeds of any sale would be the “sole and exclusive property” of Mr. Robinette. In addition, Ms. Hunsecker further conveyed all her rights, title, and interest in a boat and trailer the couple owned, and she released and discharged any claims for pendente lite and indefinite alimony.

Following their agreement, a judgment of divorce was entered by the Circuit Court for Frederick County, Maryland, providing that the terms of the voluntary separation agreement would be incorporated, but not merged, into the judgment of absolute divorce. Most notably, paragraph eight of the separation agreement provided that the judgment of divorce, issued on August 3, 1998, would serve as a qualified domestic relations order (“QDRO”) in the pension benefits and death (“surviving spouse”) benefits provided to Mr. Robinette through his employ with MCPS. 2 Specifically, the provision stated: PENSION: [Mr. Robinette] is a participant in a pension plan through his employment with [MCPS]. The parties agree that [Ms. Hunseeker] shall be the alternate payee of the aforesaid pension and that the parties’ judgment of divorce shall be a Qualified Domestic Relations Order as defined by the Retirement Equity Act of 1984, as from time to time amended. [Ms. Hunsecker’s] equitable interest in [Mr. Robinette’s] pension is hereby declared to be fifty percent (50%) of the “marital share” of said pension benefit, ⁸² the marital share being that fraction of the benefit whose numerator shall be the number of months of the parties’ marriage during which the benefits were accumulated, which number shall be determined as of the date of this Agreement, and whose denominator shall be the total number of months during which the benefits were accumulated prior to the time when payment of such benefits shall commence. [Ms. Hunsecker] shall receive fifty percent (50%) of the aforesaid marital share of any benefits made from the pension to [Mr. Robinette], including any death benefits if, as and when such payments are made. (emphasis in original).

This provision, however, was never enrolled in a QDRO. After their divorce, Mr. Robinette continued working for MCPS. He remarried on June 25, 2000, to Lori A. Robinette (“Ms.Robinette”). Throughout their nine years of marriage, Mr. Robinette continued working for MCPS until his untimely death on October 2, 2009.

Ms. Robinette was named as the personal representative of Mr. Robinette’s small estate, which she administered without publication. Upon learning of Mr. Robinette’s passing, Ms. Hunsecker attempted to obtain a portion of the pension benefits from MCPS on May 12, 2010, pursuant to the separation agreement that she had entered eleven years earlier. Her efforts proved unsuccessful because MCPS had never received a QDRO to indicate Ms. Hunsecker as the partial beneficiary of Mr. Robinette’s pension benefits. Mr. Robinette had named Ms. Robinette the beneficiary of record with MCPS on September 2, 2008.

As a consequence, Ms. Hunsecker was denied any portion of the pension benefits, and she was apprised that Mr. Robinette’s pension was being paid to Ms. Robinette. Thereafter, Ms. Hunsecker instituted a cause of action in the Circuit Court for Frederick County, Maryland, against Ms. Robinette on January 20, 2011, seeking the establishment of a constructive trust on grounds of Ms. Robinette’s unjust enrichment. The parties filed a joint stipulation of facts on October 14, 2011. On that same day, Ms. Hunsecker addition ⁸³ ally moved for summary judgment, arguing that she had a superior equitable title to Mr. Robinette’s pension.

Ms. Robinette responded in opposition on November 3, 2011, filing her own motion for summary judgment, arguing three points. First, Ms. Robinette attested that Ms. Hunsecker had failed to obtain a QDRO prior to Mr. Robinette’s death, and, as a consequence was precluded from asserting any interest to Mr. Robinette’s pension pursuant to Title I of ERISA. Second, she argued that Ms. Hunsecker’s claim of unjust enrichment was inapplicable because the parties “have no privity whatsoever, whether contractual or quasi-contractual.” Third, Ms. Robinette argued that the creation of a constructive trust was an improper method of acquisition of Mr. Robinette’s pension and that she maintained higher equitable call. After hearing argument of counsel on November 17, 2011, and taking each parties’ motions sub curia, the circuit court entered summary judgment in favor of Ms. Hunsecker on January 4, 2012, granting her a constructive trust in a portion of Mr. Robinette’s pension and death benefits and further ordered the issuance of a posthumous QDRO, consistent with the separation agreement.

Ms. Robinette subsequently noted her timely appeal to this Court.

II

STANDARD OF REVIEW Md. Rule 2—501(f) provides that a trial court “shall enter [summary] judgment in favor or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” We review a trial court’s grant or denial of summary judgment de novo by conducting our own independent review of the record and deciding the same legal issues as the trial court. Haas v. Lockheed Martin Corp., 396 Md. 469, 478-79 , ⁸⁴ 914 A.2d 735 (2007). When, as in this case, there are no disputed facts related to the trial court’s grant or denial of summary judgment, our only task is to determine whether the trial court’s decision was legally correct. Id. at 479 , 914 A.2d 735 .

See also Gonsalves v. Bingel, 194 Md.App. 695, 708 , 5 A.3d 768 (2010).

III

DISCUSSION (A) Did the Circuit Court Err by Entering a Domestic Relations Order for the Alienation of Pension Benefits After the Death of the Plan Participant? Ms. Robinette first contends that the circuit court erred by entering a domestic relations order for the alienation of pension benefits that had already vested in the pre-retirement pension plan participant’s designee upon the death of the pension plan’s participant. In response, Ms. Hunsecker argues that “[t]he [cjourt could ... enter a QDRO since Mr. Robinette was a participant in the MCPS Retirement Plan, a governmental retirement plan that is exempt from the provisions of ‘ERISA.’ ” We find Ms. Hunsecker’s argument more persuasive. In considering Ms. Robinette’s first assignment of error, we preliminarily begin with an overview of the applicability—or, in this case, the inapplicability—of the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq.

(1999) (“ERISA”), to pension plans. See, e.g., Potts v. Potts, 142 Md.App. 448, 454-55 , 790 A.2d 703 (2002). ERISA was first enacted in 1974 in order to remedy long-standing abuses and deficiencies in the private pension system. See generally H.R.Rep.

No. 533, 93d Cong., 2d Sess., reprinted in, 1974 U.S.Code Cong. & Ad. News 4639. See also 29 U.S.C. § 1001 et seq. “These deficiencies included inadequate vesting provisions, insufficient assets to assure payment of future benefit obligations, and premature termination of under-funded benefit plans.” Rose v. Long Island R.R. Pension Plan, 828 F.2d 910 , 913 (2d Cir.1987) (citations omitted). Thus, ERISA’s ⁸⁵ purpose is to “to provide better protection for beneficiaries of employee pension and welfare benefit plans abounding in the private workplace.” Rohrbeck v. Rohrbeck, 318 Md. 28, 30 , 566 A.2d 767 (1989) (discussing the history and intent of ERISA) (emphasis added), quoted in Eller v. Bolton, 168 Md.App. 96, 106-107 , 895 A.2d 382 (2006).

See also Albert Feuer, WHO IS ENTITLED TO SURVIVOR BENEFITS FROM ERISA PLANS?, 40 J. Marshall L.Rev. 919, 923 (2007) (“ERISA was a response to the protests on behalf of many employees and their beneficiaries who had been deprived of anticipated pension and welfare benefits.”). ERISA is comprised of four titles. Title I of ERISA, 29 U.S.C., § 1001 et seq., contains various substantive and procedural requirements with which covered plans must comply. These include standards for vesting, funding and fiduciary responsibility as well as the survivorship provisions and anti-alienation provisions under which Ms. Robinette initially claimed as her sole right to Mr. Robinette’s pension and death benefits.

Title II of ERISA is codified in the Internal Revenue Code, 26 U.S.C. § 401 et seq., and contains requirements pertaining to the qualifications of pension plans for favorable tax treatment. Title III, 29 U.S.C. § 1201 et seq., establishes ERISA’s administrative and enforcement provisions. Title IV, 29 U.S.C. § 1301 et seq., contains the Pension Benefit Guaranty Corporation (“PBGC”), guaranteeing the payments of benefits by plans which terminate with insufficient assets to pay those benefits to their participants and designees. Under Title I, it is well settled that a core ERISA concern is the “ERISA command” that pension plans subject to ERISA’s provisions make payments to the beneficiary who is “designated by a participant or by the terms of [the] plan.” Egelhoff v. Egelhoff, 532 U.S. 141, 147 , 121 S.Ct. 1322 , 149 L.Ed.2d 264 (2001); Morales v. Trans World Airlines Inc., 504 U.S. 374, 383 , 112 S.Ct. 2031 , 119 L.Ed.2d 157 (1992).

See Rohrbeck, 318 Md. at 30 , 566 A.2d 767 ; Eller, 168 Md.App. at 106-07 , 895 A.2d 382 . In fact, ERISA § 205, 29 U.S.C. § 1055—the spousal survivor provision—mandates that pension benefit plans provide spouses with specified survivor ⁸⁶ benefits. See id. § 1055(b)(1)(A). Thus, such benefits and benefit designations must be part of all covered ERISAgoverned pension plans.

See id. See also Feuer, supra, 40 J. Marshall L.Rev. at 655. In addition, Section 1055 provides two specific avenues through which surviving spouses may attain a portion of the participants’ pension benefits. Id. § 1055(d) & (e). 3 These two avenues depend on the status of the participant before the date on which the annuity begins.

Id. § 1055(a). Specifically, “in the case of a vested participant who does not die before the annuity starting date, the accrued benefit payable to such participant shall be provided in the form of a qualified joint and survivor annuity[. 4 ]” Id. § 1055(a)(1). In the alternative, if “a vested participant ... dies before the annuity starting date and ... has a surviving spouse, a qualified preretirement survivor annuity [5] shall be provided to the surviving spouse of such participant.” Id. § 1055(a)(2). ⁸⁷ To be sure, a participant’s former spouse may be treated as a beneficiary under the plan and additionally regarded as a surviving spouse, eligible to receive surviving spouse benefits. See 29 U.S.C. § 1055 (f)(2). 6 Nonetheless, this designation can only occur when no conflict of law arises between a State’s domestic relations law and ERISA’s preemption clause or general anti-alienation provision.

See 29 U.S.C. § 1144 (a) (stating that ERISA “shall supercede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan”); 29 U.S.C. § 1056 (d)(1) (providing that “[e]ach pension plan shall provide that benefits] under the plan may not be assigned or alienated.”). To clarify the intersection of state domestic relations law with ERISA, and the potential conflict arising between these laws, Congress amended ERISA in 1984 through its enactment of the Retirement Equity Act (P.L. 98-397, 98 Stat. 1433 ) (“REA”) to improve the delivery of ... retirement benefits and provide for greater equity under private pension plans for workers and their spouses and dependents by taking into account changes in work patterns, the status of marriage as an economic partnership, and the substantial contribution to that partnership of spouses who work both in and outside the home, and for other purposes. ⁸⁸ Pub.L. No. 98-397 ; 98 Stat. 1426 (1984) (emphasis added). As a result, the REA provides the requisite clarification that state-court-ordered assignments of plan benefits to former spouses and dependents were permitted. Tr. of Dr. Guild of America-Producer Pension Benefits Plans v. Tise, 234 F.3d 415 , 419 (9th Cir.2000) (citing Senate Judiciary Committee, S.Rep.

No. 98-575 at 1 (1984), 1984 U.S.C.C.A.N. 2547) (other citations omitted); Rivers v. Central and South West Corp., 186 F.3d 681, 683 (5th Cir.1999) (noting that the REA amended ERISA’s marriage requirements to resolve contentions among the courts with regard to the application of the former surviving spouse provisions); Eller, 168 Md.App. at 107 , 895 A.2d 382 ; Potts, 142 Md.App. at 455-56 , 790 A.2d 703 (citations omitted). Nevertheless, REA’s amendments to ERISA explicitly provide that the former spouse of the plan participant can only replace the participant’s current spouse and be treated by the private pension plan as the surviving spouse pursuant to a QDRO. 29 U.S.C. § 1056 (d)(3)(F). 7 See Hopkins v. AT & T Global Information Solutions Co., 105 F.3d 153, 155 (1997). A qualified domestic relations order, or QDRO, is a subset of domestic relations orders 8 that recognize the right of an ⁸⁹ alternate payee to receive all or a portion of the benefits payable with respect to a pension plan’s participant under the respective pension plan. Eller, 168 Md.App. at 107 (relying on 29 U.S.C. § 1056 (d)(3)(B)(i)(I)).

Section 1056(d) of ERISA sets the parameters by which a domestic relations order (“DRO”) would be deemed “qualified,” specifically providing: (C) A domestic relations order meets the requirements of [a QDRO] only if such order clearly specifies— (i) the name and last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order, (ii) 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. (iii) the number of payments or period to which such order applies and (iv) each plan to which such order applies. Id. § 1056(d)(3)(C). Section 1056(d)(3)(D) prohibits qualification of a domestic relations order that “requirefs] a plan to provide any type or form of benefit ... not otherwise provided under the plan,” “require[s] the plan to provide increased benefits (determined on the basis of actuarial value),” or “require[s] the payment of benefits to an alternate payee which [is] required to be paid to another alternate payee under another order previously determined to be a [QDRO].” 29 U.S.C. § 1056 (d)(3)(D) et seq.

Admittedly, Maryland has not previously addressed the meaning of this section within the context of an alternate payee seeking a participant’s pre-retirement death benefits posthumously. But see Eller, 168 Md.App. at 132-33 , 895 A.2d 382 (concluding that “[b]ecause a nunc pro tunc amendment of the QDRO relates back to the time prior to the [former spouse’s] death ... [the nunc pro tunc amendment of the QDRO] will not fail for naming [former spouse] as the alternate payee, even though she is now deceased[,]” as a method to provide benefits to the former spouse’s estate). Like Eller , however, ⁹⁰ we turn our attention to the United States Circuit Courts of Appeal to engage in a discussion of some key cases to determine the permissibility of posthumous QDROs. See, e.g., Eller, 168 Md.App. at 119 , 895 A.2d 382 .

The United States Circuit Court of Appeals for the Third Circuit first considered the permissibility of posthumously issued QDROs in Samaroo v. Samaroo, 193 F.3d 185 (3d Cir.1999). There, Louise Robichaud-Samaroo (Ms. Robichaud) sought to obtain the pension benefits of her former and deceased husband, Winston Samaroo, relying on a property settlement agreement that had been incorporated into the parties divorce decree. Id. at 186-87 . The agreement specifically provided: (d) Pensions, Profit Sharing and Bell System Savings Plan.

Savings Plan—(1) Husband has a vested pension having a present value, if husband were to retire at this time, of $1,358.59 per month. At the time of husband’s retirement and receipt of his pension he agrees to pay to wife one half of said monthly amount. Id. at 187 (quoting the joint property agreement of the Samaroos). Neither the decree nor the property settlement agreement, however, mentioned any right of Ms. Robichaud to Mr. Samaroo’s survivor’s annuity.

Id. Thereafter, Mr. Samaroo died while still actively employed by AT & T. Id. Admittedly and at the time of his death, Mr. Samaroo did maintain a management pension plan with AT & T. Id. Nonetheless, because Mr. Samaroo did not live to an age where he would qualify to receive pension payments, there were no pension payments that ever became payable to him.

Id. As a consequence, “the benefit expressly mentioned in the divorce settlement agreement never came to fruition.” Id. The plan, however, did provide a qualified preretirement survivor annuity (“QPSA”), 9 which would have been available to the surviving spouse of any plan participant who passed after vesting but before retiring. Id. ⁹¹ As a result, Ms. Robichaud sought to obtain the QPSA benefits from the plan.

Id. The plan, however, denied her claim for the QPSA because the divorce decree made no mention of any entitlement to such right, and “in the absence of a surviving spouse or a QDRO designating a former spouse as such, there was simply no [QPSA] payable in respect of Samaroo.” Id. Thereafter, Ms. Robichaud brought a civil action against the plan in New Jersey Superior Court, Chancery Division, to amend the final judgment of divorce nunc pro tunc to convey her a right to fifty percent of the QPSA. Id. at 188 .

The plan removed the action to federal court and filed a counter-claim, seeking declaratory relief. Id. The federal District Court remanded the portion of the removed case that involved the terms of the divorce, but retained jurisdiction of Ms. Robichaud’s claim against the Plan for the retirement benefits. Id. at 188 .

Notwithstanding Ms. Robichaud’s testimony that “neither Winston ... [n]or [she] thought about the survivor rights to th[e] pension,” the New Jersey state court held that the Plan did not have standing to object to alteration of the divorce decree. Id. It noted that “Winston Samaroo’s estate did not oppose Robichaud’s request to amend the decree nunc pro tunc, since conveying the survivorship rights once Samaroo was dead did not cost the estate anything, but undid the effect of Samaroo dying without a survivor.” Id. Following the state court’s ruling, Ms. Robichaud and the Plan filed cross-motions for summary judgment in the federal District Court, requesting an examination of the statutory requirements for a QDRO under 29 U.S.C. § 1056 (d)(3)(C) and (D).

Id. 189 . The District Court found that the amended divorce order satisfied the specificity requirements of section 1056(d)(3)(C), but not the substantive requirements of section 1056(d)(3)(D). Id. On appeal, the Third Circuit concluded that the nunc pro tunc domestic relations order did not qualify as a QDRO if it required the plan to provide any type of benefits not otherwise provided by the plan or to provide increased benefits. ⁹² Subsequent to the Third Circuit’s decision in Samaroo , the United States Circuit Court for the Ninth Circuit was met with a similar inquiry in Tr. of Directors Guild of America-Producer Pension Benefits Plans v. Tise, 234 F.3d 415 (9th Cir.2000).

There, Yvonne Curry (“Ms.Curry”), the designated beneficiary of the pension plan of her deceased, domestic partner, Charles Myers (“Mr.Myers”), appealed the District Court’s summary judgment distributing the majority of Mr. Myers’ plan proceeds to the mother of his children Suzanne Tise (“Ms.Tise”). Id. at 417. Before Mr. Myers’ death in 1995, three parties had emerged to assert competing claims regarding the proceeds of his pension plan: Ms. Curry, his designated beneficiary; Ms. Tise, who had obtained state-court child support orders; and the Internal Revenue Service (“IRS”). Id.

The basis of Ms. Tise’s claim was premised on Mr. Myers’ dereliction of the child support orders she had obtained for the two children born out of their relationship in 1981. Id. As a result of Mr. Myers’ dereliction, Ms. Tise returned to the state court, to secure an order to show cause barring the Myers’ pension plan from disbursing any proceeds from Myers’ pension plan. Id.

Although the order did not name the Myers’ plan, the plan received a copy of the order in December of that year. Id. at 418. Shortly thereafter, the plan received an additional notice of levy from the IRS. Id.

Met with two claims to Mr. Myers’ pension, the plan notified Ms. Tise that Mr. Myer’s pension was to become payable soon and that other parties were asserting entitlements to the plan proceeds. Id. In this notice, the plan asked Ms. Tise if it was her intention to obtain a QDRO pursuant to 29 U.S.C. § 1056 (d)(3). Id.

In response, Ms. Tise immediately returned to the state court to obtain a writ of execution against the plan for the amount Mr. Myers’ still owed in child support pursuant to the original 1981 judgment. Id. The state court ordered a writ of execution to issue, and in December 1994, Ms. Tise secured an order alleging that the plan had failed to comply with the writ of execution and enjoining the plan from distributing Mr. ⁹³ Myers’ plan proceeds until a QDRO could be obtained. Id.

Unfortunately, Ms. Tise suffered a minor setback when the state court subsequently concluded that the plan had not been properly joined in the proceedings against Mr. Myers. Id. Following this ruling, she took steps to join the plan to the proceedings and moved for an order declaring her entitled to a QDRO on March 30,1995. Id.

Meanwhile, Mr. Myers died on February 12, 1995. Id. According to the terms of his pension plan, all death benefits would be received by his designated beneficiary, Ms. Curry, who he had appointed only two months prior to his death. Id.

Now faced with three claims, the pension plan filed an inter-pleader complaint in the United States District Court. Id. Ms. Tise moved for a stay of the interpleader action while she returned to the state court to secure a QDRO, which was granted by the District Court. Id.

Ms. Tise secured a QDRO from the state court, styled “Order re: QDRO for Child Support Arrears, Interest Accrued, Thereon and Attorney’s Fees and Costs Relating to Enforcement of Child Support.” Id. at 419 . The state court determined that Ms. Tise was entitled to $326,438.85 in child support and attorneys’ fees and issued an order nunc pro tunc to the order of October 11, 1991. Id. at 419 . Thereafter, Ms. Tise presented her order to the District Court, which reallocated the proceeds of Mr. Myers’ pension.

As a result, both Ms. Curry and Mr. Myers’ plan appealed. On appeal, the Ninth Circuit commenced its discussion with an overview of ERISA as amended by the REA, which resulted in the court’s conclusion that “because a QDRO only renders enforceable an already-existing interest, 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.” Id. at 419-20 . Thus, the court reasoned the several features of ERISA “erect no such requirement,” for the potential alternate payee. Id.

Specifically, the court noted: ⁹⁴ First, for all the detail of the QDRO requirements, ERISA nowhere specifies that a QDRO must be in hand before benefits become payable. Second and more significantly, the statute specifically provides for situations 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 and therefore creates obligations for the pension plan. 29 U.S.C. § 1056 (d)(3)(G)(ii). While the plan is making this determination, it must segregate the benefits that would be due to the alternate payee under the terms of the DRO during the first 18 months that those benefits would be payable if the DRO is ultimately deemed a QDRO. 29 U.S.C. § 1056 (d)(3)(H)(v).

This benefit-segregation requirement obviously assumes that benefits may already be payable during the period the plan is determining whether the DRO is a QDRO. Third, Congress expressly contemplated that further state court proceedings might ensue during the 18-month QDRO determination period, through which the alternate payee could attempt to cure any defects in the original DRO and obtain an enforceable QDRO. There is no reason it should take any plan administrator 18 months to puzzle over the domestic relations order initially presented to the plan in order to determine whether it is a QDRO, and Congress did not intend to sanction such administrative lassitude. Rather, the evident purpose of the 18-month period was to provide a time in which any defect in the original DRO could be cured.

The statute therefore provides that the alternate payee may, within the 18-month period, present the plan administrator in lieu of the original court order, with a “modification thereof.” 29 U.S.C. § 1056 (d)(3)(H)(ii). If the plan administrator determines before the expiration of the 18-month fund segregation period that the modified ⁹⁵ court order is a valid QDRO, the alternate payee is entitled to payment of benefits. Id. Fourth, the statute also specifies with particularity the circumstances in which the putative alternate payee loses the right to hold up the payment of benefits to the participant or his designated beneficiary.

After the 18 months have elapsed, if the DRO’s status is still in doubt the plan must pay the segregated funds to the person who would otherwise have been paid. 29 U.S.C. § 1056 (d)(3)(H). If the plan thereafter determines that the alternate payee’s DRO is a QDRO after all, the plan must begin to pay the pension benefits to the alternate payee as directed by the order, although the plan is not required to pay the alternate payee retrospectively. 29 U.S.C. § 1056 (d)(3)(H)(iv). Only after the requisite 18 months have passed, that is, is it possible for a designated beneficiary to have a right to any part of a participant’s pension plan proceeds that cannot be displaced by the QDRO. Tise, 234 F.3d at 421-22 (emphasis added).

Consequently, the court concluded that ERISA “plainly contemplates” circumstances in which the event triggering the vesting of benefits (when the benefits become payable from the pension plan to the named beneficiary) before the pension plan determines that a QDRO is qualified and whether it will be obligated to make payments to an alternate payee. Id. at 422. Therefore, it established that ERISA “necessarily permits an alternate payee who has obtained a state law DRO before the plan participant’s retirement, death, or other benefit-triggering event to perfect the DRO into a QDRO thereafter (subject to the 18-month period after which any previously-due benefits are payable to the original beneficiary).” Id. at 422-23. The court further reasoned that Ms. Tise’s aggressive attempts to protect her interest in Mr. Myers’ pension “in the face of vigorous resistance by the Plan,” by converting the DRO into a QDRO in state court, fell squarely within the REA’s purpose of improving the delivery ⁹⁶ of retirement benefits and providing greater equity to the plans workers, spouses, and dependents.

Id. at 423. See also Pub.L. No. 98-397 ; 98 Stat. 1426 (1984). Thus, because Ms. Tise had placed the plan on notice of her interest in Mr. Myers’ pension plan proceeds before his death, the Ninth Circuit concluded that “the fact that he died before issuance of QDRO is immaterial.” Id. at 426 (footnote omitted). The cases cited above are not controlling, but we do find them instructive, as they provide evidence that a posthumous QDRO may be permissible dependent upon the circumstances leading to the QDRO’s issuance.

Compare Samaroo v. Samaroo, 193 F.3d 185 (3d Cir.1999) with Tr. of Directors Guild of America-Producer Pension Benefits Plans v. Tise, 234 F.3d 415 (2000). As a consequence, we acknowledge four considerations in determinating whether a posthumous QDRO permissibly entitles an alternate payee to all or a portion of an ERISA qualified pension: (1) Was notice provided to the pension plan of the potential alternate payee’s interest in the pension benefits prior to the participant’s death? (2) How aggressively did the potential alternate payee assert his or her interest before the participants death? (3) Is the posthumous QDRO being issued nunc pro tunc to only correct a clerical error that was made in a previous DRO that was not qualified by the plan?

(4) Is there another beneficiary’s rights infringed by the enforcement of the alternate payee’s QDRO; and, if so, are the equities balanced? Indeed, these four considerations are contemplated by Title I of ERISA. Even so, it is a bedrock principle that ERISA expressly preempts state law (outside the exceptions provided by a QDRO) by making the regulation of pension plans falling under ERISA’s governance a matter of exclusive federal interest. 29 U.S.C. § 1144 (a) (stating that ERISA “shall supercede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.”); 29 U.S.C. ⁹⁷ § 1144 (c)(1) (noting that the term “state law” includes all laws, decisions, rules, regulations, or other state action having the effect of law of any state). See Eid v. Duke, 373 Md. 2, 12 , 816 A.2d 844 (2003) (acknowledging Congress’ intention to create a broad preemption provision in the statute).

To be sure, ERISA does maintain a savings clause, limiting preemption by stating that “nothing in this [title] shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities.” 29 U.S.C. § 1144 (b)(2)(A), cited in Conn. General Life Ins. Co. v. Ins. Comm’r, State of Md., 371 Md. 455, 464 , 810 A.2d 425 (2002).

Nonetheless, ERISA’s “broad preemption provision was intended to eliminate possibly conflicting or inconsistent state and local regulations of employee benefits,” Eid, 373 Md. at 12 , 816 A.2d 844 , and “to afford employers the advantages of a uniform set of administrative procedures governed by a single set of regulations.” Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 11 , 107 S.Ct. 2211 , 96 L.Ed.2d 1 (1987). See Shaw v. Delta Air Lines, Inc., 463 U.S. 85 , 103 S.Ct. 2890 , 77 L.Ed.2d 490 (1983) (holding that 29 U.S.C. § 1144 (a) preempted a New York law that required ERISA disability plans to provide maternity benefits because ERISA contained no such mandate at such time); Alessi v. Raybestos-Manhattan, 451 U.S. 504 , 101 S.Ct. 1895 , 68 L.Ed.2d 402 (1981) (holding that a New Jersey Law prohibiting pension benefit offsets for New Jersey workers compensation awards was preempted because ERISA permitted such offsets). The Court of Appeals has previously outlined the extent to which the broad stroke to which ERISA’s explicit preemption provision applies in Eid v. Duke, 373 Md. 2 , 816 A.2d 844 (2003). There, writing for the court, Judge John C. Eldridge noted that [h]aving preempted state law, ERISA provides specific remedies that are available in federal courts.

ERISA has an “overpowering federal policy in [its] civil enforcement provisions. 29 U.S.C. § 1132 (a), authorizing civil actions for ... specific types of relief.” Rush Prudential HMO Inc. v. ⁹⁸ Moran, 536 U.S. 355 , 122 S.Ct. 2151, 2164 , 153 L.Ed.2d 375, 395 (2002) (footnote omitted). These provisions amount to an “interlocking, interrelated, and interdependent remedial scheme.” Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 146 , 105 S.Ct. 3085, 3092 , 87 L.Ed.2d 96, 106 (1985). The United States Supreme Court has “been especially ‘reluctant to tamper with [the] enforcement scheme’ embodied in the statute by extending remedies not specifically authorized by its text.” Great-West Life & Annuity Ins.

Co. v. Knudson, 534 U.S. 204, 209 , 122 S.Ct. 708, 712 , 151 L.Ed.2d 635, 642 (2002), quoting Massachusetts Mutual Life Ins. Co. v. Russell, supra, 473 U.S. at 147 , 105 S.Ct. at 3093 , 87 L.Ed.2d at 106 . State laws that provide alternative remedies are preempted under ERISA, as frustrating the purpose of ERISA of providing “a uniform judicial regime of categories of relief.” Rush Prudential HMO Inc. v. Moran, supra, 122 S.Ct. at 2169, 153 L.Ed.2d at 401 . See, e.g., Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 , 111 S.Ct. 478 , 112 L.Ed.2d 474 (1990) (holding that Texas’s [sic] tort of wrongful discharge conflicted with ERISA enforcement by converting an equitable remedy available in federal court to a legal one available in a state tribunal); Pilot Life Ins.

Co. v. Dedeaux, 481 U.S. 41 , 107 S.Ct. 1549 , 95 L.Ed.2d 39 (1987) (holding that ERISA displaced state tort and contract claims based on allegedly improper denial of benefits under an ERISA plan). Eid, 373 Md. at 12-13 , 816 A.2d 844 . Therefore, “[i]n determining whether [Ms. Hunsecker’s] claim [provided] under state law is preempted by ERISA, [we] must consider whether the claim ‘relates to’ an ERISA covered plan, such that granting relief based on the state law would provide a remedy not permitted by ERISA.” Eid, 373 Md. at 13 , 816 A.2d 844 (citation omitted). A claim “relates to” a covered employee benefit plan “if it has a connection with or reference to such a plan.” District of Columbia v. Greater Washington Board of Trade, 506 U.S. 125, 129 , 113 S.Ct. 580 , 121 L.Ed.2d 513 (1992) (quoting Shaw, 463 U.S. at 97 , 103 S.Ct. 2890 ), quoted in Eid, 373 Md. at 13 , 816 A.2d 844 . ⁹⁹ See also Metro.

Life Ins. Co. v. Pettit, 164 F.3d 857, 861 (4th Cir.1998). The meaning of the term “relates to” is—cryptic at best. The face value of the term “has no logical boundary.” Pettit, 164 F.3d at 861 (citing New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins.

Co. (“Travelers”), 514 U.S. 645 , 115 S.Ct. 1671 , 131 L.Ed.2d 695 (1995)). In an existential sense, everything relates to everything else. Id. (citation omitted).

As a result, “[t]he United States Supreme Court has eschewed ‘uncritical literalism’ when construing the ERISA term ‘relates to’ and has look[ed] instead to the objectives of the ERISA statute as a guide’ to the scope of preemption that Congress intended.” Eid, 373 Md. at 13 , 816 A.2d 844 (quoting Travelers, 514 U.S. at 656 , 115 S.Ct. 1671 ). See Pettit, 164 F.3d at 861 . The Supreme Court has held, however, that “[a] state law relates to an ERISA plan if it has a connection with or reference to such a plan.” Egelhoff v. Egelhoff 532 U.S. 141, 147 , 121 S.Ct. 1322 , 149 L.Ed.2d 264 (2001) (citing Shaw, 463 U.S. at 97 , 103 S.Ct. 2890 ) (emphasis added). See Bigelow, 283 F.3d at 440; Manning v. Hayes, 212 F.3d 866, 870 (2000).

Cf. Pettit, 164 F.3d at 861-62 . Accordingly, a reviewing court must determine whether there is a forbidden connection and does so by “look[ing] both to ‘the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive,’ as well as the nature of the effect of the state law on ERISA plans.” California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 325 , 117 S.Ct. 832 , 136 L.Ed.2d 791 (1997) (quoting Travelers, 514 U.S. at 656 , 115 S.Ct. 1671 ). See also Carmona v. Carmona, 603 F.3d 1041, 1061 (9th Cir.2010) (citing Egelhoff, 532 U.S. at 147 , 121 S.Ct. 1322 ).

ERISA contains no general exclusion from its preemption provision for domestic relations laws or for the laws of contract and restitution. Indeed, the REA’s amendments to ERISA explicitly provide that the former spouse of a plan participant can only replace the participant’s current spouse and be treated as the surviving spouse by the pension plan ¹⁰⁰ pursuant to a QDRO. See 29 U.S.C. § 1056 (d)(3)(F); Boggs v. Boggs, 520 U.S. 833, 845-46 , 117 S.Ct. 1754 , 138 L.Ed.2d 45 (1997) (noting that only QDROs, not domestic relations orders in general, are saved from ERISA’s general preemption provision and pension plan alienation provision); Barrs v. Lockheed Martin Corp., 287 F.3d 202, 208 (1st Cir.2002) (noting the REA’s creation of valid QDROs as the means by which ERISA’s preemptive obstacles were avoided) (emphasis added); Metro. Life Ins.

Co. v. Bigelow, 283 F.3d 436, 440 (2d Cir.2002) (acknowledging within the context of ERISA-governed benefit plans that if “the [¡Judgment [directly affecting the benefits] is not a QDRO, then ERISA preempts” and prohibits the reassignment of beneficiary interests); Hopkins v. AT & T Global Info. Solutions Co., 105 F.3d at 155 . Cf. Metro.

Life Ins. Co. v. Marsh, 119 F.3d 415, 420-21 (6th Cir.1997) (holding that although any domestic relations order might not be barred by the anti-alienation provision, ERISA preempts all orders except those that meet the strictures of a QDRO); Fox Valley & Vicinity Const. Workers Pension Fund v. Brown, 897 F.2d 275, 279 (7th Cir.1990) (en banc) (“ERISA preempts any attempt to alienate or assign benefits by a domestic relations order if that order is not a QDRO”). Indeed, almost every United States Court of Appeals has determined that a state law governing the designation of an ERISA beneficiary to the pension plan “relates to” the ERISA plan, and is therefore preempted.

See Carmona, 603 F.3d at 1061-62 ; Melton v. Melton, 324 F.3d 941 , 945 (7th Cir.2003); Manning, 212 F.3d at 870 ; Dial v. NFL Player Supplemental Disability Plan, 174 F.3d 606, 611 (5th Cir. 1999); Pettit, 164 F.3d at 862 ; Krishna v. Colgate Palmolive Co., 7 F.3d 11, 15 (2d Cir.1993); Metro. Life Ins. Co. v. Hanslip, 939 F.2d 904, 906 (10th Cir.1991); Brown v. Conn. Gen.

Life Ins. Co., 934 F.2d 1193, 1195 (11th Cir.1991); McMillan v. Parrott, 913 F.2d 310, 311 (6th Cir.1990). While not binding on this Court, we find the United States Court of Appeals for the Fourth Circuit’s opinion in Metropolitan Life Insurance Company v. Pettit, 164 F.3d 857 (4th Cir.1998), instructive. Upon the death of the insured, Tom ¹⁰¹ Pettit (“Mr.Pettit”), the Metropolitan Life Insurance Company (“MetLife”) sought to pay life insurance proceeds due under an ERISA qualified plan.

Id. at 859 . Mr. Pettit’s designated beneficiary and widow, Patricia Pettit (“Patricia”), and Mr. Pettit’s former wife, Betty Pettit (“Betty”), both claimed a portion of the insurance plans proceeds. Id. Betty’s claim was premised on a settlement agreement in which she and Mr. Pettit entered at the time of their divorce that was incorporated but not merged into the divorce degree.

Id. The property settlement agreement provided for a division of personal and real property, for the payment of alimony and other “general matters.” Id. at 859-60 . The agreement also required that Mr. Pettit maintain a $200,000 life insurance policy in favor of Betty and to transfer to Betty ownership of several life insurance policies issued by Connecticut Mutual, American Mutual, and Prudential. Id. at 860 .

The life insurance policy through MetLife, however, was not mentioned in their agreement nor incorporated into the divorce decree. Id. Met with these competing claims, MetLife brought an inter-pleader action to determine the proper disposition of the insurance proceeds. Id. at 859 .

Thereafter, Betty filed a cross-claim against Patricia, seeking a constructive trust against the disputed proceeds. Id. The parties subsequently filed cross-motions for summary judgment. Id.

Noting that Betty had failed to obtain a QDRO—the method ERISA provides for a divorced spouse to enforce his or her property rights within an ERISA plan—the District Court concluded that Betty’s claim was preempted because it was based upon state law that related to an employee benefit plan. Id. Thus, the District court denied Betty’s motion for summary judgment and awarded the proceeds to Patricia. Id.

As a consequence, Betty noted an appeal to the Fourth Circuit. Id. On appeal, the Fourth Circuit engaged in an analysis of ERISA’s section 1144(a). It found that from the text of 29 U.S.C. § 1144 (a), “it is clear that the life insurance policy qualifies as a welfare plan, and it is thus an employee benefit plan.” Id. at 861 .

As a consequence, it found “no trouble determining that the constructive trust claim, which [was] ¹⁰² based upon the terms of a property settlement agreement entered to effect a property division upon divorce, meets the ERISA definition of state law,” and was, likely “subject to preemption.” Id. (citing Stiltner v. Beretta U.S.A Corp., 74 F.3d 1473, 1480 (4th Cir.1996), and Elmore v. Cone Mills Corp., 23 F.3d 855, 863 (4th Cir.1994) (en banc)). 10 After concluding that the constructive trust derived out of a potentially conflicting state law claim, it engaged in an analysis of ERISA’s construction to determine whether the claim for a constructive trust related to Mr. Pettit’s employee benefit plan. Id. Applying the standard developed by the Supreme Court in Egelhoff, 532 U.S. at 147 , 121 S.Ct. 1322 , and Shaw, 463 U.S. at 97 , 103 S.Ct. 2890 , it concluded that a constructive trust claim against a plan beneficiary obviously maintains a direct effect and connection with an ERISA plan.

Pettit, 164 F.3d at 862 . Further, the court additionally noted that ... [I]t is once again worth noting that ERISA, by its own terms, provides a method for a former spouse to secure an interest in plan benefits. See, e.g., Hopkins v. AT & T Global Info. Solutions Co., 105 F.3d 153, 157 (4th Cir.1997) (noting that a former spouse’s interest in pension plan benefits “can be protected simply by obtaining a QDRO”).

Under § 1144(b)(7), QDROs, as defined by § 1056(d)(3), are specifically excepted from preemption. See 29 U.S.C.[] §§ 1144(b)(7), 1056(d)(3) (West 1985 & Supp.1998). Two strong inferences flow from the QDRO exception. First, Congress understood that such state law domestic proceedings may “relate to” a plan such that the enforcement of a provision requiring payment from employee pension or welfare benefits would, absent the exception, be preempted.

See Boggs v. Boggs, 520 U.S. 833 , 117 S.Ct. 1754, 1763 , 138 ¹⁰³ L.Ed.2d 45 (1997) (noting that “QDRO’s, unlike domestic relations orders in general, are ... exempt from ERISA’s general preemption clause”). Second, and more important to the question at hand, Congress meant to make a QDRO the acceptable method for a divorced spouse to attach an interest in a former spouse’s benefit plan. ERISA thus maintains its own enforcement mechanism for aggrieved former spouses. Id. at 863 (footnotes omitted).

In affirming the District Court, the Fourth Circuit reasoned that, if permitted to stand, Betty’s constructive trust claim against the pension plan, based upon a marital dissolution agreement, “would directly conflict with ERISA’s goal of providing a nationally uniform plan administration and reduce the QDRO provisions to a meaningless footnote in the preemption context.” Id. at 864 . Therefore, it concluded that because Betty’s constructive trust claim “interferes with Congress’! ] clear objectives and conflicts with the plain language of ERISA, it must fall victim to the ERISA preemption provision.” Id. In instant case, Ms. Hunsecker admittedly entered into a voluntary separation agreement with her husband that provided an interest in his pension as well as death benefits. That agreement was integrated into the circuit court’s judgment of absolute divorce.

That judgment, therefore, constitutes a DRO pursuant to 29 U.S.C. § 1056 (d)(3)(B)(ii). Nonetheless, Ms. Hunsecker sat on the judgment of divorce for eleven years without asserting any interest in Mr. Robinette’s pensions. She presented no evidence that she made any effort to notify the pension of her potential interest, and sought to enforce an interest only after learning of her former-husband’s death. In addition, the record fails support any inference that the Mr. Robinette’s pension plan turned a blind-eye to any effort by Ms. Hunsecker to enforce her interest, because she never asserted her interest until after Mr. Robinette’s death.

Thus, it would appear that if Ms. Hunsecker’s claim for entry of a QDRO posthumously or for a constructive trust were “related to” the pension plan, it would be preempted if Mr. Robinette’s employee benefit plans are covered by ERISA. During argu ¹⁰⁴ ment before this Court, however, the parties agreed that Mr. Robinette’s plan was not subject to ERISA. We agree with the parties and the explanation of how we reached that conclusion is appropriately provided infra. In that regard, one generally must determine whether Mr. Robinette’s employee benefit plans are covered or exempt from ERISA’s broad preemptive ability.

The employee benefit plans covered by and exempt from ERISA are set forth in 29 U.S.C. § 1003 , which, in pertinent part, provides: (a) In general. Except as provided in Subsection (b) or (c) 11 and in sections 201, 301, and 401 [ 29 U.S.C. §§ 1051 , 1081, and 1101 12 ], this title shall apply to any employee benefit plan if it is established or maintained— (1) by any employer engaged in commerce or in any industry or activity affecting commerce; or (2) by any employee organization or organizations representing employees engaged in commerce or in any industry or activity affecting commerce; or (3) by both (b) Exceptions for certain plans. The provisions of this title shall not apply to any employee benefit plan if— (1) such plan is a governmental plan (as defined in section 3(32) [ 29 U.S.C. § 1002 (32) 13 ] ); (2) such plan is a church plan (as defined in section 3(33) [ 29 U.S.C. § 1002 (33) 14 ]) with respect to which no election ¹⁰⁵ has been made under section 410(d) of the Internal Revenue Code of 1986 [ 26 U.S.C. § 410 (d) 15 ]; (3) such plan is maintained solely for the purpose of complying with workmen’s compensation laws or unemployment compensation or disability insurance laws; (4) such plan is maintained outside the United States primarily for the benefit of persons substantially all of whom are nonresident aliens; or (5) such plan is an excess benefit plan (as defined in section 3(36) [ 29 U.S.C. § 1002 (36)]) and is unfunded. 29 U.S.C. § 1003 (a) & (b) (1989) (emphasis added). Therefore, although ERISA’s Title I requirements govern private pension plans, government plans—without a shadow of a doubt—are not subject to ERISA.

Id. at § 1003(b)(1). See Koval v. Washington County Redevelopment Authority, 574 F.3d 238, 240 (3d Cir.2009); Fromm v. Principal Health Care of Iowa, Inc., 244 F.3d 652, 653 (8th Cir.2001); Hightower v. Tx. Hospital Ass’n, 65 F.3d 443, 447 (5th Cir.1995); Kunin v. Feofanov, 69 F.3d 59, 62 (5th Cir.1995); Alley v. Resolution Trust Corp., 984 F.2d 1201, 1206 (D.C.Cir.1993); Shannon v. Shannon, 965 F.2d 542, 544 (7th Cir.1992); Shirley v. Maxicare Tex., Inc., 921 F.2d 565, 567 (5th Cir.1991); Roy v. Teachers Ins. And Annuity Ass’n, 878 F.2d 47, 48 (2d Cir.1989); Silvera v. Mut.

Life Ins. Co., 884 F.2d 423, 425 (9th Cir.1989); Rose, 828 F.2d at 914. ¹⁰⁶ The Second Circuit Court of Appeals explained the development of the government exemption in Rose v. Long Island R.R. Pension Plan, stating: Although Congress considered whether ERISA should apply to “public” or “governmental benefit plans, it ultimately decided to exempt such plans from compliance with most of ERISA’s requirements.” See H.R.Rep. No. 533, 1974 U.S.Code Cong. & Ad. News at 4647.

Instead, Congress decided to undertake further study of the adequacy of public retirement plans, in order to determine “the necessity for Federal legislation and standards with respect to such plans.” 29 U.S.C. § 1231 (a)(3). To date, no such legislation has been enacted. The governmental plan exemption was included for several reasons. First, it was generally believed that public plans were more generous than private plans with respect to their vesting provisions.

H.R.Rep. No. 533, 1974 U.S.Code Cong. & Ad. News at 4667. Second, it was believed that “the ability of the governmental entities to fulfill their obligations to employees through their taxing powers” was an adequate substitute for both minimum funding standards and plan termination insurance.

S.Rep. No. 383, 93d Cong., 2d Sess., reprinted in, 1974 U.S.Code Cong. & Ad. News 4890, 4965; H.R.Rep. No. 807, 93d Cong., 2d Sess., reprinted in, 1974 U.S.Code Cong. & Ad.

News 4670, 4756-57. Finally, there was a concern that imposition of the minimum funding and other standards “would entail unacceptable cost implications to governmental entities.” H.R. Rep. No. 807, 1974 U.S.Code Cong. & Ad. News at 4830.

See also H.R.Rep. No. 533,1974 U.S.Code Cong. & Ad. News at 4668. This Congressional reluctance to interfere with administration of public retirement plans is in part based on principles of federalism.... 828 F.2d at 913-14 (emphasis added).

A government plan is one “established or maintained for its employees by the Government of the United States, by the government of any State or