Vanessa Y. Schultz, Independent Administratrix of the Succession of Boyd White VS Brenda Jean White
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0488 VANESSA Y SCHULTZ INDEPENDENT ADMINISTRATRIX OF THE SUCCESSION OF BOYD WHITE VERSUS BRENDA JEAN WHITE DATE OF JUDGMENT OCT 2 9 2010 PPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NUMBER C573158 DIVISION 22 PARISH OF EAST BATON ROUGE STATE OF LOUISIANA HONORABLE TIMOTHY E KELLEY JUDGE John Swanner Counsel for Plaintiff Appellant Baton Rouge Louisiana Vanessa Y Schultz Roy H Maughan Jr Baton Rouge Louisiana Counsel for Defendant Appellee Brenda Jean White BEFORE KUHN PETTIGREW AND KLINE JJ Disposition AFFIRMED The Honorable William F Kline Jr is serving pro tempore by special appointment of the Louisiana Supreme Court Kuhn I Vanessa Y Schultz in her capacity as independent administratrix of the Succession of Boyd White filed suit seeking a judgment that required defendant Brenda Jean White to name Schultz in her representative capacity as 50 percent beneficiary of Ms White Louisiana State Employees Retirement System s LASERS benefits After a hearing on the parties cross motions for summary judgment the trial court signed a judgment denying Schultz motion for summary s judgment granting Ms White motion for summary judgment and dismissing s s Schultz claims with prejudice We affirm 1 PROCEDURAL AND FACTUAL BACKGROUND The following facts are undisputed Mr and Ms White were married from October 28 1984 until August 23 2005 during which time Ms White was an active and contributing member of LASERS On September 11 2007 the Whites executed a community property settlement which provided as follows in pertinent part II FULL SETTLEMENT The parties desire to settle and liquidate the community that formerly existed between them and have agreed to do so as set forth in this agreement Each party makes this settlement and exchange agreeing that the properties and rights exchanged transferred and relinquished are an equal and proportionate division of the property III NO ENCUMBRANCES CREATED The parties do not wish nor intend to create any mortgages stipulations pour autri privileges liens encumbrances servitudes or 2 Alternatively Schultz prayed for a judgment ordering Ms White to pay the sum of 19 42 041 to reimburse Mr White succession for these community property benefits s 2 resolutory conditions on any of the property transferred by this agreement except as otherwise provided IV TRANSFER TO FIRST PARTY 1 One 1 certain lot or parcel of ground together with all the RANDOLPH buildings and improvements thereon situated in HEIGHTS SUBDIVISION and said lot fronting on Dancy Ave 2 All movable property in the residence located at 9512 Dancy Avenue Baton Rouge Louisiana 70814 3 All of appearers right title and interest in the retirement or benefits that may be owed and payable to Ms White by LASERS be it an interest in a refund of contributions a regular retirement benefit a deferred retirement option an initial benefit option any survivors rights or any other benefit that he may have otherwise had an interest in V TRANSFER TO SECOND PARTY Ms White transfers described property 1 The sum of unto Mr White THIRTYTHREE the following THOUSAND DOLLARS 33 000 2 All of the movable property currently in the possession of Mr White VI DEBTS AND OTHER OBLIGATIONS Ms White agrees to pay and to hold Mr White free and harmless from the following obligations 1 The home mortgage in the approximate amount of TWENTYNINE THOUSAND FOURTEEN DOLLARS 014 29 2 The IRS debt in the amount of One Thousand Six Hundred ThirtySix and 83 1 Dollars 100 636 83 Additionally Ms White agrees to designate Mr White 50 beneficiary of her LASERS Benefits 3 IX SUCCESSORS All of the agreements and stipulations contained in this settlement shall inure to the benefit of and be binding on the heirs successors and assigns of the parties XIV RETIREMENT PLAN BENEFITS PENSION The parties agree to sign all necessary papers and take such actions to have a Qualified Domestic Relation Order QDRO drafted and approved by a Court of competent jurisdiction On December 9 2007 Mr White died As of that date Ms White had not designated Mr White as a beneficiary and she has not designated him as such since his death According to a November 21 2008 affidavit of Kristi Folse an Administrative Program Director 2 in the Member Services Division for LASERS Ms White had accrued 38 in contributions to LASERS from October 28 83 082 1984 to August 23 2005 According to a September 14 2009 affidavit of Ms Folse Ms White first became eligible to retire and to draw a monthly benefit on April 1 2009 and she joined the deferred retirement option plan DROP on that date She chose the m option and m beneficiaries were aximum ultiple chosen for her monthly retirement benefit and for her DROP account In support of her own motion for summary judgment that sought the dismissal of Schultz claims Ms White filed an affidavit wherein she attested s that t the beneficiary designation in the community property settlement hrough 3 See La R 11 addressing the computation of a member maximum retirement S 444A s allowance equal to two and onehalf percent of average compensation for every year of creditable service plus three hundred dollars See also La R 11 addressing the various S 446 alternative options pursuant to which a member may elect to receive his or her retirement benefit By exercising the maximum option Ms White elected to receive her retirement benefit in an allowance payable to her throughout the remainder of her life 4 it was intended that Mr White would receive 50 of any unpaid retirement benefits payable upon my death in the event I predeceased Mr White Mrs White further attested It was never my intention for the contract provisions to extend to Mr White children in the event he predeceased me s After a hearing on the cross motions for summary judgment the trial court rendered judgment in Ms White favor reasoning in pertinent part Title to the s retirement account could not and did not transfer prior to Mr White death s irrespective of whether Ms White had complied with her obligation to name him There was no transfer of assets to his estate therefore the children have no claim In conformity with these oral reasons the trial court signed a written judgment that granted Ms White motion for summary judgment denied s s Schultz motion for summary judgment and dismissed Schultz claims with s prejudice Schultz has appealed urging that the trial court erred in ruling that upon Mr s White death Ms White had no obligation to designate either Mr White or Schultz in her representative capacity as a beneficiary Schultz maintains that the provisions of the community property settlement were violated by Ms White s failure to name Mr White as a beneficiary of the LASERS retirement benefit Schultz submits that Ms White obligation to name Mr White as a beneficiary is s now owed to his succession and that Ms White is obliged to name Schultz in her representative capacity as 50 percent beneficiary of Ms White LASERS s s benefit Conversely Ms White contends that if she had named Mr White as a beneficiary before his death any rights he would have had to a portion of her 5 LASERS benefits terminated upon his death Thus she asserts that any claim that Mr White once had with respect to the LASERS benefits is not heritable by his heirs II ANALYSIS A motion for summary judgment will be granted if the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law La C art 966 Summary P B judgment is favored and shall be construed to secure the just speedy and inexpensive determination of every action La C art 966 P 2 A The initial burden of proof remains with the movant However if the movant will not bear the burden of proof at trial he need not negate all essential elements of the adverse party claim but he must point out that there is an s absence of factual support for one or more elements essential to the claim La P C art 966 Once the movant has met his initial burden of proof the 2 C burden shifts to the non moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial See Id Samaha v Rau 071726 p 5 La 2 977 So 880 883 08 26 2d The non moving party may not rest on mere allegations or denials but must set forth specific facts that show that a genuine issue of material fact remains If the nonmoving party fails to meet this burden there is no genuine issue of material fact and the movant is entitled to summary judgment as a matter of law Berry v Paul Revere Life Ins Co 08 0945 p 6 La 1 st Cir 7 21 So 385 App 09 9 3d 388 writs denied 09 2220 092241 La 12 23 So 942 09 18 3d 2 945 see La C art 966 An appellate court reviews a district court decision to P 2 C s grant a motion for summary judgment de novo using the same criteria that govern the district court consideration of whether summary judgment is appropriate s Lafayette Elec Marine Supply Inc v Ahdon Callais Offshore L 09 C 2277 p 1 La 1st Cir 7 So App 2010 29 3d Under Louisiana community property law a pension right derived from a s s spouse employment during the existence of the marriage is a community asset subject to division upon dissolution of the community La C art 2338 Hare v Hodgins 586 So 118 122 La 1991 On appeal however the parties do not 2d dispute that under the terms of the community property settlement Mr White expressly transferred his community interest in the LASERS contributions and any ownership interest in the LASERS retirement benefit to Ms White Schultz claims that under the settlement terms in exchange for giving up this community asset Mr White was entitled to be designated as a 50 percent beneficiary of Ms s White LASERS benefits While Ms White contends that she intended that Mr White would receive a benefit only upon her death Schultz contends that Mr White was entitled to receive a monthly benefit upon Ms White retirement and s upon Mr White death the right to receive such a benefit was transmitted to his s estate In Louisiana State Employees Retirement System LASERS v McWilliams 062191 pp 7 8 La 12 996 So 1036 1041 1042 the 08 2 2d a On appeal Schultz does not advance her claim for reimbursement of 50 percent of Ms White s LASERS contributions during the marriage Rather she seeks to enforce the terms of the community property settlement 7 supreme court set forth the following general discussion of LASERS which is also pertinent to the present case LASERS is a comprehensive qualified defined benefit pension and retirement plan under Section 401 of the Internal Revenue a code and its provisions and regulations are outlined in La R S 1 1 et seq The statute provides that each person who becomes an 401 employee in the state service except those specifically excluded shall become a member of the system as a condition of employment La R 11 Under LASERS any member hired on or before S 411 1 June 30 2006 shall be eligible for retirement if he has thirty years or more of service at any age twentyfive years or more of service at age fiftyfive or thereafter or ten years or more of service at age sixty or thereafter La R 11 c footnote addressing another S 441 a 1 A ground for retirement eligibility omitted LASERS retirement benefits are computed as follows a member who retires effective on or after July 1 1973 shall receive a maximum retirement allowance equal to two and one half percent of average compensation as determined under R 11 for every S 231 year of creditable service plus three hundred dollars La R S The member will receive this retirement benefit A 444 11 throughout his lifetime unless he elects some other option pursuant to La R 11 whereby he receives a reduced retirement benefit S 446 and benefits are paid to another person he nominates LASERS also provides for optional enrollment in DROP in lieu of terminating employment and accepting a retirement allowance La S 447451 R 11 4 footnote omitted Retirement means the termination of active service with a retirement allowance granted under the provisions of Chapter 1 addressing LASERS La S 403 R 11 Upon retirement t retirement allowance annuity or benefit 24 he shall be paid in equal monthly installments for life La R 11 S 445A Retirement allowance or benefit means an annuity for life paid in equal monthly installments La R 11 A beneficiary means any person designated S 403 25 by the member or legally entitled to receive a retirement allowance an annuity or other benefit La R 11 S 403 7 H Louisiana Revised Statutes 11 allows a retiree to receive his benefit in a 446 retirement allowance payable throughout his life or he may elect one of the options set forth therein and receive the actuarial equivalent of his retirement allowance in a reduced retirement allowance payable throughout life Options 1 2 A 213 and 3 provide for payments to be made to someone other than the memberretiree i a e person nominated by written designation duly acknowledged and filed with the board of trustees upon the memberretiree death Option 4 provides Some s other benefit or benefits shall be paid either to the member or to the person or persons he nominated provided the other benefit or benefits together with the reduced retirement allowance shall be certified by the actuary to be of equivalent actuarial value to his retirement allowance and shall be approved by the board Option 5 provides an option whereby the member may receive an initial benefit plus a reduced monthly retirement allowance According to the terms of the community property settlement executed by the Whites the agreements contained in the settlement inured to the benefit of the heirs successors and assigns of the parties Generally an action to enforce an obligation is the property of the obligee which on his death is transmitted with his estate to his heirs universal legatees or legatees under a universal title except as otherwise provided by law La C art 426 P But not all obligations are heritable Louisiana Civil Code article 1765 provides An obligation is heritable when its performance may be enforced by a successor of the obligee or against a successor of the obligor A heritable obligation is also transferable between living persons Louisiana Civil Code article 1766 further provides in pertinent part An obligation is strictly personal when its performance can be enforced only 0 by the obligee or only against the obligor When the performance is intended for the benefit of the obligee exclusively the obligation is strictly personal on the part of that obligee Addressing the facts of the present case the obligation of Ms White to name Mr White as a beneficiary is not a heritable obligation If Ms White had named Mr White as a beneficiary of her LASERS benefits before his death Mr White could not have transferred his beneficiary status to another party A beneficiary can only be nominated by the LASERS member in a written designation duly acknowledged La R 11 S 446 Since Mr White could not have transferred his purported right to be named as a beneficiary to another person during his lifetime Ms White obligation to name him as a beneficiary was not s transmitted to his heirs or legatees upon his death Because the LASERS statutory provisions do not provide that a benefit is payable to the estate of a named beneficiary upon his death we conclude that Ms White performance of s the obligation to specify Mr White as a beneficiary was a performance that was intended for the exclusive benefit of Mr White Thus it was a strictly personal obligation with respect to Mr White La C art 1766 If Mr White had been living when Ms White entered the DROP program and if Ms White had further elected any one of the reduced retirement allowance options in La R 11 S 446 5 Louisiana Revised Statutes 11 defines a member as a person included in the 17 403 membership of the system To allow substitutions of beneficiaries would operate contrary to the principles of actuarial soundness that are crucial to our state retirement systems See La Const Art 10 29 s E 7 Moreover the evidence did not establish that Mr White contemplated his rights were greater than those set forth in the applicable LASERS provisions Schultz did not submit any evidence purporting to establish that Mr White contemplated that his interest would be transmitted to his estate or that such an intent was made known to Ms White Additionally Schultz has not sought to set aside the community property settlement based on error See La C art 1949 10 and had designated Mr White as a beneficiary upon his death her reduced benefit would have changed to the maximum benefit afforded by La R 11 See La S 444 S 446D R 11 which provides in pertinent part If the beneficiary dies at any time before the death of the retiree the benefits payable to the retiree shall be increased to the amount the retiree would have received had the retiree selected the maximum benefit and the retiree reduced benefit shall change to the s maximum benefit effective on the first day of the next month following the death of the designated beneficiary Upon Mr White death by operation of law Ms White would have received the s maximum benefit which is the option Ms White ultimately chose when she entered the DROP program after Mr White death Thus we conclude Schultz s as the independent administratrix of the Succession of Boyd White did not establish that she is entitled to be designated as 50 percent beneficiary of Ms s White LASERS benefits For these reasons we conclude that Schultz as mover did not establish that she was entitled to judgment as a matter of law The trial court properly denied her motion for summary judgment 1II CONCLUSION For these reasons we affirm the trial court judgment Appeal costs are s assessed against plaintiff appellant Vanessa Y Schultz AFFIRMED 8 Further Schultz petition did not pray for Mr White to be designated as a named beneficiary s In any case such a designation would have had no effect under the applicable laws No retirement benefits were payable before his death because Ms White was at that time an active contributing member of LASERS and had not yet retired See La R 11 G which states S 291 A state retirement system shall not pay any funds to any persons until such funds normally become payable as provided by the laws governing the retirement system And after Mr s White death La R 11 mandates that Ms White shall receive the maximum retirement S 446D benefit Accordingly this court will not order a vain and useless act it
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