CourtListener opinion 10178855

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UNITED STATES DISTRICT COURT 
 EASTERN DISTRICT OF KENTUCKY 
 CENTRAL DIVISION at LEXINGTON 

DAWN ROSS, ) 
 ) 
 Plaintiff, ) Case No. 
 ) 5:19-cv-261-JMH 
v. ) 
 ) MEMORANDUM 
GRACE ROSS, ) OPINION AND ORDER 
 ) 
 Defendant. ) 
 ) 

 *** 
 This matter is before the Court on Defendant Grace Ross's 
motion to dismiss Plaintiff Dawn Ross's complaint for failure to 
state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). 
[DE 4]. Plaintiff responded [DE 5] and Defendant replied [DE 8], 
making the motion ripe for review. 
 Plaintiff argues that the divorce decree between her and her 
former husband, who died in 2019, is a qualified domestic relations 
order exempt from the Employee Retirement Income Security Act of 
1974's requirements. While this Act and the terms of the decedent's 
life insurance policy itself usually govern proceeds paid to 
beneficiaries, qualified domestic relations orders can supersede 
those designations. Defendant, who was married to Plaintiff's 
former husband at the time of his death, claims that the mediation 
agreement and decree are not specific enough to be a qualified 
domestic relations order. 
 For the reasons stated below, all claims against Defendant 
are hereby dismissed. 
 I. FACTUAL AND PROCEDURAL BACKGROUND 
 Clarence Boyd Ross III was previously married to Plaintiff 
Dawn Ross. [DE 1-3 at 1]. Mr. Ross was married to the Defendant 

when he died in January of 2019. [Id. at 2]. The Plaintiff and Mr. 
Ross mediated their divorce and both parties signed a settlement 
agreement in December of 2012. [DE 1-3]. The Scott County Circuit 
Court approved and adopted the settlement agreement within its 
decree of dissolution of marriage. [DE 1-3 at 9]. Following divorce 
proceedings in April 2013, Mr. Ross married Defendant Grace Ross. 
[Id. at 1-2]. 
 The parties' disagreement in this matter centers on a dispute 
about the terms of the settlement agreement, and specifically, its 
provision regarding Mr. Ross's life insurance proceeds. The 
agreement states: 
 Life Insurance: [Mr. Ross] shall name [Plaintiff] the 
 beneficiary of an amount sufficient to cover his support 
 obligation of his life insurance policy through his 
 employer Michelin. Further, [Mr. Ross] shall maintain 
 the current private term insurance policy with a 
 designation of [Plaintiff] as trustee of a trust for the 
 children as the beneficiary until said policy expires. 

[DE 1-3 at 6]. Further, the settlement agreement addresses exactly 
what Mr. Ross's support obligation should be: 
 Support: Effective within 7 days of [Plaintiff] vacating 
 the marital residence, and subject to the terms of the 
 maintenance statute, [Mr. Ross] shall begin to pay 
 [Plaintiff] $3500 per month total support and shall 
 continue to do so until [Plaintiff] receives full social 
 security benefits and [Plaintiff] has an obligation to 
 apply for said benefits upon the first date [Plaintiff] 
 is eligible to claim social security benefits. Said 
 payment shall be prorated for the first month. All 
 further payments shall be due in 2 equal installments 
 on the 1st and 15th of each month. For tax purposes only, 
 the parties will consider $1500 of this amount to be 
 child support with the no tax consequence and the other 
 $2000 as maintenance with it being income to [Plaintiff] 
 and deductible to [Mr. Ross]. Counsel for [Plaintiff] 
 shall prepare and execute a wage assignment order and 
 until such time as [Mr. Ross] sees that amount being 
 withheld from his check he shall made said payments 
 directly to [Plaintiff]. 

[DE 1-3 at 5-6]. From these provisions, Plaintiff concludes that 
she is entitled to life insurance proceeds in an amount equal to 
the support she received during Mr. Ross's life. 
 Plaintiff pleads that Mr. Ross's policy was initiated through 
his employer Camso1 and was administered by the Unum Life Insurance 
Company of America.2 [DE 1-3 at 2]. Plaintiff states that proceeds 
from a life insurance policy were paid to Defendant upon Mr. Ross's 
death. [Id.]. The parties agree that the dispute and insurance 
policy or policies in this case are governed by the Employee 
Retirement Income Security Act of 1974. [DE 4 at 1]. Plaintiff 
seeks a declaration that the divorce decree and settlement 
agreement are collectively a qualified domestic relations order 
   
1 The Plaintiff calls the company Camoplast, but Camso is the 
current name of Mr. Ross's last employer. 
2 The parties have not attempted to interplead Unum in this action, 
presumably because the proceeds have already been paid to 
Defendant. 
under the Act. [DE 1-3 at 2]. She further argues that she is the 
proper beneficiary of the proceeds paid to Defendant in an amount 
equal to the support obligation in the settlement agreement. [Id.]. 
Plaintiff also alleges a count of "money wrongfully received," 
stating that Defendant is not entitled to the proceeds except for 

any amount in excess of what is owed to Plaintiff. 
 Defendant filed a motion to dismiss the complaint for failure 
to state a claim, in lieu of an answer. [DE 4]. Plaintiff timely 
responded [DE 5] and Defendant replied. [DE 8]. Several months 
after the motion to dismiss was fully briefed, Plaintiff filed a 
motion for summary judgment. [DE 9]. Defendant responded [DE 10] 
and Plaintiff did not reply. 
 II. STANDARD OF REVIEW 
 A motion to dismiss3 pursuant to Federal Rule of Civil 
Procedure 12(b)(6) tests the sufficiency of the plaintiff's 

3 Providing no analysis, Plaintiff argues in her response that 
Defendant's motion to dismiss introduces case law and facts outside 
of the pleadings, requiring the Court to construe it instead as a 
motion for summary judgment. [DE 5 at 2]. Where a defendant submits 
matters outside the pleadings on a motion to dismiss, the district 
court may convert a motion to dismiss into a motion for summary 
judgment. Fed. R. Civ. P. 12(d); Wysocki v. Int'l Bus. Machine 
Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). Defendant did not 
provide any additional exhibits or facts outside of the original 
pleadings in her motion to dismiss. As for the assertion that 
Defendant included new case law, it must be stated that legal 
arguments consisting of case and statutory law are expected in a 
motion to dismiss, where the Court asks only if there is a legal 
basis of relief. Additionally, it is inappropriate to consider a 
motion for summary judgment here, where the Defendant has not filed 
an answer and a motion to dismiss is pending. 
complaint. The Court views the complaint in the light most 
favorable to the plaintiff and must accept as true all well-pleaded 
factual allegations contained within it. Thompson v. Bank of Am., 
N.A., 773 F.3d 741, 750 (6th Cir. 2014). "To survive a motion to 
dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on 
its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim 
is plausible when it contains facts that allow the court to draw 
the reasonable inference that the defendant is liable for the 
alleged misconduct. Id. "The plausibility standard ... asks for 
more than a sheer possibility that a defendant has acted 
unlawfully." Id. 

 III. DISCUSSION 
A. Qualified domestic relations order ERISA exemption 

 The Employee Retirement Income Security Act of 1974, better 
known by its acronym "ERISA," is a federal statutory scheme that 
regulates private retirement and health plans. 29 U.S.C. § 
1103(c)(1). Under ERISA, participants and beneficiaries of these 
plans are determined "in accordance with the documents and 
instruments governing the plan." Id. § 1104(a)(1)(D). In 1984, 
Congress realized that ERISA's preemptive effect on state law could 
greatly impact the ability of spouses and dependents to receive 
plan proceeds as intended following divorce. See Sun Life Assurance 
Co. of Canada v. Jackson, 877 F.3d 698, 700 (6th Cir. 2017); 29 
U.S.C. § 1104(a)(1)(D)(discussing ERISA's preemptive effect on 
state law). Congress's solution was a new exemption for "qualified 
domestic relations orders." 29 U.S.C. § 1144(b)(7). 

 "A qualified domestic relations order includes any state 
‘judgment, decree, or order' relating to the provision of ‘child 
support, alimony payments, or marital property rights' that 
recognizes an ‘alternate payee's right to … benefits' and meets a 
number of other requirements." Sun Life, 877 F.3d at 700-01 
(quoting 29 U.S.C. § 1056(d)(3)(B)(i)-(ii)). A domestic order 
meets the requirements of this exemption only if the order clearly 

specifies: 
 (i) 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, 
 (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. 

29 U.S.C. § 1056(d)(3)(C)(emphasis added). 
 Because the settlement agreement was drafted with less-than- 
perfect detail, the issue becomes the level of specificity required 
to honor the state court decision, while also adhering to the 
requirements and purpose of ERISA. Plaintiff, in response to 
Defendant's motion to dismiss, states that "drafting perfection is 
not required" and that "substantial compliance with the 
requirements is all that is necessary." [DE 5 at 2]. 

 The relaxed "substantial compliance" standard is only 
applicable to domestic orders drafted before the exemption's 
effective date of January 1, 1985. Sun Life, 877 F.3d at 701 
(citing Metro. Life Ins. Co. v. Marsh, 119 F.3d 415, 422 (6th Cir. 
1997)(divorce decree written before ERISA was amended led the court 
to demand less than literal compliance)).4 Because the Plaintiff 
and Mr. Ross divorced nearly two decades after 1985, she must show 

that the terms of the agreement and order clearly specify the 
requirements listed in the statute. Id. While this standard demands 
more than substantial compliance, it does not require "rigidity" 
or "magic words." Id. In fact, as the United States Sixth Circuit 
Court of Appeals explained in Sun Life, "one may ‘clearly specify' 
something by implication or inference so long as the meaning is 

4 Regrettably, the Court notes here that while Plaintiff did cite 
to and quote a portion of the Marsh decision, she omitted a phrase 
preceding the quoted sentence that specifically applies this test 
to divorce orders written before ERISA was amended. [DE 5 at 2]. 
She also cited to the Ohio district court's opinion in Sun Life 
without mentioning that the exact legal issue disputed here was 
directly addressed on appeal. [Id.]. It appears to be a blatant 
attempt to pull the wool over the eyes of the parties and the 
Court, so to speak. 
definite." Id. (citing Oxford English Dictionary 159 (2d ed. 
1989)). Further, "the statute does not require that a particular 
provision of the divorce decree clearly specify the relevant 
details. It requires the entire ‘domestic order' to do so, examined 
in full, not silo by silo." Id. at 702 (citing Russell v. 

Citigroup, Inc., 748 F.3d 677, 681 (6th Cir. 2014)). 
 The most disputed of the four requirements will be addressed 
first. As indicated above, Plaintiff must demonstrate that the 
life insurance plan in dispute is clearly specified in the order. 
The agreement specifically states that Plaintiff shall be the 
beneficiary of Mr. Ross's life insurance policy "through his 
employer Michelin." [DE 1-3 at 6]. Defendant argues that because 

Mr. Ross indisputably worked at a company called Camso at the time 
of his death, and pled that Camso distributed the policy, the 
policy at issue is not clearly identified in the agreement. [DE 4 
at 4]. 
 Following the Sixth Circuit's decision in Sun Life, a handful 
of federal district courts addressed this requirement directly. 
For example, in Metropolitan Life Insurance Company v. McDonald, 

the divorce agreement referred to a General Motors policy, but the 
decedent allegedly held several life insurance policies. 395 
F.Supp.3d 886, 892 (E.D. Mich. 2019). However, the only policy 
offered by General Motors was the one at issue between the parties. 
Id. Thus, the Michigan district court held that the divorce 
agreement clearly specified each plan to which the order applied. 
Id. In another Michigan case, Teenor v. Leblanc, the agreement 
vaguely stated "all life insurance policies," which the Court found 
included the plan at issue. 2019 WL 2074585, No. 18-cv-12364, *3 

(E.D. Mich. May 10, 2019). 
 These cases demonstrate the impact of the "clearly specified" 
requirement. Like the agreement in McDonald, the divorce decree 
here specifically names a company the decedent elected a life 
insurance policy through. However, unlike the agreement in 
McDonald, the Plaintiff here did not make a connection between the 
policy paid out to the Defendant and the one described in the 

divorce decree. Additionally, the agreement is not so encompassing 
as to include all of the decedent's potential plans, like the 
agreement in Tenor. 
 Considering only the facts contained in the complaint5 and 
its exhibits, the agreement is only clear on the fact that 
Plaintiff is entitled to proceeds of a Michelin policy. Because 
Plaintiff failed to provide any facts indicating that the Michelin 

5 In her response to the motion to dismiss, Plaintiff alludes to 
the fact that Michelin now owns Camso. [DE 5 at 4]. Thus, Plaintiff 
argues, the Camso policy is "indirectly, a Michelin policy." [Id.]. 
Regardless of the facts of this acquisition, Plaintiff does not 
plead that Michelin acquired Camso in the complaint. The Court may 
not consider facts outside of the pleadings on a motion to dismiss. 
Fed. R. Civ. P. 12(b)(6), 12(d). 
policy in the agreement is the same one paid out to the Defendant, 
the Court cannot find that the documents, taken as a whole, clearly 
show that the plan paid out is the same one Plaintiff and Mr. Ross 
agreed to include in the mediation agreement. 

 Plaintiff and Defendant repeatedly complain of the inartful 
drafting of the mediation agreement. But what kills the claim here 
is the Plaintiff's failure to plead sufficient factual matter 
indicating that the policy at issue is the same one specified in 
the agreement. The Court cannot find that the plan is sufficiently 
definite as required by ERISA and the Sun Life decision, as to 
allow the divorce decree to supersede the terms of the policy paid 
to Defendant. 

 Because the Plaintiff's divorce decree does not meet the 
fourth statutory requirement of 29 U.S.C. § 1056(d)(3)(C), and all 
four elements are required to be designated a qualified domestic 
relations order, the claim fails in its entirety as a matter of 
law. 

B. Second claim for relief 
 Plaintiff's next request for relief is for "money wrongfully 
received" by the Defendant. Defendant argues that it is unclear if 
this claim is based in Kentucky or federal law. Regardless, she 

notes that if an individual can bring a claim under ERISA based on 
the same facts, that claim is pre-empted. [DE 4 at 7]; Aetna Health 
Inc. v. Davila, 542 U.S. 200, 201 (2004)("… if an individual, at 
some point in time, could have brought his claim under ERISA § 
502(a)(1)(B), and where there is no other independent legal duty 
that is implicated by a defendant's actions, then the individual's 

cause of action is completely pre-empted by ERISA § 
502(a)(1)(B)."). Even if the claim is somehow not pre-empted by 
ERISA, Defendant points out that the allegations fail to meet the 
pleading standard outlined in Ashcroft v. Iqbal. [DE 4 at 7]; 556 
U.S. 662 (2009)(a pleading must contain a short and plain statement 
of the claim showing the pleader is entitled to relief, more than 
a "the defendant unlawfully harmed me" accusation). 

 Plaintiff did not respond to Defendant's arguments about her 
second claim. When a party fails to respond to a motion or argument 
therein, the Sixth Circuit has held that the lack of response is 
grounds for the district court to assume that opposition to the 
motion or argument is waived. Humphrey v. U.S. Att'y Gens. Office, 
279 F.App'x 328, 331 (6th Cir. 2008); see also U.S. v. Huntington 
Nat. Bank, 574 F.3d 329, 332 (6th Cir. 2009)("To preserve the 
argument, then, the litigant not only must identify the issue but 
also must provide some minimal level of argumentation in support 
of it."). Plaintiff's failure to respond leaves the Court in a 
position to guess what the claim is and what law governs it, which 
certainly does not meet even the paltriest pleading standard. Thus, 
the second count in the complaint is hereby dismissed. 

 Iv. CONCLUSION 
 Having considered Defendant's motion to dismiss for failure 
to state a claim pursuant to Federal Rule of Civil Procedure 
 (6b) (6), and Plaintiff's arguments to the contrary, the Court 
finds that Plaintiff's claims are hereby dismissed. Accordingly, 
IT IS ORDERED as follows: 
 (1) Defendant Grace Ross's motion to dismiss [DE 4] is 
GRANTED ; 
 (2) Plaintiff Dawn Ross's pending motion for summary judgment 
[DE 9] is DENIED AS MOOT; 
 (3) All claims against Defendant Grace Ross are DISMISSED 
WITH PREJUDICE; 
 (4) Because there are no remaining claims against any 
defendant in this action, a final judgment SHALL be entered 
contemporaneously with the entry of this Memorandum Opinion and 
Order. 
 This the 14th day of January, 2020. 
 as, Signed By: 
 WO Py Joseph M. Hood ow 
 "ae ~— Senior U.S. District Judge 

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