CourtListener opinion 10214009

Evidence quotes

Clean opinion text

UNITED STATES DISTRICT COURT 
 EASTERN DISTRICT OF MICHIGAN 
 SOUTHERN DIVISION 

ROOFERS LOCAL 149 2:19-cv-10628 
PENSION FUND, 
 Plaintiff, HON. TERRENCE G. BERG 

 v. 

 ORDER GRANTING MOTION 
KAIJA MENYON PACK and 
 FOR SUMMARY JUDGMENT 
DIANA PERRY, 
 Defendants. 
 As a member of Roofers Local 149, Charles Edwards, Jr. left a 
monthly annuity benefit to his wife when he died. Unfortunately, because 
of irregularities in finalizing an earlier divorce, he also left a dispute 
between two women as to which of them was the wife legally entitled to 
payments as his surviving spouse. Seeking to resolve these competing 
claims, the Trustees of the Roofers Local 149 Pension Fund (the "Fund") 
filed this interpleader action to sort out the rights of Defendants Diana 
Perry ("Perry") and Kaija Menyon Pack ("Pack"), both of whom were 
married to Edwards and claim to be his legal surviving spouse.1 The case 
is now before the Court on a motion for summary judgment filed by the 
Fund. The Court held an evidentiary hearing on March 4, 2020, during 

1 Rule 22(a)(1) of the Federal Rules of Civil Procedure permits a party to join 
individuals as defendants if they "may expose a plaintiff to double or multiple 
liability." 
which both Perry and Pack gave testimony. The Court ordered the Fund 

to submit supplemental briefing incorporating that testimony and 
provided Perry and Pack an opportunity to do the same. Initially, only 
Perry filed a supplemental brief. ECF No. 26. But Pack later filed a 
response to the allegations contained in Perry's brief. ECF No. 28. The 
Court has considered both Defendants' filings. Having determined that 
Pack is the surviving spouse for purposes of the pension plan, the Court 
will grant summary judgment in favor of the Fund. 
 BACKGROUND 

 The Roofers Local 149 Pension Fund (the "Fund") is established and 
administered pursuant to Section 302 of the Labor Management 
Relations Act ("LMRA"), 29 U.S.C. § 186, and the Employee Retirement 
Income Security Act of 1971 ("ERISA"), 29 U.S.C. § 1001 et seq. According 
to the Fund's pension plan, the "surviving spouse" of a participant who 
dies before retirement is eligible to receive a monthly survivor annuity 
benefit.2 See ECF No. 20-2 (Excerpt from Am. and Restatement of Roofers 
Local No. 149 Pens. Plan). See also ECF No. 20-2, PageID.124 (supplying 
a definition of "Spouse or Surviving Spouse"). As a member of Roofers 

Local 149 who contributed to the Fund and passed away before his 
retirement, it is undisputed that Edwards's surviving spouse is entitled 

2 The plan also gives participants the option of selecting a beneficiary other than their 
spouse. Edwards did not opt to make such a designation. See ECF No. 20-2, 
PageID.121–22; ECF No. 20, PageID.101–02. 
to receive death benefits under the plan. See ECF No. 20, PageID.104 

(Fund's Mot. for Summ. J. Br.). The only dispute is whether Diana Perry 
or Kaija Menyon Pack—both of whom were married to Edwards—should 
legally be considered Edwards's "surviving spouse." 
 Perry was Edwards's first wife. A marriage certificate issued by 
Wayne County, Michigan shows that Edwards and Perry were married 
on August 18, 1979. ECF No. 1-1, PageID.8. The couple lived together for 
almost a decade and had one child together. ECF No. 24, PageID.169 
(Mar. 1, 2020 Evid. Hearing Tr.). During the evidentiary hearing on this 

matter, Perry testified that she and Edwards separated around 1987. 
ECF No. 24, PageID.170–71. 
 In 1993, Edwards filed an action to divorce Perry in Michigan's 
Third Judicial Circuit Court. ECF No. 1-2, PageID.10 (Mich. Third Jud. 
Cir. Ct. Reg. of Actions). But that complaint was ultimately dismissed for 
failure to submit a judgment of divorce. ECF No. 1-3, PageID.12 (Order 
Dismissing Case). The Wayne County divorce between Edwards and 
Perry was thus never finalized. Though it remains possible that Edwards 
obtained a divorce in some other county or state (he apparently resided 

in New York and Pennsylvania during the relevant period), there is no 
evidence in the record that he did so. ECF No. 28, PageID.331. 
 An affidavit recently provided by Perry and Edwards's daughter 
avers that, while Edwards was in the hospital recovering from a stroke 
in 2017, he told his daughter that he had never divorced Perry. ECF No. 
26-2, PageID.311 (Perry-Tate Aff.). The daughter in her affidavit asserts 

that she made a tape recording of this statement. ECF No. 26-2, 
PageID.311 (Perry-Tate Aff.). But that recording has not been provided 
to the Court and the Court therefore does not consider it in deciding 
summary judgment. Further, the Court notes that Perry testified during 
the hearing and never mentioned this 2017 conversation between 
Edwards and his daughter. To the contrary, Perry testified that she first 
learned that she and Edwards remained married when she searched 
Wayne County's divorce records in 2018 (in preparation for applying for 

Edwards's surviving spouse benefits). See ECF No. 24, PageID.173, 176. 
 In 1991, before Edwards unsuccessfully filed for divorce from Perry, 
he married Pack in a ceremony at Detroit's Linwood Church of Christ 
attended by 365 guests. ECF No. 1-4, PageID.14; ECF No. 28, PageID.326 
(Perry Br.). The Wayne County marriage license states that Edwards had 
previously been married. ECF No. 20-4, PageID.129. Pack testified that 
Edwards told her he was divorced. ECF No. 24, PageID.189. When 
Wayne County issued a marriage license to Pack and Edwards, Pack 
understandably assumed there were no legal impediments to their 

marriage. ECF No. 24, PageID.189–90. According to Pack, she and 
Edwards remained happily married until his passing in 2018. The couple 
had several children together, both biological and adopted. ECF No. 24, 
PageID.200–01. Pack explains that she and Edwards also remained in 
close touch with his daughter born during his marriage to Perry and were 
on fine terms with Perry. ECF No. 28, PageID.327. During their 

marriage, Pack and Edwards shared household expenses, combined 
finances, and listed each other as beneficiaries on benefits to which they 
were entitled. ECF No. 24, PageID.209–10. The couple also moved 
together several times to follow prospects for better neighborhoods and 
schools, academic opportunities for their children, and professional 
promotions. ECF No. 24, PageID.192–99. 
 Perry says she heard only through the grapevine that Edwards had 
married Pack. ECF No 24, PageID.173. But Pack testified that Perry 

actually was a guest at the Edwards-Pack wedding. ECF No. 24, 
PageID.192–93. According to Perry, she was never served with divorce 
papers and had not heard that Edwards was seeking a divorce. ECF No. 
24, PageID.183. Nonetheless, Perry testified that she assumed from the 
fact that Edwards had married Pack that she and Edwards must have 
been divorced. ECF No. 24, PageID.183. For her own part, Perry also re- 
married. In 1998, Perry married Kenneth J. Day; the couple's 1998 
marriage license indicates that Perry had previously been married. ECF 
No. 20-6, PageID.134. To this day, Perry and Day remain legally married, 

although they separated in 2004. ECF No. 24, PageID.174–75. In 2011, 
Perry moved in with her and Edwards's daughter. ECF No. 26, 
PageID.298. 
 During the evidentiary hearing, Perry testified that she and 
Edwards both stayed with their daughter at the daughter's home in 
Michigan during some portion of 2016 and 2017. ECF No. 24, 

PageID.177. Perry's testimony suggested that this living arrangement 
was a temporary, mutually beneficial situation and by no means a 
reconciliation between Perry and Edwards. Pack's testimony also framed 
Edwards's stay with his daughter and Perry in 2016 and 2017 as more of 
a "visit." See id. at PageID.199–202. See also ECF No. 28, PageID.329 
("When [Edwards] would stay at [his and Perry's daughter's] house, 
[Edwards] slept in the basement on a small couch, it was only temporary 
so he said it was no big deal."). Pack explained that Edwards was 

travelling back-and-forth between Michigan and Indiana, where Pack 
had relocated for a job but had not yet secured a permanent living 
situation. ECF No. 24 at PageID.199–202. According to Pack, Edwards 
had "some work to do in Detroit" and so it was convenient to stay there 
and spend time with his daughter. Id. But Perry now asserts, in 
supplemental briefing and affidavits, that the reason Edwards moved 
back in with her and the couple's daughter was that he and Pack were 
having marriage trouble. ECF No. 26, PageID.298 (Perry Suppl. Br.); 
ECF No. 26-1, PageID.309 (Perry Aff.) (stating that Edwards moved in 

with his and Perry's daughter in 2015, as opposed to 2016); ECF No. 26- 
2, PageID.311 (same). 
 Edwards was still living with Perry and her daughter in Michigan 
when he suffered a stroke in August 2017. See ECF No. 24, PageID.200, 
203; ECF No. 26, PageID.298. He was initially hospitalized in Michigan, 
but Pack travelled with him back to Indiana after he was discharged. 

ECF No. 24, PageID.200. Perry apparently did not visit or keep in touch 
with Edwards after he left Michigan. See id. at PageID.177–78. Pack's 
testimony was that she and Edwards resided in Indiana from that point 
until his death in 2018. Id. at PageID.203. Edwards was in a nursing 
home for most of that time. ECF No. 28, PageID.330. Pack and Edwards's 
son helped care for Edwards because after his stroke he was unable to 
walk, feed himself, or carry out other basic functions independently. ECF 
No. 24, PageID.203. According to Pack, the exception to Edwards's 

residency in Indiana was a period of two or so days during February 2018 
when Perry's daughter by Edwards transported him from his nursing 
home in Indiana to Michigan "against his will and under false pretense." 
ECF No. 28, PageID.330. The facts underlying this incident, although 
hotly disputed by the Defendants, are nonetheless immaterial to 
assessing whether Perry or Pack is the "surviving spouse" for benefits 
purposes. 
 Edwards passed away on August 1, 2018, by Pack's side in Indiana. 
ECF No. 20-8 (Death Certificate); ECF No. 28, PageID.331. The death 

certificate identifies Pack, not Perry, as his wife. ECF No. 20-8, 
PageID.147. Although she was legally married to Day at the time 
Edwards died, it was Perry who reported Edwards's death to the Fund 
and applied for death benefits as his surviving spouse. See ECF No. 20-9 
(Cert. of Beneficiary Form). Perry testified that she decided to apply for 
Edwards's benefits after examining Wayne County's divorce records and 

discovering that her divorce with Edwards was never finalized there. 
ECF No. 24, PageID.173. Perry believes she should be awarded the 
surviving-spouse benefits because she spent ten years of her life with 
Edwards and was legally married to him at the time of his death. ECF 
No. 24, PageID.176. At no point during her hearing testimony did Perry 
suggest she should be awarded the surviving spouse benefits on the basis 
that she and Edwards had reconciled in some manner in 2015–17, or 
because Pack had abandoned Edwards. 

 Pack in turn says that she is entitled to the surviving-spouse 
benefits because she married Edwards in good faith and built a life with 
him that the couple shared from the date of their marriage in 1991 until 
Edwards's death in 2018. ECF No. 24, PageID.210–11 (Pack testified, "So 
all I know is I married him. I've never married anybody else. I've never 
considered marrying anyone else. We married to death do us part, and 
that's what happened, death did us part."). 
 In her recent supplemental briefing, Perry for the first time alleges 
that Pack abandoned Edwards during the last years of his life. ECF No 

26. Attached to Perry's brief are records from an Indiana criminal court 
indicating that Pack was charged, in October 2017, with neglect of a 
dependent, property theft, and exploitation of an endangered adult over 
60 years of age. See generally ECF No. 26-3. Those charges, which do not 
expressly reference Edwards, were later dismissed. Id. Notably, Perry's 
sworn affidavit, although attached as an exhibit to the supplemental 

brief, does not contain any mention of this alleged neglect or abuse of 
Edwards by Pack, nor did Perry mention any such wrongdoing by Pack 
in her hearing testimony. See ECF No. 26-1. Only the affidavit provided 
by Edwards and Perry's daughter contains sworn statements that Pack 
abandoned Edwards near the end of his life, around October 2017 (when 
Edwards was moved to a nursing home in Indiana). ECF No. 26-2, 
PageID.311. Edwards passed away approximately 10 months later, on 
August 1, 2018. ECF No. 20-8. 

 The Fund filed this lawsuit in March 2019 seeking the Court's 
assistance in determining whether it should award death benefits to 
Perry or to Pack. In its motion for summary judgment, the Fund 
acknowledges that Pack's marriage to Edwards was technically void ab 
initio because he was still married to Perry. Yet the Fund also argues 
that under Michigan law there is a strong presumption in favor of the 
validity of "a later ceremonial marriage that is attacked on the ground 
that one of the parties was already married to another." ECF No. 20, 
PageID.108. Applying this presumption of validity, the Court will award 

the Fund's surviving-spouse benefits to Pack. 
 LEGAL STANDARD 
 Summary judgment is appropriate "if the movant shows that there 
is no genuine dispute as to any material fact and the movant is entitled 
to judgment as a matter of law." See Fed. R. Civ. P. 56(a). A fact is 
material only if it might affect the outcome of the case under the 

governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 
(1986). In deciding a motion for summary judgment, the Court must view 
the evidence and any reasonable inferences drawn from the evidence in 
the light most favorable to the non-moving party. See Matsushita Elec. 
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations 
omitted). The trial court is not required to "search the entire record to 
establish that it is bereft of a genuine issue of material fact." Street v. 
J.C. Bradford & Co., 886 F.2d 1472, 1479–80 (6th Cir. 1989). Rather, the 

"nonmoving party has an affirmative duty to direct the court's attention 
to those specific portions of the record upon which it seeks to rely to create 
a genuine issue of material fact." In re Morris, 260 F.3d 654, 655 (6th Cir. 
2001). The Court must then determine whether the evidence presents a 
sufficient factual disagreement to require submission of the challenged 
claims to the trier of fact or whether the moving party must prevail as a 
matter of law. See Anderson, 477 U.S. at 252. 
 Under Rule 56, "[a]n affidavit or declaration used to support or 
oppose a motion [for summary judgment] must be made on personal 

knowledge, [and] set out facts that would be admissible in evidence." Fed. 
R. Civ. P. 56(c)(4). Because hearsay evidence would be inadmissible at 
trial, a district court cannot consider hearsay in deciding a motion for 
summary judgment. Wiley v. United States, 20 F.3d 222, 225–26 (6th Cir. 
1994); N. Am. Spec. Ins. Co. v. Myers, 111 F.3d 1273, 1283 (6th Cir. 1997) 
("The above testimony cannot create a genuine issue of material fact 

because it is inadmissible hearsay."). 
 DISCUSSION 
 The dispositive question in this case is whether Perry or Pack is the 
"surviving spouse" for purposes of awarding benefits under the Fund's 
pension plan. Federal courts have jurisdiction over an interpleader action 
seeking to determine the proper beneficiary of benefits distributed under 
an ERISA employee-welfare plan. 29 U.S.C. § 1132; Cent. States, Se. & 
Sw. Areas Pension Fund v. Howell, 227 F.3d 672, 674 n.2 (6th Cir. 2000). 

When adjudicating a dispute about the proper beneficiary for ERISA 
benefits, ERISA "supplies the rule of law" for making that determination. 
Metro. Life Ins. Co. v. Pressley, 82 F.3d 126, 129–30 (6th Cir. 1996). See 
29 U.S.C. § 1001 et seq. 
 That statutory scheme requires that a plan administrator award 
benefits "in accordance with the documents and instruments governing 
the plan." 29 U.S.C. § 1104(a)(1)(D). The Sixth Circuit has interpreted 
this language as establishing "a clear mandate that plan administrators 
follow plan documents to determine the designated beneficiary." Pressley, 

82 F.3d at 130 (citing McMillan v. Parrott, 913 F.2d 310, 312 (6th Cir. 
1990)). See Union Sec. Ins. Co. v. Blakeley, 636 F.3d 275, 276 (6th Cir. 
2011) (emphasizing that ERISA "underscores the primacy of the written 
plan" documents). Accordingly, to the extent the plan documents provide 
an answer regarding the proper beneficiary of the pension plan, the Court 
should rely on those documents to settle the dispute. IBEW Pac. Coast 

Pension Fund v. Lee, 462 F. App'x 546, 548, 2012 WL 447490, at *2 (6th 
Cir. 2012) (unpublished). 
 Here, the written pension plan provides some guidance on 
identifying the correct beneficiary. The plan provides that "[a] married 
Participant's Surviving Spouse (as defined in Article I) shall be eligible 
to receive a Qualified Pre-Retirement Survivor Annuity if such 
Participant dies prior to his actual retirement date . . . ." ECF No. 20-2, 
PageID.121. Article I then defines "Surviving Spouse": 

 Spouse or Surviving Spouse shall mean: (a) the 
 Participant's legal Spouse at the time the Participant's benefit 
 payments commence; or (b) the Participant's legal Surviving 
 Spouse to whom he had been married during the 1 year period 
 preceding the Participant's date of death in the case of 
 benefits payable as a Qualified Pre-retirement Survivor 
 Annuity, as set forth in Section 6.1 A former Spouse will be 
 treated as the Spouse or Surviving Spouse to the extent 
 provided under the Qualified Domestic Relations Order, as 
 described in Section 414(p) of the Internal Revenue Code. 

ECF No. 20-2, PageID.124. 
 Accordingly, the terms of the pension plan provide that to comply 
with ERISA's "clear mandate that plan administrators follow plan 
documents to determine the designated beneficiary," death benefits shall 
be awarded to Edwards's "legal Surviving spouse." Metro. Life Ins. Co. v. 
Marsh, 119 F.3d 415, 420 (6th Cir. 1997). Because both Perry and Pack 
claim to be the legal surviving spouse the Court must turn to Michigan 

law to determine which individual holds that status. 
 Plan administrators and federal courts frequently rely on state law 
to determine the identity of a participant's spouse for purposes of 
identifying the correct beneficiary. Lee, 462 F. App'x at 549. See 
DaimlerChrysler Corp. v. Healthcare Benefits Plan v. Durden, 448 F. 3d 
918, 926–27 (6th Cir. 2006) (examining Ohio and Michigan law to 
determine which of the plan participant's spouses was the surviving 
spouse for beneficiary purposes); Robinson v. New Orleans Emp'rs ILA 

AFL-CIO Pension Welfare Vacation & Holiday Funds, 269 F. App'x 516, 
518–19 (5th Cir. 2008) (per curiam) (applying Louisiana law to determine 
whether a plan participant's partner was the participant's "qualified 
surviving spouse"); Malhiot v. S. Cal. Retail Clerks Union, 735 F.2d 1133, 
1135–36 (9th Cir. 1984) (examining California law to determine whether 
plan participant's partner was his "spouse" for purposes of assessing 
beneficiary status). Because the word "spouse" generally requires a 
marriage valid under state law, it makes sense to rely on state law to 
determine whether an individual may properly be considered a plan 

participant's spouse. See Malhiot, 735 F.2d at 1135. Applying this same 
logic in a factually analogous case, the Sixth Circuit found that "failure 
to rely on the state-law determination of the identity of [the plan 
participant's] lawful spouse would conflict with the plan documents' 
definition of spouse, which in turn would represent a failure to honor ‘the 
primacy of the written plan'" governing the award of benefits. Lee, 462 F. 

App'x at 549 (emphasis added) (quoting Union Sec. Ins. Co. v. Blakely, 
636 F.3d 275, 276 (6th Cir. 2011)). 
 Because Edwards was domiciled in Michigan and both marriages 
at issue took place in Michigan, the Court will apply Michigan law to 
assess the respective validity of each marriage and thereby discern which 
person is the proper plan beneficiary. See Durden, 448 F.3d at 922 
(collecting cases) (explaining that federal common law suggests courts 
should apply the law of the decedent's state of domicile to determine 

which of two conflicting marriages was valid).3 See also Restatement 
(Second) of Conflict of Laws § 188 ("The rights and duties of the parties 
with respect to an issue in contract are determined by the local law of the 
state which . . . has the most significant relationship to the transaction 
and the parties."); Restatement (Second) of Conflict of Laws § 283 ("The 
validity of a marriage will be determined by the local law of the state 
which, with respect to the particular issue, has the most significant 
relationship to the spouses and the marriage . . . ."). 

3 In determining which state's law to apply in an ERISA case the Sixth Circuit 
instructs that the analysis should be governed by choice-of-law considerations derived 
from federal common law. Durden, 448 F.3d at 922 (citing Med. Mut. of Ohio v. 
deSoto, 245 F.3d 561, 570 (6th Cir. 2001)). Where there is no federal common law on 
point the Sixth Circuit uses the Restatement (Second) of Conflict of Law for guidance 
in making choice-of-law determinations. Durden, 448 F.3d at 923. Applying the 
Restatement would also support relying on Michigan to determine which of 
Edwards's two marriages is valid. 
 Under Michigan law, a marriage is "absolutely void" if "either party 

had a wife or husband living at the time of solemnization." Mich. Comp. 
Laws § 552.1. At first blush it would appear then that Edwards's second 
marriage to Pack was invalid ab initio (from the outset) because, based 
on the existing record, he was still married to Perry at the time he 
married Pack. But Michigan law also creates "a strong presumption of 
validity in favor of a later ceremonial marriage that is attacked on the 
ground that one of the parties was already married to another." Durden, 
448 F.3d at 925 (citing John Hancock Mut. Life Ins. Co. v. Willis, 438 F.2d 

1207, 1208 (6th Cir. 1971); In re Estate of Adams, 107 N.W.2d 764, 765 
(Mich. 1961); In re Estate of Pope, 517 N.W.2d 281, 282 (Mich. App. 1994); 
In re Estate of Williams, 417 N.W.2d 556, 559 (Mich. App. 1987)). This 
presumption becomes "particularly strong" if children are born of the 
later marriage. Durden, 448 F.3d at 925 (citing Adams, 107 N.W.2d at 
765–66). Critically, the Michigan Supreme Court has held that "the 
presumption favoring legality of the later marriage, if it were ceremonial, 
will prevail over the one which favors a continuance in force of the prior 
marriage." Adams, 107 N.W.2d at 766 (citing Killackey v. Killackey, 120 

N.W. 680 (Mich. 1909); Wagoner v. Wagoner, 87 N.W. 898 (Mich. 1901); 
Dixon v. People, 18 Mich. 84 (Mich. 1869)). 
 This presumption of the later marriage's validity may be rebutted 
with "clear and positive proof to the contrary." Adams, 107 N.W.2d at 
766. But it will not overcome this presumption of validity merely to 
present testimony by the first spouse that her husband never attempted 

to divorce her, or that no record of a finalized divorce was found in the 
county where the decedent was known to have resided. Durden. 449 F.3d 
at 925 (citing Doertch v. Folwell Eng'g Co., 233 N.W. 211, 211–12 (Mich. 
1930)). The possibility remains that an absent spouse could have 
obtained a divorce elsewhere. Durden, 448 F.3d at 926 (citing Williams, 
417 N.W.2d at 559). The presumption under Michigan law that a later 
marriage is valid rests on two underlying premises: (1) that the parties 
are innocent of bigamy; and (2) that there is regularity in the actions of 

officiating and licensing officers. Adams, 107 N.W.2d at 766. 
Additionally, policy considerations weigh in favor of "foster[ing] 
respectability" and protecting children of the marriage from the "taint of 
illegitimacy." Id. 
 Applying Michigan law, Edwards's second marriage, to Pack, which 
Perry concedes was "ceremonial and duly licensed," must be presumed 
valid. ECF No. 26, PageID.297. In fact, because the couple had children 
together the court must apply a "particularly strong" presumption of 
validity in favor of the Pack-Edwards marriage. See Durden, 448 F.3d at 

925 (citing Adams, 107 N.W.2d at 765–66). The couple had four biological 
children together. ECF No. 24, PageID.201. Pack and Edwards also 
together fostered and adopted several children—some formally, and 
others informally. Id. Altogether, Pack testified that she and Edwards 
raised 23 children. Id. 
 The burden of overcoming this presumption of validity—"one of the 

strongest known to the law"—rests with Perry. But she has not produced 
"clear and positive proof" that the Edwards-Pack marriage is in fact 
invalid. Adams, 107 N.W.2d at 766. The only admissible evidence she 
cites in support of the invalidity of Edwards's later marriage is that 
Edwards was still married to Perry at the time he married Pack. ECF 
No. 24, PageID.178–79, 182 (Q: "What evidence do you have, if any, that 
Mr. Edwards'[s] marriage to Ms. Pack is not valid?" A: "Only that he was 
still married to me."). Standing alone, this testimony is not "clear and 

positive" evidence disproving the validity of Edwards's second marriage. 
 The Court notes that, as described above, Perry recently provided 
the Court with an affidavit from her and Edwards's daughter claiming 
that, while Edwards was in the hospital recovering from a stroke, he told 
his daughter he had never divorced Perry. ECF No. 26-2, PageID.311. 
But this statement by Edwards in his daughter's affidavit constitutes 
inadmissible hearsay and, as such, cannot be considered by the Court in 
deciding summary judgment. See Fed. R. Civ. P. 56(c)(4); Wiley, 20 F.3d 
at 225–26; Myers, 111 F.3d at 1283. Although the daughter claims to have 

audio or video recording of her conversation with Edwards, that footage 
was never provided to the Court. 
 The Court also notes Perry's new allegations that Pack 
abandoned—or even abused—Edwards during his last years. As an 
initial matter, the Court questions why Perry neglected to mention such 
serious allegations in her testimony during the evidentiary hearing. 

When asked by counsel for the Fund what evidence she had that 
Edwards's marriage to Pack was invalid, and why she—rather than 
Pack—should receive the death benefits, Perry responded only that she 
remains married to Edwards. ECF No. 24, PageID.178–79, 182. The 
claims of elder neglect or abuse appear for the first time in Perry's 
supplemental briefing. See ECF No. 26. 
 Because this case is at the summary-judgment phase, the Court 
must focus on evidence, rather than allegations. Notably, although 

Perry's supplemental brief repeatedly claims that Pack neglected 
Edwards, the sworn affidavit submitted by Perry in support of that brief 
contains no such averments. Compare ECF No. 26 (Perry Supp. Br.) with 
ECF No. 26-1 (Perry Aff.). Additionally, the criminal docket attached to 
Perry's brief demonstrates only that Pack was charged with elder neglect 
or exploitation, and that those charges were later dismissed. ECF No. 26- 
3. Although the affidavit provided by Perry's daughter claims that Pack 
"never visited/cared for my father while [he was in a nursing home] and 
in fact abandoned him and failed to provide financial support," this Court 

finds that a reasonable jury would not consider these statements "clear 
and positive" evidence that the Edwards-Pack marriage was invalid. ECF 
No. 26-2, PageID.311. Such statements may be relevant to assessing the 
quality of the marriage between Pack and Edwards, but they do not go to 
the validity of the Edwards-Pack marriage. 
 Considering the absence of admissible "clear and positive" evidence 

that Edwards's marriage to Pack was invalid, and the fact that Perry is 
asserting the validity of her first marriage to Edwards while 
simultaneously admitting that she remains legally remarried to 
(although separated from) another person, the Court concludes that 
under Michigan law Pack is the "surviving spouse" for purposes of 
identifying the proper pension plan beneficiary. 
 This conclusion is further supported by Michigan Probate Code. 
The Estates and Protected Individuals Code, Mich. Comp. Laws 

§ 700.2801(2)(d) explains that for purposes of the Code "a surviving 
spouse does not include . . . . (d) An individual who, at the time of the 
decedent's death, is living in a bigamous relationship with another 
individual." Because Perry remarried Mr. Day in 1998, she cannot, 
consistent with Michigan probate law, also claim that she remains 
Edwards's "surviving spouse." 
 In her supplemental briefing, Perry now contends that Pack cannot 
be a "surviving spouse" consistent with Michigan Probate Code because 
Edwards lived with Perry and her daughter between an unspecified date 

in 2015 or 2016 and October 2017, when he was moved to a nursing home 
in Indiana, and that Pack then failed to care for Edwards after his arrival 
in Indiana. ECF No. 26, PageID.306; ECF No. 24, PageID.177. 
Section 700.2801(2)(e) of the Michigan Probate Code specifically excludes 
from its definition of "surviving spouse" any individual who "for 1 year or 
more before the death of the deceased person" deserted, willfully 

neglected, or was "willfully absent" from the decedent spouse. But 
hearing testimony from both Perry and Pack established that Edwards's 
sojourn with Perry and the former couple's daughter in Michigan was a 
temporary, mutually beneficial situation; a "visit." ECF No. 24, 
PageID.199–202; ECF No. 28, PageID.329. Nothing in the record 
establishes that Pack and Edwards did not see each other during this 
period. And Pack testified, to the contrary, that Edwards travelled back- 
and-forth between Michigan and Indiana (where she lived) during the 

time he was staying in Detroit. ECF No. 24, PageID.199–200. Further, 
the parties agree that Edwards was with Pack and her children in 
Indiana—rather than with Perry in Michigan—from the date he was 
discharged from the hospital in October 2017 following his stroke, and 
his death on August 1, 2018, with the exception of two days in 2018. See 
ECF No. 24, PageID.177–78, 200, 203; ECF No. 26, PageID.298. 
 Perry has not provided evidence—as opposed to argument— 
demonstrating that Pack was willfully absent from, deserted, or 
neglected Edwards for one year or more preceding the date of his death. 

See Mich. Comp. Laws § 700.2801(2)(e). Although the affidavit sworn by 
Edwards and Perry's daughter asserts that Pack abandoned Edwards at 
the end of his life, it states only that Pack never visited or cared for 
Edwards from the time he was moved to the Indiana nursing home in 
October 2017, ten months before his death in August 2018. See ECF No. 
26-2, PageID.311–12. Accordingly, Perry has not presented evidence 

showing that Pack was absent from, deserted, or neglected Edwards "for 
1 year or more before [his] death." Mich. Comp. Laws § 700.2801(e). 
Accordingly, Perry has not presented evidence showing that Pack could 
not be considered a "surviving spouse" under the definition of that term 
supplied by Michigan Probate Code. Regardless, the question of which 
Defendant is the "surviving spouse" for purposes of the Fund benefits 
cannot be determined solely on the basis of Michigan Probate Code. 
 ERISA requires courts to give written pension plan documents 

primacy in identifying the correct plan beneficiary. 29 U.S.C. 
§ 1104(a)(1)(D); Pressley, 82 F.3d at 130. Here, the written plan 
documents supply their own definition of "surviving spouse" as "the 
Participant's legal Surviving Spouse to whom he had been married 
during the 1 year period preceding the Participant's date of death." ECF 
No. 20-2, PageID.124. To determine whether Perry or Pack is the "legal 
Surviving Spouse," the Court applies Michigan law. See supra at 14–15. 
That includes not only Michigan Probate Code, but also Michigan case 
law, which carries a "strong presumption of validity in favor of a later 

ceremonial marriage that is attacked on the ground that one of the 
parties was already married to another." Durden, 448 F.3d at 925. While 
the question of which Defendant is the "surviving spouse" may be 
somewhat unclear under Mich. Comp. Laws § 700.2801(2), it is plain that 
Perry has not presented "clear and positive proof" sufficient to overcome 
the presumption that Pack and Edwards's marriage was valid. Adams, 

107 N.W.2d at 766. For that reason, Pack—rather than Perry—should be 
considered the "surviving spouse." 
 CONCLUSION 
 For these reasons, the motion for summary judgment filed by 
Plaintiff Trustees of the Roofers Local 149 Pension Fund is GRANTED. 
It is hereby ORDERED that Defendant Kaija Menyon Pack is the 
beneficiary of Charles Edwards, Jr.'s pre-retirement death benefits. 
Defendants are further ENJOINED from pursuing any action against 

Plaintiff for recovery of the benefit under 29 U.S.C. § 1132 or any other 
applicable section of ERISA. If Plaintiff wishes to pursue an award of 
attorney's fees in this case it must submit an additional motion for 
attorney's fees outlining the amount of fees it seeks and providing 
support for the reasonableness of those fees. The motion must be filed 
within 14 days of the date of this Order. 
 SO ORDERED. 

Dated: May 18, 2020 s/Terrence G. Berg 
 TERRENCE G. BERG 
 UNITED STATES DISTRICT JUDGE