United States District Court, D. Minnesota
BRUCE G. SCHWARTZ, Plaintiff,
ARDIS BOGEN f/k/a Ardis Schwartz, Defendant.
Michael D. Schwartz and Brandon M. Schwartz, Schwartz Law
Firm, Counsel for Plaintiff.
Timothy A. Sullivan and Rebecca A. Chaffee, Best &
Flanagan LLP, Counsel for Defendant.
MEMORANDUM OF LAW & ORDER
Michael J. Davis United States District Court
matter is before the Court on Defendant's Motion to
Dismiss. [Docket No. 8] The Court heard oral argument on
November 16, 2017. Because this action is barred by res
judicata, the Court grants the motion to dismiss.
The Parties' Marriage and Divorce
1952, Plaintiff Bruce G. Schwartz married Defendant Ardis
Bogen. (Compl. ¶ 15.) In 1953, Schwartz began working
for Northwestern Bell Telephone Company. (Id. ¶
2.) Eventually, he became the Chief Operating Officer for
Pacific Bell and, then, he became an officer of AT&T.
(Id. ¶¶ 3-4.)
is a participant or beneficiary under the AT&T Basic Bell
System Management Pension Plan (“Pension Plan”).
(Compl. ¶ 5.) The Pension Plan is subject to ERISA,
which became effective in 1974. (Compl. ¶ 6.) The
Pension Plan provides: “Assignment or alienation of
pensions under this plan will not be permitted or recognized
unless or otherwise required under applicable law.”
(Compl. ¶ 14.)
5, 1981, Schwartz and Bogen entered into a Marital Property
Settlement Agreement (“MPSA”) in the State of New
Jersey, under which both waived and released all rights to
equitable distribution under New Jersey law. (Compl. ¶
16; Schwartz Aff. ¶11; Schwartz Aff., Ex. 2, MPSA ¶
34(v).) Under the MPSA, Schwartz would pay Bogen alimony on
the first day of every month “until the Husband shall
retire from American Telephone & Telegraph Company, its
affiliates or subsidiaries.” (MPSA ¶ 3.)
the Husband's retirement from American Telephone &
Telegraph Company, or its affiliates or subsidiaries, the
amount payable as alimony and support of the Wife as set
forth in paragraph 3 shall cease. In lieu thereof, the
Husband shall pay to the Wife, as and for her alimony and
support, a sum equal to fifty (50%) of the Husband's
basic Bell System Management Pension Plan, at the date of
retirement. Said payment shall be made by Husband by check or
money order at the residence of the Wife or at any place she
may designate, in writing to the Husband. Said payment shall
be payable in monthly installments on the first day of each
(MPSA ¶ 4.)
MPSA further provides: “The Husband's obligation to
pay alimony and support to the Wife shall cease upon her
death, the death of the Husband, or upon the Wife's
remarriage, whichever event is earlier.” (Id.
1983, Schwartz and Bogen were divorced in the State of New
Jersey. (Compl. ¶ 17; Sullivan Aff., Ex. 2, Final
Judgment of Divorce.) The Final Judgment of Divorce was
entered on July 1, 1983, and incorporated the MPSA, as
modified in the Final Judgment of Divorce. (Final Judgment of
Divorce at 2.)
modification of the MPSA stated, in relevant part:
(A) In the event Wife remarried, the obligations of Husband
to pay Fifty (50%) percent of the Husband's Basic Bell
System Management Pension Plan shall terminate.
* * *
(C) In the event Wife marries after January 1, 1986, but on
or before December 31, 1990, Husband shall pay Wife as
equitable distribution, a yearly sum equal to twenty (20%)
percent of Husband's Basic Bell System Management Pension
Plan, computed at the value of said Basic Pension Plan on
January 1, 1986.
* * *
(E) In the event Wife married after December 31, 1995, she
shall not be entitled to any portion of Husband's Basic
Bell System Management Pension Plan.
(F) The Husband's obligation under paragraphs A through
D, inclusive, shall terminate upon his death or the death of
Wife. . . . .
(Final Judgment of Divorce at 3.)
1985, Schwartz retired from AT&T. (Compl. ¶ 18.)
Neither Schwartz nor Bogen made a request for a qualified
domestic relations order (“QDRO”) in 1985.
1989, Bogen remarried. (Compl. ¶ 19.) Neither Schwartz
nor Bogen made a request for a QDRO in 1989. (Id.)
After Bogen's remarriage, she filed tax returns declaring
the payments from Schwartz as alimony. (Id. ¶
1989 through March 2016, Schwartz made payments to Bogen.
(Compl. ¶¶ 20-21.) Both Schwartz and Bogen reported
the payments as alimony on their federal tax returns.
(Id. ¶¶ 22-23.) The payments were sent to
Bogen in Minnesota. (Schwartz Aff. ¶ 19.)
March 2016, Schwartz contacted Bogen and told her that he
realized that under the terms of the MPSA and the Final
Judgment of Divorce he should have stopped making the alimony
and support payments in 1995 because she had remarried.
(Compl. ¶ 24; Schwartz Aff. ¶ 23; Schwartz Aff.,
Ex. 6.) On August 3, 2016, Bogen, through her attorney,
retorted that the alimony payments were not alimony but
rather, were an equitable distribution of the Pension Plan.
(Compl. ¶ 24; Schwartz Aff., Ex. 7.) In an August 25,
2016 letter, Bogen opined that, because the decree and
modification of property settlements between Schwartz and
Bogen were negotiated and entered before the Retirement
Equity Act of 1984, “the division of the pension was
done without a QDRO.” (Id.)
New Jersey Action
October 11, 2016, Bogen, through counsel, filed a Motion for
Enforcement of Litigant's Rights in the Superior Court of
New Jersey, Chancery Division, Family Part, requesting that
Schwartz be compelled to pay 20% of his Pension Plan in
monthly payments of $1, 426.32 per month. (Compl. ¶ 31;
Sullivan Aff., Ex. 4.) Schwartz, through counsel, argued that
the anti-alienation provisions of ERISA prevented Bogen from
sharing his pension and entitled him to a refund of money
already paid. (Sullivan Aff., Ex. 5.) He explicitly argued
that there was no QDRO to divide his ...