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WILKINSON v. WILKINSON

March 12, 1992

THEODORE S. WILKINSON, Plaintiff,
v.
ROSALIE F. WILKINSON, Defendant.



The opinion of the court was delivered by: STANLEY SPORKIN

MEMORANDUM OPINION AND ORDER

 This case is before the Court on Defendant, Rosalie Wilkinson's, ("Ms. Wilkinson") Motion to Dismiss or for Summary Judgment. Fed. R. Civ. P. 12(b)(1)(6), 56(c). Plaintiff Theodore Wilkinson ("Mr. Wilkinson") brought this action seeking a declaratory judgment that his former spouse, Ms. Wilkinson, forfeited any interest she might have had in his foreign service retirement benefits in relation to their separation and divorce. Because this Court finds that, as a matter of law, the Foreign Service Act ("Act") applies to the Wilkinsons and that Ms. Wilkinson did not waive the right created by the Act to her husband's retirement benefits, her motion for summary judgment will be granted.

 BACKGROUND

 Summary judgment may be granted to the moving party if

 "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law."

 Fed. R. Civ. P. 56 (c). In deciding a motion for summary judgment a district court must view the available evidence in a light most favorable to the non-moving party. Adickes v. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Therefore, for the purposes of this motion, the court accepts the following facts as not in dispute.

 Theodore and Rosalie Wilkinson were married on February 4, 1961. That same year Mr. Wilkinson became a foreign service officer of the United States government, and he has held a variety of overseas posts in the foreign service since that time. He is currently the Minister Counselor for Political Affairs at the United States embassy in Mexico City. The Wilkinsons remained married for twenty years.

 On February 18, 1980, after two years of living separate and apart, the parties entered into a formal Separation and Property Settlement Agreement ("Agreement"). The Agreement consisted of sixteen typed pages and went into considerable detail concerning the division of property and obligations between the spouses. There was no mention in the Agreement of Mr. Wilkinson's foreign service retirement benefits. The Agreement also contained general waiver provisions. The allegedly pertinent waiver provisions are as follows:

 "21. Each party hereby fully releases the other party from any obligation for alimony, support, and maintenance and accepts the provisions hereof in full satisfaction of all obligations for support or otherwise arising out of the marriage relationship of the parties and each relinquishes any right or claim to the earnings, accumulations, money pr property of the other. Neither party shall have any obligation not expressly set forth herein.

 "22. Except as otherwise provided herein, each party hereby releases and forever discharges the other, his or her . . . property and estate from any and all rights, claims, demands, or obligations arising out of or by virtue of the marital relation of the parties . . .

 "23. . . . Each party does hereby release and forever discharge the other of and from all causes of action, claims, rights or demands whatsoever, in law or in equity, which either party ever had or now has against the other."

 Complaint at § 7; Memorandum in Support of Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment at Exhibit A (emphasis added). The Agreement also contained a provision providing that its terms be construed in accordance with District of Columbia law. Id. at P28.

 On February 15, 1981 the Foreign Service Act of 1980 ("Act") became effective. See 22 U.S.C § 3901 et seq. The Act, which applied to foreign service officers married at the time it went into effect, created certain rights for their former spouses to their retirement benefits after a divorce. In the Act, Congress provided that this statutory entitlement would control division of the foreign service pension "unless otherwise expressly provided by any spousal agreement." 22 U.S.C. § 4054(a)(1) (emphasis added). Subsequent to the Act, on May 18, 1981, the parties were divorced by decree of the Superior Court of the District of Columbia.

 After the divorce, Plaintiff continued as an active member of the foreign service. Recently, however, he sought to change his retirement plan from the Foreign Service Retirement and Disability Program to the Foreign Service Pension system. Because such changes often affect the amount of the payments to be made to a former spouse, the State Department ("Department") requires that any former spouse with an interest in the employee's retirement benefits approve before it will make the change. *fn1" Upon review of the Separation Agreement and the facts in this case, the Department concluded that Ms. Wilkinson was, indeed, ...


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