January 20, 2016
from the Superior Court of the District of Columbia
(DRB-3663-14) (Hon. Peter A. Krauthamer, Trial Judge)
Stolzenberg, with whom Jonathan M. Dana was on the brief, for
A. Ogolo for appellee. Before Blackburne-Rigsby and McLeese,
Associate Judges, and King, Senior Judge.
BEFORE: Blackburne-Rigsby and McLeese, Associate Judges; and
King, Senior Judge.
case came to be heard on the transcript of record and the
briefs filed, and was argued by counsel. On consideration
whereof, and for the reasons set forth in the opinion filed
this date, it is now hereby
and ADJUDGED that the judgment of the trial court is
reversed, and the case is remanded for the trial court to
revise the divorce decree to reflect appellee's waiver of
any right to appellant's Foreign Service pension,
annuity, and survivor's benefits.
McLeese, Associate Judge
Marcia Oshinaike seeks review of the trial court's ruling
that Ms. Oshinaike's former husband, appellee Solomon
Oshinaike, did not waive his rights with respect to
retirement benefits that Ms. Oshinaike accrued as a Foreign
Service officer. We reverse.
Oshinaike and Ms. Oshinaike married in 1989. At that time,
Ms. Oshinaike worked for a private employer. Ms. Oshinaike
joined the State Department in 1992 and became a Foreign
Service officer in 2005. In 2011, the Oshinaikes executed an
agreement concerning the assignment of property in the event
of divorce. That agreement states, among other things, that
"Solomon Oshinaike waives all rights to Marcia
Oshinaike's pension and survivor benefits." In 2013,
the parties executed a similar agreement stating, among other
things, that Mr. Oshinaike "waive[s] all rights to
Marcia Oshinaike's pension, federal health benefits,
annuity, and survivor benefits." Both agreements also
included language indicating that Ms. Oshinaike waived her
rights to Mr. Oshinaike's corresponding benefits.
Oshinaike filed for divorce in 2014. During the divorce
proceedings, Ms. Oshinaike sought a declaration that Mr.
Oshinaike had validly waived his right to retirement benefits
that Ms. Oshinaike had accrued as a Foreign Service officer.
The trial court held an evidentiary hearing on the motion. In
pertinent part, Ms. Oshinaike testified as follows. Ms.
Oshinaike drafted both agreements, which were intended to
provide for a division of property that would avoid a
contested divorce. At the time of the agreements, Ms.
Oshinaike's only pension and survivor benefits arose from
her employment with the Department of State and as a Foreign
Service officer. Mr. Oshinaike knew that Ms. Oshinaike was in
the Foreign Service and that she had only one pension. Mr.
and Ms. Oshinaike discussed the agreements, and Mr. Oshinaike
understood them. It was very clear to both Mr. and Ms.
Oshinaike that the agreements referred to Ms. Oshinaike's
Foreign Service pension.
Oshinaike testified that he was aware that Ms. Oshinaike
worked in the Foreign Service and that she had a pension
because of that employment. Mr. Oshinaike believed that his
wife had some kind of benefits or saving plan in connection
with her prior private employment, but he was not sure about
the nature of those benefits. Mr. Oshinaike believed that Ms.
Oshinaike had retirement benefits from her initial employment
with the State Department that were separate from Ms.
Oshinaike's retirement benefits as a Foreign Service
officer. Mr. Oshinaike did not intend to waive his rights
with respect to Ms. Oshinaike's Foreign Service pension.
Moreover, Mr. Oshinaike did not understand the agreements to
waive those rights, because such a waiver must be explicitly
stated and the agreements do not specifically state that Mr.
Oshinaike was waiving his rights to that pension.
trial court ruled as a matter of law that the agreements do
not validly waive Mr. Oshinaike's rights with respect to
Ms. Oshinaike's Foreign Service pension. The trial court
explained that, under 22 U.S.C. § 4054(a) (2006), an
agreement to waive spousal rights to a Foreign Service
pension must "expressly provide" for such waiver.
In the trial court's view, such a waiver must include a
specific reference to a Foreign Service pension. Because the
agreements in this case do not specifically mention a Foreign
Service pension, the trial court found them legally
inadequate to waive Mr. Oshinaike's ...