     10-1825-cv
     Zangara v. Int’l Painters & Allied Trades Indus. Pension Fund


                                    UNITED STATES COURT OF APPEALS
                                        FOR THE SECOND CIRCUIT

                                                   SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
     CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
     “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
     PARTY NOT REPRESENTED BY COUNSEL.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 27th day of June, two thousand eleven.
 4
 5   PRESENT:           PIERRE N. LEVAL,
 6                      DEBRA ANN LIVINGSTON,
 7                      RAYMOND J. LOHIER, JR.,
 8                                       Circuit Judges.
 9
10
11   RALPH S. ZANGARA,
12              Plaintiff-Appellant,
13
14            -v.-                                                    No. 10-1825-cv
15
16   INTERNATIONAL PAINTERS AND ALLIED
17   TRADES INDUSTRY PENSION FUND,
18             Defendant-Appellee.
19
20
21                                         SCOTT A. STEPIEN, Law Office of Ronald D. Anton, Niagara Falls,
22                                         New York, for Plaintiff-Appellant.
23
24                                         KENT CPREK (Judith Sznyter, on the brief), Jennings Sigmond,
25                                         P.C., Philadelphia, Pennsylvania, for Defendant-Appellee.
26
27
28            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

29   DECREED that the judgment of the district court be AFFIRMED.
 1          Plaintiff-Appellant Ralph S. Zangara, Sr. (“Zangara”) appeals from a judgment of the United

 2   States District Court for the Western District of New York (Skretny, C.J.), entered March 31, 2010,

 3   granting summary judgment for Defendant-Appellee International Painters and Allied Trades

 4   Industry Pension Fund (the “Fund”) as to Zangara’s claims for violations of the Employee

 5   Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., and the Full Faith and Credit

 6   Act, 28 U.S.C. § 1738. We assume the parties’ familiarity with the underlying facts, the procedural

 7   history of the case, and the issues on appeal.

 8          On appeal, Zangara asserts that the Fund breached a fiduciary duty owed to him by, inter

 9   alia, (1) failing to alter his pension payment option prior to the commencement of his benefits,

10   despite allegedly timely oral requests to do so, and misleading him into believing someone would

11   return his telephone calls; (2) citing authority contrary to his position in denying his appeals; (3)

12   failing to provide an unambiguous form with which he could waive automatic application of the

13   husband-and-wife payment option; and (4) requiring him to provide a court order of abandonment

14   when no such order is available in New York. As an initial matter, Zangara does not appear to have

15   made these particular arguments in the district court, and “[i]t is a well-established general rule that

16   an appellate court will not consider an issue raised for the first time on appeal.” In re Nortel

17   Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008) (internal quotation marks omitted).

18   Nevertheless, Zangara’s claim lacks merit.

19          Zangara asserts that he attempted to change his pension payment option by telephone in

20   September 1995, after his wife had abandoned him. The plan, however, clearly indicates—both in

21   the Summary Plan Description (“SPD”) and the plan document—that waiver of the husband-and-

22   wife option must be made by written request, accompanied by a notarized spousal consent. The


                                                        2
 1   SPD, for example, expressly states that a participant’s pension is automatically payable in the form

 2   of a husband-and-wife pension “unless you and your spouse reject this form in writing before a

 3   Notary Public.” Similarly, the plan document provides that the husband-and-wife option may be

 4   waived only if the participant files a written waiver and the participant’s spouse “acknowledges the

 5   effect of the waiver and consents to it in writing, witnessed by a Notary Public.” Moreover, contrary

 6   to Zangara’s assertion, made for the first time on appeal, the Fund did provide a form with which

 7   a participant could waive the husband-and-wife option, appearing on the same page (and directly

 8   below) the field in which Zangara expressly selected that his benefits be paid in the form of the

 9   “Husband and Wife Pension.”1

10          Nor did the Fund breach any duty to Zangara by citing authority contrary to his position in

11   rejecting his post-divorce requests to alter his pension payment option. A plan is not required to

12   recognize a waiver of benefits through external documents—not amounting to a Qualified Domestic

13   Relations Order within the meaning of ERISA, see 29 U.S.C. § 1056(d)(3)—if such form of waiver

14   conflicts with plan documents. See Kennedy v. Plan Adm’r for DuPont Sav. & Inv. Plan, 555 U.S.

15   285, 129 S. Ct. 865, 875-77 (2009) (refusing to “blur the bright-line requirement to follow plan

16   documents in distributing benefits”). And even at the time Zangara requested that the Fund alter his

17   pension payment option in 1997 and 2006, albeit before Kennedy, this Court had already adopted


            1
              Nor is there merit to Zangara’s contention that the Fund violated a duty to him by
     requiring a court order of abandonment in order to waive spousal consent. First, there is no
     evidence in the record that Zangara made any request whatsoever to the plan that the spousal
     consent requirement be waived on account of abandonment. Regardless, abandonment is a well-
     established ground for an order of separation in New York State, and Zangara could have
     obtained an order of separation to that effect. See N.Y. DOM. REL. LAW § 200(2) (McKinney
     2010) (listing abandonment as a justification for separation); see also 47A N.Y. Jur. 2d Domestic
     Relations § 2040 (2011) (noting that “[a]n action may be maintained by a husband or wife . . . to
     procure a separation on the ground of . . . abandonment”).
                                                      3
1    just such a rule. See Krishna v. Colgate Palmolive Co., 7 F.3d 11, 16 (2d Cir. 1993). Accordingly,

2    on the record presented, it is clear that the Fund did not violate any fiduciary duty allegedly owed

3    to Zangara.

4           We have considered all of Plaintiff-Appellant’s remaining arguments and find them to be

5    without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

 6
 7                                                        FOR THE COURT:
 8                                                        Catherine O’Hagan Wolfe, Clerk
 9
10




                                                      4
