                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                        March 14, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
KATHLEEN MILLS,

             Plaintiff-Appellant,

v.                                                         No. 12-1208
                                              (D.C. No. 1:11-CV-02127-DME-CBS)
THE PRUDENTIAL INSURANCE                                    (D. Colo.)
COMPANY OF AMERICA,
a corporation; STEPHEN MILLS,
an individual,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before O’BRIEN, McKAY, and BALDOCK, Circuit Judges.


      Kathleen Mills filed a complaint in federal court seeking to challenge a

beneficiary designation made by her husband, Chief Warrant Officer (CWO)

H. Roger Mills, with regard to a Servicemembers’ Group Life Insurance Act

(SGLIA) policy issued through Defendant Prudential Insurance Company of


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
America. While Ms. Mills and CWO Mills were in divorce proceedings, CWO Mills

changed his life insurance beneficiary from Ms. Mills to his brother, Defendant

Stephen Mills, in apparent violation of a state-court order restraining either party

from changing beneficiaries on their insurance policies. CWO Mills subsequently

died in a service-related accident and Prudential began making payments under his

SGLIA policy to Stephen Mills.

      When Ms. Mills discovered the change in beneficiary after CWO Mills’ death,

she attempted, unsuccessfully, to prevent Prudential from paying the insurance

benefits to Stephen. She then filed her complaint, asserting claims for breach of

contract, conversion, and unjust enrichment. She also sought a declaration naming

her as the rightful beneficiary under CWO Mills’ SGLIA policy. Both defendants

moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure,

arguing federal law preempted claims based upon the state court’s restraining order

in the now-dismissed divorce action.

      In its order, the district court discussed the Supreme Court’s decision in

Ridgway v. Ridgway, 454 U.S. 46, 46 (1981), in which a service member changed the

beneficiary on his SGLIA policy in violation of a state court divorce decree. In that

case, the Supreme Court upheld the service member’s beneficiary designation,

explaining: “Federal law and federal regulations bestow upon the service member an

absolute right to designate the policy beneficiary. That right is personal to the

member alone. It is not a shared asset subject to the interests of another, as is


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community property.” Id. at 59-60 (1981). The Court therefore determined “that the

controlling provisions of the SGLIA prevail over and displace inconsistent state law.”

Id. at 60. The district court also discussed our decision in Brewer v. Zawrotny,

978 F.2d 1204, 1206 (10th Cir. 1992), which emphasized the need for strict

construction of the SGLIA in order to “preempt application of a state law which

would result in the distribution of insurance proceeds to persons other than those

designated by the insured.”

      It determined that both of Ms. Mills’ arguments under Ohio law—CWO Mills

waived his right to designate a new beneficiary by entering into the restraining order

in the divorce action, and the new designation was void because it violated the

restraining order—would result in the proceeds going to Ms. Mills, while application

of federal law—recognizing the service member’s “absolute right” to change a

beneficiary—would result in the proceeds going to Stephen Mills. When there is a

conflict under these circumstances, federal law prevails. Accordingly, it granted the

motions to dismiss and entered judgment in favor of defendants.

      Here, Ms. Mills argues she was pleading theories of waiver and estoppel under

both state and federal common law. Defendants contend she did not raise her federal

common-law argument before the district court, but the dismissal order appears to

recognize the argument and dispose of it, explaining: while she “argue[d] that these

waiver and fraud principles are ‘well established in both state and federal law,’ [she]




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fail[ed] to identify any federal case or statute supporting her arguments.” Aplt. App.

at 107 (citation omitted).

      In the trial court Ms. Mills failed to identify any federal case supporting a

waiver of SGLIA rights under federal common law; instead, she relied exclusively on

Ohio law regarding waiver and estoppel in her responses to the motions to dismiss.

See Aplt. App. at 43-45; 63-65. Although she now cites to some federal cases, none

of them involve the application of a waiver theory under federal common law to a

situation where a service member has designated a beneficiary under the SGLIA.

      Having reviewed the record, the briefs, and the relevant legal authority under a

de novo standard of review, see Ridge at Red Hawk, L.L.C v. Schneider, 493 F.3d

1174, 1177 (10th Cir. 2007), we agree with the district court’s cogent and

well-reasoned analysis. We affirm for the reasons stated by the district court in its

Memorandum Opinion and Order dated April 17, 2012. We also deny Ms. Mills’

motion for oral argument.

      AFFIRMED.


                                                Entered for the Court


                                                Terrence L. O’Brien
                                                Circuit Judge




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