                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 21 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


JOINT TRUSTEES OF THE                            No. 13-35071
INTERNATIONAL LONGSHORE &
WAREHOUSE UNION - PACIFIC                        D.C. No. 2:12-cv-01379-JLR
MARITIME ASSOCIATION PENSION
PLAN,
                                                 MEMORANDUM*
              Plaintiff-counter-defendant,

JEANETTE PRITCHOW,

              Defendant-cross-defendant -
Appellee,

  v.

KIM E ROSS,

              Defendant-cross-claimant -
Appellant.



JEANETTE PRITCHOW,                               No. 13-35074

              Defendant-cross-defendant -        D.C. No. 2:12-cv-01379-JLR
Appellant,

  And


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
JOINT TRUSTEES OF THE
INTERNATIONAL LONGSHORE &
WAREHOUSE UNION - PACIFIC
MARITIME ASSOCIATION PENSION
PLAN,

              Plaintiff-counter-defendant,

  v.

KIM E ROSS,

              Defendant-cross-claimant -
Appellee.


                   Appeal from the United States District Court
                      for the Western District of Washington
                    James L. Robart, District Judge, Presiding

                       Argued and Submitted May 12, 2014
                              Seattle, Washington

Before: O’SCANNLAIN, KLEINFELD, and BERZON, Circuit Judges.

       These cross-appeals from the entry of summary judgment in an interpleader

action concern a dispute regarding the distribution of survivor pension benefits by

the Joint Trustees of the International Longshore & Warehouse Union – Pacific

Maritime Association Pension Plan (“the Plan”). Kim E. Ross (“Mrs. Ross”)

appeals the district court’s award of 100% of Joseph E. Ross’s (“Mr. Ross”)




                                         2
survivor benefits to Jeannette Pritchow, Mr. Ross’s former wife. Ms. Pritchow

appeals the denial of her request for attorneys’ fees. We affirm.

      (1)    The district court did not err in interpreting the Qualified Domestic

Relations Order (“QDRO”) agreed to between Ms. Pritchow and Mr. Ross as

awarding 100% of the survivor benefits to Ms. Pritchow. The plain language of

the QDRO states that Ms. Pritchow is entitled to “the entirety of the survivor

benefit payable pursuant to the Plan.” Although Washington law applies a

community property presumption that when a spouse continues to accumulate

pension benefits following divorce, the former spouse should receive only those

benefits that accrued during the marriage, state law does not mandate that

approach. See Chavez v. Chavez (In re Chavez), 909 P.2d 314, 316 (Wash. App.

1996).

      Here, the QDRO is entirely clear with respect to survivor benefits, and so

overcomes any applicable presumption. Moreover, the QDRO elsewhere

specifically reflects Washington’s community property presumption, in its

treatment of pension benefits during Mr. Ross’s lifetime (which is what was at

stake in In re Chavez). The distinction between the treatment of pension benefits

and of survivor benefits confirms that the community property presumption was

not overlooked when the QDRO was entered. Instead, it was meant to apply to the


                                          3
division of pension benefits paid while the primary beneficiary was alive, but was

not applicable to “the survivor benefit payable pursuant to the Plan” after Mr.

Ross’s death.

      (2)    The district court did not abuse its discretion in denying attorneys’

fees pursuant to 29 U.S.C. § 1132(g)(1). Because Ms. Pritchow wholly prevailed

on her claims, the district court was not required to consider the factors identified

in Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir. 1980). See Nelson v.

EG & G Energy Measurements Grp., Inc., 37 F.3d 1384, 1392 (9th Cir. 1994). But

it was not an abuse of discretion to do so. Moreover, under the circumstances, it

would be unjust to award fees against the Plan, which, faced with a legitimate

dispute between competing beneficiaries, responded appropriately by filing this

interpleader action. See Smith v. CMTA-IAM Pension Trust, 746 F.2d 587, 589

(9th Cir. 1984).

      AFFIRMED.




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