                             _________________
                             Nos. 96-3684/3770
                             _________________

Prudential Insurance Company,      *
                                   *
                Plaintiff, *
                                   *
     v.                            *
                                   *
Curtis R. Hinkel,                  *     Appeals from the United States
                                   *     District Court for the
     Appellant/Cross-Appellee,*    Northern District of Iowa.
                                   *
Anna Hinkel, a minor,        *
                                   *
     Appellee/Cross-Appellant.*

                                 __________

                          Submitted: June 11, 1997

                           Filed: July 30, 1997

                                 ___________

Before LOKEN and LAY, Circuit Judges, and FENNER,1 District Judge.
                               ___________


FENNER, District Judge.

     Appellant, Curtis R. Hinkel, appeals the judgment of the District
Court which granted summary judgment in favor of appellee2, Anna Hinkel.
The judgment of the District Court is




     1
     The Honorable Gary A. Fenner, United States District Judge
for the Western District of Missouri, sitting by designation.
     2
     Appellee, Anna Hinkel, references herself in this appeal as
appellee/cross appellant. However, in her brief on appeal, Anna
Hinkel fails to challenge the judgment of the District Court in
any respect and asks that said judgment be affirmed. Anna Hinkel
presents no issues for review which challenge the judgment of the
District Court and requests no relief from the judgment as
required under FRAP 28(a)(7). Anna Hinkel is an appellee only
and not a cross appellant.
reversed and this cause remanded with directions that summary judgment be
granted in favor of appellant.


      The underlying cause is an interpleader action brought by Prudential
Life Insurance Company of America (Prudential).    Prudential initiated this
action in regard to a life insurance policy it had issued to Gail Hinkel
in   the   amount of $200,000, pursuant to the Servicemen’s Group Life
Insurance Act, Title 38 U.S.C. § 1965 (SGLIA).    At the time of the policy’s
issuance, Gail Hinkel listed her husband, Curtis Hinkel, as beneficiary.
Subsequent to Gail’s designation of Curtis as beneficiary, the Hinkels were
divorced.    Upon dissolution of their marriage, Curtis and Gail Hinkel were
granted joint custody of their minor child, Anna Hinkel, the appellee
herein.    In the dissolution proceeding, Curtis and Gail Hinkel entered into
a Stipulation for Dissolution of Marriage, which was incorporated by the
Decree of Dissolution.   In this stipulation the parties agreed, among other
matters, that each would maintain a life insurance policy on their life of
at least $250,000, naming Anna Hinkel as the sole beneficiary.     After the
dissolution of her marriage, without changing the beneficiary of her SGLIA
policy from Curtis to Anna, Gail Hinkel died.


      Upon Gail’s death, Curtis made claim to the SGLIA policy proceeds as
his own property.    Rather than pay Curtis, Prudential filed the petition
in this cause as a stakeholder of the policy, and asked the Court to decide
whether Curtis Hinkel or Anna Hinkel would be the proper payee.


      The issues presented came before the District Court on appellant’s
motion for judgment on the pleadings which was later converted to a motion
for summary judgment with the consent of counsel for the parties herein.
In its order, the District Court




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found Curtis Hinkel “bound by the stipulated Dissolution of Marriage
Settlement Agreement and court ordered Decree of Dissolution which,
together, clearly mandates the child should be the recipient of the
proceeds.”    The District Court determined appellee, Anna Hinkel, to be the
beneficiary of the policy holding that under Iowa law a constructive trust
should be imposed on the proceeds of the policy, and finding among other
matters that Curtis Hinkel had exercised undue influence.


                     STANDARD OF REVIEW FROM SUMMARY JUDGMENT
      “In reviewing a decision of a district court to grant summary
judgment we must apply the same strict standard as the district court. .
. [O]ur review is therefore do novo.”             Robinson v. Monaghan, 864 F.2d 622,
624 (8th Cir. 1989).         A court should grant summary judgment if “there is
no genuine issue of material fact” and “the moving party is entitled to
judgment as a matter of law.”             FED.R.CIV.P. 56(c).         The burden is on the
movant to establish the absence of a material fact issue by identifying
portions     of   the    pleadings,      depositions,      answers    to   interrogatories,
admission on file, and affidavits.           Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).       The burden then shifts to the nonmoving party to “set forth
specific     facts      showing   that    there   is   a    genuine    issue   for   trial.”
FED.R.CIV.P. 56(e).       One of the principle purposes of the summary judgment
rule is to isolate and dispose of factually unsupported claims or defenses
and the rule should be interpreted in a way that allows it to accomplish
this purpose.      Celotex Corp. v. Catrett, 477 U.S. at 323-24.               However, in
ruling on a summary judgment motion, the Court views the facts in the light
most favorable to the nonmoving party and allows that party the benefit of
all reasonable inferences to be drawn from the evidence.                   Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157 (1970).




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                                  APPEAL
     On appeal, appellant Curtis Hinkel argues that he is entitled to
judgment as a matter of law relying chiefly on the decision of the United
States Supreme Court in Ridgway v. Ridgway, 454 U.S. 46 (1981).   We agree.


     In Ridgway, Sergeant Ridgway and his first wife were divorced and he
was ordered to keep in force the insurance policies on his life for the
benefit of the three children of the marriage.       After his remarriage,
Sergeant Ridgway changed the beneficiary designation on his SGLIA policy
from his first wife, April, to his second wife, Donna.      Both April and
Donna filed claims for the proceeds of the policy.     April’s claim was on
behalf of the children, pursuant to the divorce decree.        The Supreme
Judicial Court of Maine held that Donna must hold the policy proceeds as
constructive trustee on behalf of the children.   The United States Supreme
Court reversed the decision of the Supreme Judicial Court of Maine.
Ridgway, 454 U.S. at 63.


     In Ridgway, the Supreme Court held that a state divorce decree, like
other law governing economic aspects of domestic relations, must give way
to clearly conflicting federal enactments as a necessary consequence to the
supremacy clause.   Ridgway, 454 U.S. at 54-55.   The Supreme Court further
held that the controlling provisions of SGLIA, under which an insured
service member possesses the right freely to designate a beneficiary and
to alter that choice at any time by communicating the decision in writing
to the proper office, prevail over and displace inconsistent state law.
Ridgway, 454 U.S. at 55.


     The imposition of a constructive trust in favor of Sergeant Ridgway’s
three children by former marriage, in accordance with a




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state court divorce decree, upon proceeds of an insured’s SGLIA policy was
found to be inconsistent with the SGLIA’s antiattachment provision, 38
U.S.C. § 770(g).   Ridgway, 454 U.S. at 60.   Therefore, any diversion of an
insured’s SGLIA policy by means of a court-imposed constructive trust which
is contrary to the insured’s beneficiary designation so that the policy
proceeds are to be paid to someone other than the beneficiary at the time
of the insured’s death, operates as forbidden “seizure” of those proceeds.
Ridgway, 454 U.S. at 60.


     Appellee, Anna Hinkel, attempts to distinguish this case from Ridgway
by arguing that the language in the Stipulation of Dissolution in the case
at bar created an express trust.   The relevant language in the case at bar
provides as follows:


           3.9   The Husband and Wife shall each maintain a policy of
     life insurance on their life of at least $250,000 and the minor
     child shall be named as sole beneficiary of both the Husband
     and Wife’s policies.

           9.1   Each of the parties will execute and deliver to the
     other party any documents that may be reasonably required to
     accomplish the intent of this instrument and shall do all other
     things incident to this end. In the event either party fails
     to comply with the provisions of this paragraph within thirty
     (30) days hereof, this Agreement shall constitute an actual
     grant, assignment and conveyance of the property and rights in
     such manner and with such force and effect as shall be
     necessary to effectuate the terms of this Agreement.        The
     titles appearing in each numbered paragraph at the commencement
     thereof shall not be construed or considered as part of the
     body of this Agreement but shall be considered as general
     identification only of the contents of the respective
     paragraphs.3




     3
     The parties do not dispute that this language adequately
references the SGLIA policy in question.

                                      5
     Appellee argues that in Ridgway, there was no language in the divorce
decree   similar    to   paragraph   9.1   above   declaring   “an   actual   grant,
assignment and conveyance of the property and rights in such manner and
with such force and effect as shall be necessary to effectuate the terms
of this agreement.”


     Appellee’s attempt to distinguish Ridgway is of no avail. As clearly
stated in Ridgway, the only way to change a beneficiary under the SGLIA is
to communicate that decision in writing to the proper office.          Ridgway, 454
U.S. at 53.   This was never done by Gail Hinkel.          To allow a change of
beneficiary by other means would be contrary to the terms established by
Congress as addressed in Ridgway.


     Furthermore, SGLIA was intended by Congress to be construed the same
as the Federal Employees Group Life Insurance Act (FEGLIA).           Mathews, 926
F.Supp. 650, 652 (citing Stribling v. United States, 419 F.2d 1350, 1353
(8th Cir. 1969)).    It has been consistently held in regard to FEGLIA that
a divorce decree cannot operate as a waiver or restriction of an insured’s
right to change the beneficiary when federal regulations conflict.             See,
Metropolitan Life Insurance Company v. Christ, 979 F.2d 575 (7th Cir.
1992); Dean v. Johnson, 881 F.2d 948 (10th Cir. 1989) cert. denied, 493
U.S. 1011 (1989); Metropolitan Life Insurance Company v. McMorris, 786 F.2d
379 (10th Cir. 1986); Metropolitan Life Insurance Company v. McShan, 577
F.Supp. 165 (N.D. Cal. 1983); Knowles v. Metropolitan Life Ins. Co.,, 514
F.Supp. 515 (N.D. Ga. 1981); Mathews v. Mathews, 926 F.Supp. 650 (N.D. Ohio
1996).


     Additionally, appellee argues that the record in the case at bar
supports the finding of the District Court that appellant,




                                           6
Curtis Hinkel, exerted undue influence on his ex-wife in regard to her not
changing the beneficiary on her SGLIA policy.   Anna argues this establishes
an exception to the general principles of Ridgway.


     In the case at bar, the District Court relying on Iowa law found that
Curtis Hinkel had exercised undue influence in regard to Gail not changing
the beneficiary of her SGLIA policy from Curtis to Anna.        In Ridgway,
the Supreme Court did recognize that it was not addressing “the legal
aspects of extreme fact situations or of instances where the beneficiary
has obtained the proceeds through fraudulent or illegal means as, for
example, where the named beneficiary murders the insured service member.”
Ridgway, 454 U.S. at 57.   However, the evidence presented in this case is
not the type of fraud contemplated by Ridgway as presenting an extreme fact
situation which might cause an exception to the holding of Ridgway, nor is
it even sufficient to establish undue influence under Iowa law.


     In determining that there was undue influence in the case at bar, the
District Court relied on the case of In re Matter of Estate of Welch, 534
N.W.2d 109 (Iowa App. 1995).   In In re Welch, the Court of Appeals of Iowa
stated, in pertinent part, as follows:


     Undue influence is unfair persuasion of a party who is under
     the domination of the person exercising the persuasion or who
     by virtue of the relation between them is justified in assuming
     that the person will not act in a manner inconsistent with his
     or her welfare.     Restatement (Second) of Contracts § 177
     (1981).    The ultimate question is whether the result was
     produced by means that seriously impaired the free and
     competent exercise of judgment. Id., § 177 cmt. b; See Peoples
     Bank & Trust Co. v. Lala, 392 N.W.2d 179 (Iowa App. 1986).
     There are four elements necessary to sustain a finding of undue
     influence. They are: (1) the grantor’s susceptibility to undue
     influence; (2) opportunity to




                                     7
       exercise such influence and effect the wrongful purpose; (3)
       disposition to influence unduly for the purpose of procuring an
       improper favor; and (4) a result clearly the effect of undue
       influence. Pence v. Rawlings, 453 N.W.2d 249, 252 (Iowa App.
       1990).

In re Matter of Estate of Welch, 534 N.W.2d at 112.


       The only evidence of undue influence presented to the District Court
was an affidavit from Gail Hinkel’s mother, Connie Loftus.4          In her
affidavit, Ms. Loftus stated that after Gail’s dissolution from Curtis,
Gail stated to her as follows:


       “. . . that [Gail] had not changed the beneficiary form to
       date. [Gail] indicated that she didn’t know if she was going to
       based on the fact that Curtis had told her that it would be
       better for Anna if it was left as is and not changed.”


       The affidavit of Connie Loftus does not establish a result which was
clearly the effect of undue influence.        Curtis and Gail Hinkel were
divorced which circumstance did not establish a relationship where Gail
would be justified in assuming that Curtis would act in a manner consistent
with her welfare.   The affidavit is also clearly insufficient to establish
that Gail’s free and competent exercise of judgment was seriously impaired
by Curtis.   Even considering the evidence in the light most favorable to
appellee and allowing appellee the benefit of all reasonable inferences to
be drawn from the evidence, we find that there is no genuine issue of
material fact and that appellant is entitled to judgment as a matter of
law.




       4
     The record reflects that the affidavit was received in
evidence without objection by appellant.

                                      8
     The judgment of the District Court is reversed and this cause is
remanded with directions that summary judgment be entered in favor of
Curtis Hinkel.


A true copy.


     Attest:


               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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