The Tale of Two Mrs. Mabes

November 15, 2007 ( - Two North Carolina women claim to have been married to a cash balance plan participant and say they are the rightful recipient of his survivor pension benefits.

Miles Mabe Jr. retired from Duke Power Company in November 1991 as a participant in the Duke Energy Retirement Cash Balance Plan. Mabe elected a 50% Post-Retirement Survivor annuity payable to his lawful spouse.

However, two women, Vivian Sue Mabe and Phyllis M. Mabe, claim they were the lawful Mrs. Mabe at the time of Mabe’s retirement from the company now known as Duke Energy Carolinas. Both have valid North Carolina marriage licenses and both insist they are due the $449.32 monthly pension benefit.

Caught squarely in the middle, the plan sponsor has dumped the dispute in the lap of a federal judge in the U.S. District Court for the Western District of North Carolina.

In papers filed this week, Duke Energy Carolinas asked the court to settle the dispute over the proper pension benefit recipient and, while it is being worked out, to shield the employer from lawsuits over violations of the Employee Retirement Income Security Act (ERISA).

“…the Retirement Plan is subject to ERISA, and it is a tax qualified plan governed by the (Internal Revenue) Code,” Duke said in the court papers. “These federal laws contain provisions with which the Retirement Plan must comply and which may affect the determination of the recipient of the 50% Survivor Benefit under the Retirement Plan.”

Duke also asserted that it did not want to make a move that might endanger the plan’s tax-deferred status.

“By reason of the conflicting claims of the parties to the lawsuit and the Retirement Plan’s desire to comply with ERISA and also to maintain its tax-qualified status for the benefit of its other participants and beneficiaries, the Retirement Plan cannot determine which of the defendants is entitled to monthly payment of the 50% Survivor benefit, and cannot make such payment to any one Defendant without danger of being compelled to pay said amount to the other Defendant herein,” Duke complained in court papers.

Two Licenses

According to the Duke court filing, Vivian Sue Mabe, an Alexis, North Carolina, resident, came forward with a marriage license dated May 3, 1991, and said she was wed to Mabe when he retired.

Phyllis M. Mabe, a Lexington, North Carolina, resident, also had a valid marriage license dated July 9, 1985.

In both instances, the employer said, there was an “absence of any evidence that their marriages had ended.”

When Mabe applied for retirement benefits in October 1991, Duke said, he indicated he was married to a “Sue R. Mabe.” Based on the social security number and birth date, Duke said it believes “Sue R. Mabe” and Vivian Sue Mabe are the same person.

The plan asked the court to order the two women to settle the issue under the court’s supervision and to prohibit the women from suing the plan while the case is pending and after the court resolves the matter.

The employer’s request for court intervention is here .