Opinion
A130000, 130119
06-28-2011
In re the Marriage of NING JIANG and LAN VIVIAN JIANG. NING JIANG, Appellant, v. LAN VIVIAN JIANG, Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. HF 07334799)
Ning Jiang appeals from orders entered after a judgment of dissolution requiring him to pay his former wife, Lan Vivian Jiang, $7,462 in child support arrears and $37,980 as a share of her attorney fees. The court also ordered the assets in Mr. Jiangs retirement accounts transferred to Ms. Jiang in partial satisfaction of the $85,515 he was required to pay her under the judgment. Mr. Jiang challenges each of the above rulings, as well as the courts termination of jurisdiction over his right to spousal support. We shall affirm.
Background
In July 2007, Mr. Jiang petitioned for dissolution of his less than four-year marriage to Ms. Jiang. A contested hearing on the property division was held in December 2009. On April 22, 2010, the court issued a judgment of dissolution. The judgment required Mr. Jiang to pay Ms. Jiang $85,515 to equalize the division of community property assets and debts. The court found that Mr. Jiang "was not forthright in processing evidence" and that his "behavior of moving money from community accounts to separate accounts at the time his marriage was ending, changing beneficiary designations to his parents, moving money into either his name or his parents name is consistent with someone whose marriage is ending and they are attempting to control the finances. It is not consistent with . . . credible, open, fair dealing with handling finances." The court rejected Ms. Jiangs request that she be awarded 100 percent of the community assets as a sanction, but concluded that Mr. Jiangs actions supported an award of attorney fees for additional work that was required by his conduct. The court retained jurisdiction over "the division of the parties retirement plans" and calculation of attorney fees. Mr. Jiangs appeal from the judgment was dismissed as untimely (No. 129133), so that the judgment is now final.
A contested hearing on the reserved issues was held on April 22, 2010. On August 12, 2010, the court issued an order finding as follows: Mr. Jiang owes Ms. Jiang $7,462 in child support arrears. His right to receive spousal support is terminated based on his failure to make any request for support in his amended petition. "100% of each partys pension and retirement assets are transferred to [Ms. Jiang] as partial settlement of what [Mr. Jiang] owes her. . . . The amounts are discounted by 25% leaving tens of thousands still owed to [Ms. Jiang] by [Mr. Jiang]." On September 7, 2010, the court issued an order awarding Ms. Jiang $37,980 in attorney fees. The order explains that "The court has previously found that husband introduced fabricated evidence at trial, took positions that were not supported by law or fact, transferred funds at time of separation in an apparent attempt to hide community assets, and failed to produce documents in a timely and forthright manner. Each and every one of these actions resulted in increased attorney fees and costs for wife."
Mr. Jiang filed a timely notice of appeal from the August and September 2010 orders. We hereby order those appeals consolidated for decision. Although Ms. Jiang was represented by counsel in the trial court, both parties appear in propria persona on appeal.
Discussion
1. Standard of Review
Generally, our review is limited to determining whether the trial courts factual findings are supported by substantial evidence and whether the court acted reasonably in exercising its discretion. (In re Marriage of deGuigne (2002) 97 Cal.App.4th 1353, 1360.) In this case, however, our review is even more limited due to the state of the appellate record. First, the record does not contain reporters transcripts of the various contested hearings. Therefore, the courts orders are not subject to evidentiary challenge and we must presume the evidence supports the judgment and the courts findings. (In re Marriage of Stutz (1981) 126 Cal.App.3d 1038, 1042.) In addition, Mr. Jiangs appendix fails to include any relevant documents beyond the orders from which he appeals. Thankfully, Ms. Jiangs appendix provides at least some of the documents necessary for even a limited review.
2. The court did not err in ordering that the equalization payment be partially satisfied with Mr. Jiangs retirement savings.
The judgment requiring an $85,515 equalization payment is final and is not subject to challenge on this appeal. Mr. Jiang contends, however, that the preemption provisions of the federal Employee Retirement Income Security Act of 1974 (ERISA), 29 United States Code section 1001 et seq., preclude the court from ordering the payment satisfied with funds from his retirement accounts. He acknowledges that while the funds may have originated in an ERISA plan, they were rolled over into non-ERISA Individual Retirement Accounts (IRAs) when his employment was terminated. He argues, however, that the funds remain protected so long as they originated in an ERISA protected account.
In Charles Schwab & Co., Inc. v. Debickero (9th Cir. 2010) 593 F.3d 916, 919, the Ninth Circuit rejected a similar argument. The court explained, " Congress enacted ERISA to ensure the proper administration of employee benefit plans, including pension plans, both during the years of an employees active service and after retirement. [Citation.] That scope may be substantial, but it is also inherently limited. By ERISAs own terms, employee benefit protections apply only to an employee benefit plan that is established or maintained by an employer, employee organization, or both. [Citation.] The term employee benefit plan or plan is likewise defined as an employee welfare plan or pension plan that is established or maintained by an employer or by an employee organization, or by both. [Citation.] The [IRA] at issue here was established and maintained by [defendant] personally and not by his employer or any employee organization, and thus it falls outside these basic coverage limits. [¶] It is beside the point that the IRA proceeds originated as employee benefits within an ERISA-qualified plan. Section 1003(a) delineates ERISAs coverage not in terms of employee benefits, but in terms of employee benefit plans. [Citation.] The focus of the statute thus is on the administrative integrity of benefit plans-which presumes that some type of administrative activity is taking place. [Citation.] Only "plans" involve administrative activity potentially subject to employer abuse. [Citation.] With respect to [defendants IRA], there was no employer oversight, no ongoing employer commitment, nor any potential for employer abuse." (See also Russell v. Chase Inv. Servs. Corp. (N.D.Okla. Jan. 28, 2010, No. 09-CV-360-GKF-TLW) 2010 U.S. Dist. Lexis 6872 [dispute between beneficiaries and trustee of an IRA is not subject to ERISA]; Sirna v. Prudential Secs., Inc. (S.D.N.Y. Feb. 10, 1997, No. 95 CIV 8422) 1997 U.S. Dist. Lexis 1226 [noting that ERISA excludes IRAs].) Because Mr. Jiangs retirement accounts are not administered by his employer or by an employee organization, ERISA does not apply. Thus, the court was not barred from ordering Mr. Jiang to partially satisfy the equalization payment from his private retirement accounts.
3. The trial court did not err in ordering Mr. Jiang to pay Ms. Jiang $7,462 in child support arrears.
The trial court found that Mr. Jiang owed Ms. Jiang $7,462 in child support arrears. The court calculated this amount based on the difference between the $1,224 monthly payments ordered by the court in May 2008, and the various amounts Mr. Jiang actually paid in the two years following. Mr. Jiang does not challenge the courts calculations, but argues that despite the court order, he and Ms. Jiang agreed in September 2008, after he lost his job, to reduce his support obligation to $800 a month. Ms. Jiang disputes the existence of any such agreement and there is no evidence in the record supporting Mr. Jiangs assertion. While Mr. Jiang filed a motion to modify child support in September 2008, he does not dispute that the existing child support order was not actually modified until April 2010. Likewise, the record reflects that beginning in September 2008, he reduced his payments to $972 for several months and did not reduce them to $800 until May 2009, after failing to make any payments for two months. Based on the record before this court, it does not appear that the trial court abused its discretion in awarding or calculating child support arrears.
4. The trial court did not err in terminating jurisdiction over Mr. Jiangs right to spousal support.
The trial court terminated Mr. Jiangs right to receive spousal support based on a finding that he "did not request spousal support in his amended petition." Mr. Jiang acknowledges that he did not request spousal support in either his initial petition for dissolution filed in July 2007 or in his amended petition filed in September 2007. He argues, however, that he properly requested spousal support three times during the course of the proceedings. First, in February 2008 he submitted a motion requesting "temporary spousal support" from Ms. Jiang. In that document he wrote, "Respondent currently earns far more money than I. I have been forced to live with my parents in order to pay the court ordered child support. I need temporary support to get on my feet and obtain my own residence." The record does not reflect whether the court ruled on this motion. However, since he requested only temporary support and did so almost two years before the present order was issued, the court did not abuse its discretion in finding that he failed to make a timely request for spousal support.
Next, Mr. Jiang notes that he "repeatedly requested for spousal support in the trial on 12-21-2010." Because the relevant order was filed in August 2010, we assume that he meant to refer to the December 2009 hearing. His failure to include the transcript of that hearing, however, precludes our review of any issues that may have been raised orally at that hearing. Finally, in March 2010, Mr. Jiang submitted a document to the court entitled "petitioners proposal regarding retirement funds and others" in which he notes briefly, "I lost [my] job on 2008, it is hard to find a new job in USA, I have to teach English in China, only make $1800/month. . . . The respondent made $120,000 W-2 income in year 2008 and $82,000 W-2 income in year 2009. Because our income is so big difference, so I request for the spouse support." Again, however, absent a transcript of the April hearing, we have no way of knowing whether Mr. Jiang pursued his request for spousal support at the hearing or what transpired at the hearing leading to the entry of the courts order. Mr. Jiang has not established that the court abused its discretion by terminating his right to spousal support based on the limited and belated request for support quoted above.
5. The court did not abuse its discretion in awarding Ms. Jiang attorneys fees.
The trial court awarded attorney fees as a sanction under Family Code section 271, subdivision (a), which provides, "Notwithstanding any other provision of this code, the court may base an award of attorneys fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorneys fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorneys fees and costs is not required to demonstrate any financial need for the award." Mr. Jiang argues that the award was improper because is was Ms. Jiangs attorney, not he, who requested a court trial and delayed the proceedings. The court made clear findings, however, that it was Mr. Jiangs misconduct that required increased attorney fees and costs for Ms. Jiang. Based on the limited record before this court, we must presume the evidence supports those findings. Accordingly, we affirm the attorney fee award.
Disposition
The postjudgment orders entered on August 12 and September 7, 2010, are affirmed. Ms. Jiang shall recover her costs on appeal.
Pollak, J. We concur: McGuiness, P. J. Siggins, J.