Opinion
2d Civil No. B224556
11-28-2011
In re Marriage of VIKKI M. and ROBERT M. LANE. VIKKI M. LANE, Respondent, v. ROBERT M. LANE, Appellant.
Robert M. Lane, in pro. per. for Appellant. Griffith & Thornburgh, Bruce Glesby and Marisa K. Beuoy for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 1093841)
(Santa Barbara County)
Robert M. Lane appeals from (1) judgment of contempt after a court trial based on his nonpayment of child support and (2) an order approving Vikki Lane's proposed qualified domestic relations order (QDRO) relating to child support.
We do not address Robert's contentions concerning the contempt judgment because it is not appealable. We reject on the merits Robert's contentions that the QDRO is precluded by a prenuptial agreement, violates Michigan law, was entered without jurisdiction or proper service, and violates the Employee Retirement Income Security Act of 1974 (ERISA), 29 United States Code section 1001 et seq. We grant Robert's request for judicial notice of a March 9, 2010, order granting Vikki fees to respond to Robert's first appeal, but reject his contention that it precludes an award of fees and costs here. We affirm.
In the interest of clarity, we refer to the parties by their first names.
PROCEDURAL AND FACTUAL BACKGROUND
We previously affirmed the underlying judgment, which required Robert to pay child support in the amount of $6,000 per month to Vikki. (In re Marriage of Lane (Jan. 13, 2011, B215911) [nonpub. opn.] [ hereafter "Lane I."].) We subsequently affirmed several post-judgment orders, including an order denying Robert's motion to modify the child support award; an order joining appellant's pension plan, denying his motion to dismiss a notice of delinquency and denying his request for a hardship exemption; and the order awarding fees on appeal to Vikki. (In re Marriage of Lane (Apr. 18, 2011, B221646) [nonpub. opn.] [ hereafter "Lane II."].)
In April, 2010, the trial court found Robert guilty of six counts of contempt for nonpayment of child support and attorneys' fees and jailed him. In May, the trial court approved a QDRO, over Robert's objection, to facilitate collection of $151,354 in unpaid support, interest, and penalties, from Robert's interest in his pension plan. (The Penobscot Enterprises Defined Benefit Pension Trust, "the Plan.")
Robert objected to the proposed QDRO primarily on the grounds that it violated the parties' prenuptial agreement, that it should be governed by Michigan law, that it was not properly served, and that it did not meet the requirements of 29 United States Code, section 1056(d). In support of his opposition, he submitted a declaration from his sister, Patricia Lane.
Patricia declared that she had been the owner and President of Penobscot Enterprises, Inc. from October 2008 until November 2009, when she sold all her shares in Penobscot to a "non-U.S. based entity" under a "confidential agreement." Patricia declared that Vikki did not serve the motion to approve the QDRO on Patricia or on the Plan at P.O. Box 186, Ashland, Pennsylvania 17921, the address to which, Patricia declared, the company was relocated in August 2009. Patricia also declared that there is a recorded lien against Robert's interest in the Plan for the amount of $945,000, securing a debt that he owes to a third party, Windriver, Corporation.
Patricia declared that the Plan summary Vicki submitted with her motion for approval was outdated, and had been significantly revised. Patricia did not supply a copy of the revised Plan summary or identify the ways in which it had been revised. Patricia also asserted the proposed QDRO language was flawed in many particulars related to the requirements of 29 United States Code, section 1056(d). She further declared it was her "understanding" that the Plan was not required to comply with ERISA, but that it does comply voluntarily. Finally, Patricia declared that Robert did not control the Plan, he had no part in appointing her, that she "purchased Penobscot from the former owner and appointed [her]self President," and that she is "unavailable to come to California to testify in this matter."
While this appeal was pending, we received notice that Robert had filed for Chapter 7 bankruptcy. (U. S. Bankruptcy Court for the District of Wyoming, Case No. 11-20398 (11 U.S.C. § 362(a).) We requested letter briefs on the question whether the appeal was automatically stayed by the bankruptcy filing. Vikki responded that the appeal was not stayed because it was not against the debtor, and Robert did not respond. Subsequently, we received notice that Robert had been granted discharge (11 U.S.C. § 727) and a letter request from Robert asking us to proceed with the appeal.
DISCUSSION
I. Contempt
No appeal lies from a judgment of contempt. (Code Civ. Proc., §§ 1222 & 904.1, subd. (a)(1)(B).) We therefore do not address Robert's contentions that the trial court was biased against him, that it abused its discretion when it did not appoint counsel for Robert, that it erred when it found him in contempt, or that it abused its discretion when it awarded fees.
II. The QDRO
Appellant contends that the QDRO violates the parties' prenuptial agreement by encumbering his separate property; that the QDRO did not comply with Michigan law; that the trial court did not have jurisdiction over the Plan or the Plan's trustee because the Plan does not have minimum contacts with California and Vikki did not properly serve the Plan; and that the QDRO did not comply with federal law because it exceeded plan benefits. We address these contentions in turn and conclude they do not have merit.
A. Prenuptial Agreement
We previously rejected appellant's contention that the judgment in this dissolution case is not enforceable against appellant's pension plan because the parties waived their interest in each other's separate property in their prenuptial agreement. (Lane II.)
A party may invade the separate property pension plan of a support obligee for purposes of enforcement (Fam. Code, § 5103, subd. (a)) and judgment in a dissolution case is enforceable against the obligor's pension plan. (Fam. Code § 2060, subd. (b); In re Marriage of Williams (1985) 163 Cal.App.3d 753, 758.)
B. Michigan Law
We previously rejected Robert's contention that Michigan law governs enforcement of the child support order or the fees related to child custody and support. (Lane II.)
The prenuptial agreement contained a Michigan choice of law provision, but did not address child custody or support. Moreover, the right of a child to support may not be adversely affected by a premarital agreement. (Fam. Code, § 1612, subd. (b).)
C. Jurisdiction and Service
We previously rejected Robert's contention that the court did not have personal jurisdiction over the Plan. (Lane II.) We also reject Robert's contention that the QDRO is unenforceable for lack of service on the Plan or its trustee at P.O. Box 186, Ashland, Pennsylvania 17921.
Vikki served the motion for approval of the QDRO in March 2010 at the address provided in the Plan summary for service of process. Her counsel obtained that Plan summary in November 2009 by subpoena served upon the Plan's actuary and consultant. The Plan summary provides that service may be made upon the employer at "Penobscot Enterprises, Inc." at "970 W. Broadway, #490, Jackson Hole Wyoming 83001." Vikki served her motion for approval at that same Jackson Hole address. She did not include the name "Penobscot Enterprises, Inc." in the address, directing it instead to "Robert Lane," but the defect is immaterial because actual service on the Plan and its last known trustee (Patricia) is demonstrated by the contents of Patricia's responsive declaration. Although Patricia declares that she is no longer trustee of the Plan and that she sold her shares in Penobscot to an unidentified entity in August 2009, she also declares that in August 2009, Penobscot was relocated to her personal address in Ashland "as a matter of convenience for me." Robert's continuing efforts to evade service and enforcement are demonstrated by his statement in his reply brief that, "[t]he current address of the corporation and pension plan are not known." Vikki has sufficiently demonstrated proper service of the motion.
Robert offers no evidentiary support for his contention that Vikki relies upon an outdated Plan summary or that the summary has been revised to require service at the Ashland address. Patricia does not provide a copy of the revised summary and there is no competent evidence in the record to support Robert's contention that Vikki knew the address had been revised.
D. Federal Law
Under ERISA, an employee benefit plan must pay benefits to an alternate payee as required by a "qualified domestic relations order." (29 U.S.C. § 1056(d)(1) & (3)(A).) A domestic relations order concerns child support or other domestic relations obligations under state law. To be "qualified" the domestic relations order must specify statutory requirements. (29 U.S.C. § 1056(d)(3)); 26 U.S.C. § 41 4(p)(2)(A)-(D) & (3)(A).) We review de novo the question whether a domestic relations order "qualifies." (In re Marriage of Padgett (2009) 172 Cal.App.4th 830, 839.) To qualify, the order must identify the Plan, the participant and the alternate payee; specify the amount of payments; specify the number or duration of payments; be consistent with any prior QDRO; and it must not exceed plan benefits. (29 U.S.C. § 1056(d)(3); 26 U.S.C. § 414(p)(2)(A)-(D) & (3)(A).)
The order cannot require payments that would result in an increase in the amount of benefits provided by the Plan. (Fam. Code, § 2610, subd. (b)(1).)
--------
Robert contends that the QDRO exceeds plan benefits because it does not recognize a third party creditor's priority interest based on a purported loan agreement between Robert and Windriver or its predecessor for payment of his legal fees in this action. We reject the contention because the third party cannot have a priority interest in the Plan. Robert's interest in the private employee benefit plan may not be assigned or alienated. (29 U.S.C. § 1056(d)(1).) Robert offers no evidentiary support for his contention that the Plan is exempt from ERISA. Patricia's declared "understanding," without foundation, is not competent to establish an exemption.
Robert also contends that the QDRO exceeds Plan benefits because it does not provide for termination in the event of settlement, bankruptcy, depletion of plan assets, plan termination, Robert's death, or Robert's loss of interest. Robert provides no legal authority for the contention and the QDRO expressly provides that it "shall not require the Plan to provide any type or form of benefit, or any option not otherwise provided under the Plan" or require the Plan to pay increased benefits. It also requires Vikki to promptly notify the Plan of settlement or satisfaction of the support obligation. Paragraphs 17 and 18 of the QDRO do not exceed plan benefits available upon Robert's death because those paragraphs only confer benefits to Vikki "to the extent permitted under the Plan."
Robert offers no legal authority for his contentions that the QDRO is invalid because it leaves no money for Robert to pay taxes or because it automatically transfers to a new plan if the Plan is transferred.
Our decisions in Lane I and Lane II rendered moot Robert's contentions that the QDRO does not account for the possibility that the support order or the delinquency penalty will be overturned on appeal. Our decisions in Lane I and Lane II became final in April and June of 2011, respectively.
III. Request for Judicial Notice and Fees on Appeal
Robert contends an award of costs or fees on appeal is precluded because fees were previously granted by the trial court. He requests judicial notice of a March 9, 2010, decision in which the trial court awarded Vikki $15,000 for attorney's fees to defend against his prior appeal in Lane I. We grant the request for judicial notice, but the award does not preclude cost or fees here. It was entered before this appeal was commenced and by its terms, it applies to Roberts first appeal in Lane I, in which he filed an opening brief on January 29, 2010. Moreover, any offset would be a question for the trial court.
DISPOSITION
Robert's request for judicial notice of the trial court's order dated March 9, 2010, is granted. The judgment is affirmed. Respondent shall recover her costs on appeal.
NOT TO BE PUBLISHED.
COFFEE, J. We concur:
YEGAN, Acting P.J.
PERREN, J.
Thomas P. Anderle, Judge
Superior Court County of Santa Barbara
Robert M. Lane, in pro. per. for Appellant.
Griffith & Thornburgh, Bruce Glesby and Marisa K. Beuoy for Respondent.