Opinion
A130003 A 130004
09-28-2011
In re the Marriage of T. DAWN NAAR-MORRIS and JEFFREY C. MORRIS. T. DAWN NAAR-MORRIS, Appellant, v. JEFFREY C. MORRIS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. MSD99-02159)
I. INTRODUCTION
Appellant, the petitioner below and respondent's former wife, appeals from two orders of the trial court, orders entered a decade after the same court had entered a stipulation for a judgment of dissolution of the parties' marriage. By order of this court, the two appeals have been consolidated for purposes of our review and decision. The orders appealed from are both dated August 16, 2010; the first order terminates spousal support "forthwith." The second order attaches Qualified Domestic Relations Orders (hereafter QDRO's) for two of respondent's four retirement plans, approves them, orders them to be executed by appellant and her attorney, and then provides that spousal support for appellant "is ordered terminated retroactive to October 1, 2008," and appellant ordered to reimburse respondent for the support payments he made subsequent to that date.
We affirm the first-mentioned order and much of the second, except for that portion of it which makes the termination of spousal support retroactive for almost two years. We vacate and reverse that portion of the trial court's second order of August 16, 2010.
II. FACTUAL AND PROCEDURAL BACKGROUND
The parties were married in November 1983 and separated in April 1999. A stipulation for a judgment of dissolution (hereafter 2000 stipulation for judgment) was entered on November 1, 2000. Pursuant to that stipulation, respondent was to pay appellant "the total monthly sum of $500 as spousal support unless terminated earlier if petitioner remarries, either party dies, or by further order of the court. Spousal support shall be reviewed on May 1, 2002 upon request of either party."
This provision is found in paragraph 15 of the judgment of dissolution entered on November 1, 2000.
Most importantly, the 2000 stipulation for judgment also provided: "12. Retirement Accounts: Lawrence Livermore National Laboratory UCRP/403b: Respondent's Account: This retirement account will be divided pursuant to a Qualified Domestic Relations Order (QDRO) using the time rule. The parties were married on November 19, 1983 and separated on April 30, 1999. The parties will cooperate in executing any and all documents necessary to facilitate the transfer/division of this retirement account. The parties shall retain Eric Moon, CPA, to prepare the QDRO and the cost shall be shared equally (50%-50%) between the parties."
The judgment also provided (effectively twice) that: "The Court reserves jurisdiction over the division of all Financial Accounts in the names of the parties and minor child."
During the period from May 2002 to May 2010, the accountant named in the judgment, Eric Moon, submitted numerous drafts of plans to divide two of respondent's four retirement plans, the University of California Retirement Plan (UCRP) and the Capital Accumulation Provision (CAP), both of which were defined benefit retirement plans. It was not until August 2008, however, that he submitted drafts of any such plans for the other two retirement plans, i.e., respondent's University of California Tax-deferred 403(b) plan and a University of California Defined Contribution Plan (DCP). The first two plans are and were administered directly by the University of California, while the latter two were administered by Fidelity Investments Institutional Operations Company (now Fidelity Retirement Services).
According to respondent's filing in the trial court, "Fidelity requires that the court execute the UC 403(b)/DCP QDRO before it will review it." We find nothing in the record or appellant's briefs to us contesting this statement.
On May 6, 2010, respondent filed a motion in the superior court asking that court to approve the two QDRO's he and his counsel had prepared dividing the 403(b) and the DCP plans, to then terminate spousal support "retroactive to November 4, 2008," and to remove accountant Moon as the QDRO preparer. On June 17, 2010, appellant filed an opposition to that motion. Much of the factual summary that follows is derived from those two pleadings and the attachments thereto.
According to a declaration signed and filed by appellant in opposition to respondent's motion requesting approval of the two defined contribution plan QDRO's, accountant Moon submitted six drafts of QDRO's of respondent's two defined benefit plans, i.e., the UCRP and CAP, in an effort to meet respondent's requests for changes therein. That declaration indicates, however, that Moon did not draft or submit any draft QDRO's regarding the two defined contribution plans, i.e., the 403(b) Plan and the DCP, until August 2008. On that subject, appellant's declaration says that Moon had calculated her share of the 403(b) plan to be "$137,446.59 (as of 3-31-08)" and asks that "[respondent be ordered to cooperate with Mr. Moon so as to enable Mr. Moon to calculate my interest in the 403(b) and [DCP] so as to divide the community interest using the same format as in Mr. Moon's QDRO dated 8-5-08, a copy of which is attached hereto . . . ."
In any event, on April 23, 2007, the parties stipulated: "Upon the court and Plan(s) approval of the Qualified Domestic Relations Order(s) dividing the Respondent's UC Plan(s), spousal support payable to the Petitioner as set forth in the Judgment filed November 1, 2000, shall terminate forever."
This stipulation is not included in the clerk's transcript filed by appellant.
There then apparently ensued several years of disputes and debates regarding the division of all four of respondent's retirement plans. More specifically, according to respondent's May 6, 2010, motion seeking approval of his draft QDRO's for the two defined contribution plans and the termination of spousal support for appellant, in July 2007 he submitted those draft QDRO's to appellant, but "[s]he refused them.
As noted above, on August 5, 2008, accountant Moon wrote a letter to appellant's counsel attaching his proposed calculations as to the division of the 403(b) and DCP plans, i.e., the two defined contribution plans. But, according to respondent's position both then and now, Moon's proposed division of the assets in those two plans did not conform to the "time rule" (as to which, see post) specified in paragraph 12 (quoted above) of the 2000 stipulation for judgment.
A settlement conference and one or more conference calls on this subject took place in November 2008 between appellant's counsel and respondent and his then-counsel. According to respondent's brief to us, in those meetings he and his counsel maintained that the 403(b) and DCP in which respondent had invested per his employment by the Lawrence Livermore National Laboratory of the University of California were also subject to division per the "time rule," whereas appellant and her counsel maintained that they should be divided in a different manner.
At that point in time, respondent was represented by attorney Tasos Geron. In this appeal, he is appearing in pro per.
According to respondent's May 6, 2010, filing, on "November 4, 2008, Mr. Geron, and I met with the petitioner's attorney, Mr. Charles Wildman. We had submitted documents that we hoped would be acceptable to the petitioner and her attorney. They were declined. In fact, Mr. Wildman was so resolute in his position that he had not even read the documents." According to respondent, a conference call between the two attorneys and accountant Moon five days later, i.e., on November 9, 2008, achieved nothing more on this subject.
As noted above, on June 17, 2010, appellant filed a responsive declaration, with attached exhibits, objecting to dividing the two defined contribution retirement plans via the "time rule" used for the defined benefit plans. The core argument made by appellant in that filing will be set forth hereafter.
On July 1, 2010, a hearing was held on respondent's motion. After hearing argument from both counsel, the court (the Honorable Charles Treat) granted the motion approving the two QDRO's proposed by respondent dividing the 403(b) plan and the DCP per the "time rule." As noted above, orders to that effect, and also terminating spousal support and ordering appellant to reimburse respondent for 22 months of his payments of that support, were entered on August 16, 2010.
Appellant filed timely notices of appeal on October 13, 2010.
III. DISCUSSION
The law is clear that, in reviewing a trial court's order regarding the division of community property, or even arguably community property, we use the abuse of discretion standard of review. This rule is confirmed by many authorities. For example, in In re Marriage of Gray (2007) 155 Cal.App.4th 504 (Gray), our colleagues in the Sixth District wrote: "In dividing the community estate as part of a marital dissolution, the court must generally effect an equal division. (Fam. Code, § 2550.) In particular regard to retirement plans, the " 'court shall make whatever orders are necessary or appropriate to ensure that each party receives the party's full community property share in any retirement plan . . . .' " ([Fam. Code,] § 2610, subd. (a).) And when the court concludes that property contains both separate and community interests, the court has very broad discretion to fashion an apportionment of interests that is equitable under the circumstances of the case. [Citations.] The court is not bound by a particular method of allocation. Rather, the court should divide the property ' "by whatever method or formula will 'achieve substantial justice between the parties.' " [Citation.]' [Citation.]" (Gray, supra, 155 Cal.App.4th at p. 514, fn. omitted; see also In re Marriage of Lehman (1998) 18 Cal.4th 169, 187 (Lehman); In re Marriage of Cooper (2008) 160 Cal.App.4th 574, 579-580; In re Marriage of Smith (2007) 148 Cal.App.4th 1115, 1124; In re Marriage of Steinberger (2001) 91 Cal.App.4th 1449, 1459 (Steinberger); In re Marriage of Gowan (1997) 54 Cal.App.4th 80, 88 (Gowan); In re Marriage of Bergman (1985) 168 Cal.App.3d 742, 749 (Bergman).)
Both in the trial court and here, appellant contends that such an abuse occurred because the trial court improperly treated all four of her former husband's retirement plans, i.e., his two defined benefit plans and his two defined contribution plans, essentially the same, i.e., divided them via the "time rule," and that such a division was inappropriate as to the two defined contribution plans, respondent's section 403(b) retirement plan and his University of California DCP, which should have been divided in a manner other than the "time rule." In a declaration signed and filed by appellant in the trial court, she argued as follows on this key issue:
"Respondent's retirement benefits through University of California/Lawrence Livermore National Laboratory consist, in part, of defined contribution plans in the form of a 403(b) and a defined contribution plan known as the '[DCP].' Respondent's proposal for the division of these defined contribution plans, as reflected in his proposed QDRO submitted with his moving papers, is to treat the division of these benefits in the same manner as the law would divide a defined benefit plan, i.e., by fixing my interest as a fixed percentage of 25.89% which is the equivalent of one-half of a fraction, the numerator of which is the number of years attributable to the marital period (date of marriage to date of separation) and the denominator of which is the total number of years of service credit earned by the number [sic], up to the date of distribution to Alternate Payee. This is the methodology which is correct only for dividing defined benefit plans. My position is that this methodology is simply contrary to law when it comes to dividing defined contribution plans and that expert Eric Moon's approach of determining the community interest by ascertaining the current value and determining the amount of contributions between date of marriage and date of separation, plus any accruals thereon is the correct measurement according to law. Respondent attempts to bootstrap his proposal for division by arguing that our 11-1-00 judgment requires division of 'UCRP/403(b)' benefits by using the time rule. This argument fails to distinguish that the time rule for dividing defined benefit plans differs from the time rule for dividing defined contribution plans. It should be noted by the court that our stipulated Judgment was drafted by Respondent's counsel, Tasos L. Geron and that it was never the intent of either party to alter the manner of division of the community interest in any form of retirement benefits other than as required by law."
Appellant is apparently correct in her statement that the trial court used a 25.89 percent figure to calculate the portions of the two defined contribution plans that would be allotted to appellant. This was the same percentage used, per the time rule, for the two defined benefits plans and, at least according to our calculations based on 2008 figures submitted by accountant Moon, would have resulted in an allocation of approximately $52,000 to appellant from the two defined contribution plans. As of August 2008 (no later calculation by Moon is presented in the record provided us), Moon's position was that appellant was entitled to $137,446.59 from respondent's 403(b) plan and $10,096.32 from his DCP, for a total of $147,542.91. These were also the figures used by appellant in her draft orders (draft orders using a valuation date of March 31, 2008) submitted to the court in opposition to respondent's May 6, 2010, motion.
Significantly in our view, no legal authority or expert opinion evidence was cited or submitted by appellant either in or attached to this opposition to respondent's May 6, 2010, motion.
At the oral argument before Judge Treat on July 1, 2010, appellant's counsel made essentially the same argument as quoted above from his client's declaration. He conceded that the 403(b) plan specifically mentioned in the 2000 stipulated judgment was a "defined contribution plan" and "that in addition to the 403 B, there is something else [that is] a defined contribution plan. There are two defined contribution plans." But, he continued, "there is a time rule for measuring the community interest in a defined benefit plan that is different from the time rule for measuring the interest in a defined contribution plan."
Appellant's counsel also argued that the 2000 stipulation for judgment had been "drafted by respondent's counsel" and that respondent was now "trying to bootstrap and take advantage of some verbiage that is ambiguous at best."
When Judge Treat pressed appellant's counsel as to "[w]hat's ambiguous about it," he responded that "you don't divide a defined contribution plan by the In re Brown rule, you do it by marriage of Burton [sic: Bergman]" and that there are many "time rules" including those pertaining specifically to defined contribution plans, such as the two then being debated, i.e., the 403(b) plan and the DCP. Per Bergman, he maintained, the "value of benefits in a defined contribution plan will always be the account balance at the time of the measurement. Therefore, the value of the community interest therein will always be the amount of contribution made between the date of marriage and the date of separation plus accruals thereon."
Once again, as in his filings with the trial court, no other authority besides Bergman was cited to the trial court, and no expert opinion as the valuation of defined contribution plans for the purposes of the division of community property was cited by appellant's counsel. In his brief to us on this issue, appellant again argues (albeit very briefly) that the ruling of Bergman applies here.
When, in response to this, the court pressed him as to "[h]ow is that a time rule," counsel responded: "That's the time for measurement and the time—how things are measured," to which the court responded: "That's just not a plausible reading of [the 2000 stipulation for judgment]."
As an apparent final tactic, and in view of the 2000 stipulation for judgment's specific mention of the 403(b) plan in conjunction with the "time rule," appellant's counsel beat a 50 percent retreat and said: "[i]f the Court is inclined to rule that the time rule is to be applied to the 403 B, then I would argue that . . . the other defined contribution plan is an omitted asset and . . . should be divided according to the law."
Respondent's counsel then interjected that the 2000 stipulation for judgment used the plural when it said, in its paragraph 12: "retirement accounts, Lawrence Livermore National Laboratory." Shortly thereafter, the trial court found that judgment in the record before it and, almost immediately, granted respondent's motions to approve his tendered QDRO's pertaining to the two defined contribution plans and terminate spousal support retroactively to October 2008.
In response to appellant's counsel's question regarding the retroactivity of the termination, the court explained: "I think that your client has been stalling the end of spousal support by stringing along the QDRO's" and that while "Mr. Moon's plan was in accordance with what he understood the law to be" it "wasn't in accordance with the judgment."
Before discussing the several reasons why we agree with most of the trial court's rulings, it is both appropriate and necessary that we first (1) define the "time rule" which is, and apparently always has been, an accepted method for dividing the community property from the separate property shares of retirement plans, and which appellant concedes is the proper method for doing so for defined benefit plans and (2) note what our colleagues in Division Five of this court said in Bergman that is relevant to this appeal.
The Sixth District defined the "time rule" thusly in Steinberger: "Generally, under the time rule, the community is allocated a fraction of the benefits, the numerator representing length of service during marriage but before separation, and the denominator representing the total length of service by the employee spouse. That ratio is then multiplied by the total benefit received to determine the community interest." (Steinberger, supra, 91 Cal.App.4th at p. 1460; see also Lehman, supra, 18 Cal.4th at pp. 187-188; Gray, supra, 155 Cal.App.4th at pp. 515-516; Gowan, supra, 54 Cal.App.4th at p. 88; In re Marriage of Henkle (1987) 189 Cal.App.3d 97, 99; In re Marriage of Judd (1977) 68 Cal.App.3d 515, 522.)
Now to Bergman, supra, 168 Cal.App.3d 742. That case, relied on by appellant as substantially dispositive in the trial court, is not. It was and is a careful and thoughtful decision of then-Justice Donald King of Division Five of this court in a family law case, specifically one involving principally the proper division of two pension plans, one the husband's and the other the wife's. Both plans were, however, defined benefit plans, not defined contribution plans. (Id. at p. 748, fn. 4.) But, in a short, final paragraph in that footnote, Justice King differentiated between defined benefit plans and defined contribution plans for purposes of valuation in the course of a marital dissolution as follows:
"As contrasted to a defined benefit plan, the other kind of retirement plan is a defined contribution plan where the employer's obligation is related to its annual contribution. The benefit for the employee upon retirement depends upon the value of the employee's account at that time. There is no need for expert testimony to determine the present value of a defined contribution plan at dissolution because its value is the amount of contributions made between marriage and separation, plus accruals thereon, and all accruals thereon between the date of separation and trial of the issue." (Bergman, supra, 168 Cal.App.3d at p. 748, fn. 4.)
That short dictum is all Bergman had to say on the subject of the valuation of defined contribution plans in marital dissolution cases. As noted, it did not apply the distinctions it made in its footnote 4 regarding defined contribution plans, as it had no need to do so to decide the issues in that case.
Nor did the Ninth Circuit in a case cited by appellant, Stewart v. Thorpe Holding Co. Profit Sharing Plan (9th Cir. 2000) 207 F.3d 1143, 1152, cert. den. (2001) 531 U.S. 1074. The only even slightly relevant issue in that case was whether the marital dissolution order before the court qualified "as a valid QDRO under ERISA." (Id. at p. 1153.) In holding that it did, the court did not (because it did not need to) discuss the methodology of valuing defined contribution plans versus defined benefit plans for purposes of marital dissolution cases, but simply ruled that the order at issue qualified as a valid QDRO because it determined "'the period to which [it] applies.'" (Ibid.)
Further, since the publication of Bergman in 1985, things may have changed a bit regarding the methods for valuing defined contribution plans for purposes of a marital dissolution. For example, in In re Marriage of Bowen (2001) 91 Cal.App.4th 1291 (Bowen), the court was considering the valuation of two pension plans of the respondent husband, one a defined benefit plan and the other "initially established as a defined contribution plan" but, per the testimony of an expert witness, thereafter becoming "more of a hybrid plan than a defined contribution plan," and thus described by the court as a "variable plan." (Id. at p. 1295.) The appellant-former wife argued to the Bowen court that the "time rule" should not be used in valuing the two parties' interests in that plan because "all defined contribution plan benefits are fully earned when funding ceases." (Id. at p. 1300.) The court rejected this argument for two reasons, first, because appellant failed "to address the significance of the transformation of the variable plan [i.e., the former defined contribution plan] into a hybrid plan" and, secondly, because the appellant- former wife "fails to cite to any legal authorities concerning the distinctions between defined benefit, defined contribution, and hybrid plans." (Id. at p. 1301.)
Just so here.
Additionally, a highly relevant text on this subject, in a section titled "Defined Contribution Plans," first cites the just-quoted explanation in footnote 4 of Bergman regarding the valuation of defined contribution plans for marital dissolution purposes, but then adds: "When the history of earnings and allocations is not reasonably available, a time-rule approach [citation] is sometimes used in lieu of this tracing method." (2 California Marital Settlement and Other Family Law Agreements (Cont.Ed.Bar 2011) § 20.19, p. 564.)
For several reasons, therefore, we agree with both the trial court's rejection of appellant's argument that the "time rule" should not apply here and its approval of the QDRO's presented by respondent with respect to the two defined contribution plans.
First of all, as in Bowen, no expert opinion or legal authority was cited by appellant to the trial court—or to us on appeal—as to why a "time rule" cannot be applied to the two defined contribution plans, i.e., the 403(b) plan and the DCP. We must therefore "review the trial court's utilization of the time rule to divide the combined pension under an abuse of discretion standard." (Gowan, supra, 54 Cal.App.4th at p. 88; see also In re Marriage of Adams (1976) 64 Cal.App.3d 181, 187.)
Second, there is very specific language in the 2000 stipulation for judgment specifying application of the time rule to respondent's "Retirement Accounts," after which one plan specifically mentioned is the 403(b) plan. Especially considering the discretion given to the trial court in interpreting and applying a clause such as this in a marital dissolution-valuation of assets dispute, we agree with that court that this provision can and should be interpreted as applying to all four of respondent's retirement plans, and that we should not, therefore, treat the unmentioned DCP as a "missed asset."
In her declaration to the trial court, appellant stated that respondent's counsel drafted the 2000 stipulation for judgment. She reiterates this in her brief argument to us. But also noteworthy is the fact that both she and her counsel approved that stipulation.
Third, as the trial court specifically noted in its ruling, the 2000 stipulation for judgment "is a contract like any other contract." Appellant disputes this in her briefs to us, but there is ample authority agreeing that such is the case regarding such stipulations. As our colleagues in the Second District held: "Marital settlement agreements incorporated into a dissolution judgment are construed under the statutory rules governing the interpretation of contracts." (In re Marriage of Iberti (1997) 55 CalApp.4th 1434, 1439; see also In re Marriage of Simundza (2004) 121 Cal.App.4th 1513, 1518; Sy First Family Ltd. Partnership v. Cheung (1999) 70 Cal.App.4th 1334, 1341; Gowan, supra, 54 Cal.App.4th at p. 87; Porreco v. Red Top RV Center (1989) 216 Cal.App.3d 113, 119.)
Fourth and finally, twice in the 2000 stipulation for judgment it is provided that the trial court retained jurisdiction over the relevant issue here. On the same page as the important paragraph 12 of the stipulation, quoted above, appears this hand-written sentence: "The court reserves jurisdiction over the division of all Financial Accounts in the names of the parties and minor child," and on the previous printed page appears the printed (and apparently standard) clause: "Jurisdiction is reserved to make other orders necessary to carry out this judgment." These provisions also support the trial court's interpretation of the 2000 stipulation for judgment. (See Gowan, supra, 54 Cal.App.4th at pp. 87-88.)
However, we reach a different conclusion regarding the portion of the trial court's second order of August 16, 2010 (i.e., the second order in the clerk's transcript before us) making the spousal support revocation retroactive to October 2008, and thus requiring appellant to repay respondent approximately $11,000. We conclude that that much of the trial court's order is both inconsistent with clear statutory law and also constitutes an abuse of discretion. We so conclude for these reasons:
1. First and foremost, the retroactive modification of the spousal support payments of $500 per month provided for in paragraph 15 of the 2000 stipulation for judgment so as to require appellant to reimburse respondent for 22 months of such payments (i.e., from October 2008 to August 2010), was and is clearly contrary to both Family Code sections 3651, subdivision (c)(1), and 3653, subdivision (a), both of which specifically limit the retroactive modification of support orders to the date of the filing of a motion for such modification. (See In re Marriage of Goodman & Gruen (2011) 191 Cal.App.4th 627, 638.) This means that, at the maximum, the court could only order revocation of support payments to appellant effective as of May 6, 2010, the date respondent's motion was filed. However, for the other reasons noted hereafter, we conclude that the revocation should only become effective as of the date of the trial court's orders, i.e., August 16, 2010.
Appellant contends that this result is also mandated by a federal statute, i.e., 42 United States Code section 666(a)(9)(C). She is wrong; clearly, this statute applies only to child support orders.
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2. Additionally, the 2000 stipulation for judgment's key paragraph 12 was indeed ambiguous. Respondent had four retirement plans as of that date, but paragraph 12 mentions only two of them, the 403(b) defined contribution plan and the UCRP defined benefit plan. In his briefs to us, respondent does not contest the fact that his then-counsel drafted the 2000 stipulation for judgment, including that paragraph. As we note above, it was then approved by appellant and her counsel, but nevertheless the bulk of the fault of the paragraph's ambiguity lies with respondent.
3. Perhaps more importantly, the passage of such a substantial amount of time between the execution and filing of the 2000 stipulation of judgment and the resolution of the issue of the proper division of the four retirement plans a decade later was clearly not entirely appellant's responsibility. According to the record before us—to be sure, substantially appellant's opposition to respondent's May 6, 2010, motion—apparently most of the debate and discord regarding the division of these plans in the period between 2002 and 2010 concerned the divisions of the two defined benefit plans via the draft QDRO's submitted to the parties by accountant Moon. Per appellant's declaration submitted to the trial court and the attachments thereto, Moon submitted six drafts of QDRO's for respondent's two defined benefit plans between May 2002 and May 2010. Appellant's (in this regard uncontradicted) declaration states: "These multiple proposed QDRO's were drafted by Mr. Moon based upon Respondent's persistent and unrelenting demands for changes, including changes of verbiage deemed wholly unnecessary by Mr. Moon, yet done to accommodate Respondent." This statement, at least partially if not substantially, undermines the trial court's conclusion (at the end of oral argument) that it was appellant who "has been stalling the end of spousal support by stringing along the QDRO's."
4. Although one of respondent's requests for relief in his May 6, 2010, motion was the removal of accountant Moon as the appointed drafter of the QDRO's, clearly (from, especially, the attachments to appellant's response to that motion) respondent was not happy with Moon's work much earlier than this. The fact that he waited a decade after Moon had been agreed upon as the designated drafter of the QDRO's to seek his removal suggests rather strongly that the delay in achieving agreement on the two defined contribution plan QRDO's was not entirely appellant's fault.
IV. DISPOSITION
The trial court's orders of August 16, 2010, are affirmed, except for that portion of its second order making the revocation of spousal support retroactive to October 1, 2008. We reverse and vacate that portion of the court's second August 16, 2010, order and remand the matter to that court with instructions to make the revocation of spousal support effective as of the date of its order. The parties are to bear their own costs on appeal.
Haerle, Acting P.J.
We concur:
Lambden, J.
Richman, J.