In re Marriage of Padgett, A117991 (Cal. App. 8/8/2007)

• Court: California Court of Appeals
• Writing for the Court: Kline
• Decision Date: 08 August 2007
• Docket Number: A117991
• Citation: In re Marriage of Padgett, A117991 (Cal. App. 8/8/2007) (Cal. App. 2007)
• Parties: In re the Marriage of BEVERLY PADGETT and ROBERT J. PADGETT. BEVERLY PADGETT, Respondent, v. DONNA LITTLE, as Personal Representative, etc., Appellant.

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In re the Marriage of BEVERLY PADGETT and ROBERT J. PADGETT BEVERLY PADGETT, Respondent, v. DONNA LITTLE, as Personal Representative, etc., Appellant.

A117991

Court of Appeals of California, First Appellate District, Division Two

August 8, 2007

NOT TO BE PUBLISHED

Appeal from the Marin County Super. Ct. No. 124460.

KLINE, P.J.

This appeal by Robert Padgett, deceased, through Donna Little, personal representative (appellant), challenges the trial court's conclusion that respondent Beverly Padgett is entitled to a share of her former husband's pension benefits. Respondent contends the order from which the appeal was taken is not appealable. We agree and dismiss the appeal.

STATEMENT OF THE CASE AND FACTS

Respondent married appellant on June 11, 1972, and the couple separated on August 15, 1985. A judgment of dissolution was entered on March 14, 1988. The judgment did not adjudicate respondent's interest in appellant's pension plan but expressly retained jurisdiction to do so.

After learning that appellant had died on January 26, 2005, respondent sought to obtain a Qualified Domestic Relations Order (QDRO)¹ enforcing her interest in her former husband's pension plan. In an order filed on April 24, 2007, the trial court adopted its tentative ruling, which defined the issue as whether a former spouse can obtain a QDRO "19 years after a dissolution judgment and after the death of the employee spouse," answered in the affirmative and provided:

"Beverly's community half of all benefits, survivor or otherwise, in Robert's Automotive Industries Pension Fund is one half of a fraction, the numerator of which is 158 (the number of months between June 11, 1972, the date of marriage, and August 17, 1985, the date of separation . . . ) and the denominator of which is Robert's total months of credited service in the plan. Beverly's attorney is ordered to prepare a proposed QDRO, nunc pro tunc as of March 14, 1988, consistent with this tentative ruling and in compliance with ERISA [Employee Retirement Income Security Act], and serve it on claimant Automotive Industries Pension Fund on or before April 23, 2007. The Automotive Industries Pension Fund is ordered to advise Beverly whether they accept the proposed QDRO and, if not, why not, on or before May 4, 2007. [¶] This court retains jurisdiction to make further orders necessary to implement this tentative ruling and the judgment filed March 14, 1988."

Respondent served a proposed QDRO on the Automotive Industries Pension Plan (Plan) on April 23, 2007. The QDRO gave respondent the right to receive benefits equal to one-half the community's interest in the surviving spouse benefits payable under the plan, with the community interest calculated as a fraction of the total benefits "the numerator of that fraction being 158 (the number of months of the Participant's credited service between the date of marriage and the date of separation), and the denominator being 263 (the number of months of the Participant's total credited service)."

A May 1, 2007 letter from appellant's counsel to counsel for the Plan objected to the calculation formula in the proposed QDRO on the basis that appellant did not have 158 months of credited service during the marriage.

A May 3, 2007 letter from counsel for the Plan to counsel for the parties stated that the proposed QDRO was "in a form which would be acceptable to the Plan when signed by a judge of the Superior Court with jurisdiction over this matter, filed in that court and served upon the Plan," with the "small exception" that the order needed to specifically state the annuity starting date for respondent. The letter stated that the earliest date the Plan would accept was February 1, 2005, the date the Plan began segregating benefits.

On May 10, 2007, appellant filed a notice of appeal from the trial court's order.

By letter of May 14, 2007, respondent's counsel sought the Plan's position on the number of months of credited service during the marriage to be used in the fraction called for in the court's order.

On May 23, 2007, counsel for the Plan stated in a letter to the parties' attorneys that the Plan believed "the appropriate split of the benefit[s] in this case, if any, is a matter for determination by a court, not by the Plan." This letter enclosed a statement of credited service for appellant showing the number of months contributions were made on appellant's behalf for each year of his employment. The statement reflects contributions for 152 months during the period of the parties' marriage.

DISCUSSION

"[T]he right of appeal is wholly statutory in origin." (Powers v. City of Richmond (1995) 10 Cal.4th 85, 109.) "A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment. . . . [¶] A trial court's order is appealable when it is made so by statute. [Citations.]" (Griset v. Fair Political Practices Com. (2001) 25 Cal. 4th 688, 696.)

Code of Civil Procedure section 904.1, subdivision (a)(2), provides that appeal may be taken from an order made after an appealable judgment. To be appealable, however, a postjudgment order " `must either affect the judgment or relate to it by enforcing it or staying its execution.' (Olson v. Cory (1983) 35 Cal.3d 390, 400.)" (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651-652 (Lakin).) Also, "the issues raised by the appeal from the order must be different from those arising from an appeal from the judgment." (Lakin, at p. 651.) And, of most relevance here, postjudgment orders are not appealable if they are "preliminary to a later judgment, at which time they will become ripe for appeal." (Id. at p. 652; In re Marriage of Levine (1994) 28 Cal.App.4th 585, 589.) Thus, Lakin held that an order denying an award of attorney fees was appealable as "a postjudgment order that affects the judgment or relates to its enforcement because it determines the rights and liabilities of the parties arising from the judgment, is not preliminary to later proceedings, and will not become subject to appeal after some future judgment." (Lakin, at p. 656.)

By contrast, In re Marriage of Levine involved a postjudgment order in a dissolution proceeding in which the trial court confirmed its authority to resolve issues relating to the sale of community property assets in accordance with the dissolution judgment, set out directions for resolving disputes about the sales, and reserved jurisdiction over issues concerning attorneys fees and costs. The reviewing court held the order was " `preliminary to later proceedings' within the meaning of Lakin v. Watkins Associated Industries, supra, 6 Cal. 4th at pages 654, 656," and therefore "not sufficiently final" to be appealable under Code of Civil Procedure section 904.1, subdivision (a)(2). (In re Marriage of Levine, supra, 28 Cal.App.4th at p. 589.)

Here, the trial court's order plainly...