Marriage of Lionberger, In re

• Decision Date: 20 September 1979
• Citation: 158 Cal.Rptr. 535,97 Cal.App.3d 56
• Court: California Court of Appeals Court of Appeals
• Parties: , 1 Employee Benefits Cas. 1371 In re the MARRIAGE of Betty Lou and Robert W. LIONBERGER. Betty Lou LIONBERGER, Appellant and Cross-respondent, v. Robert W. LIONBERGER, Respondent, Operating Engineers Pension Trust, Cross-appellant. Civ. 54977.

Page 535

158 Cal.Rptr. 535

97 Cal.App.3d 56, 1 Employee Benefits Cas. 1371

In re the MARRIAGE of Betty Lou and Robert W. LIONBERGER.

Betty Lou LIONBERGER, Appellant and Cross-respondent, v. Robert W. LIONBERGER, Respondent, Operating Engineers Pension Trust, Cross-appellant.

Civ. 54977.

Court of Appeal, Second District, Division 4, California.

Sept. 20, 1979.

Hearing Denied Nov. 15, 1979.

Marvin Licker, Norwalk, for appellant and cross-respondent Betty Lou Lionberger.

Martin Goldberg, Balboa Island, for respondent Robert W. Lionberger.

Wayne Jett by Robert Scot Clifford, Los Angeles, for cross-appellant Operating Engineers Pension Trust.

ALARCON, Associate Justice.

Appellant, Betty Lou Lionberger, has appealed from that portion of an interlocutory judgment of dissolution of marriage which provides that spousal support payable to her by respondent Robert W. Lionberger shall terminate on July 15, 1980.

Cross-appellant, Operating Engineers Pension Trust, appeals from that portion of the interlocutory judgment of dissolution of marriage which declares that the interest of husband in the pension plan of the Operating Engineers Pension Trust is community property and which awards a portion thereof to wife.

Summary of the Facts

Husband and wife were married on December 24, 1953, and separated on September 26, 1973. A petition for dissolution of the marriage was filed by wife, listing as a community asset, inter alia, husband's pension or retirement fund through his employment.

During the pendency of the dissolution proceedings, petitioner joined as a third-party defendant the Operating Engineers Pension Trust, administrator of the pension and retirement plan protecting Operating Engineers Local 12, of which husband was a member.

On April 13, 1978, the court entered interlocutory judgment of dissolution in the action. The award of spousal support and the division of all community property was made pursuant to stipulation of the parties, with the exception of the disposition of husband's retirement and pension benefits.

Determination of Spousal Support

On July 30, 1976, counsel and the court conferred in chambers concerning a proposed settlement of the marital dissolution action. Thereafter, in open court, in the presence of counsel and the parties, counsel for respondent read into the record the terms of the stipulation just entered into. With respect to the spousal support the record reflects the following:

"Then the respondent is to pay to the petitioner, as and for spousal support, the sum of $175 per month, payable one-half on the 1st and one-half on the 15th of each month, commencing August 1, 1976, and continuing monthly thereafter for a period of four years.

"THE COURT: Well, that would be to and including the payment on July 15, 1980.

"MR. DAY: Correct, Your Honor.

"THE COURT: And the Court will not reserve jurisdiction beyond that latter date."

No objection was voiced by counsel for appellant with respect to any of the foregoing terms. The interlocutory judgment ultimately entered in this matter contained an identical provision with respect to spousal support, providing that such support was to continue "to and including July 15, 1980, for a period of four years, at which time all spousal support shall forever terminate."

Appellant moved to set aside that portion of the interlocutory judgment which provided for termination of spousal support, on the basis of mistake, inadvertence, surprise, or excusable neglect. That motion was denied by the trial court.

On appeal, appellant states that during the conference in chambers prior to the hearing on July 30, 1976, counsel for appellant stated to court: "I believe that petitioner will go along with the $175.00 per month for four (4) years but will not agree to any termination of spousal support."

Appellant argues that the provision for termination of spousal support was not pursuant to stipulation of the parties and that the interlocutory judgment is in error in so reflecting. However, the record on appeal contains no transcript of the in-chambers conference to which appellant refers. It is thus impossible for this reviewing court to evaluate appellant's claim. The remedy available to appellant in the absence of such a record was a motion before the same court to set aside the judgment. That motion was heard and the court, cognizant of the facts, denied it.

Further, the record we do have, of the proceedings in open court, reflects that counsel for appellant made no objection to the court's statement that it would not reserve jurisdiction beyond the four-year period.

On August 19, 1976, the parties and their counsel returned to court for resolution of remaining issues in the dissolution action. The amount and termination date of support payments was again discussed by court and counsel. No objection to the four-year termination was raised by or on behalf of appellant.

Whether or not appellant stipulated to the termination of support at the end of four years, her failure to object to the court's inclusion of that provision in the decree amounts to an implied waiver of her right to raise that contention on appeal. (Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 319, 74 Cal.Rptr. 534, 449 P.2d 750.)

In In re Marriage of Hendle (1976) 56 Cal.App.3d 814, 128 Cal.Rptr. 854, following a conference in chambers, the court announced its rulings with respect to division of community property. Husband challenged the order on appeal. The appeals court first observed, at page 817, 128 Cal.Rptr. at page 856: "Admittedly, the husband was then in court; admittedly the court's order was clearly and slowly announced; admittedly the husband voiced no objection to the order." The court held at page 818, 128 Cal.Rptr. at page 856:

"While an attorney may not bind his client to a stipulation regarding the division of community property without the client's knowledge and assent, a litigant cannot sit idly by, in open court, while a stipulation is read and approved by the court, and later deny the authority of his trial counsel to enter into the stipulation thus announced. While it may be better practice for the trial court to inquire into the litigant's assent to the stipulation, we know of no rule that makes such an omission fatal where, as here, the litigant, by his silence, gave every appearance of assent."

In the instant case, both appellant and her attorney remained silent while the court recited the provision respecting termination of spousal support. The silence of counsel under the circumstances, on two occasions in open court, is tantamount to assent to the provision (McBain v. Santa Clara Sav. & Loan Ass'n (1966) 241 Cal.App.2d 829, 838, 51 Cal.Rptr. 78), and that assent is binding on appellant (Cameron v. Cameron (1948) 88 Cal.App.2d 585, 595, 199 P.2d 443), particularly where, as here, appellant was present in court when the ruling was made.

Appellant having impliedly consented to the provision complained of, she has waived her right to cite the ruling as error on appeal.

Cross-Appeal of Operating Engineers Pension Trust

Cross-appellant (hereinafter "the trust") raises the following contentions on appeal:

1. This court has no jurisdiction over the within matter because federal courts have exclusive jurisdiction concerning application of the provisions of ERISA.

2. ERISA pre-empts state law, thereby precluding the application of California community property law to the distribution of benefits from the trust.

3. The order commanding the trust to pay benefits directly to the wife is contrary to the provisions of ERISA.

4. The order commanding the trust to pay benefits directly to the wife harms the participants and beneficiaries of the trust and is unnecessary to protect the interest of the wife.

5. The order precluding the trust from honoring any election by the husband to receive a joint and survivor annuity is contrary to the provisions of ERISA.

6. The order declaring that the wife's interest in benefits payable from the trust is alienable and inheritable is contrary to law.

State Court Jurisdiction

The trust contends that under the provisions of the Employee Retirement Income Security program (hereinafter "ERISA") found at United States Code Annotated Title 29, sections 1001 et seq., the federal court has exclusive jurisdiction to clarify, interpret, and apply ERISA to California retirement programs.

Section 502(e)(1) of ERISA (29 U.S.Code, § 1132(e)(1) ) states: "Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, or fiduciary. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under subsection (a)(1)(B) of this section."

The exception to exclusive federal jurisdiction reads as follows: "(a) A civil action may be brought (P) (1) by a participant or beneficiary (P) . . . (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan; . . ." (29 U.S.C. § 1132(a)(1) (B).)

The trust argues that this is not an action brought to clarify rights under the terms of the plan. We disagree. In recent years, numerous federal district courts have considered the jurisdiction issue posed in the instant case and have concluded that federal courts do not have exclusive jurisdiction. In Stone v. Stone (1978) D.C., 450 F.Supp. 919, a divorced wife brought an action against her former husband and the administrator of his pension plan, alleging non-compliance with the divorce court's order that a percentage of the monthly pension payments be made to her. The pension plan removed the action to the federal district court. The Stone court concluded that although...