Marriage of Williams, In re

• Decision Date: 17 January 1985
• Citation: 163 Cal.App.3d 753,209 Cal.Rptr. 827
• Court: California Court of Appeals Court of Appeals
• Parties: , 6 Employee Benefits Cas. 1223 In re the MARRIAGE OF WILLIAMS. Zeda WILLIAMS, Petitioner and Respondent, v. Powell R. WILLIAMS, Respondent, Pension Trust Fund For Operating Engineers, Appellant. AO19310.

Page 827

209 Cal.Rptr. 827

163 Cal.App.3d 753, 6 Employee Benefits Cas. 1223

In re the MARRIAGE OF WILLIAMS Zeda WILLIAMS, Petitioner and Respondent, v. Powell R. WILLIAMS, Respondent Pension Trust Fund For Operating Engineers, Appellant.

AO19310.

Court of Appeal, First District, Division 1, California.

Jan. 17, 1985.

Thomas E. Stanton, Johnson & Stanton, P.H. McCarthy, Jr., McCarthy, Johnson & Miller, San Francisco, for appellant.

Richard C. Burton, Ukiah, for respondent.

NEWSOM, Justice.

An interlocutory judgment of dissolution was entered on November 9, 1979, which ordered Powell R. Williams (the responding party below and hereafter "Powell") to pay respondent spousal support in the amount of $800 per month and $750 in attorney's fees. Powell made none of the ordered payments, and on December 17, 1980, respondent obtained an order to show cause re contempt. After a hearing, the court dismissed the contempt proceeding against Powell and terminated the spousal support order. A judgment was subsequently entered declaring that Powell owed arrearages to respondent in the amount of $12,750.

Powell is a participant in an employee benefit plan maintained by the Pension Trust Fund for Operating Engineers (hereafter "appellant" or "the fund"), having retired on a disability pension effective September 1, 1971. He currently receives $292.50 per month in disability benefits.

To satisfy the judgment for arrearages, respondent applied for and was granted three consecutive writs of execution to be served upon appellant, seeking to garnish all pension benefits owed to respondent as of the date of service. All notices were returned unsatisfied.

On May 12, 1982, respondent obtained an order to show cause directing appellant to appear and show cause why it should not be required to comply with the writs of execution. Appellant responded on July 1, 1982, claiming lack of jurisdiction in the state court resulting from the preemption and anti-alienation provisions of the federal Employee Retirement Income Security Act (hereafter ERISA). (29 U.S.C., § 1001 et seq.)

The court filed an order directing the fund to "comply with the several writs of execution in their full amounts." This appeal challenges the jurisdiction of the trial court to order disbursal of the fund benefits to respondent.

Appellant makes a two-pronged attack on the judgment of the trial court, the first of which is that respondent's failure to join the fund as a party pursuant to Civil Code section 4351 et seq. renders the judgment void for lack of jurisdiction. ¹

As relevant here, section 4351 provides:

In proceedings under this part, the superior court has jurisdiction to inquire into and render such judgments and make such orders as are appropriate concerning the status of the marriage, the custody and support of minor children of the marriage, the support of either party, the settlement of the property rights of the parties and the award of attorneys' fees and costs; provided, however, no such order or judgment shall be enforceable against an employee pension benefit plan unless the plan has been joined as a party to the proceeding.

Section 4363 adds that "an employee pension benefit plan shall be joined as a party to a proceeding under this part only in accordance with the provisions of Section 4363.1." Section 4363.1 sets forth the procedure for joining an employee pension benefit, and section 4363.2 delineates law applicable to proceedings "in which an employee pension benefit plan has been joined as a party."

Respondent concedes that the fund was not joined as a party in accordance with section 4363.1, but submits that "[t]hese proceedings did not effect [sic] any of the rights of the parties delineated by section 4351," making joinder unnecessary. Respondent characterizes the fund as "simply a garnishee under Code of Civil Procedure section 682 et seq."

There can be no question as to the trial court's authority to adjudicate respondent's rights vis-a-vis appellant if the fund was properly before the court. (Verner v. Verner (1978) 77 Cal.App.3d 718, 725, 143 Cal.Rptr. 826.) At the same time, section 4351 mandates joinder of an employee pension benefit plan in accordance with section 4363.1 and rule 1256 of the California Rules of Court "in proceedings under " Part 5 of Division 4 of the Civil Code (the Family Law Act). (Goddard, California Family Law Practice, Third Edition, § 61, p. 183.) A judgment or order in a dissolution proceeding can only be enforced against a pension plan if the plan has been joined as a party. (In re Marriage of Campa (1979) 89 Cal.App.3d 113, 129, 152 Cal.Rptr. 362.) And according to section 4363.1, once proper application for joinder has been made, "the clerk shall enter an order joining as a party to the proceeding any employee pension benefit plan in which either party to the proceeding claims an interest which is or may be subject to disposition by the court." (Emphasis added.) Thus, the crucial inquiry in the case at bench is whether respondent's writs of execution seeking to garnish Powell's disability pension benefits are "proceeding(s) under" Part 5 whereby she claims "an interest which is or may be subject to disposition by the court."

Section 4351 specifically includes within family law proceedings all matters "concerning ... the support of either party...." Rule 1217 of the California Rules of Court further directs that, "[t]he court has jurisdiction of the parties and control of all subsequent proceedings from the time of service of the summons and a copy of the petition." (Emphasis added.) Finally, the Family Law Act describes the methods available for enforcement of support orders in section 4380, which provides: "Any judgment, order, or decree of the court made or entered pursuant to this part may be enforced by the court by execution, the appointment of a receiver, contempt, or by such other order or orders as the court in its discretion may from time to time deem necessary." (Emphasis added.) Section 4383 enumerates a streamlined procedure for enforcement of support orders by writ of execution. ²

In our view, these provisions contemplate that enforcement of support orders by writ of execution constitutes a proceeding under the Family Law Act. (See In re Marriage of Lackey (1983) 143 Cal.App.3d 698, 702, 191 Cal.Rptr. 309.) An action to determine arrearages and enforce a spousal support order by writ of execution is not an independent proceeding; rather, it rests upon an existing order rendered in a family law action. (Id., at pp. 702, 704, 191 Cal.Rptr. 309.) Hence, we conclude that a writ of execution used to enforce a spousal support order, such as that brought by respondent, must be considered a proceeding under the Family Law Act--rather than an independent action under Code of Civil Procedure section 682 et seq.--triggering the joinder requirements of section 4351.

Requiring a party to join an employee pension benefit plan prior to filing a writ of execution against it to satisfy spousal support arrearages also serves the purposes of sections 4351 and 4363.1. The joinder provisions were plainly intended to protect the interests of employee pension benefit plans, such as the fund, by providing prior notice and opportunity to be heard in any family law proceeding which might result in payment of benefits to the spouse of the covered employee. We accordingly hold that before writs of execution are granted garnishing employee pension benefit plan monies, or credits to satisfy spousal support, or other obligations ordered as part of a judgment rendered pursuant to the Family Law Act, joinder of such plan pursuant to section 4363.1 is required. Respondent's failure to properly join the fund contravened section 4351.

After being served with the writs, however, the fund appeared at the hearing and failed to contest respondent's lack of compliance with the jurisdictional requirements of sections 4351 and 4363.1. In essence, we find that the fund argued the merits of the case by contending that (1) federal law and the trust agreement provisions bar the state court from asserting jurisdiction to order garnishment of any fund benefits, and (2) a portion of such benefits are immune from garnishment under federal and state law. Appellant thus made a general appearance, thereby submitting itself to the jurisdiction of the trial court and waiving any claim of lack of proper joinder. (Raps v. Raps (1942) 20 Cal.2d 382, 385, 125 P.2d 826; Brown v. Douglas Aircraft Co. (1958) 166 Cal.App.2d 232, 236, 333 P.2d 59.)

Appellant next complains that the disability pension benefits of the fund are beyond the reach of respondent to satisfy the obligation owed by Powell for spousal support. In support of this contention, appellant relies upon the provisions of the trust agreement establishing the fund, which in turn are based upon federal law.

Article II, section 6 of the Trust Agreement, incorporated into 9.13 of the Pension Plan, includes the following "anti-alienation" provision:

"Section 6. Each Covered Employee, Retired Employee or beneficiary under this Pension Plan is hereby restrained from selling, transferring, anticipating, assigning, alienating, hypothecating or otherwise disposing of his pension, prospective pension or any other right or interest under the Plan, and the Board of Trustees shall not recognize, or be required to recognize, any such sale, transfer, anticipation, assignment, alienation, hypothecation or other disposition. Any such pension, prospective pension, right or interest shall not be subject in any manner to voluntary transfer or transfer by operation of law or otherwise, and shall be exempt from the claims of creditors or other claimants and from all orders, decrees, garnishments, executions or other legal or equitable process or proceedings to the fullest extent permissible by law. The rights of a spouse of any Covered Employee or Retired Employee shall be limited...