La Moure v. La Moure (In re Marriage La Moure)

• Court: California Court of Appeals
• Writing for the Court: CODRINGTON
• Citation: La Moure v. La Moure (In re Marriage La Moure), 221 Cal.App.4th 1463, 165 Cal.Rptr.3d 417 (Cal. App. 2013)
• Decision Date: 11 December 2013
• Docket Number: E051856
• Parties: IN RE the MARRIAGE OF Nathan and Robin LA MOURE. Nathan D. La Moure, Appellant, v. Robin La Moure, Respondent; San Bernardino County Department of Child Support Services, Respondent.

221 Cal.App.4th 1463

165 Cal.Rptr.3d 417

IN RE the MARRIAGE OF Nathan and Robin LA MOURE.Nathan D. La Moure, Appellant,

v. Robin La Moure, Respondent;San Bernardino County Department of Child Support Services, Respondent.

E051856

Court of Appeal, Fourth District, Division 2, California.

Filed December 11, 2013

See 8 Witkin, Cal. Procedure (5th ed. 2008) Enforcement of Judgment, § 204.

APPEAL from the Superior Court of San Bernardino County. John M. Pacheco, Judge. Affirmed. (No. SBFSS71194)

Nathan D. La Moure, in pro. per., for Appellant.

Hanke & Williams, Rick D. Williams and Shelly L. Hanke, Garden Grove, for Respondent.

OPINION

CODRINGTON, J.

IINTRODUCTION ¹

This matter arises out of the dissolution of Nathan D. La Moure's marriage to Robin La Moure and consequential division of assets, including Nathan's defined benefit pension plan (pension plan). Nathan appeals two orders: (1) a July 23, 2010 order restraining disbursements from Nathan's pension plan and (2) a December 1, 2010 order granting reconsideration of the court's October 18, 2010 order, granting Nathan's claim of exemption and motion to quash orders restraining him from transferring assets from his pension plan.

Nathan contends the trial court erred in ordering restraints on his pension plan assets and denying his claim of exemption, because ERISA ² preempts state law and prohibits alienation of pension plan assets and benefits. Nathan argues that ERISA's anti-alienation provisions prohibit payment of funds from Nathan's pension plan to Robin's attorney for attorney's fees. Nathan further argues that his pension plan is exempt from levy on the writ of execution, and the trial court erred in issuing the writ of execution upon the custodian of the assets of his pension plan. In addition, Nathan argues there were no new facts or law justifying granting Robin's motion for reconsideration. Also, the trial court abused its discretion in granting Robin's motion for reconsideration because the new ruling, allowing levy on assets in Nathan's pension plan, violated ERISA.

We reject Nathan's contentions on the ground there was substantial evidence that Nathan abused the pension plan by secreting community property assets and funneling them through the pension plan. As a consequence, Nathan's pension plan was not protected by ERISA. We therefore affirm the judgment.

IIFACTS AND PROCEDURAL BACKGROUND

Nathan and Robin married in 1993, and separated in February 2003. A month later, on March 3, 2003, Nathan filed for divorce. In interim orders in March and April 2003, the trial court ordered Nathan and Robin to share equal custody of their two sons. The court further ordered Nathan, who practiced law as a sole practitioner, to pay Robin spousal and child support.

Nathan fell behind on his support obligations. In April 2009, the California Department of Child Support Services (DCSS) issued an order to Morgan Stanley to withhold funds from Nathan's retirement accounts for the purpose of collecting child support arrears. On April 20, 2009, Nathan filed a claim of exemption and ex parte motion to quash the levy on his Morgan Stanley IRA rollover and IRA accounts.

In May 2009, the trial court heard and denied Nathan's claim of exemption and motion to quash/recall the IRA levy. On June 5, 2009, Nathan faxed the DCSS and Robin's attorney a letter stating that Nathan would be filing an ex parte application “to Stay the levy/notice of execution on my Morgan Stanley IRA Rollover plan and to dispense with an undertaking pending appeal of the minute orders of 5/12/09 and 5/27/09 and/or a petition for writ of supersedeas in the reviewing court.” The trial court granted a stay until June 29, 2009, and extended the stay until July 31, 2009.

On July 23, 2009, the trial court heard and again denied Nathan's claim of exemption and motion to quash and recall levy on Nathan's Morgan Stanley IRA account for payment of support (support appeal). On July 30, 2009, Nathan filed a notice of appeal of the July 23, 2009 order (In re Marriage of Lamoure (2011) 198 Cal.App.4th 807, 812, 830, 132 Cal.Rptr.3d 1, case No. E048992). On August 31, 2009, Nathan also filed a petition for writ of supersedeas in this court, seeking a stay of the trial court proceedings. On September 3, 2009, this court denied the writ and request for a stay. However, on September 9, 2009, the trial court granted Nathan's request for a stay pending resolution of Nathan's support appeal. On August 2, 2011, this court entered its decision in the support appeal, affirming the lower court's July 23, 2009 order.

Writ of Execution for Payment of Robin' s Attorney' s Fees

Meanwhile, during proceedings from 2003 through 2010, the trial court ordered Nathan to pay Robin's attorney's fees and costs totaling over $99,000.

On March 22, 2010, the trial court heard and granted Robin's order to show cause (OSC) and motions for a writ of attachment, for $10,000 in sanctions against Nathan, for breach of fiduciary duties, for $182,0421.08 in statutory penalties and awards against Nathan, and for reimbursement of Robin's expert fees totaling $15,300.

On March 26, 2010, the trial court issued a writ of execution for payment of Robin's attorney's fees against Nathan's pension plan. Because the writ only named Nathan and his law corporation but did not name his recently created trust ³ as a judgment debtor in the writ, the Morgan Stanley custodian of Nathan's pension plan refused to enforce the writ against the pension plan.

On April 21, 2010, Nathan served a claim of exemption as to Nathan's Morgan Stanley accounts, seeking exemption as to any funds held by Morgan Stanley for the benefit of Nathan, Nathan's law firm, or his pension plan, or funds held by Merrill Lynch in his recently created trust.

During a hearing on April 23, 2010, Nathan informed the court that the trial court had previously issued a stay. The trial court did not find any record of the stay and did not believe there was any reason for a stay. The court therefore ruled on Robin's pending motions on support and other matters, and denied Nathan's oral motion to set aside the March 22, 2010, and March 26, 2010, orders based on not receiving notice. On June 10, 2010, the court denied Nathan's claim of exemption.

Restraining Order Prohibiting Transfer of Pension Fund Assets

On July 20, 2010, Robin filed an ex parte motion requesting a temporary order restraining Nathan from withdrawing, transferring, or disposing of any funds held in his Morgan Stanley accounts. Robin asserted the temporary hold was necessary until the trial court ruled on her motion to add Nathan's pension plan to the writ of execution as a judgment debtor. Once the pension was added to the writ, Robin could immediately serve Morgan Stanley with the writ, which would ensure the pension assets were subject to the trial court's jurisdiction and control.

On July 21, 2010, the trial court heard and took under submission Robin's ex parte motion. On or about July 23, 2010,⁴ the trial court granted Robin's motion and ordered Nathan restrained from transferring any funds in any Morgan Stanley account in his name or the name of his law firm or law firm pension plan. The court also ordered that Morgan Stanley was to hold all such funds, pending further order of the court.

On August 6, 2010, Nathan transferred approximately $100,000 from his Morgan Stanley pension plan account to his Merrill Lynch trust account.

On August 17, 1010, the court granted Robin's motion and amended the writ of execution by adding the pension plan to the writ. The court issued the amended writ of execution for $99,383.65, on August 24, 2010. The instant appeal is founded on this writ of execution. The amended writ of execution (hereafter referred to as “the writ” or “writ of execution”) was served on Morgan Stanley as the pension plan administrator. The writ directed the county sheriff to enforce the judgments entered on May 10, 2006, and on March 22, 2010, against Nathan and his pension plan.

On September 13, 2010, Nathan filed a notice of appeal of the March 22, 2010, and March 26, 2010, writ of execution order and judgment, and the July 23, 2010, restraining order. This court dismissed the appeal of the March 22, 2010, and May 26, 2010, order and judgment as untimely.

On September 23, 2010, Robin filed opposition to Nathan's claim of exemption to the writ of execution. Robin opposed Nathan's claim of exemption on the grounds Nathan transferred funds into the trust on August 27, 2010, in direct violation of the trial court's orders, including the automatic temporary restraining orders (ATROs) and July 21, 2010, order, prohibiting any transfer of funds. In addition, the trial court already ruled in June 2010, that funds in the pension plan were not exempt.

On October 8, 2010, the trial court heard and took under submission Nathan's claim of exemption. The court found that the only matter stayed was regarding Nathan's claim of exemption, conditioned upon Nathan properly posting bonds. On October 18, 2010, the court granted Nathan's claim of exemption.

Motion for Reconsideration

Robin filed an ex parte motion for reconsideration of the October 18, 2010, order. The trial court heard Robin's motion for reconsideration, granted it on December 1, 2010, and amended the order on December 6, 2010. The court found that Robin provided new and different facts, and that the trial court had legal authority to order a writ of execution against Nathan's pension plan. The court vacated its October 18, 2010, order and denied Nathan's claim of exemption.

On December 6, 2010, Nathan filed an ex parte motion to stay execution of the March 2006 and March 2010 orders, quash and recall the writ of execution, vacate the levies, and reconsider the ruling on Robin's motion for reconsideration. The trial court denied Nathan's request for a stay. In addition the trial court modified sua sponte and nunc pro tunc its September 9, 2009 order granting a...