Verner v. Verner

Citation77 Cal.App.3d 718,143 Cal.Rptr. 826
CourtCalifornia Court of Appeals
Decision Date17 February 1978
PartiesIn re the MARRIAGE OF Carl J. and Bianca M. VERNER. Carl J. VERNER, Appellant and Cross-Respondent, v. Bianca M. VERNER, Respondent and Cross-Appellant. Civ. 50349.

Elliott L. Aheroni, Beverly Hills, for appellant and cross-respondent.

Rhodes & Abramson, George H. Rhodes and Bruce D. Abramson, Woodland Hills, for respondent and cross-appellant.

JEFFERSON, Associate Justice.

Carl J. Verner and Bianca M. Verner, parties to this appeal, were divorced in 1968 after a 35-year marriage. Eight years later, in 1976, Bianca initiated an order to show cause in re contempt, which cited Carl for his failure to carry out certain terms of the divorce judgment in not making available to her $8,906 from his retirement fund; she also requested an increase from $250 per month to $727 per month in spousal support. Carl resisted the contempt allegation, and requested termination of spousal support.

After a hearing, the trial court made an order dismissing the contempt charge, increasing the spousal support, and denying Carl's request for termination of spousal support. The trial court also made other orders concerning the retirement fund which we shall discuss herein.

Both parties have appealed.

At the time of the divorce in 1968, Carl had been an employee of the State of California during a substantial portion of the marriage, and contributions from his earnings had been made to the Public Employees' Retirement System. 1

The interlocutory judgment of divorce, entered September 30, 1968, provided, in pertinent part, that "(i)t is further ordered that the (wife's) share of the $17,811.00 contribution to the (husband's) retirement fund is $8,906.00. This sum of $8,906.00 is to be paid by the (husband) to the (wife) upon the (wife's) election with the consent of the retirement fund to withdraw a portion or any sum thereof in cash; otherwise, upon the retirement of the (husband) in the ordinary course of events. Thus fund shall be used toward satisfaction of (husband's) obligation to support the (wife)." Elsewhere in the judgment there is provision for spousal support.

Carl retired in 1973, and elected to take his retirement income in monthly payments of $1326.15; his named beneficiary (his present spouse) would receive, upon his death, benefits of $29,594.83, less $219.11 for each month the retirement income is paid. Carl has failed to pay Bianca any part of $8,906, the amount set forth as her share of the retirement contributions, although he has continued to pay spousal support of $250 per month.

At the hearing below, the contempt was dismissed on the grounds that contempt would not lie to enforce a division of community property and, further, that the order Bianca sought to enforce was "ambiguous and unintelligible."

In support of her request for modification of spousal support, Bianca testified that she is now in poor health (at 62 years of age), has a marked hearing loss, a problem with sight and needs extensive dental care. She stated she could not work, could not live on $250 per month, and had become dependent on her children and others for the basic necessities of life. Carl testified that his monthly income (retirement income and social security benefits) was $1,695. Carl has remarried; his new wife, aged 32 years, does not work, nor does Carl; the couple have adopted two young children whom they are obligated to support. Carl stated that his new family could barely manage on his monthly income. He offered no explanation for failing to pay Bianca her share of his retirement fund, but sought to persuade the court that Bianca was ablebodied and capable of supporting herself.

The trial court made the following order: "(Carl's) order to show cause re modification is denied. The only circumstances presented indicated that (Carl) has willfully and intentionally failed to comply with the Interlocutory Judgment; that (Carl) has done such things as to adopt two young children so as to defeat (Bianca's) rights which were awarded to her after 34 years of marriage, and (Carl) has named his present 32 year old wife as his beneficiary under his retirement plan in the event of his death. (Bianca's) order to show cause re modification is granted.

"The Court finds that (Carl) in this matter in the Interlocutory Judgment of Divorce was ordered to pay to (Bianca) the sum of $8,906.00 which was her share of the contribution to (Carl's) retirement fund.

"(Carl) has done nothing to satisfy his obligation to (Bianca) in the amount of $8,906.00, representing her contributive share to his retirement fund.

"The Court finds that (Bianca) is unemployable. It is very obvious from her appearance in this court that she has a very serious hearing problem and is extremely nervous and emotionally upset. The Court further finds that she is in dire need of further funds.

"The Interlocutory Judgment . . . is modified in the following respects only: that (Carl) shall pay to (Bianca) as spousal support the sum of $600.00 per month . . . commencing on April 5, 1976, and to continue until such time as (Bianca) has received the total sum of $8,906.00 plus interest at the rate of 7% per annum, from September 27, 1968 plus $250.00 per month . . . .

"When the foregoing amount has been paid, then spousal support shall revert back to $250.00 per month, . . .

"(Carl) is ordered to forthwith provide the appropriate retirement system of the State of California which he receives his retirement (sic) with the necessary authorizations and payments so that the said sum of $600.00 per month shall be payable directly to (Bianca). If (Carl) has not provided the necessary authorizations and papers to his retirement board so that the above payments shall be made directly to (Bianca) by the retirement board by April 1, 1976, a writ of execution shall forthwith issue, ordering (Carl's) retirement board to pay the said sums as aforesaid directly to (Bianca) . . . ."

Thus the trial court attempted to fashion an order that would force Carl to comply with the interlocutory judgment.

I The Interlocutory Judgment

Resolution of this dispute requires us to interpret t those provisions of the interlocutory judgment which dealt with the retirement fund. We are guided by certain well established legal principles. "Where a judgment is ambiguous, reference may be made to the findings of fact and conclusions of law to clarify any uncertainty." (Nunes v. Nunes (1964) 62 Cal.2d 33, 39, 41 Cal.Rptr. 5, 9, 396 P.2d 37, 41.) "(T)he 'same rules apply in ascertaining the meaning of a court order or judgment as in ascertaining the meaning of any other writing.' " (Estate of Careaga (1964) 61 Cal.2d 471, 475, 39 Cal.Rptr. 215, 217, 393 P.2d 415, 417.) " '(T)he entire record may be examined . . . .' " (Id.) 2

We note that in 1968 the legal community generally understood that a vested retirement fund was a community asset. (Smith v. Lewis (1975) 13 Cal.3d 349, 355, 118 Cal.Rptr. 621, 530 P.2d 589.) In Crossan v. Crossan (1939) 35 Cal.App.2d 39, 40, 94 P.2d 609, the retirement fund of a California state employee had been so characterized; that principle was reaffirmed in 1970, in Phillipson v. Board of Administration, 3 Cal.3d 32, 40, 89 Cal.Rptr. 61, 473 P.2d 765. 3 It is apparent from the record before us that Carl and Bianca had been so advised in 1968. The parties had relatively little valuable community property to divide, and, given the respective ages of the parties at the time of the divorce, it seems reasonable to assume that both regarded disposition of the retirement fund as a major concern.

The totality of attendant circumstances persuades us that the judgment was drafted with the intention of awarding Bianca a present, equal ownership interest of $8,906 in the retirement accumulations as of 1968. We reject the notion that the judgment merely reflected Carl's personal obligation to pay that amount upon retirement.

The last sentence of the paragraph in the divorce judgment dealing with the retirement fund, which states that "(t)his fund shall be used towards satisfaction of (husband's) obligation to support the (wife)" does not preclude our determination that Bianca was awarded a property interest. The sentence is ambiguous and subject to various interpretations; it is unclear whether "this fund" means the entire fund or Bianca's share; it is unclear what purpose was expected to be served by identifying the probable source of Carl's spousal support payments in the future, i. e., retirement income. We deem it unreasonable to construe this provision as Carl suggests, which is that his monthly payments of spousal support, to wit, $250, somehow constitute liquidation of the $8,906 sum, to totally discharge his obligation to Bianca. It is also unreasonable to assume that the parties contemplated a payment scheme wherein Bianca would receive her portion of the community in the taxable form of spousal support. We conclude, therefore, that this last sentence merely sought to identify the probable source of Carl's support payments at some future time, and nothing more.

II The Issue of Joinder of the Public Employees' Retirement System

The record does not make clear why Bianca did not attempt, in 1973, to exercise the "election" referred to in the divorce judgment, or to directly pursue, by litigation, with the Public Employees' Retirement System, payment of her ownership interest, when payment was not forthcoming from Carl. Since 1972, the Family Law Rules, particularly Rule 1252, contained in the California Rules of Court, have provided for joinder of interested third parties in domestic relations litigation. (See In re Marriage of Sommers (1975) 53 Cal.App.3d 509, 126 Cal.Rptr. 220.) As Phillipson made clear, the superior court clearly has the power to adjudicate Bianca's rights vis-a-vis the Public Employees' Retirement System, if that System is...

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