Marriage of Giffin

Filed 6/16/08 Marriage of Giffin CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, Nancy A. Pollard, Judge. Affirmed.

Hosford & Hosford and Valerie Ryall Hosford for Appellant.

Law Offices of Jeffrey W. Doeringer for Respondent.

In 1990, Thomas and Pamela Giffin terminated their 17-year marriage. Eleven years later, they agreed to a division of the community interest in Thomass Orange County Employees Retirement System (OCERS) account. The 2001 order stated both parties would receive their benefits for their lifetimes under the Option 4 survivor benefit election. Five years later, Thomas^[1]retired and was unhappy to learn there was a cost associated with choosing Option 4. He sought judicial intervention to require Pamela to pay not just an equal share of the cost, but rather the entire cost. The court refused to consider the matter, stating it lacked jurisdiction to make substantive changes to the 2001 postjudgment order. We affirm the order. Thomass motion for judicial notice is denied. Pamelas motion to strike Thomass subpoena duces tecum on appeal is granted. Pamelas motion to strike the appendix from the opening brief is granted, but her motion to strike the brief is denied. We grant her motion for $15,000 in sanctions, representing the amount she spent on attorney fees defending this frivolous appeal.

Facts

The 1990 dissolution judgment provided, in relevant part, The court orders an even division of retirement accounts of both parties per the case of [In re Marriage of] Brown [(1976) 15 Cal.3d 838]. Each attorney shall prepare a QDRO for each

clients respective retirement accounts. QDRO stands for Qualified Domestic

Relations Order. A QDRO is required anytime payments are to be made to an alternate-payee under a qualified retirement benefit plan. (26 U.S.C. 414(p)(1)(A) & (8);

29 U.S.C. 1056(d) (3)(B) & (K); see In re Marriage of Shelstead (1998)

66 Cal. App. 4th 893, 902.)

In July 2001, the parties jointly approved and filed an Order Dividing [OCERS] Benefits. It provided for a division of this benefit under the Brown formula: OCERS is hereby directed to pay [Pamela] . . . 50 [percent] of the retirement allowance

. . . multiplied by a fraction . . . the numerator of which is the number of months of service credit accrued by [Thomas] during the marriage through the date of marital separation . . . and the denominator of which is the number of years of service credit accrued by [Thomas] at the date of [his] termination of service (hereafter, [Pamelas] Fractional Share).

The parties also agreed, At the time [Thomas] retires, [he] will elect Optional Settlement 4 (Government Code [s]ection 31764), and shall designate [Pamela] as his beneficiary to the extent of [her] Fractional Share. Pursuant to this option, if [Thomas] predeceases [Pamela], [she] will continue to receive, for the remainder of her lifetime, the same monthly amount she was receiving before [Thomass] death, including all applicable cost of living increases thereon. The court executed the order, which also specifies the court retained jurisdiction to amend the order in order to effectuate the intent of the parties or for any other reason consistent with the terms of the [p]lan.

Five years later, Thomas retired and soon filed an order to show cause (OSC) requesting an order re[garding] Option 4 cost. Thomass supporting declaration stated he signed an order dividing OCERS benefits without counsel. He explained, I agreed to select Option 4, as it did not effect my monthly retirement income. I believed [Pamela] would be required to pay any costs associated with benefits paid to her. I was not aware that OCERS required specific language in the Order requiring [Pamela] to pay the entire cost. Thomas said he appealed this issue through OCERS and they have indicated that a specific court order is required in the absence of specific language as to who is to pay, consequently they are charging the majority of the cost to him. He concluded, It is fair that [Pamela] bears any cost relating to the option because only she benefits from it. If [she] desires to receive survivor benefits, then she should bear the cost of same. Thomas requested the court order Pamela to pay [100] percent . . . of all costs relating to Option 4 under the OCERS retirement benefits[.]

Pamela filed a responsive declaration, asserting she and Thomas were assisted by counsel before they filed the 2001 OCERS order. She consulted with Eileen Walsh, who specializes in the division of retirement benefits, and Thomas consulted with his attorney Michael Fisher. She attached copies of correspondence between Walsh and Fisher showing they helped their clients with the drafting and negotiating of the order. Pamela stated she also discussed the order with Fred Messerer, legal counsel of OCERS, and she attached copies of her e-mail communications with him. Pamela argued Walsh helped her draft the order which equally divided the community asset.

One of the supporting documents is a letter dated July 26, 2000, from Walsh to Fisher. In it she discusses various paragraphs of the drafted order. Walsh writes, Finally with respect to Optional Settlement 4, a description of which is enclosed for your review (taken from the OCERS plan booklet), contrary to Mr. Foersters opinion, Optional Settlement 4 is the ONLY option which provides for two beneficiaries. It does not foreclose [Thomas] from naming any new spouse as his surviving spouse. [It] is precisely this reason that I selected it. [] I would suggest, if you have any further questions, that you speak with Lawrence Offner, Chief Legal Officer of the Plan. Im sure he will be able to clear these issues up for you. In the meantime, I will discuss a buy-out offer with my client and will await your reply.

In Pamelas points and authorities, she argued the court lacked jurisdiction to change the final order regarding the OCERS benefits. She asserted there have been no changes in the OCERS plan, or in the Government Code, that would require modification of the order. She concluded, litigation must come to an end.

The court agreed and denied Thomass request for an order regarding the OCERS benefits. At the hearing, the court stated it had no jurisdiction to rewrite or to modify the property division terms . . . . Thomas argued he did not know that if the order was silent as to who would pay the costs of Option 4, it would be automatically allocated to him under OCERSs rules. The court concluded that nevertheless the order was final.

Legal Discussion

The trial court was absolutely right. The doctrine of res judicata precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction. Any issue necessarily decided in such litigation is conclusively determined as to the parties or their privies if it is involved in a subsequent lawsuit on a different cause of action. [Citations.] The rule is based upon the sound public policy of limiting litigation by preventing a party who has had one fair trial on an issue from again drawing it into controversy. [Citations.] The doctrine also serves to protect persons from being twice vexed for the same cause. [Citation.] (Bernhard v. Bank of America (1942) 19 Cal.2d 807, 810-811.)

Res judicata applies when: (1) the issues decided in the prior proceeding are identical to those in the second litigation; (2) there was a final judgment on the merits in the prior action; and (3) the party against whom the doctrine is asserted was a party or in privity with a party to the prior adjudication. (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065.)

There is no dispute Thomas was a party to the underlying dissolution proceeding, the postjudgment order dividing his retirement benefits, and the instant OSC. The underlying dissolution resulted in a final judgment, ordering the parties to file QDRO statements. The 2001 postjudgment QDRO order was a final judgment resolving the merits of the parties claims to the retirement benefit. Therefore, the only question here is whether the prior proceedings and the OSC involved the same issue. We agree with the trial court that it was the same.

The 2001 QDRO order resolved how the retirement benefits were to be divided, which is the same issue Thomas seeks now to relitigate by way of the OSC.^[2] He admits the terms of his retirement plan have not changed. Nevertheless, he seeks to avoid the costs associated with his prior agreement to provide Pamela with lifetime survivor benefits. He thinks it is unfair he should have to pay all the costs associated with providing his ex-wife this benefit, arguing there exists some other retirement plans that offer more fair cost-splitting provisions.^[3] We conclude the bar of res judicata applies to the judgment dividing this asset, even if the issue of costs was not actually discussed in the prior order or agreement.

. . . If the matter was within the scope of the action, related to the subject matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. . . . The reason for this is manifest. A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence, the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable. [Citations.] [Citation.] (Tensor Group v. City of Glendale (1993) 14 Cal.App.4th 154, 160.) Thomas fails to present a valid reason for why he could not have investigated, discovered, and negotiated the issue of costs before agreeing to the contents of the QDRO order. The record shows Pamela sought outside advice from several experts before agreeing to the QDRO. Her counsel suggested Thomas should do the same. His mistake does not warrant a second hearing five years later. [S]omewhere along the line, litigation must cease. [Citations.] (In re Marriage of Mason (1996) 46 Cal.App.4th 1025, 1028.)

Accordingly, we hold the stipulated judgment is res judicata on the issue of Thomass obligation to provide and pay for survivor benefits for Pamela. The trial court properly denied Thomass request to litigate the issue of costs for purposes of modifying the prior division of this community property asset.

Motions on Appeal

Pamelas motion to strike appendices two, three, and four from the opening brief is granted, but for the reasons stated above, her motion to strike the opening brief is denied. In addition, we grant Pamelas motion to quash Thomass subpoena duces tecum seeking additional documents and information from OCERSThomas cannot conduct discovery on appeal.

Pamela moved for sanctions in the amount of $15,000 for having to defend an appeal which was utterly without merit per case law standards. (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649; Cal. Rules of Court, rule 8.276(a)(1); Code

Civ. Proc.,  907.) She notes Thomass repeated efforts to have this court review

irrelevant and frivolous documentation outside the record has also greatly increased her costs.

California Rules of Court, rule 8.276(a)(1), permits the imposition of sanctions against a party or an attorney for taking a frivolous appeal. An appeal is frivolous if it is prosecuted for an improper motive or when it indisputedly has no meritwhen any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.] (Olsen v. Harbison (2005) 134 Cal.App.4th 278, 284, quoting In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) We conclude this standard has been met here. (See In re Marriage of Mason, supra, 46 Cal.App.4th

at p. 1028 [imposing sanctions on appeal where underlying action clearly barred by

res judicata].)

The purpose of appellate sanctions are to discourage frivolous appeals and to compensate for losses caused by such an appeal. (In re Marriage of Economou (1990) 223 Cal.App.3d 97, 107.) One generally accepted measure of that loss is the amount of attorney fees incurred by respondent in opposing the appeal. (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 134-135.) Pamela has submitted her counsels declaration stating Pamela has incurred over $15,000 in fees and costs as of January 31, 2008, all of which were reasonable and necessarily incurred in defense of the appeal. Thomas has not argued or demonstrated those fees are unreasonable.

We conclude a sanctions award of $15,000, together with the recovery of costs on appeal, should be sufficient to discourage appellant and his counsel from further frivolous litigation and to compensate respondent for damages reasonably related to the appeal. (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 32; Kurokawa v. Blum (1988) 199 Cal.App.3d 976, 995.) Accordingly, we impose sanctions in the amount of $15,000 against Thomas and his appellate counsel, Valerie Ryall Hosford, jointly and severally.

Disposition

The postjudgment order is affirmed. As sanctions for a frivolous appeal, appellant and his counsel, jointly and severally, shall pay to respondent $15,000 within 60 days of the finality of this opinion. Respondents motion to strike the opening briefs appendices and to quash the subpoena are granted. Respondents motion to strike the opening brief is denied. Appellants motion for judicial notice is denied. Respondent shall also recover her costs on appeal.

This opinion constitutes a written statement of our reasons for imposing sanctions. (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 313.) Pursuant to the requirements of Business and Professions Code section 6086.7, subdivision (a)(3), a copy of this opinion will be forwarded to the State Bar of California.

OLEARY, J.

WE CONCUR:

SILLS, P. J.

IKOLA, J.

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^[1] We follow the practice in family law cases of referring to parties by their first names and no disrespect is intended. (In re Marriage of Smith (1990)

225 Cal.App.3d 469, 475, fn. 1.)

^[2] Thomas cites to several inapt cases to support the claim he is entitled to another opportunity to relitigate this issue, and the court should have held an evidentiary hearing on the equal division of his retirement benefits. All the cases he cited involved dissolution judgments in which the court reserved jurisdiction to divide retirement benefits, i.e., the judgment authorized a postjudgment QDRO hearing. But this is where the similarities end. The courts in those cases addressed issues pertaining to the QDRO hearing. (See In re Marriage of Gray (2007) 155 Cal.App.4th 504; In re Marriage of Smith (2007) 148 Cal.App.4th 1115; In re Marriage of Bowen (2001) 91 Cal.App.4th 1291.) In the case before us, there is a final QDRO order already in place. Those cases do not address whether res judicata bars relitigation of a benefit already addressed in a prior QDRO order.

^[3] We deny Thomass motion requesting this court take judicial notice of the documents published by other retirement benefit plans. The trial court did not consider this evidence. Moreover, based on our holding, Thomas cannot relitigate the division of his retirement benefits and we find the additional evidence irrelevant.

For these same reasons, we grant Pamelas motion to strike the documents attached to Thomass opening brief showing how he calculated the Option 4 costs. Moreover, it would be inappropriate to take judicial notice of this new and irrelevant evidence.

However, we deny Pamelas motion to strike the opening brief, which makes repeated references to the appendices. Rest assured, we have considered the arguments properly raised in light of our appellate record.