Retirement Bd. of the City and
Francisco v.
Filed 3/5/13 Retirement Bd. of the City and County of San Francisco v. Butler CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
RETIREMENT
BOARD OF THE CITY AND COUNTY OF SAN
FRANCISCO,
Plaintiff,
v.
MARIE KOLB BUTLER,
Defendant and Respondent;
JOHNNIE
DAVID BYRD III,
Defendant and Appellant.
A133608
(City & County of San
Francisco
Super. Ct.
No. CGC-10-499309)
INTRODUCTION
The
Retirement Board (Retirement Board) of the City and County
of San Francisco (City) filed an
interpleader action with respect to $102,663.16 death benefits payable under
the San Francisco Employees’ Retirement System (SFERS) account for its deceased
employee, Johnnie David Byrd (decedent).
Decedent’s son, Johnnie David Byrd III, appeals from a judgment of
the City and County of San Francisco Superior Court determining that
Marie Kolb Butler, decedent’s designated beneficiary and former
domestic partner under the City Charter and City Administrative Code, was
entitled to those retirement benefits. We shall affirm the judgment.
BACKGROUND
Decedent
was an employee of the City and a member of the SFERS at all relevant
times. Respondent and decedent
registered with the City as domestic partners in March 2008, pursuant to
Chapter 62 of the San Francisco Administrative Code. On August 19,
2008, decedent executed a “Change of Beneficiary Active Memberâ€
form, changing the beneficiary of his SFERS death benefits from appellant to
respondent, with appellant listed as a contingent beneficiary in the event
respondent did not survive the decedent.
In the change of beneficiary form, respondent is identified in the
“relationship†box as “Dom. Partner.â€
The domestic partnership between appellant and decedent was dissolved on
November 3, 2008, by
decedent’s executing and filing a notarized “Notice for Ending a Domestic
Partnership†with the City, and his serving the same on respondent. (S.F. Admin. Code, § 62.4.) Decedent died testate on April 12, 2009.
name="_ftnref1" title="">[1] Between the end of the domestic partnership
and decedent’s death, the beneficiary designation naming respondent as the
primary beneficiary of decedent’s death benefits was not changed.
According
to a declaration filed by the Jay Huish, deputy director of SFERS, “SFERS
is required to pay death benefits to the member’s estate or designated
beneficiary under [the City] Charter [section]A8.587-5(a). SFERS’ longstanding practice is to pay the
designated beneficiary first pursuant to the terms of the Change of Beneficiary
form executed by the member and filed with SFERS.†SFERS notified respondent that she might be
entitled to a death benefit as decedent’s primary beneficiary. Appellant asserted a claim to the death
benefit and provided a copy of the notice of the ending of the domestic
partnership. Respondent sent to SFERS a
handwritten note allegedly from decedent expressing his intent to leave her as
his beneficiary for retirement purposes, notwithstanding the end of their
domestic partnership.
As
conflicting demands were made for the decedent’s death benefit, the Retirement
Board filed the instant complaint in interpleader, seeking an order
interpleading the funds and discharging it from liability on account of the
death benefit. On September 30,
2010, the superior court granted that motion and filed an order discharging the
Retirement Board from liability, dismissing it from the action and ordering
appellant and respondent to litigate the matter.
At
the one-day court trial, the court refused to admit the note proffered by
respondent into evidence, finding it lacked adequate foundation despite
respondent’s testimony that it was the decedent’s handwriting, where respondent
did not testify she saw the decedent writing it, and where appellant testified
it did not look like decedent’s handwriting.
The court determined the signature did not match the decedent’s
handwriting. This determination is not
challenged on appeal.
Nevertheless,
the trial court ruled in favor of respondent in an oral statement of decision,
rendered on September 21, 2011. The
court observed that it had initially concluded there appeared to be a conflict
between the City Charter provision A8 (relating to employee death and
retirement benefits) and Probate Code section 5600 (voiding nonprobate
transfers to a spouse, where executed before or during marriage, if, at the
time of the transferor’s death, the marriage has been dissolved or annulled).
argument of respondent’s counsel that the domestic partnership was not
recognized by the state because it was not registered with the California
Secretary of State as required by Family Code sections 297 and 298, and
therefore, the court “should not use Probate Code section 5600.†The court concluded “that because Ms. Butler
and Mr. Byrd, the decedent, failed to comply with state law, i.e., registering
the domestic partnership with the state, that actually there was no conflict
anymore because state law, i.e. [section] 5600, would not apply, and therefore
the Court in this instance . . . has determined that because
there was no conflict of law, the charter would apply, and because the charter
applies, that means that the existing designation of . . . Ms.
Butler would prevail in this particular instance . . . .â€
Judgment
was entered on October 11, 2011, and this timely appeal followed.
DISCUSSION
I. The Merits
We
begin with the standard of review: “We
presume the superior court’s order to be correct and indulge all intendments
and presumptions to support it regarding matters as to which the record is silent. [Citations.]
[The appealing parties] have the burden to affirmatively show
error. [Citation.] [¶] ‘As to pure questions of law, such
as procedural matters or interpretations of rules or statutes, we exercise our
independent judgment. [Citations.]’
[Citation.] The application of a
statute to undisputed facts also presents a question of law subject to de novo
review. [Citation.] To the extent our review requires
consideration of the superior court’s determination of disputed factual issues,
we affirm these findings if substantial evidence supports them. [Citation.]â€
(Phillips, Spallas & Angstadt,
LLP v. Fotouhi (2011) 197 Cal.App.4th 1132, 1138-1139; see Eisenberg,
et al., Cal. Practice Guide: Civil
Appeals and Writs (The Rutter Group 2012) ¶¶ 8:33, 8:35, 8:39,
pp. 8.18 to 8.20 (Eisenberg, et al., Civil Appeals and Writs).)
Appellant
contends that the judgment must be reversed because the trial court relied upon
the lack of registration of the domestic partnership with the state, where no
evidence whatsoever was presented on that issue; the judgment was not supported
by sufficient evidence; and respondent did not meet her burden of proving that
section 5600 did not apply in this case.
At
trial, the primary dispute centered on the applicability of section 5600,
subdivisions (a) and (b) and whether the requirements of
subdivision (b) regarding the decedent’s intent were met. Section 5600 provides in relevant part:
“(a) Except
as provided in subdivision (b), a nonprobate transfer to the transferor’s
former spouse, in an instrument executed by the transferor before or during the
marriage, fails if, at the time of the transferor’s death, the former spouse is
not the transferor’s surviving spouse as defined in Section 78, as a
result of the dissolution or annulment of the marriage. A judgment of legal separation that does not
terminate the status of husband and wife is not a dissolution for purposes of
this section.
“(b) Subdivision (a)
does not cause a nonprobate transfer to fail in any of the following
cases:
[¶] . . .[¶] (2) There is clear and convincing
evidence that the transferor intended to preserve the nonprobate transfer to
the former spouse. . . .â€
Appellant
argued the death benefit designation was a nonprobate transfer that failed under
section 5600, subdivision (a) upon termination of the domestic
partnership. Respondent maintained that
the note expressing the decedent’s continued intent that she receive his death
benefits provided such clear and convincing evidence of his intent to preserve
the nonprobate transfer of his retirement death benefit.
Counsel
for respondent argued, in addition, both at the outset of trial and in closing
argument, that section 5600 was inapplicable here, as decedent and
respondent were never married and they never entered into an equivalent
domestic partnership registered with the
State of California as required by
Family Code section 297, subdivision (b).
No
evidence whatsoever was presented on the question whether decedent and
respondent’s domestic partnership was ever registered with the state pursuant
to Family Code section 297. Nor
does it appear in the record whether they even qualified for state registration
as domestic partners under that statute.
(See Fam. Code, § 297, subd. (b)(4)(B) [at least one of an
opposite sex couple must be over 62 years of age].) Counsel for appellant candidly admitted that
he had not briefed the issue and that he was “not familiar with that law that
requires a domestic partnership to be registered with the California Secretary
of State.â€
Appellant
contends, without citing authority, that it was respondent’s burden to show
that section 5600 did not apply, by producing evidence that the domestic
partnership was never registered with the state. We disagree.
At
the outset of trial, the court stated that the matter was going to depend upon
its interpretation of section 5600 and whether there was clear and
convincing evidence to show the decedent’s intent. The court also observed that it was
respondent’s burden to show the decedent’s intent by clear and convincing
evidence. The court’s comments referred
to the requirement of section 5600, subdivision (b)(2), that a
nonprobate transfer does not fail, despite subsequent dissolution of the
marriage, where “[t]here is clear and convincing evidence that the transferor
intended to preserve the nonprobate transfer to the former spouse.†However, the trial court’s statement does not
describe the burden of proof that applies where, as here, the court correctly
determined section 5600 to be inapplicable. Nor did it describe the standard of review
under which we operate here.
Respondent
presented evidence that the deceased had named her as the primary beneficiary
of his death benefits by executing and filing the change of beneficiary form in
accordance with the City Charter. That
evidence was undisputed, as was the evidence that decedent never changed that
form to remove her as his beneficiary, even when he ended their domestic
partnership. In so showing, respondent
met any applicable burden. (Evid. Code,
§ 500 [“Except as otherwise provided by law, a party has the burden of
proof as to each fact the existence or nonexistence of which is essential to
the claim for relief or defense that he is asserting.â€].)
As
stated in the declaration the deputy director of SFERS, and in accordance with
the applicable provisions of the San Francisco Charter regarding death
benefits, SFERS was required to pay death benefits to the member’s estate or
designated beneficiary under City Charter section A8.587-5(a).
designated beneficiary first pursuant to the terms of the Change of Beneficiary
form executed by the member and filed with SFERS.†Appellant points to nothing indicating that a
member could not designate any
person, related or not, as his or her “designated beneficiary†for purposes of
this provision. Decedent’s designation
of respondent as the beneficiary of his death benefits and his failure to
change that designation despite ending their domestic partnership provides
substantial evidence supporting the court’s judgment here.
As
the party challenging the propriety of payment of death benefits to the person
designated by the decedent on his change of beneficiary form,
the applicability of section 5600 to void that payment. No direct evidence was presented regarding
whether the parties registered their domestic partnership with the state. Respondent’s testimony that she and decedent
registered their domestic partnership with the City, supports an inference that the City was the only jurisdiction
in which it was registered. In any
event, respondent was not required to show they did not register their partnership in order to defeat appellant’s
claim. That section 5600 exists
does not render it applicable here, where there was no evidence decedent and
respondent registered their partnership, as required by Family Code
section 297. Indeed, there was no evidence
that they would have qualified for registration under that statute. As section 5600 refers to the
transferor’s former spouse, and a
transfer before or during the marriage,
the trial court correctly determined that section has no applicability in the
absence of a registered domestic
partnership recognized by the state.
Family Code section 297.5, subdivision (a), provides: “Registered
domestic partners shall have the same rights, protections, and benefits, and
shall be subject to the same responsibilities, obligations, and duties under
law, whether they derive from statutes, administrative regulations, court
rules, government policies, common law, or any other provisions or sources of
law, as are granted to and imposed upon spouses.†(Italics added.) A parallel provision provides that former
registered domestic partners will be treated as former spouses. (Fam. Code, § 297.5,
subd. (b).) Had appellant produced
evidence the parties had registered their domestic partnership with the
California Secretary of State in accordance with Family Code section 298,
subdivision (c), section 5600 would have applied and the court would
have been required to determine whether the fact that decedent never removed
recipient as his designated beneficiary after the ending of their domestic
partnership, constitutes sufficient clear and convincing evidence of decedent’s
intent that respondent continue as his beneficiary.
We
also observe that the equation of domestic partnerships with marriage with
respect to the City’s retirement system under the City Charter does not result
in the incorporation of all state laws relating to married couples—nor do the
City Charter or Administrative Code purport to do so. The City Charter equates domestic
partnerships established in accordance with chapter 62 of the City
Administrative Code with marriages, such domestic partners with spouses, and
termination of such domestic partnerships under that chapter of the
Administrative Code with dissolution of marriage with respect to the retirement system. (See S.F. Admin. Code, §§ 62.1 - 62.13.) San Francisco Charter section A8.500-2,
“Domestic Partner Qualified Survivor Benefits,†provides that “[
respect to the retirement system, domestic partnerships shall be treated
exactly the same as marriages, domestic partners shall be treated exactly the
same as spouses, termination of a domestic partnership shall be treated exactly
the same as a dissolution of marriage
and qualified surviving domestic partners shall be treated exactly the same as
qualified surviving spouses, respectively.â€
(Italics added.) City Charter
provisions regarding death benefits contain no provision similar to
section 5600 voiding nonprobate transfers where the parties’ marriage (or
registered domestic partnership) fails.
Appellant
contends the court relied upon counsel’s statement that decedent and respondent
were not registered domestic partners
under state law pursuant to Family Code section 298, and thus based its
ruling on facts not in evidence. As we
have acknowledged, there was no evidence either way on the question whether the
parties were registered under state law.
As appellant bore the burden of showing that section 5600 applied
to the case, requiring that he must at least produce some evidence that
decedent and respondent had actually registered their domestic partnership with
the California Secretary of State, the court could find in favor of respondent
that the state statute did not apply. As
a general proposition, we review the court’s decision, not its reasons.
(Eisenberg, et al., Civil Appeals and Writs,
8-148 [“Subject to certain exceptions . . . , an appealed
judgment or order correct on any theory
will be affirmed, even though the
trial court’s reasoning may have been erroneous; i.e., appellate courts will
not review the reasons for the trial
court’s decision. [Citations.]â€].)
Nor does it appear that any alleged deficient “findingâ€
in the court’s oral statement of decision was brought to the trial court’s
attention. Where parties fail to timely
bring alleged deficiencies in a statement of decision to the trial court’s
attention, defects are waived. (Code Civ. Proc., § 634;
Writs, supra, ¶¶ 8:23-8:23a,
p. 8-9.)
Even
were we to assume the court erred in treating the claim that the parties had
not registered their domestic partnership with the state as a matter on which
evidence had been received, rather than as a failure by appellant to present
evidence on an issue upon which he bore the burden of proof, appellant has
failed utterly to establish he was prejudiced by such failure. He makes no claim in his briefs on appeal
that decedent and respondent qualified as
domestic partners under Family Code section 297. Nor does registration as domestic partners
under City ordinances have any bearing on that question, as the City, unlike
the state, has no requirement that domestic partners be either the same sex or
have attained a certain age. Absent any
showing of prejudice, reversal is not required.
(Cassim v. Allstate Ins. Co. (2004)
33 Cal.4th 780, 800 [a miscarriage of justice will be declared only when
the appellate court, after examining the entire case, concludes that “ ‘it
is reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of
the error.’ â€]; see Eisenberg, et al., Civil Appeals and Writs,
pp. 8.184 to 8.185.)
II. Sanctions Request
Respondent
seeks $11,248.95 in attorney fees for the filing of a frivolous appeal. In our order of September 6, 2012, we
advised the parties that we were taking the sanctions motion under submission
to be decided with the merits of the appeal.
Although we have determined the appeal to be without merit, we do not
find it was “frivolous or taken solely for delay.†(Code Civ. Proc., § 907; Cal. Rules of
Court, rule 8.267(a)(1).) As
recognized by our California Supreme Court, “any definition [of a frivolous
appeal] must be read so as to avoid a serious chilling effect on the assertion
of litigants’ rights on appeal. Counsel
and their clients have a right to present issues that are arguably correct,
even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is
not incur sanctions. Counsel should not be deterred from filing such appeals
out of a fear of reprisals.†(
31 Cal.3d 637, 650.) We see no
evidence that the appeal was taken in bad faith or solely for purposes of
delay. Consequently, we deny
respondent’s sanctions request.
DISPOSITION
The
judgment is affirmed. Respondent shall
recover her costs on appeal.
_________________________
Kline,
P.J.
We concur:
_________________________
Lambden,
J.
_________________________
Richman,
J.
Because his will and trust were executed before decedent’s domestic partnership
with respondent, they were not material to decedent’s intent regarding the
interpleaded funds.
All statutory references are to the Probate Code, unless otherwise indicated.
