In re Marriage of Moore
171 Cal. Rptr. 3d 762
Cal. Ct. App.2014Background
- Leslie and Terry Moore were married ~27 years; dissolution petition filed March 18, 2008. Terry is a Chico police officer; Leslie a homemaker who later proceeded pro se at trial.
- Temporary spousal support was ordered by stipulation in Nov. 2008: $1,857/month, with the parties and court agreeing the award was "subject to retroactive modification" to a date no earlier than March 1, 2008.
- Final judgment (June 3, 2010) divided many community assets, awarded Leslie one-half of the community interest in Terry’s PERS and deferred compensation, reserved jurisdiction on a retiree medical reimbursement trust and accrued sick leave, awarded the family home to Leslie, and ordered Leslie to pay a large equalization payment.
- Leslie challenged multiple rulings on appeal: refusal to hear retroactive modification of temporary support, characterization/division of various employment benefits (medical trust, vacation, sick leave, deferred comp), valuation/division of other assets, amount of permanent spousal support, denial of attorney fees, and alleged judicial bias.
- The Court of Appeal affirmed in part, reversed in part, and remanded for further proceedings on three discrete matters.
Issues
| Issue | Plaintiff's Argument (Leslie) | Defendant's Argument (Terry) | Held |
|---|---|---|---|
| 1) Court refusal to entertain motion to retroactively modify temporary spousal support | Court had reserved jurisdiction and temporary order expressly allowed retroactive modification; she is permanently disabled so imputing income was incorrect and retroactivity should be addressed | Challenge to this postdating the 2008 order is untimely / waived | Reversed: trial court erred in refusing to consider her motion to retroactively modify temporary spousal support because the parties/stipulation allowed retroactive modification and facts (concession of unemployability) undermined basis for imputed income. |
| 2) Characterization and division of retiree medical reimbursement trust (medical trust) | Trust is a community asset based on deferred compensation; should be valued now via actuarial valuation and sanctions imposed for nondisclosure | Value is speculative/contingent; reservation appropriate; no willful nondisclosure justification for sanctions | Mixed: trust is community property but court did not abuse discretion in reserving jurisdiction to value/divide it; court must, however, consider Leslie’s motion for sanctions for Terry’s failure to disclose. |
| 3) Accrued vacation pay | Vacation pay is deferred wages and community property; should be valued and divided now despite retirement contingency | Value speculative because cash-out occurs at retirement; trial court found no present value | Reversed as to vacation: accrued vacation is community property (deferred wages); court erred — remand to award Leslie one-half of calculated cash value ($9,448.80 reduction in equalization payment). |
| 4) Accrued sick leave and reservation of jurisdiction | Sick leave can be converted to PERS service credit at retirement; court should divide/value now to protect community interest | Community interest arises only at retirement; contingencies make present valuation impracticable | Affirmed reservation: court did not abuse discretion in retaining jurisdiction; community interest arises at retirement, and present division is not required. |
| 5) Commencement of Leslie’s PERS benefits / alleged loss (waste) | She should have received her PERS share earlier (March 2009) and lost income | Statute governs effective date; court’s QDRO established payment timing; no loss shown | Affirmed: no evidence PERS delayed beyond administratively practicable timeline; no waste. |
| 6) Permanent spousal support amount and attorney fees | Award ($900/month) too low and court failed to consider all Family Code §4320 factors; also sought attorney fees | Court considered §4320 factors, assets, needs, and ability to pay; no great disparity in access to counsel | Affirmed on support and fees: court did not abuse discretion on permanent support or on denying attorney fees at judgment; pendente lite fee claims forfeited. |
Key Cases Cited
- In re Marriage of Brown, 15 Cal.3d 838 (recognizing pension/retirement rights as divisible community property)
- In re Marriage of Lehman, 18 Cal.4th 169 (property interest in retirement rights measured by employment during marriage)
- In re Marriage of Bergman, 168 Cal.App.3d 742 (trial court discretion to cash out or reserve jurisdiction to divide pensions)
- In re Marriage of Gillmore, 29 Cal.3d 418 (spouse cannot time retirement to defeat community interest; court may order reimbursement if spouse elects not to retire)
- In re Marriage of Saslow, 40 Cal.3d 848 (disability benefits treated as community property when paid during marriage but separate when paid after dissolution; community interest at retirement)
- In re Marriage of Lorenz, 146 Cal.App.3d 464 (accrued vacation pay analysis; discussed and distinguished)
- In re Marriage of Murray, 101 Cal.App.4th 581 (res judicata principles regarding agreed terms of temporary support orders)