Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. ED006664. William D. Stewart, Judge. Reversed with directions.
Leonor Fontes, in pro. per., for Appellant.
Robert K. Steinberg for Respondent.
MALLANO, P. J.
Leonor Fontes appeals from a qualified domestic relations order determining her community property interest in pension benefits of her former husband, Gregory Cadwallader. Because, as a matter of law, the trial court incorrectly calculated her share of Cadwallader’s pension benefits, we reverse the order and direct the trial court to modify the order to provide Fontes with the correct share.
BACKGROUND
For 20 years, Cadwallader worked at Warner Brothers and had a pension plan through the Motion Picture Industry Pension Plan (Plan). In June 2009, Cadwallader was entitled to receive from the Plan a monthly retirement benefit in the form of a single life annuity of $923.97. During 12 of Cadwallader’s 20 years with Warner Brothers, he and Fontes were married. The parties married on August 29, 1981, and separated on April 15, 1992. A 1993 judgment of dissolution of marriage failed to apportion the parties’ interests in the Plan.
The Plan was joined as a party to the proceeding. Fontes and Cadwallader agreed that Fontes was entitled to a portion of Cadwallader’s benefits under the Plan but presented different proposed orders to the trial court. The trial court found that Cadwallader worked for Warner Brothers for 20 years, within those 20 years the parties were married approximately 10 years and 10 months, and that Fontes’s “community interest is correctly set out in the [qualified domestic relations order] submitted by [Cadwallader].” The court signed an order on June 5, 2009, providing that Fontes was to receive 12.80 percent of each monthly payment from the Plan and of other benefits. Fontes appealed from the order, claiming that she is entitled to more than 12.80 percent of Cadwallader’s benefits under the Plan. We agree.
DISCUSSION
“The traditional ‘time rule’ provides that whenever credited time of service is a substantial factor in determining the benefit payable under a defined benefit plan, the extent to which that service was provided during the marriage in comparison to the total duration of service will alone determine the community share. The community share is thus derived per a purely mathematical formula under which time or years of service is the determining factor. [Citations.]” (In re Marriage of Gray (2007) 155 Cal.App.4th 504, 508, fn. 3.) According to the time rule, “the community interest in the retirement benefits is determined ‘to be that fraction of retirement assets, the numerator of which represents the length of service during the marriage but before the separation, and the denominator of which represents the total length of service by the employee-spouse.’ [Citation.]” (In re Marriage of Bowen (2001) 91 Cal.App.4th 1291, 1295.)
By reference to the length of the parties’ marriage and the length of Cadwallader’s service with Warner Brothers, the trial court purported to apply the time rule. But the trial court arrived at the wrong result. Given the length of time from the date of marriage to the time of separation (10.63 years), and Cadwallader’s 20 years of service, the community property interest is calculated by dividing 10.63 by 20, which yields 53.15 percent. Fontes’s share of the community property interest in the pension is thus 26.58 percent.
“[W]here it appears from the record as a matter of law there is only one proper judgment on undisputed facts, we may direct the trial court enter that judgment.” (Conley v. Matthes (1997) 56 Cal.App.4th 1453, 1459, fn. 7.) On remand the trial court shall enter a new order which provides “26.58 percent” instead of, and in the place of, “12.80%.” (See, e.g., Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 774 [“Code of Civil Procedure section 43 authorizes the Supreme Court or the Courts of Appeal to affirm, reverse, or modify any judgment or order appealed from, to direct that the proper judgment or order be entered....”].)
DISPOSITION
The June 5, 2009 “Qualified Domestic Relations Order Re: Motion Picture Industry Pension Plan” (QDRO) is reversed. On remand the trial court is directed to enter a new order in which “12.80%” is deleted from paragraphs 5(a), 5(b), and 6(b) and replaced with “26.58 percent”; in all other respects the new order is to contain the same provisions as the June 5, 2009 QDRO. Appellant is entitled to costs on appeal.
We concur: ROTHSCHILD, J., CHANEY, J.