Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. D216666, William J. Howatt, Judge.
HALLER, Acting P. J.
In 1985, Beverly and Wesley Andrew filed for dissolution after a 15-year marriage. Two years later, the parties entered into a marital settlement agreement, and the court incorporated this agreement into a dissolution judgment that resolved several additional property division issues. Beverly died 12 years later. Five years after Beverly's death, in 2005, Tamara Bell, administrator of Beverly's estate, brought a motion to enforce various provisions of the 1987 agreement and judgment. The court granted her request that certain property be sold and the proceeds divided, but denied her remaining claims based on the court's factual findings that the laches and waiver doctrines barred the claims. Bell appeals. We affirm.
FACTS
Beverly and Wesley were married in 1970 and separated on October 1, 1985. Soon after, the parties filed for dissolution.
In June 1987, the parties entered into a marital settlement agreement in which they agreed on the disposition of several property items. In the agreement, Wesley was given title to certain personal property (including various paintings) and, to equalize the distribution, Beverly was given a credit of $28,200 plus an amount based on the appraised value of specified paintings.
The court then held a hearing to resolve the remaining property division issues. After the hearing, on August 4, 1987 the court issued a judgment. Two items of this judgment are of particular relevance here.
First, the court found a vacant lot owned by the parties (the Lowell Street lot) was community property and ordered the lot "placed on the market and sold." The judgment stated: "the court shall retain jurisdiction regarding all terms and conditions of said sale. The proceeds received from the sale . . . shall be placed in [an] attorney's trust account and said proceeds, after the equalization of all credits involved in the instant case, shall be divided equally."
Second, the court found Wesley's pension earned during his employment with the federal government was a community asset and that Beverly had a 50 percent interest in the portion of the pension earned during the marriage. With respect to this asset, the court stated: "A Qualified Domestic Relations Order shall be prepared in order to insure that [Beverly] receives her properly due and ordered community property interest in [Wesley's] United States Civil Service Pension. The court shall retain jurisdiction to insure that [Beverly's] interests in said petition are preserved and that the Qualified Domestic Relations Order is properly prepared."
Beverly's attorney thereafter prepared an order entitled "Qualified Domestic Relations Order." The order stated that a share of Wesley's federal civil service retirement benefits was community property, and this community property share consisted of the benefits earned for a period of 15 years, 2 months, and 6 days. The order stated that Wesley would "assign to [Beverly] . . . benefits from the United States Civil Service Retirement System as follows: [¶] . . . Wife is entitled to a proportionate share of these benefits at the earliest date that the employed spouse is eligible to receive payments and for as long as the participant receives benefits under the plan unless a mutual written agreement is made to the contrary." The order set forth a formula for determining the amount of Beverly's interest in the retirement benefits, and described Beverly as the alternate payee and identified her social security number and address.
As the parties now recognize, the identification of the order as a Qualified Domestic Relations Order ("QDRO") was erroneous because a QDRO is a term of art referring to a particular order under the Employee Retirement Income Security Act (ERISA). (29 U.S.C. § 1056(d)(3)(A).) Wesley's federal civil service pension is not governed by ERISA and is instead subject to a separate statutory scheme. (See 5 U.S.C. § 8331 et seq.; 29 U.S.C. § 1002(32); Hisler v. Gallaudet Univ. (D.D.C. 2004) 344 F.Supp.2d 29, 41.) To avoid confusion, we shall refer to the order entitled QDRO as the 1987 Pension Benefits order.
During the next 12 years, Beverly took no action to enforce her right to the equalizing payments owed to her by Wesley under the 1987 marital settlement agreement. She also refused to cooperate with Wesley in selling the vacant Lowell Street lot.
Then, on January 1, 1999, Wesley retired from his federal employment and began receiving a monthly pension. Pursuant to the 1987 Pension Benefits order, Beverly received her share of the monthly pension. However, several months later, on April 3, Beverly died. Wesley then contacted the agency that administers federal civil service pensions (the Office of Personnel Management (OPM)) to determine his pension rights after Beverly's death. The OPM asked for a copy of Beverly's death certificate, and Wesley sent this document to the agency. Soon after, the OPM notified Wesley that he was entitled to the entire monthly pension benefit because Beverly's estate was not identified as a payee in the 1987 Pension Benefits order.
In early 2000, Beverly's niece (Tamara Bell) requested the OPM to pay Beverly's portion of the pension payments to Beverly's estate. On March 9, 2000, the OPM denied this request in a letter, stating: "Regrettably, [we are] unable to process this court order under Part 838 of Title 5 of the Code of Federal Regulations. [¶] We terminated processing the court order upon the death of Beverly Andrew because the state court did not direct us to authorize annuity payments after the former spouse's death. In the absence of any direction from the state court, we were required to follow Federal regulations which specify that upon the death of the former spouse, the court awarded apportionment reverts to the retiree unless we are directed otherwise. [¶] We will honor a court order acceptable for processing that directs OPM to pay, after the death of the former spouse, the former spouse's share of the annuity to the estate of the former spouse. If you obtain a court order that directs us to pay a portion of the employee annuity to the estate of Beverly Andrew, please send it to the above shown address." The OPM sent a copy of this letter to Wesley.
The federal regulation referred to in OPM's letter states: "Unless the qualifying [state] court order expressly provides otherwise, the former spouse's share of employee retirement benefits terminates on the last day of the month before the death of the former spouse, and the former spouse's share of the employee retirement benefits reverts to the retiree. [¶] . . . OPM will honor a qualifying court order or an amended qualifying court order that directs OPM to pay, after the death of the former spouse, the former spouse's share of the employee annuity to . . . [¶] (1) The court; [¶] (2) An officer of the court acting as a fiduciary; [¶] (3) The estate of the former spouse; or [¶] (4) One or more of the retiree's children . . . ." (5 C.F.R. § 838.1012.)
Several months later, in July 2000, Bell's attorney wrote a second letter to the OPM reasserting Bell's rights to a portion of Wesley's monthly pension benefits. Bell's attorney said that Bell was Beverly's sole heir and therefore was entitled to Beverly's community property share of the pension benefits. Bell's attorney also sent a copy of the letter to Wesley. Two months later, the OPM denied Bell's request and again explained that it could not pay Wesley's pension benefits to Bell because the state court order did not authorize such payments upon Beverly's death.
In October 2000, Bell's attorney wrote to Wesley, requesting that Wesley waive all of his interest in the Lowell Street vacant lot, and, in exchange, Bell would waive her rights to the equalization payments and to a portion of his pension payments. The letter stated that if he did not accept the offer in two weeks, Bell would request the court to amend the prior judgment or order. Wesley did not respond to this offer, concluding that if Bell believed she had rights to assert, it was for the court to determine the propriety of these rights.
For the next five years, Bell made no effort to pursue the pension issue. During this lengthy period, Wesley moved out of state, and continued to receive his entire monthly pension payment with no reduction for Beverly's share. Neither party took any action to sell the Lowell Street lot.
Then, in September 2005, Bell filed an order to show cause in family court, stating that she had been appointed administrator of Beverly's estate and that she was seeking an order: (1) amending the 1987 Pension Benefits order to permit her to receive Beverly's community share of Wesley's pension benefits; (2) directing the parties to sell the vacant Lowell Street lot; and (3) compelling Wesley to pay the equalizing payments owed. With respect to the pension benefits, Bell submitted information showing that Beverly's share was equal to $863 per month, and that she was owed $66,495 in arrearages (not including interest) for the monthly amounts that were not paid after Beverly's death.
With respect to the Lowell Street lot, Wesley responded that he agreed the court should order the parties to cooperate in selling the lot, and that the sale proceeds should be divided equally between Wesley and Bell. However, he requested that the court credit him with $1,795 for payments made to maintain the property. In a declaration, Wesley said that he contacted Beverly shortly after the 1987 judgment and requested that they put the vacant lot on the market. Beverly responded that she did not want to sell the lot, and repeatedly refused to cooperate with him to place the property on the market. After Beverly's death, Wesley incurred costs for property taxes and clean-up orders pertaining to the property.
With respect to his pension benefits, Wesley argued that the 1987 judgment did not grant Beverly the right to devise her interests in Wesley's pension benefits. Alternatively, Wesley argued that Bell's claim for the pension benefits was barred under the laches doctrine. In a supporting declaration, Wesley said he relied on OPM's rejection of Bell's claim and Bell's subsequent inaction to conclude that she was not entitled to any portion of the pension benefits. Wesley said that Bell's request for past and future pension benefits "would be a terrible hardship" because he was now 67 years old and retired, had "relied on the OPM's assertion that he was the rightful recipient of the entire . . . annuity," and had "spent his monthly annuity payments since [Beverly's] death . . . ."
In reply, Bell submitted her former counsel's declaration, who opined that the 1987 Pension Benefits order could be properly amended to implement the intent of the 1987 judgment that pension benefits be paid to Beverly's estate upon her death.
After considering the parties' submissions and conducting a hearing, the court entered an amended order stating: (1) the vacant Lowell Street lot shall be sold, with the proceeds divided equally between Wesley and Bell after Wesley is credited with amounts paid to maintain the lot; (2) there would be no amendment to the 1987 Pension Benefits order; and (3) "All remaining disputed issues are rendered moot since the court did not reserve jurisdiction over their enforcement and the parties' conduct indicated a clear waiver of those provisions."
In an earlier order, the court had included an inconsistent paragraph that appeared to award Bell a portion of Wesley's pension rights. However, after Wesley objected, the court omitted that paragraph from the final order. Contrary to Bell's contentions, this sequence of events does not suggest the court did not fully consider, or properly rule on, the issues raised by the parties.
In an accompanying statement of decision, the court explained its ruling on the pension benefits: "While the Court has the power and authority to amend a QDRO to allow a party to devise [her] community interest in a former spouse's pension, the Court is not inclined to grant such relief in this case. The Court is persuaded by [Wesley's] laches defense . . . that [Wesley] would be severely prejudiced by amending the [1987 Pension Benefits order]. It is unfair to allow [Beverly's] estate to seek [Beverly's] purported community property interest in [Wesley's] pension, when [Beverly] took no action to achieve the same result in her lifetime." With respect to its conclusion that Bell was not entitled to enforce Beverly's right to an equalizing payment, the court stated: "[T]he court finds the parties opted not to enforce the terms of their Judgment of Dissolution. Certainly, the 12 year period between the entry of judgment and [Beverly's] death would have been sufficient time to finally resolve and effectuate the terms of the Judgment and Marital Settlement Agreement. Nonetheless, the parties elected not to sell the vacant land, not to make equalizing payments, not to exchange appraisals for artwork, and not to comply with other terms ordered under the Judgment. . . . The reasonable inference is the parties were satisfied with the status quo and intervention by [Beverly's] estate at this late date is arguably counterintuitive."
DISCUSSION
I. Community Property Pension Benefit
Bell contends the court erred in rejecting her request to modify the 1987 Pension Benefits order to state that Bell (and/or Beverly's estate) was entitled to continue receiving Beverly's community property interest in Wesley's monthly pension payments, and to order Wesley to pay the arrearages.
A. Court Had Authority to Modify 1987 Pension Benefits Order
We agree with Bell's contention that the trial court had the authority to amend the 1987 Pension Benefits order. In the August 1987 judgment, the court expressly reserved jurisdiction "to ensure that [Beverly's] interests in [Wesley's] pension are preserved and that the Qualified Domestic Relations Order is properly prepared." The judgment made clear that the court was intending to equally divide the community property portion of Wesley's retirement benefits. Under the state law applicable at the time (former Fam. Code, § 4800.8; now Fam. Code, § 2610, subd. (a)(1)), an equal division of retirement benefits necessarily included the nonemployee spouse's right to devise her portion of the benefits at her death. (See In re Marriage of Powers (1990) 218 Cal.App.3d 626, 634-639; see also Regents of University of California v. Benford (2005) 128 Cal.App.4th 867, 873-876.) If, at the time of Beverly's death, the federal agency would not implement this judgment unless the property division order expressly stated this intention, the court's retained jurisdiction was sufficiently broad to permit it to modify the state court order to reflect this intent. We thus reject Wesley's contention (raised for the first time on appeal) that the res judicata doctrine barred the court from modifying the order.
This conclusion, however, does not resolve the issues on appeal because the trial court expressly recognized that it had the authority to amend the 1987 Pension Benefits order, but refused to grant Bell this relief based on its finding that Bell's motion was untimely under the laches doctrine. On appeal, Bell contends the doctrine was legally and factually inapplicable to her claims. For the reasons explained below, we reject these contentions.
B. Laches Is a Proper Defense to Bell's Request for a Modification of the Prior Order
Bell first contends the laches defense is legally inapplicable to her pension benefits claim. However, Bell waived her right to assert this contention because in the proceedings below, her counsel expressly acknowledged that the court "[c]ertainly . . . has discretion to determine whether or not laches should apply." Bell's counsel also said that although he did not "believe that laches would apply, . . . I certainly defer to the court's discretion, and whether or not the doctrine, under the circumstance of this case, should apply." Later at the hearing, Bell's counsel agreed that the court had the discretion to examine whether Wesley reasonably relied on the OPM letters for purposes of the court's applying the laches doctrine. Generally, if a party does not raise an issue in the proceedings below, the party waives the right to assert the issue on appeal. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.)
Moreover, Bell's argument fails on its merits. Courts have long held laches is an appropriate defense to a late assertion of rights in family law cases, including claims to community property interests. (Simon v. Simon (1985) 165 Cal.App.3d 1044, 1049; see also Henn v. Henn (1980) 26 Cal.3d 323, 332-333 [in remanding pension rights division case, court noted the potential applicability of a laches defense]; In re Marriage of Powers, supra, 218 Cal.App.3d at pp. 642-643 [court assumed laches applied to the proper division of pension rights, but found circumstances did not show unreasonable delay or prejudice].) Although in 2002 the Legislature enacted a statutory provision providing that laches is not a valid defense in support cases, the Legislature expressly applied this rule only to claims for "child, family, or spousal support." (Fam. Code, § 291, subd. (d); former Fam. Code, § 4502, subd. (c); see In re Marriage of Fellows (2006) 39 Cal.4th 179, 184-185). Thus the Legislature left intact the viability of the laches defense to bar other non-support types of family law claims.
We also reject Bell's contention the laches defense cannot bar her claim because the doctrine applies only to equitable, and not legal, claims. (See Barkely v. City of Blue Lake (1996) 47 Cal.App.4th 309, 315.) As noted above, the courts have recognized that the laches defense can apply to community property claims. Further, although the division of property rights may be viewed as relating to the enforcement of a legal right, Bell was requesting the court to exercise its equitable powers to modify an order accompanying the prior judgment. A family court's power to modify prior orders under its reserved jurisdiction is an equitable power subject to the laches defense. (See In re Marriage of Egedi (2001) 88 Cal.App.4th 17, 22-23 [family law court is a court of equity].)
In concluding the laches defense is legally applicable, we reject Bell's argument that Wesley improperly relied on an unpublished decision from this court. Although an unpublished opinion may not be cited or relied upon (Cal. Rules of Court, rule 8.1115), there is nothing prohibiting a party from adopting the reasoning in an unpublished opinion, if it is relevant and applicable to the contention asserted by the party.
C. Substantial Evidence Supported Court's Laches Finding
Bell next argues that even if the laches doctrine potentially applied to her claim, there was insufficient evidentiary support for the defense in this case.
Laches may be found if "the complaining party has unreasonably delayed in the enforcement of a right, and where that party has either acquiesced in the adverse party's conduct or where the adverse party has suffered prejudice . . . ." (In re Marriage of Fogarty & Rasbeary (2000) 78 Cal.App.4th 1353, 1359-1360.) Under this rule, unreasonable delay by the plaintiff is not sufficient to establish the defense. " 'There must also be prejudice to the defendant resulting from the delay or acquiescence by the plaintiff.' " (Piscioneri v. City of Ontario (2002) 95 Cal.App.4th 1037, 1049-1050, italics omitted.) " '[T]he existence of laches is a question of fact to be determined by the trial court in light of all the applicable circumstances, and in the absence of a palpable abuse of discretion, the trial court's finding of laches will not be disturbed on appeal.' " (Id. at p. 1046; accord California School Employees Assn., Tustin Chapter No. 450 v. Tustin Unified School Dist. (2007) 148 Cal.App.4th 510, 521.)
The record contains a sufficient evidentiary basis for the court to find the elements of a laches defense were met. First, the evidence supported that Beverly unreasonably delayed in asserting her rights. Beverly was on constructive notice during her lifetime that the federal agency would not recognize her right to devise her community property interest in her former husband's federal pension unless the state court order stated this explicitly. A party is presumed to know the law applicable to his or her rights, including any relevant changes in the law. At least since 1992 (seven years before Beverly's death), the federal regulations permitted the OPM to pay pension benefits to a former spouse but expressly barred payment of pension benefits to the nonemployee spouse's estate unless the qualifying state order expressly stated this intention. (5 C.F.R. § 838.237, as amended July 29, 1992, 57 Fed. Reg. 33570-01.)
Equally significant, the record shows Bell (who was the moving party on this motion) had actual knowledge by March 2000 that the OPM did not recognize her claim for the pension benefits because the order did not comply with federal law for obtaining the benefits. The OPM specifically advised Bell that her request would not be considered unless Bell "obtain[ed] a court order that directs us to pay" a portion of the benefits to Beverly's estate. Bell then retained an attorney, who was given the same information. Despite this actual knowledge of the need to take action, Bell did nothing for five years, and, when she did file her motion, she made no attempt to explain or justify the lengthy delay. Under these circumstances, Wesley met his burden to show Bell delayed in asserting her right to the pension benefits and that the delay was unreasonable.
With respect to prejudice, the court had a reasonable basis to conclude that Wesley was prejudiced by the delay. At the time of the hearing, Wesley was 67 years old and had been retired since 1999. Although Bell had written him a letter in 2000 asserting that she had a right to Beverly's portion of the pension and intended to take immediate action to enforce this right, Bell did not seek any relief for five years. In the meantime, Wesley had moved to another state and had structured his affairs based on the reasonable assumption that he would be entitled to receive his entire pension. His income and expense declaration shows that Wesley's primary source of support was his retirement benefits. Under these circumstances, the court did not abuse its discretion in finding that Wesley was unduly prejudiced by Bell's delay in asserting her claim to the pension benefits. (See In re Marriage of Plescia (1997) 59 Cal.App.4th 252, 257 [upholding trial court's finding that wife's lengthy delay constituted prejudice to husband who had retired and acted on a "good faith belief" that "no payment was due"].)
Because In re Marriage of Plescia arose in the context of a claim to enforce a spousal support order, the court's specific holding that laches applied to bar the wife's claim no longer applies in the spousal support context. (See Fam. Code, § 291, subd. (d); former Fam. Code, § 4502, subd. (c) [abrogating laches defense in context of support orders]; In re Marriage of Fellows, supra, 39 Cal.4th at p. 185.) However, the court's analysis of the prejudice issue remains generally valid and applicable to the present circumstances.
In this regard, Bell's reliance on In re Powers, supra, 218 Cal.App.3d 626 is misplaced. In Powers, the trial court granted the former wife's estate the wife's community property interest in her husband's retirement benefits based on a retroactive application of the statute eliminating the terminable interest rule that had previously prohibited a wife from devising her community property interest in pension benefits. (Id. at pp. 633-634.) In so concluding, the trial court impliedly rejected the husband's argument that the claim was barred by the laches doctrine because the wife died four years before the wife's estate asserted this claim. (Id. at pp. 642-643.) The reviewing court found the court acted within its discretion in rejecting this defense. The Powers court reasoned that the first element of laches is the failure to assert a right, and before the wife's estate brought the claim, the estate had "no enforceable right to assert" because the claim would have been barred by the terminable interest rule. (Id. at p. 643.) The court additionally noted that the husband knew early on that the wife's estate might assert a claim against his pension. (Ibid.) Under these circumstances, the Powers court found that the husband's prejudice claim did "not afford a basis to overturn the trial court's rejection of his claim of laches." (Ibid., italics added.)
This case is distinguishable. First, it is undisputed that Bell had actual knowledge of her right to seek modification or clarification of the order five years before she did so. Thus, unlike in Powers, the estate did fail to assert a known right. Additionally, the trial court in Powers found no prejudice and the appellate court upheld this finding. In contrast, in this case, the court made a specific finding that Wesley "would be severely prejudiced" by permitting Bell to bring her pension claim at this late date. A determination of prejudice is dependent on the particular circumstances in each case and generally within the broad discretion of the trial court. (See Piscioneri v. City of Ontario, supra, 95 Cal.App.4th at p. 1046.) Here, as in Powers, we are upholding the discretion of the trial court.
Bell asserts several other grounds for challenging the court's factual finding that the laches defense bars her claim. For example, she argues that Wesley did not enforce other portions of the 1987 judgment, Wesley acted improperly by contacting the OPM after his wife's death, and Wesley would have sufficient assets to pay the pension arrearages after the sale of the vacant Lowell Street lot. However, by asserting these arguments, Bell is essentially asking us to reweigh the evidence and reach our own factual conclusions as to the delay and prejudice issues. This is not the role of an appellate court. Rather, we determine whether the evidentiary record, viewed in the light most favorable to Wesley's position, supports the trial court's conclusion. The court's statements at the hearing on the motion and its written statement of decision make clear that the court expressly considered all of Bell's contentions. Based on its consideration of the issues, the court reached the reasonable conclusion that it would be unfair and inequitable under the circumstances to allow Bell to come into court 18 years after the initial judgment was entered and seek more than $66,000 in arrearages and to additionally divert a substantial portion of Wesley's pension for her own benefit after he reasonably relied on assurances by a federal agency that he was the owner of these assets. This ruling did not constitute a "palpable" abuse of discretion. (Piscioneri v. City of Ontario, supra, 95 Cal.App.4th at p. 1046.)
Finally, Bell contends the court's application of the laches doctrine in this case was improper because the doctrine would result in an unequal division of community property in violation of the statutes that abrogated the terminable interest rule. (Fam. Code, § 2610, subd. (a)(1); see former Fam. Code, § 4800.8.) The argument is unavailing. The 1987 judgment divided the community property in compliance with the law. In ruling on the current motion, the court expressly recognized it had the authority to amend the 1987 Pension Benefits order to satisfy applicable federal regulations. Beverly, and later Bell, knew how the property had been divided and what was required to preserve their interest in the property. The fact that they chose to conduct themselves in a manner that might undermine these legal rights does not prohibit application of the laches doctrine. Indeed, the doctrine is based on the premise that a party may lose his or her rights if the party unreasonably delays in exercising those rights. (See Piscioneri v. City of Ontario, supra, 95 Cal.App.4th at p. 1046.) That is precisely what occurred in this case.
II. Court's Waiver Findings on Bell's Right to Equalizing Payments
In the 1987 marital settlement agreement, the parties gave Wesley title to certain personal property (including various paintings) and, to equalize the distribution, Beverly was given a credit of $28,200 plus the appraised value of specified paintings.
In her motion filed 18 years later, Bell sought an order requiring Wesley to pay the $28,200 to Beverly's estate. Wesley opposed this request on various grounds, including that Beverly took no action to enforce her rights for 12 years after the judgment (until her death) and took various actions that imposed financial and other burdens on Wesley (which included the inappropriate use of Wesley's credit cards). After examining these facts, the court found that Beverly had waived her right to enforce the equalizing payments. The court stated that the parties "elected not to sell the vacant land, not to make equalizing payments, not to exchange appraisals for artwork, and not to comply with other terms ordered under the Judgment. . . . The reasonable inference is the parties were satisfied with the status quo and intervention by [Beverly's] estate at this late date is arguably counterintuitive."
"Generally, the determination of waiver is a question of fact, and the trial court's finding, if supported by sufficient evidence, is binding on the appellate court." (St. Agnes Medical Center v. PacificCare of California (2003) 31 Cal.4th 1187, 1196.) The issue becomes one of law when the facts are undisputed and only one reasonable inference may be drawn from the evidence. (Ibid.)
The trial court's waiver finding was supported by substantial evidence. The evidence showed that Beverly had ample time to assert her rights to the equalization payments. She was represented by counsel and there was no showing of any reason that she could not have asserted her rights, which were clearly stated in the parties' 1987 marital settlement agreement.
On appeal, Bell does not suggest that there was insufficient evidence to support the waiver finding. Instead, she contends the court's waiver ruling was improper because "a waiver of community property interests must be in writing." She relies on Family Code section 2581. This reliance is misplaced. Section 2581 concerns the requirement of a writing to rebut the presumption of community property, and does not apply to the postjudgment enforcement of a judgment. As stated by the Law Revision Commission comments to section 2581, "Section 2581 does not affect the validity of an oral agreement for any purpose other than division of property at dissolution of marriage." (Cal. Law Revision Com. com., 29D West's Ann. Fam. Code (2004 ed.) foll. § 2581, p. 523.)
DISPOSITION
Order affirmed. Appellant to pay respondent's costs on appeal.
WE CONCUR: O'ROURKE, J., AARON, J.