Opinion
D040763.
11-10-2003
In re the Marriage of JEROME and PATRICIA KAY ZAMOS. JEROME ZAMOS, Appellant, v. PATRICIA KAY ZAMOS, Respondent.
Appellant Jerome Zamos (Jerome), a judgment debtor under a June 2000 judgment in favor of respondent Patricia Kay Zamos (Patricia), his former wife, is a plan administrator for the Jerome Zamos Retirement Trust and Defined Benefit Pension Plan (the Plan), which was established under the provisions of the Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1001 et seq.) (ERISA). In June 2001, the trial court entered a domestic relations order (the DRO) to enforce the June 2000 judgment, and also found Patricia was entitled to enforce the DRO against the Plan. However, Jerome, as Plan administrator, informed Patricias attorney the Plan would not recognize the DRO as a qualified domestic relations order (QDRO) in the absence of a court order. Patricia therefore sought and obtained an order in August 2002 declaring that the June 2001 DRO was a valid QDRO.
Jeromes current appeal challenges the August 2002 order on the sole ground that, because the June 2001 order was under appellate challenge by another party at the time the August 2002 order was entered, the trial court did not have jurisdiction to enter the August 2002 order.
FACTUAL AND PROCEDURAL BACKGROUND
A 1982 judgment in their marital dissolution proceeding obligated Jerome to pay Patricia an equalization payment, and spousal and child support. After Jerome defaulted on his payment obligations, the court entered a June 2000 judgment determining Jerome owed $60,829 for unpaid equalization payments, $3,919 for child support arrearages, $66,500 for spousal support arrearages, and $12,184 for attorney fees. In May 2001 Patricia filed an order to show cause seeking an order directing the Plan to pay to her any distributions payable out of the Plan to satisfy the June 2000 judgment. The state court entered its DRO in June 2001 ordering that Patricia was entitled to enforce the June 2000 judgment against the Plan. Jeromes second wife, Judith, appealed from the June 2001 order. (In re Marriage of Zamos (Oct. 21, 2002, D038380) [nonpub. opn.].)
Judith argued a state court could not enter a DRO designating a former wife as an alternate payee of benefits from a pension plan if the participants rights to benefits from the pension plan were created after the divorce decree had terminated any further interest the former wife had in her former husbands property. She also asserted that a state court could not enter a DRO designating a former wife as an alternate payee of such pension benefits without the participants current spouses consent; the DRO was not qualified to be enforced against the Plan because the bulk of the amounts identified in the DRO were penalties rather than qualified spousal or child support or marital property division amounts; and the DRO did not comply with the requirements of 29 U.S.C. § 1056(d)(3)(C).
Jerome did not appeal the June 2001 order. Instead, he informed Patricias attorney that he (as Plan administrator) had determined the June 2001 order was not a QDRO and, absent a federal court order declaring it to be a QDRO, he would not treat the June 2001 order as a QDRO that would be honored by the Plan. Patricia therefore moved in state court for an order seeking, among other relief, a declaration that the June 2001 order was a QDRO. Jerome opposed the motion arguing, in part, that the pendency of Judiths appeal attacking the validity of the June 2001 order upholding the DRO divested the court of any jurisdiction to modify or amend the June 2001 order.
The trial court entered an order on August 2, 2002, finding the June 2001 order was a QDRO as defined by ERISA. Jerome argues the trial court did not have jurisdiction to enter the August 2002 order because Judiths appeal challenging the underlying June 2001 order was pending at the time the August 2002 order was entered.
ANALYSIS
The sole issue is whether Code of Civil Procedure section 916, subdivision (a) precluded the trial court from ruling on Patricias request for an order directing that Jerome, as Plan administrator, treat the June 2001 order as a valid QDRO. Section 916, subdivision (a), provides:
Although Judith appealed the underlying June 2001 order, Jerome did not. Ordinarily, a stay obtained by one appellant does not prevent the respondent from pursuing enforcement proceedings against a nonappealing party. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 228, p. 285.)
"Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 118.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order . . . ."
The stay of section 916 is limited and, as applied here, suspends only proceedings on matters embraced in or affected by the appealed judgment. As explained by Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629, the "purpose of the rule depriving the trial court of jurisdiction during the pending appeal is to protect the appellate courts jurisdiction by preserving the status quo until the appeal is decided. The rule prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it. [Citation.] Accordingly, whether a matter is `embraced in or `affected by a judgment within the meaning of section 916 depends upon whether postjudgment trial court proceedings on the particular matter would have any impact on the `effectiveness of the appeal. If so, the proceedings are stayed; if not, the proceedings are permitted." (Accord, Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1173.)
Under this test, the trial court had jurisdiction to enter the August 2002 order. Jerome had announced that, absent a court order to the contrary, he (as Plan administrator) would decline to treat the underlying June 2001 order as a QDRO. The sole purpose and impact of the 2002 proceedings was to provide Jerome, as Plan administrator, with guidance on whether he had correctly rejected the June 2001 order as a valid QDRO. This guidance could not have had any impact on the effectiveness of Judiths appeal, because her appeal contested the authority of the court to enter the underlying June 2001 order at all, and her arguments were unimpaired by the August 2002 order. The 2002 proceedings did not purport to amend or vacate the underlying order, but instead sought a declaration that Jerome as Plan administrator must treat the June 2001 order as a QDRO, but only to the extent the June 2001 order survived Judiths appeal. If Judiths appeal were successful, the August 2002 order would be meaningless and the August 2002 order therefore would have no effect on the appeal. The stay of section 916 was inapplicable here.
DISPOSITION
The order is affirmed.
WE CONCUR: McINTYRE, J., OROURKE, J.