Marriage of Saltzman CA2/2 ( 2021 )

Filed 4/30/21 Marriage of Saltzman CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of STEPHEN B302819
SALTZMAN and RANDY
SCHIENBERG SALTZMAN. (Los Angeles County
__________________________________ Super. Ct. No.
STEPHEN SALTZMAN, 17STFL08376)
Respondent,
v.
RANDY SCHIENBERG SALTZMAN,
Appellant.
APPEAL from a status judgment and orders of the Superior
Court of Los Angeles County. Anne K. Richardson, Judge.
Affirmed.
Law Offices of Vicki J. Greene and Vicki J. Greene for
Appellant.
Feinberg Mindel Brandt & Klein and Gregory A. Girvan for
Respondent.
_______________________
This appeal arises from the trial court’s status judgment
dissolving the parties’ marriage and bifurcating all remaining
issues for late adjudication. Appellant wife contends that the
trial court erred because its orders issued in conjunction with the
termination of marriage adversely impact her health insurance
coverage and do not adequately protect her interest in community
property retirement accounts. Finding no abuse of discretion, we
affirm.
FACTUAL AND PROCEDURAL HISTORY
Stephen Saltzman (Husband) and Randy Schienberg
Saltzman (Wife) married on August 17, 1991. They have a 17-
year-old daughter and an adult son. On December 14, 2017,
Husband filed a petition for dissolution of marriage based on
irreconcilable differences, contending that the parties had
separated in September 2016. Wife responded to the petition on
February 20, 2018, also citing irreconcilable differences and
requesting divorce, and they exchanged preliminary declarations
of disclosure. Wife’s response stated “TBD” for the parties’ date
of separation.
At the time he filed for divorce, Husband was a long-term
partner at the law firm Loeb & Loeb LLP (Loeb). While at Loeb,
he contributed to three Loeb-affiliated retirement accounts and
took part in Loeb’s group health insurance plan, which covered
both parties and their children. He transitioned to the law firm
Paul Hastings in February 2018 and began taking part in the
Paul Hastings insurance plan, again covering both parties and
their children.
On August 23, 2018, Husband filed a request for order to
bifurcate and terminate marital status. On October 12, 2018,
Wife filed an opposition, opposing Husband’s request to bifurcate
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marital status, or in the alternative, asking for 17 conditions to
be imposed in connection with termination of marital status. On
November 13, 2018, Husband joined his Loeb retirement plans to
the action.
After a March 2019 consolidated hearing on the request to
bifurcate and other requests for orders, the trial court entered its
operative Findings and Order After Hearing on September 17,
2019, granting bifurcation, among other things, and stating its
intention to terminate marital status subject to express
conditions protecting Wife’s health insurance and retirement
plan survivor benefits and other express conditions.1
Regarding health insurance, the trial court ordered:
“Pursuant to Family Code section 2337(c)(2): Until
judgment has been entered on all remaining issues and has
become final, [Husband] shall maintain all existing health and
medical insurance coverage for the [Wife] and any minor children
as named dependents, so long as the [Husband] is eligible to do
so. If at any time during the period the [Husband] is not eligible
1 The trial court entered a previous Findings and Order
After Hearing on June 21, 2019, but amended and replaced it
with the operative order on its own motion, over Wife’s objections
on unrelated grounds. This was within the trial court’s inherent
authority to modify, amend, or revoke its prior interim orders.
(See Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726,
737–739 [court has “inherent power to correct its own rulings”];
cf. In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1313
& fn. 9 [trial court may reconsider its own interim or final orders;
for final orders “the issue whether a trial court can reconsider an
appealable order on its own motion after the time to appeal from
that order has expired” is undecided].)
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to maintain the existing coverage, the [Husband] shall, at the
[Husband’s] sole expense, provide and maintain COBRA health
and medical insurance coverage to the extent it is available. To
the extent COBRA coverage is not available, the [Husband] shall
be responsible to pay for the health and medical care for the
[Wife] to the extent that care would have been covered by the
existing insurance coverage but for the dissolution of marital
status, and shall otherwise indemnify and hold the other party
harmless from any adverse consequences resulting from the loss
or reduction of the existing coverage. For purposes of this
subdivision, ‘health and medical insurance coverage’ is the
coverage for which the parties are eligible under [Husband’s]
Paul Hastings group medical plan.”
As for retirement accounts, the trial court ordered the
parties to ensure Wife’s survivor benefits in the retirement plans
were protected through an interim order, as discussed in greater
detail below.
On October 16, 2019, Husband filed a new request for order
to enter a status judgment consistent with the Findings and
Order After Hearing issued September 17, 2019. Husband
attached a proposed judgment, consisting of Judicial Council
Forms FL-180 (Judgment), FL-347 (Bifurcation of Status of
Marriage or Domestic Partnership), and FL-348 (Pension
Benefits—Attachment to Judgment).
Wife opposed the proposed judgment and request for order,
and after briefing the matter came on for hearing on December 6,
2019. The trial court concluded that the form of the proposed
judgment was appropriate and accurately reflected the order
after hearing, rejected Wife’s arguments that the orders on
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health insurance and retirement plan survivor benefits were
improper, and entered the proposed judgment.
This appeal followed.
DISCUSSION
I. Standard of Review
At its core, Wife’s argument is that the trial court’s
bifurcation order and status judgment dissolving the parties’
marriage was in error because her health insurance coverage and
entitlement to community retirement assets were not optimally
protected. These are all issues which the trial court has
discretion to determine. “[A] motion to bifurcate and separately
adjudicate the issue of dissolution of the marriage is addressed to
the judicial discretion of the court” (In re Marriage of Lusk (1978)
86 Cal.App.3d 228, 235), as are a trial court’s orders valuing and
dividing community property (In re Marriage of Oliverez (2019)
33 Cal.App.5th 298, 309).
A trial court “has not abused its discretion as long as its
decision ‘is within the range of options available under governing
legal criteria in light of the evidence before the tribunal.’ ” (In re
Marriage of Taschen (2005) 134 Cal.App.4th 681, 691.) “ ‘ “The
appropriate test for abuse of discretion is whether the trial court
exceeded the bounds of reason. When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no
authority to substitute its decision for that of the trial court.” ’ ”
(Ibid.)
II. Relevant Legal Principles
Family Code section 2337 provides that “[i]n a proceeding
for dissolution of marriage, the court, upon noticed motion, may
sever and grant an early and separate trial on the issue of the
dissolution of the status of the marriage apart from other issues.”
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(Fam. Code, § 2337, subd. (a).)2 The trial court may separately
try the issue of termination of marriage if doing so “is likely to
simplify the determination of the other issues.” (Cal. Rules of
Court, rule 5.390(b)(7).)
Public policy favors bifurcation of trial on pivotal issues in
a dissolution action. (In re Marriage of Macfarlane & Lang
(1992) 8 Cal.App.4th 247, 257; see In re Marriage of Wolfe (1985)
173 Cal.App.3d 889, 893–894 [“To the extent bifurcation of issues
such as custody, support or the division of community property
can assist the parties to achieve settlement of remaining issues,
it should be encouraged”].) For the issue of marital status,
“[c]onsistent with the legislative policy favoring no fault
dissolution of marriage, only slight evidence is necessary to
obtain bifurcation and resolution of marital status. On the other
hand, a spouse opposing bifurcation must present compelling
reasons for denial.” (Gionis v. Superior Court (1988) 202
Cal.App.3d 786, 790.)
The minimum statutory requirements for bifurcating and
terminating marital status are that six months must have passed
since the date of service of the summons and petition (§ 2339,
subd. (a)), and that the party seeking termination of marital
status must have served a preliminary declaration of disclosure
or obtained a written agreement to defer service to a later date
(§ 2337, subd. (b)). Both requirements were met here.
Additionally, “[t]he party not requesting termination of
status may ask the court: [¶] (A) To order that the judgment
granting a dissolution include conditions that preserve his or her
claims in retirement benefit plans, health insurance, and other
2Subsequent undesignated statutory references are to the
Family Code.
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assets; and [¶] (B) For other orders made as conditions to
terminating the parties’ marital status or domestic partnership.”
(Cal. Rules of Court, rule 5.390(d)(2).) Section 2337, subdivision
(c) sets out various discretionary conditions a trial court “may
impose upon a party” until final judgment has been entered,
including maintenance of the same or comparable health
insurance coverage, protection of spousal interests in retirement
assets, and “[a]ny other condition the court determines is just and
equitable.” (§ 2337, subd. (c)(2), (5), (9)(B) & (E), (10).)
Specifically, with regard to health insurance, a trial court
may require that “the party shall maintain all existing health
and medical insurance coverage for the other party and any
minor children as named dependents, so long as the party is
eligible to do so. If at any time during this period the party is not
eligible to maintain that coverage, the party shall, at the party’s
sole expense, provide and maintain health and medical insurance
coverage that is comparable to the existing health and medical
insurance coverage to the extent it is available,” or pay for care to
the extent it would have been covered but for dissolution, if
comparable coverage is not available. (§ 2337, subd. (c)(2).)
With regard to retirement assets, the trial court may
require that the party requesting bifurcation “shall indemnify
and hold the other party harmless from any adverse
consequences to the other party if the bifurcation results in the
loss of the other party’s rights with respect to any retirement,
survivor, or deferred compensation benefits under any plan, fund,
or arrangement, or to any elections or options associated
therewith, to the extent that the other party would have been
entitled to those benefits or elections as the spouse or surviving
spouse of the party.” (§ 2337, subd. (c)(5).) The trial court also
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“may order a specific security interest designed to reduce or
eliminate the likelihood that a postmortem enforcement
proceeding would be ineffective or unduly burdensome to the
surviving party,” including “[a]n order to provide a security
interest by Qualified Domestic Relations Order from that party’s
share of a retirement plan or plans” or “an interim order
requiring the party to pay or cause to be paid, and to post
adequate security for the payment of, any survivor benefit that
would have been payable to the other party on the death of the
party but for the judgment granting a dissolution of the status of
the marriage, pending entry of judgment on all remaining
issues.” (Id., subd. (c)(9)(B) & (E).)
Section 2337, subdivision (d), further requires that “[p]rior
to, or simultaneously with, entry of judgment granting
dissolution of the status of the marriage,” the trial court must
join the party’s retirement or pension plan. (Id., subd. (d)(1).)
And “[t]o preserve the claims of each spouse in all retirement
plan benefits upon entry of judgment granting a dissolution of
the status of the marriage,” the trial court must enter one of the
following orders prior to or simultaneously with entry of
judgment:
(A) An order pursuant to section 2610 disposing of each
party’s interest in retirement plan benefits, including survivor
and death benefits; or
(B) An interim order preserving the nonemployee party’s
right to retirement plan benefits, including survivor and death
benefits, pending entry of judgment on all remaining issues; or
(C) An attachment to the judgment granting a dissolution
of the status of the marriage which contains specific language
required to be included by section 2337, subdivision (d)(1)(C). As
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indicated post in part IV at pages 13–14, the judgment attached
Form FL-348, which includes this language, which specifically
tracked the language required.
III. The Trial Court’s Health Insurance Order Was Not
an Abuse of Discretion
Wife contends that the trial court’s termination of marital
status and health insurance order improperly “prematurely
impose[s] COBRA benefits” onto her, effectively shortening the
total period of time during which she would be assured health
insurance benefits as Husband’s spouse or former spouse.3 She
also contends that the trial court failed to check the correct box
on Form FL-347 regarding health insurance.
We find no abuse of discretion. The trial court expressly
ordered that Husband would maintain for Wife (1) “all existing
health and medical insurance coverage so long as the [Husband]
is eligible to do so”; (2) “COBRA health and medical insurance
coverage to the extent it is available” if he becomes ineligible to
maintain the existing coverage; and (3) “[t]o the extent COBRA
coverage is not available,” payment for her health and medical
care “to the extent that care would have been covered by the
existing insurance coverage but for the dissolution of marital
status, and shall otherwise indemnify and hold the other party
3 COBRA is an acronym for the Consolidated Omnibus
Budget Reconciliation Act of 1985. (See 29 U.S.C. § 1161 et seq.)
COBRA gives eligible individuals, who lose coverage under a
group plan, the option of paying premiums to maintain coverage
for a limited period of time. The California Continuation Benefits
Replacement Act or “Cal–COBRA” (Health & Saf. Code, § 1366.20
et seq.) provides temporary continuation coverage for individuals
who are ineligible for federal COBRA benefits.
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harmless from any adverse consequences resulting from the loss
or reduction of the existing coverage.”
Wife’s health insurance coverage is thus effectively fully
protected until entry of final judgment on all remaining issues.
Even if her COBRA benefits begin and expire during that period
of time, until entry of final judgment her medical care still must
be paid for by Husband to the full extent of the existing coverage.
This is consistent with the full scope of the discretionary
protective health insurance order contemplated by section 2337,
subdivision (c)(2).
It is true that COBRA benefits attach only for a limited
period of time after an employee or covered party becomes
ineligible for group plan coverage, so the longer Wife stays legally
married the longer she may have specific entitlement to
continued coverage under the existing plan, if COBRA
commences on dissolution of marriage. However, that the clock
on Wife’s continuation coverage under COBRA may begin ticking
upon dissolution is not a legal barrier to termination of marital
status; Wife provides no support for this proposition. The trial
court considered Wife’s objections and request for an order for
Husband to maintain Wife as a beneficiary on his existing health
policy without initiating COBRA (although no evidence was
offered that this option was available postdissolution), and
concluded that her concerns did not justify delaying bifurcation
and termination of marital status any further. The trial court
explained, “[A]s I see it they have complied with the Rules of
Court and with the [Code of Civil Procedure] and it does appear
that after a year and three months, bifurcation of status which is
supposed to be freely given as long as all of the requirements are
given are accomplished, is supposed to be freely granted.” We
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likewise conclude that, given the policies in favor of bifurcation
and no-fault termination of marriage, the trial court did not
abuse its discretion by deciding that Wife’s COBRA-related
concerns were not a compelling reason to delay bifurcation and
termination of marital status.
With regard to Form FL-347, Wife’s concerns are not
material. Form FL-347 contains preprinted selections that
mirror the discretionary conditions listed in section 2337,
subdivision (c). Wife contends that the court was obligated to
check box 5.b. on Form FL-347 related to health insurance, which
provides that the party requesting bifurcation must “provide and
maintain health and medical insurance coverage that is
comparable to the existing health and medical insurance
coverage to the extent it is available” for the other party and
minor children; provide comparable coverage at his own expense
if not eligible to maintain existing coverage; or pay for medical
care to the extent it would have been covered by the existing
policy.
Rather than using box 5.b. of the Form FL-347, the Form
FL-347 prepared by Husband and adopted by the trial court
directs the reader to language inserted in section 5.j., “which
reflects the precise terms of the September 17, 2019 Order After
Hearing.” This language merely duplicates the language of the
trial court’s order after hearing with regard to health insurance:
“[Husband] shall maintain all existing health and medical
insurance coverage for the [Wife] and any minor children as
named dependents, so long as the [Husband] is eligible to do so.
If at any time during the period the [Husband] is not eligible to
maintain the existing coverage, the [Husband] shall, at the
[Husband’s] sole expense, provide and maintain COBRA health
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and medical insurance coverage to the extent it is available. To
the extent COBRA coverage is not available, the [Husband] shall
be responsible to pay for the health and medical care for the
[Wife] to the extent that care would have been covered by the
existing insurance coverage but for the dissolution of marital
status, and shall otherwise indemnify and hold the other party
harmless from any adverse consequences resulting from the loss
or reduction of the existing coverage. For purposes of this
subdivision, ‘health and medical insurance coverage’ is the
coverage for which the parties are eligible under [Husband’s]
Paul Hastings group medical plan.”
These provisions effectuate the intent of the trial court and
do not deviate from those in box 5.b. of the Form FL-347 in any
substantive way.
IV. The Trial Court’s Interim Order Regarding
Husband’s Retirement Accounts Was Not an Abuse
of Discretion
Wife contends that the trial court erred by not entering an
interim qualified domestic relations order (interim QDRO)
modeled after a sample she provided to Husband. Instead, after
ordering that an interim order be prepared to protect her
community retirement plan benefits, the trial court adopted
Husband’s proposed use of Judicial Council Form FL-348 as its
interim order, in conjunction with Form FL-347. The trial court
expressly considered Wife’s objections to the use of Form FL-348,
and rejected them, concluding that there was no substantive
difference between what she was asking for and the protections
the Judicial Council forms provided.
We find no error. In its order after hearing, the trial court
specifically ordered: “Pursuant to Family Code section
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2337(c)(9)(E): [Husband] and [Wife] shall ensure that all
community property plans are subject to an enforceable court
order for the payment of spousal survivor benefits to the [Wife]
through an appropriate interim order requiring any survivor
benefit that would have been payable to the [Wife] on the death
of the [Husband] but for the judgment granting a dissolution of
the status of the marriage, pending entry of judgment on all
remaining issues, to be paid to the [Wife].”
Form FL-348 accomplishes this purpose. It “serves as a
temporary qualified domestic relations order” (Cal. Rules of
Court, rule 5.390(d)(4)) and tracks the language of section 2337,
subdivision (d)(2)(C), with preprinted language stating:
“Each party identified above is provisionally awarded
without prejudice, and subject to adjustments by a later domestic
relations order, a separate interest equal to one-half of all
benefits accrued or to be accrued under any retirement plan in
which one party has accrued a benefit, including but not limited
to the plans listed below, as a result of employment of the other
party during the marriage or domestic partnership and before the
date of separation. In addition, pending further notice, the plan
must, as allowed by law, or as allowed by the terms of the plan in
the case of a governmental plan, continue to treat the parties as
married persons or domestic partners for purposes of any
survivor rights or benefits available under the plan to the extent
necessary to provide for payment to the surviving spouse or
domestic partner of an amount equal to that separate interest or
of all of the survivor benefits if at the time of death of the
participant there is no other eligible recipient of the survivor
benefit.”
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This language in Form FL-348 substantively ensures Wife’s
entitlement to one-half of the community interest in Husband’s
retirement plans, and requires that Wife be paid any survivor
rights or benefits that would have been payable to her on the
death of the Husband but for dissolution of the status of the
marriage, as the trial court required in its order after hearing.
Wife provides no support for her contention that the language of
Form FL-348 might somehow permit a future spouse of
Husband’s to assert eligibility to Wife’s protected separate
interest and survivor benefits. We therefore conclude it was an
“appropriate interim order” pursuant to the trial court’s
specifications.
A former spouse’s entitlement to retirement survivor
benefits may be unprotected in a situation where the trial court
made no order preserving the former spouse’s interest before the
employee spouse subsequently remarried and died. (In re
Marriage of Padgett (2009) 172 Cal.App.4th 830, 836 [“where the
plan participant dies or retires before the former spouse secures
an order awarding that spouse any interest in the pension plan, a
domestic relations order entered before the plan participant’s
death that does not award the former spouse an interest in the
participant’s pension plan but simply ‘reserves jurisdiction’ over
the plan provides an inadequate basis for entry nunc pro tunc of
either a QDRO or of an order determining the former spouse’s
interest in the pension plan that later may be qualified as a
QDRO”].) However, that is not the case here, as Form FL-348
expressly awards Wife a provisional separate interest in the
plans and continued survivor benefits equal to the extent of that
interest (or for all of the survivor benefits if there is no other
eligible recipient).
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In addition, the Form FL-347 prepared by Husband and
adopted by the trial court contains added language which
“reflects the precise terms of the September 17, 2019 Order After
Hearing.” As with the health insurance issue, it essentially
duplicates the language of the trial court’s order after hearing
with regard to retirement benefits: “Pursuant to Family Code
2337(c)(9)(E): [Husband] and [Wife] shall ensure that all
community property retirement plans are subject to an
enforceable court order for the payment of spousal survivor
benefits to the [Wife] through an appropriate interim order
requiring any survivor benefit that would have been payable to
the [Wife] on the death of the [Husband] but for the judgment
granting a dissolution of the status of the marriage, pending
entry of judgment on all remaining issues, to be paid to the
[Wife].”
As Wife concedes, the trial court had a choice of
alternatives to protect her retirement survivor benefit rights
pending entry of judgment on all remaining issues. (See
Hogoboom and King, Cal. Practice Guide: Family Law (The
Rutter Group 2020) ¶ 5:126 [“In lieu of an interim QDRO, the
optional Judicial Council form FL-348 . . . will serve as a
provisional order on pension benefits—in effect, a temporary
QDRO—and can be attached to a status only dissolution
judgment”]; see also id. at ¶ 11:484:8 [same].)
We conclude that the trial court’s adoption of Form FL-348,
entered concurrently with entry of judgment and Form FL-347,
was within the range of available legal options for an interim
order, effectuated the intent of the trial court’s operative order
after hearing, and sufficiently ensured that Wife’s interest in
community property retirement plans, including survivor
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benefits, was preserved upon termination of marital status. That
the trial court did not elect Wife’s preferred interim QDRO
format is not an abuse of discretion.
DISPOSITION
The trial court’s status judgment and orders are affirmed.
Stephen Saltzman shall recover his costs on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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