Marriage of Kahdeman CA2/6 ( 2013 )

Filed 8/28/13 Marriage of Kahdeman CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re the Marriage of RICHARD J. and 2d Civil No. B243812
DIANE CLARE KAHDEMAN. (Super. Ct. No. SD 011277)
(Ventura County)
RICHARD J. KAHDEMAN,
Appellant,
v.
DIANE CLARE KAHDEMAN,
Respondent.
In 1993 appellant Richard J. Kahdeman and respondent Diane Clare
Kahdeman ended their marriage. A decade later they returned to court to resolve their
respective interests in Richard's Wells Fargo Retirement Annuity (Annuity).1 The trial
court awarded each party a 50 percent interest in the Annuity and left it to the parties to
resolve the language of a qualified domestic relations order (QDRO) consistent with the
court's findings and order. They could not agree on the language. Without notice to
either Diane or the court, Richard waived any survivor benefits in the Annuity and began
1 "As is customary in family law proceedings, we refer to the parties by their first
names for purposes of clarity and not out of disrespect. [Citations.]" (Rubenstein v.
Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
to collect not only his but also Diane's share of the benefits. In the litigation that
followed, the trial court ordered Richard to pay $3,000 in attorney fees.
Richard contends on appeal that the award was unlawful because he owed
no fiduciary duty to Diane.2 It appears from the record, however, that the award was
made under Family Code section 2713 as a sanction for Richard's uncooperative conduct,
and not as a remedy for his breach of fiduciary duty. In any event, Richard has failed to
provide us with an adequate record to assess whether the trial court abused its discretion
in awarding fees. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parties' marriage was dissolved in 1993. In July 2003, the trial court
awarded each party a 50 percent interest in the Annuity. The order stated: "A [QDRO]
for its equal division is to be obtained including each party's respective rights to any and
all survivorship benefits as to their respective share of the [A]nnuity. . . . It is the
intention of the Court in this order that the [A]nnuity be divided into two separate
annuities with each party receiving their respective interest including their respective
survivorship rights as their sole and separate property . . . ." The order further provided
that in the event the Annuity is not subject to such division, "[t]he Court retains
jurisdiction over said [A]nnuity and its division for purposes of enforcement, including
but not limited to, the respective survivorship rights of each party on said [A]nnuity."
Notwithstanding the order, the parties could not agree on whether "survivor
benefits" are available under the Annuity contract. Diane claimed she was entitled to
receive surviving spouse benefits after Richard's death and to transfer her 50 percent
share of the Annuity by testamentary transfer after her death. Richard asserted that she
had no such rights under the Employee Retirement Income Security Act of 1974 (ERISA)
(29 U.S.C. § 1001 et seq.) and California law. Diane refused to sign Richard's proposed
QDRO denying her survivor benefits and Richard refused to sign Diane's proposed
2 Though he is an attorney, Richard appears in propria persona.
3 All undesignated statutory references are to the Family Code.
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QDRO including survivor benefits. According to Diane, the Annuity's administrator,
Metropolitan Life Insurance Company (MetLife), preapproved her version of the QDRO.
In March 2012, Richard unilaterally resolved the impasse by placing the
Annuity on "pay status" and electing to waive the survivor benefit entirely. Diane's
counsel discovered this fact from a MetLife representative on May 3, 2012. By that time,
Richard had received a $43,023.09 initial lump sum payment.
Richard filed an order to show cause (OSC) requesting that the trial court
approve a QDRO that did not include survivor benefits. He declared that he was taking
distributions from the Annuity and "immediately" sending Diane her portion of the
payments. He stated: "I cannot continue to be burdened with this simply because
[Diane] wants to include inappropriate and unapproved language in what is otherwise a
valid and binding document." Diane did not receive any such payments from Richard.4
Diane filed an OSC seeking an order requiring Richard to cooperate in the
preparation of a QDRO consistent with the trial court's July 2003 order. Diane asserted
that Richard's "conclusion that ERISA is applicable and controlling is contradicted by the
representative of the [Annuity] Plan," and that his "election to begin receiving benefits
also complicates the matter because we have no idea at this point whether the Plan will
accept a QDRO . . . which is inconsistent with the elections he may have made." Noting
that these issues should have been resolved before Richard started taking benefits and
that his "correspondence evidences a didactic tenor totally inconsistent with the mandates
of . . . section 271," Diane requested $3,050 in attorney fees "to compensate [her] for the
further inquiries his perspectives have necessitated." Diane also sought damages under
section 1101 based on Richard's purported breach of fiduciary duties.
The trial court held "a lengthy hearing" on August 10, 2012. No court
reporter was present. The trial court approved Richard's proposed QDRO. Finding that
Richard had not sent any payments to Diane, the court ordered him to pay Diane 50
4 At oral argument, Richard represented that he told the trial court at the August
10, 2012, hearing that the statement that he was "immediately" sending payments to
Diane was a clerical error and that the trial court accepted his explanation. Confirmation
of this assertion cannot be made based on the record appellant has provided.
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percent of the funds already received from the Annuity, plus 50 percent of any future
payments until the QDRO goes into effect. The court further ordered Richard to pay to
Diane's counsel "the sum of $3,000 as and for attorney's fees." Richard appeals that
award.
DISCUSSION
Richard contends the trial court erred by requiring him to pay attorney fees
as a remedy for breach of fiduciary duty under section 721, 1100 or 1101. Section 1101,
subdivision (g), provides that "[r]emedies for breach of the fiduciary duty by one spouse,
including those set out in Sections 721 and 1100, shall include, but not be limited to, an
award to the other spouse of 50 percent, or an amount equal to 50 percent, of any asset
undisclosed or transferred in breach of the fiduciary duty plus attorney's fees and court
costs." Richard asserts he owed no fiduciary duty to Diane because she chose "to deal
with [Richard] at arm's length concerning the Annuity with the assistance of counsel."
Noting that her OSC requested attorney fees under sections 270, 271 and
2030, Diane contends the trial court made the award under section 271. Section 271
provides that "the court may base an award of attorney's fees and costs on the extent to
which the conduct of each party or attorney furthers or frustrates the policy of the law to
promote settlement of litigation and, where possible, to reduce the cost of litigation by
encouraging cooperation between the parties and attorneys." Section 271 is not a specific
remedy for breach of fiduciary duty under the Family Code, but rather a "sanction for
uncooperative conduct that frustrates settlement and increases litigation costs." (In re
Marriage of Fong (2011) 193 Cal.App.4th 278, 290; see In re Marriage of Simmons
(2013) 215 Cal.App.4th 584, 587-588 [awarding sanctions under section 2107 for breach
of fiduciary duties of disclosure plus sanctions under section 271 for uncooperative
conduct]; In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1495 [section 271
sanctions may be appropriate during the course of litigation "to encourage better behavior
as the litigation progresses"].) Diane contends the trial court sanctioned Richard under
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this section because he had made irrevocable elections with respect to the Annuity and
had started taking benefits without informing her.
Our review is constrained because we do not have a reporter's transcript or
settled statement of the hearing in which the fees were awarded. The appellant's
appendix provided by Richard reveals that Diane requested fees of $3,050 because the
Annuity "issues could have been, and should have been worked out by [Richard] before
this point," and because his "correspondence evidences a didactic tenor totally
inconsistent with the mandates of . . . section 271." (Italics added.) Richard does not
acknowledge this specific request for $3,050 in fees or make any reference to section 271
in his briefs. He simply asks us to assume the $3,000 award was related to a finding of
breach of fiduciary duty under section 721, 1100 or 1101. Nothing that Richard has
provided justifies that assumption, particularly since the trial court's order explicitly
continued the hearing on Diane's claims for "alleged breach of fiduciary duty." The only
logical inference from the limited record presented is that the trial court imposed the fees
as a sanction under section 271.
Incomplete Record on Appeal
We review a sanctions order under section 271 for abuse of discretion. (In
re Marriage of Feldman, supra, 153 Cal.App.4th at p. 1478.) "'. . . Discretion is abused
whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances
before it being considered. . . .'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
"As the party challenging a fee award, [Richard] has an affirmative obligation to provide
an adequate record so that we may assess whether the trial court abused its discretion."
(Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447; Maria P. v.
Riles (1987) 43 Cal.3d 1281, 1295-1296.) He has not met this burden.
Richard chose to proceed with this appeal based on an appendix comprised
of selected documents of his own choosing. No reporter's transcript was provided
because neither party employed a court reporter to record the "lengthy hearing" during
which the fee award was made. Richard also did not seek the preparation of a settled
statement to assist this court. (See Leslie v. Roe (1974) 41 Cal.App.3d 104, 108; Cal.
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Rules of Court, rules 8.134 & 8.137.) When the record on appeal consists entirely of a
clerk's transcript or appellant's appendix, the scope of review is limited. (In re Marriage
of Stutz (1981) 126 Cal.App.3d 1038, 1042.) Every presumption is in favor of the trial
court's order. (Ibid.) We cannot substitute our deductions for the reasonable deductions
drawn by the trial court, and the evidence is not subject to evidentiary challenges. (Ibid.;
In re Marriage of Utigard (1981) 126 Cal.App.3d 133, 145; In re Marriage of Connolly
(1979) 23 Cal.3d 590, 598.) We must presume that the trial court's order is supported by
matters that are not before us. (Marriage of Stutz, at p. 1042; see Marriage of Utigard, at
p. 145 ["Without benefit of a reporter's transcript, . . . this court is in no position to assert
that the trial court, in balancing the equities presented before it, abused its discretion"];
Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [upholding
sanctions where appellant failed to provide "a record that explains the reasoning of the
court that imposed the sanctions"]; see Foust v. San Jose Const. Co., Inc. (2011) 198
Cal.App.4th 181, 186-187 [listing cases in which appellate court refused to reach merits
of appeal because no reporter's transcript or suitable substitute was provided].)
Even on the limited record presented, Richard has not demonstrated an
abuse of discretion. The trial court's July 2003 order divided the Annuity "into two
separate annuities with each party receiving their respective interest including their
respective survivorship rights as their sole and separate property." Without any prior
notice, Richard irrevocably waived survivor benefits in the Annuity and started collecting
Diane's share of the benefits. Not only were these actions contrary to the court's prior
order, but they also increased litigation costs by forcing Diane to file an OSC to recover
her share of the benefits collected by Richard and to investigate the effect of Richard's
waiver of the survivor benefits. (See § 271; In re Marriage of Davenport (2011) 194
Cal.App.4th 1507, 1524.) There is nothing to suggest that the $3,000 fee award
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"exceed[ed] the bounds of reason." (Denham v. Superior Court, supra, 2 Cal.3d at p.
566.)
DISPOSITION
The judgment is affirmed. Diane is awarded costs on appeal. Her request
for attorney fees on appeal is denied.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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William Q. Liebmann, Judge
Superior Court County of Ventura
______________________________
Richard J. Kahdeman, in pro. per., for Appellant.
Law Office of Michael J. Smith and Michael J. Smith for Respondent.
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