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In Re the Marriage of Kathleen M. and Michael S. Kale. v. Michael S. Kale

January 15, 2013

IN RE THE MARRIAGE OF KATHLEEN M. AND MICHAEL S. KALE. KATHLEEN M. KALE, RESPONDENT,
v.
MICHAEL S. KALE, APPELLANT.



(Super. Ct. No. FL 339515)

The opinion of the court was delivered by: Blease , Acting P. J.

Marriage of Kale

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Michael S. Kale appeals from a postjudgment order of the trial court wherein the court found Michael owes Kathleen M. Kale "one-half of his PERS payment each month" according to the terms of a marital settlement agreement. The court also ordered Michael to pay to Kathleen arrears totaling $6,170 and to execute a qualified domestic relations order "dividing the PERS account."

Michael contends the monthly benefits he receives from the Public Employees' Retirement System (PERS) are disability benefits, not the retirement benefits contemplated in the marital settlement agreement. Accordingly, he argues the court erred in ordering him to pay half of those benefits to Kathleen. Without a reporter's transcript of the hearing in this matter, however, we can find no error.

I.

BACKGROUND

Michael has elected to proceed on a clerk's transcript. (Cal. Rules of Court, rule 8.121.) Thus, the appellate record does not include a reporter's transcript of the hearing in this matter. This is referred to as a "judgment roll" appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.)

The limited record we have establishes that Michael and Kathleen were married in September 1984. In January 1985, Michael began working as a police officer for the City of Stockton. He was injured on the job before he completed five years of service with the police department.

In October 1990, Michael began collecting $1,700 per month as "permanent disability" from his job with the City of Stockton Police Department. Nearly 13 years later (in May 2003) the parties separated.

The Judgment

In July 2006, the parties executed a 20-page marital settlement agreement drafted by Antonio R. Garcia, Esq. Garcia did not represent either Michael or Kathleen, but acted as a "mediator/facilitator" and scrivener. That agreement was incorporated into a ...


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