California Court of Appeal, Fourth District, Second Division
IN RE the MARRIAGE OF Nathan and Robin LA MOURE.
Robin La Moure, Respondent; Nathan D. La Moure, Appellant, San Bernardino County Department of Child Support Services, Respondent.
APPEAL from the Superior Court of San Bernardino County. John M. Pacheco, Judge. Affirmed. (No. SBFSS71194)
[Copyrighted Material Omitted]
Nathan D. La Moure, in pro. per., for Appellant.
Hanke & Williams, Rick D. Williams and Shelly L. Hanke, Garden Grove, for Respondent.
This matter arises out of the dissolution of Nathan D. La Moure's marriage to Robin La Moure and consequential division of assets, including Nathan's defined benefit pension plan (pension plan). Nathan appeals two orders: (1) a July 23, 2010 order restraining disbursements from Nathan's pension plan and (2) a December 1, 2010 order granting reconsideration of the court's October 18, 2010 order, granting Nathan's claim of exemption and motion to quash orders restraining him from transferring assets from his pension plan.
Nathan contends the trial court erred in ordering restraints on his pension plan assets and denying his claim of exemption, because ERISA  preempts state law and prohibits alienation of pension plan assets and benefits. Nathan argues that ERISA's anti-alienation provisions prohibit payment of funds from
Nathan's pension plan to Robin's attorney for attorney's fees. Nathan further argues that his pension plan is exempt from levy on the writ of execution, and the trial court erred in issuing the writ of execution upon the custodian of the assets of his pension plan. In addition, Nathan argues there were no new facts or law justifying granting Robin's motion for reconsideration. Also, the trial court abused its discretion in granting Robin's motion for reconsideration because the new ruling, allowing levy on assets in Nathan's pension plan, violated ERISA.
We reject Nathan's contentions on the ground there was substantial evidence that Nathan abused the pension plan by secreting community property assets and funneling [165 Cal.Rptr.3d 420] them through the pension plan. As a consequence, Nathan's pension plan was not protected by ERISA. We therefore affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
Nathan and Robin married in 1993, and separated in February 2003. A month later, on March 3, 2003, Nathan filed for divorce. In interim orders in March and April 2003, the trial court ordered Nathan and Robin to share equal custody of their two sons. The court further ordered Nathan, who practiced law as a sole practitioner, to pay Robin spousal and child support.
Nathan fell behind on his support obligations. In April 2009, the California Department of Child Support Services (DCSS) issued an order to Morgan Stanley to withhold funds from Nathan's retirement accounts for the purpose of collecting child support arrears. On April 20, 2009, Nathan filed a claim of exemption and ex parte motion to quash the levy on his Morgan Stanley IRA rollover and IRA accounts.
In May 2009, the trial court heard and denied Nathan's claim of exemption and motion to quash/recall the IRA levy. On June 5, 2009, Nathan faxed the DCSS and Robin's attorney a letter stating that Nathan would be filing an ex parte application " to Stay the levy/notice of execution on my Morgan Stanley IRA Rollover plan and to dispense with an undertaking pending appeal of the minute orders of 5/12/09 and 5/27/09 and/or a petition for writ of supersedeas in the reviewing court." The trial court granted a stay until June 29, 2009, and extended the stay until July 31, 2009.
On July 23, 2009, the trial court heard and again denied Nathan's claim of exemption and motion to quash and recall levy on Nathan's Morgan Stanley IRA account for payment of support (support appeal). On July 30, 2009,
Nathan filed a notice of appeal of the July 23, 2009 order ( In re Marriage of Lamoure (2011) 198 Cal.App.4th 807, 812, 830, 132 Cal.Rptr.3d 1, case No. E048992). On August 31, 2009, Nathan also filed a petition for writ of supersedeas in this court, seeking a stay of the trial court proceedings. On September 3, 2009, this court denied the writ and request for a stay. However, on September 9, 2009, the trial court granted Nathan's request for a stay pending resolution of Nathan's support appeal. On August 2, 2011, this court entered its decision in the support appeal, affirming the lower court's July 23, 2009 order.
Writ of Execution for Payment of Robin' s Attorney' s Fees
Meanwhile, during proceedings from 2003 through 2010, the trial court ordered Nathan to pay Robin's attorney's fees and costs totaling over $99,000.
On March 22, 2010, the trial court heard and granted Robin's order to show cause (OSC) and motions for a writ of attachment, for $10,000 in sanctions against Nathan, for breach of fiduciary duties, for $182,0421.08 in statutory penalties and awards against Nathan, and for reimbursement of Robin's expert fees totaling $15,300.
On March 26, 2010, the trial court issued a writ of execution for payment of Robin's attorney's fees against Nathan's pension plan. Because the writ only named Nathan and his law corporation but did not name his recently created trust  as a [165 Cal.Rptr.3d 421] judgment debtor in the writ, the Morgan Stanley custodian of Nathan's pension plan refused to enforce the writ against the pension plan.
On April 21, 2010, Nathan served a claim of exemption as to Nathan's Morgan Stanley accounts, seeking exemption as to any funds held by Morgan Stanley for the benefit of Nathan, Nathan's law firm, or his pension plan, or funds held by Merrill Lynch in his recently created trust.
During a hearing on April 23, 2010, Nathan informed the court that the trial court had previously issued a stay. The trial court did not find any record of the stay and did not believe there was any reason for a stay. The court therefore ruled on Robin's pending motions on support and other matters, and denied Nathan's oral motion to set aside the March 22, 2010, and March 26, 2010, orders based on not receiving notice. On June 10, 2010, the court denied Nathan's claim of exemption.
Restraining Order Prohibiting Transfer of Pension Fund Assets
On July 20, 2010, Robin filed an ex parte motion requesting a temporary order restraining Nathan from withdrawing, transferring, or disposing of any
funds held in his Morgan Stanley accounts. Robin asserted the temporary hold was necessary until the trial court ruled on her motion to add Nathan's pension plan to the writ of execution as a judgment debtor. Once the pension was added to the writ, Robin could immediately serve Morgan Stanley with the writ, which would ...