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In re Marriage of Janes

California Court of Appeals, Fourth District, Second Division

May 23, 2017

In re the Marriage of MISTI and TIM JANES. MISTI JANES, Respondent,
v.
TIM JANES, Appellant.

         APPEAL from the Superior Court of Riverside County, No. SWD018756 James T. Warren, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions.

          Hanson, Gorian, Bradford & Hanich and Erik J. Bradford for Appellant.

          Walker Trial Lawyers, Barry M. Walker and Amy M. Oakden for Respondent.

          OPINION

          MILLER J.

         In a 2010 marital settlement agreement, which was attached to a judgment of dissolution, respondent Misti Janes (Wife) was awarded $113, 392 from the retirement account of appellant Tim Janes (Husband). In 2014, Wife's $113, 392 remained in the retirement account. Wife sought the $113, 392 and the gains or losses resulting from that money. The family court granted Wife's request for a Qualified Domestic Relations Order (QDRO) reflecting Wife was entitled to $113, 392 and the resulting gains or losses dating back to the date of separation. Husband contends (1) the family court lacked jurisdiction to modify the 2010 judgment of dissolution by awarding the gains and losses to Wife; and (2) the family court erred by dating the gains and losses back to the date of separation, rather than the date of the dissolution judgment. We affirm the judgment with directions.

         FACTUAL AND PROCEDURAL HISTORY

         A. JUDGMENT OF DISSOLUTION

         Wife and Husband married in September 1992. They separated on February 13, 2009. The dissolution judgment was filed on April 19, 2010, in Riverside County Superior Court, with a marital termination date of April 13, 2010. The settlement agreement (the agreement) attached to the judgment, reflected “Petitioner, [Wife], is awarded and Respondent agrees to transfer, assign, and set over to Petitioner, the following community property assets.... [¶] h. $113, 392 from [Husband's] 401k retirement account through Sentinell Benefits.”

         The agreement also provided, “Respondent, [Husband], is awarded and Petitioner agrees to transfer, assign, and set over to Respondent, the following community property assets.... [¶] l. Balance of the community interest and Respondent's separate property interest in the 401k retirement account through Sentinell Benefits.”

         The agreement further reflects jurisdiction is “reserved to the Orange County Superior Court” for supervising payments pursuant to the agreement and supervising the division of assets pursuant to the agreement.[1]

         B. LETTERS

         On February 26, 2014, Wife received a letter from Fidelity Investments (Fidelity) reflecting Fidelity was directed by the administrator of the HEICO Corporation plan, pursuant to a QDRO, to segregate $113, 392 “with no earnings calculated through the date of segregation.” Fidelity wrote, “The QDRO provides that [Wife] is entitled to $113, 392.00 of the above referenced account as of 02/24/2014, with no earnings calculated through the date of segregation.” Fidelity informed Wife that it had established an account for her in the amount of $113, 392.

         On March 21, Wife's attorney sent a letter to HEICO Corporation reflecting there was no QDRO. Wife's attorney further asserted the correct date of segregation would be the date of marital separation in 2009. Wife's attorney demanded the Fidelity transaction be unwound. HEICO Corporation complied.

         C. REQUEST AND OPPOSITION

         On December 12, 2014, Wife sought approval of a proposed QDRO directing Fidelity Investments to segregate $113, 392 “plus gains and losses (realized and unrealized) income and expenses (accruals).” Wife asserted the relevant start date for the gains and losses was the date of separation, in February 2009.

         Husband opposed Wife's request. Husband asserted the dissolution judgment awarded Wife a lump sum amount of $113, 392-not gains and losses. Husband explained that he tried to give Wife the lump sum amount, as demonstrated by the letter from Fidelity, but Wife rejected it, as demonstrated by Wife's attorney's letter.

         D. HEARING

         The family court held a hearing on May 20, 2015. Husband argued that Wife was awarded a lump sum from his 401(k) account, not a percentage of the account, and therefore, she was not entitled to gains earned on the account. Husband asserted that awarding gains to Wife amounted to a modification of the ...


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