Filed 8/10/15 In re Marriage of Seachrist CA4/3




                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re Marriage of LYN L. and GREGORY
S. SEACHRIST.

LYN L. BELL,
                                                                       G050148
     Respondent,
                                                                       (Super. Ct. No. 94D10622)
                v.
                                                                       OPINION
GREGORY S. SEACHRIST,

     Appellant;

ORANGE COUNTY EMPLOYEES
RETIREMENT SYSTEM,

     Respondent.
                     Appeal from a postjudgment order of the Superior Court of Orange County,
Erick L. Larsh, Judge. Affirmed.
                     Robert J. Wheeler for Appellant Gregory S. Seachrist.
                     David H. Lantzer for Respondent Orange County Employees Retirement
System.
                     No appearance for Respondent Lynn L. Bell.
              The Seachrists divorced in 1995. Because husband was a participant in the
Orange County Employees Retirement System, part of the benefits he accrued in this
system was community property. The parties stipulated to a domestic relations order,
approved by the court, dividing their respective interests in the retirement system. The
order provides: “Payments to the alternate payee [wife] shall be available, on application
of the alternate payee to the plan administrator, on the same basis and at the same times
as such benefits are actually paid to participant [husband] in accordance with In re
Marriage of Jensen (1991) 235 Cal.App.3d 1137 [Jensen].” (Capitalization omitted.)
              In 2013, wife filed a petition requesting distribution from the domestic
relations order under In re Marriage of Gillmore (1981) 29 Cal.3d 418 [Gillmore]. She
claimed entitlement to her share of retirement benefits although husband, though eligible
for retirement, was still employed by the County of Orange and had indicated he did not
intend to retire for some time. In an “order after hearing” dated July 14, 2014, the trial
court granted the petition. On May 16, 2014, husband filed a notice of appeal from two
minute orders that preceded the “order after hearing.” But it is clear from the briefs that
he intends to appeal from the July 14 order. We shall treat the notice of appeal as being
from the latter order. (Smith v. Smith (1954) 126 Cal.App.2d 194, 195; Seven Up Bottling
Co. v. Grocery Drivers Union (1950) 97 Cal.App.2d 623, 624-625.)
              The Orange County Employees Retirement System was joined as a party
because it is one of husband’s contentions the retirement system, rather than he, should
pay wife’s share of the retirement benefits. In response to husband’s opening brief, the
retirement system filed a respondent’s brief. Wife has not filed a response in this appeal.
We affirm the postjudgment order.




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                                        DISCUSSION


1. Introduction
               A comment about husband’s opening brief. We do not appreciate attorney
Robert J. Wheeler’s filing a brief filled with a cacophony of pejorative hyperbole. He
starts out with the following paragraph: “The appellant in this case, a current employee
of the County of Orange and, a totally blameless individual, is the tragic victim of a legal
crossfire between a totally unreasonable ex-wife, on the one side, and a heartless nine
billion dollar government retirement system, on the other side—all to his substantial
financial detriment.” He calls the conduct of the retirement system “deplorable.”
Throughout the brief, Mr. Wheeler stresses the wealth of the retirement system, the
insensitivity of its administrators in their refusal to just pay his (as we will show,
unwarranted) demands, and the unreasonableness of the former spouse’s request. This
type of language is inappropriate and the implication that we should ignore the law to
help Mr. Wheeler’s “totally blameless” client does not serve his cause. We urge Mr.
Wheeler to refrain from such conduct in the future.


2. The Applicable Law
               Two cases answer the issues raised by this case: Gillmore, supra, 29
Cal.3d 418 and Jensen, supra, 235 Cal.App.3d 1137. Both deal with the distribution of
pensions partially earned during a marriage that is subsequently dissolved.
               In Gillmore, our Supreme Court held that a divorced employee spouse
could not, by delaying retirement, deprive the former nonemployee spouse from
receiving that person’s appropriate share of the retirement income. Although the former
husband in Gillmore was free to continue working, if he did so, he would be required to
reimburse his former wife for the portion of the community property she lost because of
his decision not to retire.

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              In Jensen, our court held that, under similar circumstances, unless
retirement plans so provide, the court could not order the retirement system to start
paying a former wife her interest in the retirement benefits until the former husband
retired.
              Thus, these two cases establish the duty of an employee spouse covered by
a retirement plan who continues to work to pay the nonemployee spouse an amount equal
to what that individual would be entitled to if the employee spouse had exercised the
right to retire. And that is what the trial court ordered here.
              In the trial court, husband argued the court could nevertheless order the
retirement system to pay wife her share of his retirement, even though he had not yet
retired, because he contended the enactment of Government Code sections 31685 through
31685.95, adopted in 1994, which extended certain powers to retirement systems where a
member separates or divorces, overruled both Gillmore and Jensen. But he now seems to
recognize these provisions would only have applied if the County Board of Supervisors
had adopted them by resolution (Gov. Code, § 31685.96) and that no such adoption has
taken place. He also no longer argues, as he did in the trial court, the court should order
to Board of Supervisors to pass such a resolution.
              Another argument advanced by husband is that by the terms of the parties’
domestic relations order, wife has waived her rights under Gillmore. As noted, the order
provides: “Payments to the alternate payee [wife] shall be available, on application of
[wife] to the plan administrator, on the same basis and at the same times as such benefits
are actually paid to participant [husband] in accordance with [Jensen].”
(Capitalization omitted.) Husband relies on the phrase “at the same times as such benefits
are actually paid to participant” and contends this limits wife’s right to receive an earlier
distribution on her share of his retirement benefits than he would be entitled to receive.
But, we note the same clause also provides that the agreement is made “in accordance
with . . . Jensen.” And Jensen quotes from Gillmore: “While continuing employment, the

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employee spouse retains responsibility for compensating the nonemployee spouse whose
community property interest has been impaired by the employee spouse’s decision to
continue employment.” (Jensen, supra, 235 Cal.App.3d at p. 1141.) And there is nothing
in the record to suggest that, when the agreement was entered into, husband contemplated
postponing his retirement beyond his eligibility date. So, at best, there is an ambiguity in
the order and the trial court was entitled to resolve this ambiguity against husband.
Furthermore, In re Marriage of Cook (1992) 2 Cal.App.4th 1606 holds “that unless a
marital settlement agreement . . . contains an express unequivocal waiver, upon the
employee spouse’s eligibility to retire, the nonemployee spouse retains the right to
receive his or her share of a community property pension.” (Id. at 1608.)
              Husband also contends the court lacked jurisdiction to issue its order. His
argument arises from the confusion created by California’s disparate use of the phrase
“lack of jurisdiction.” The simple answer is “the trial court retains jurisdiction to oversee
and enforce the execution of the judgment . . . .” (Rivero v. Lake County Bd. of
Supervisors (2014) 232 Cal.App.4th 1187, 1195, fn. 3.) The order appealed from merely
enforced the earlier domestic relations order.
              Husband also argues wife’s claims are barred by res judicata, laches,
equitable and judicial estoppel. The res judicata claim is based on the premise the trial
court modified the earlier domestic relations order. The court did not do so; it merely
interpreted the order. As to laches and equitable estoppel, husband fails to demonstrate
prejudice from wife’s failure to seek the relief earlier. As to judicial estoppel, this
doctrine would be predicated on wife having earlier taken a contrary legal position. None
has been demonstrated.




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                                    DISPOSITION


             The postjudgment order is affirmed. Respondent Orange County
Employees Retirement System shall recover its costs on appeal.




                                               RYLAARSDAM, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.




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