Filed 8/27/14 Marriage of Andrews 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Sutter)
                                                            ----




In re the Marriage of KITO and ELADIA
ANDREWS.

KITO ANDREWS,

                   Appellant,                                                                C073893

         v.                                                                    (Super. Ct. No. CVFL083136)

ELADIA ANDREWS,

                   Respondent.

         Husband Kito Andrews appeals from postjudgment orders wherein the trial court
found wife Eladia Andrews’s retirement account was not a community asset omitted from
the final judgment. We conclude the trial court erred as a matter of law in ruling the
retirement account was not an omitted asset and remand this matter for further
proceedings.




                                                             1
                                      BACKGROUND
         A judgment dissolving the parties’ marriage was entered on October 26, 2010.
Incorporated into that judgment was a property order, in which the court found there was
no community property to divide.
         On July 31, 2012, husband filed a request for order from the trial court, asking the
court to find wife intentionally failed to disclose her retirement account, a community
asset, and to distribute that account accordingly. Husband also asked the trial court to
award him Family Code section 271 sanctions, and order wife to pay his attorney fees, on
the ground she breached her fiduciary duty to husband by failing to disclose a community
asset.
         On December 5, 2012, the trial court presided over a hearing at husband’s request.
At that hearing, the trial court heard testimony from husband and wife and considered
documentary evidence each of them submitted. The minutes from that hearing indicate
the court found husband “has the burden of proof as to the omitted asset. The burden of
proof was not met therefore motion is denied. [¶] Court finds insufficient behavior for
both request[s] for [Family Code section] 271 sanctions, [r]equest[s] for sanctions [are]
denied. [¶] Respondent’s request for Attorney fees is denied.” That same language was
later memorialized in formal findings and orders.
         Husband appeals from those orders.
         Included in the record on appeal is an “Agreed Upon Statement” executed by
husband and wife, which includes a brief summary of the parties’ respective testimony.
According to that statement, the parties agree the trial court found neither husband nor
wife completed a disclosure. The court nevertheless found wife’s retirement account was
“disclosed” in a pay stub attached to wife’s income and expense declaration, which was
submitted on a separate motion for child support. Thus, the court concluded, the
retirement account was not an omitted asset and neither party’s conduct warranted
sanctions.

                                               2
                                       DISCUSSION
       Husband contends the trial court erred in finding wife’s retirement account was
disclosed and thus was not an omitted asset. We agree.
       An omitted asset is “any community estate asset . . . omitted or not adjudicated by
the judgment.” (Fam. Code, § 2556; see Miller v. Miller (1981) 117 Cal.App.3d 366, 371
[community asset must be placed in issue, adjudicated, or divided by the court; otherwise
it is an omitted asset subject to postjudgment distribution].) The record on appeal
establishes unequivocally that wife’s retirement account was not adjudicated in the
judgment entered on October 26, 2010. It is therefore an omitted asset as a matter of law.
The trial court nevertheless ruled the retirement account was not an omitted asset
because, while it was not adjudicated in the judgment, it was otherwise disclosed.1 There
is no authority to support that ruling. We reverse the trial court’s ruling in this regard.
       Because we reverse the trial court’s ruling and conclude the retirement account is,
in fact, an omitted asset, we remand this matter to the trial court for further proceedings.
Specifically, the trial court is directed to consider the retirement account in accordance
with the statutory requirements and determine whether to divide the account and, if so,
how the account should be divided. In so doing, the trial court also is directed to consider
husband’s request for sanctions and attorney fees, including but not limited to whether
wife breached her fiduciary duty.



1       Although we need not address the issue here, we question whether the revelation
of wife’s retirement account in a pay stub, attached to an income and expense declaration
and filed in support of a separate child support case, constitutes “disclosure” as that term
is used in the Family Code. Family Code section 2104 requires both parties to disclose
their assets and liabilities in a preliminary declaration of disclosure, “on a form
prescribed by the Judicial Council.” (Fam. Code, § 2104; In re Marriage of McLaughlin
(2000) 82 Cal.App.4th 327, 335 [error to enter judgment if preliminary declarations were
not exchanged and prejudice is proven].) That was not done here. Since husband did not
file a preliminary declaration either, we do not decide whether this is a factor to be
considered by the court on remand.

                                              3
                                      DISPOSITION
       The trial court’s order that wife’s retirement account was not an omitted asset is
hereby reversed and the matter is remanded for further proceedings consistent with this
opinion. Husband shall recover his costs on appeal. (Cal. Rules of Court,
rule 8.278(a)(2).)



                                                        HOCH        , J.



We concur:



      HULL           , Acting P. J.



     ROBIE           , J.




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