Marriage of Kahdeman CA2/6

Filed 8/28/13 Marriage of Kahdeman CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

In re the Marriage of RICHARD J. and 2d Civil No. B243812 DIANE CLARE KAHDEMAN. (Super. Ct. No. SD 011277) (Ventura County)

RICHARD J. KAHDEMAN,

Appellant,

v.

DIANE CLARE KAHDEMAN,

Respondent.

In 1993 appellant Richard J. Kahdeman and respondent Diane Clare Kahdeman ended their marriage. A decade later they returned to court to resolve their respective interests in Richard's Wells Fargo Retirement Annuity (Annuity).1 The trial court awarded each party a 50 percent interest in the Annuity and left it to the parties to resolve the language of a qualified domestic relations order (QDRO) consistent with the court's findings and order. They could not agree on the language. Without notice to either Diane or the court, Richard waived any survivor benefits in the Annuity and began

1 "As is customary in family law proceedings, we refer to the parties by their first names for purposes of clarity and not out of disrespect. [Citations.]" (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)

to collect not only his but also Diane's share of the benefits. In the litigation that followed, the trial court ordered Richard to pay $3,000 in attorney fees. Richard contends on appeal that the award was unlawful because he owed no fiduciary duty to Diane.2 It appears from the record, however, that the award was made under Family Code section 2713 as a sanction for Richard's uncooperative conduct, and not as a remedy for his breach of fiduciary duty. In any event, Richard has failed to provide us with an adequate record to assess whether the trial court abused its discretion in awarding fees. We affirm. FACTUAL AND PROCEDURAL BACKGROUND The parties' marriage was dissolved in 1993. In July 2003, the trial court awarded each party a 50 percent interest in the Annuity. The order stated: "A [QDRO] for its equal division is to be obtained including each party's respective rights to any and all survivorship benefits as to their respective share of the [A]nnuity. . . . It is the intention of the Court in this order that the [A]nnuity be divided into two separate annuities with each party receiving their respective interest including their respective survivorship rights as their sole and separate property . . . ." The order further provided that in the event the Annuity is not subject to such division, "[t]he Court retains jurisdiction over said [A]nnuity and its division for purposes of enforcement, including but not limited to, the respective survivorship rights of each party on said [A]nnuity." Notwithstanding the order, the parties could not agree on whether "survivor benefits" are available under the Annuity contract. Diane claimed she was entitled to receive surviving spouse benefits after Richard's death and to transfer her 50 percent share of the Annuity by testamentary transfer after her death. Richard asserted that she had no such rights under the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1001 et seq.) and California law. Diane refused to sign Richard's proposed QDRO denying her survivor benefits and Richard refused to sign Diane's proposed