Johns v. Retirement Fund Trust

Opinion

BROWN (Gerald), P. J.

The Retirement Fund Trust of the Plumbing, Heating and Piping Industry of Southern California (Fund) appeals an order awarding attorney fees to Edith J. Johns.

1

The Fund, a pension plan subject to federal regulation under the Employee Retirement Income Security Act (ERISA), 29 United States Code section 1001 et seq., was made a party to the action for dissolution of the marriage of Leroy and Edith Johns. Among the community assets was Leroy’s pension, which was entirely community property and fully vested. The superior court ordered the Fund to pay half of each benefit payment directly to Edith. After this court affirmed

(Johns

v.

Retirement Fund Trust

(1978) 85 Cal.App.3d 511 [149 Cal.Rptr. 551]), the Fund unsuccessfully sought review in the California Supreme Court and the United States Supreme Court. Edith then sought to recover from the Fund the attorney fees she incurred in defending against the Fund’s appeal to the United States Supreme Court. The superior court found section 502(g) of ERISA authorized an award of attorney fees and ordered the Fund to pay Edith $2,800 ($2,500 for the proceedings in the Supreme Court and $300 for the motion for attorney fees).

Section 502(g) of ERISA authorizes the court to award attorney fees “[i]n any action under this subchapter by a participant” (29 U.S.C. § 1132(g)). A participant may bring an action in state court “to recover benefits due to him under the terms of the plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” (29 U.S.C. § 1132(a)(1)(B), (e)(1)). A

[116]

“participant” is “any employee or former employee ... or any member or former member of an employee organization, who is or may become eligible to receive a benefit .. . from an employee benefit plan, or whose beneficiaries may be eligible to receive any such benefit.” (29 U.S.C. § 1002(7).)

Here Edith is an equal or coowner, under California law, of the pension benefits attributable to her former husband’s employment during their marriage