Zarrahy v. Zarrahy

California Court of Appeal Oct 12, 1988 No. B033118Published

Before: McCLOSKY

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Holding. The trial court erred by concluding as a matter of law that it lacked the authority to apply the principles of In re Marriage of Brown in an equitable partition action; the court must exercise its discretion to fashion an appropriate remedy rather than assuming it is legally precluded from using family law formulas.

Issues

Whether a trial court in an equitable partition action for unadjudicated community property is legally precluded from applying the principles of the Brown formula.
Whether the trial court failed to exercise its discretion by mistakenly believing it lacked the authority to consider family law principles in a civil partition proceeding.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“the trial court mistakenly believed that it could not arrive at a result identical to that which would have occurred had this been an action which could and properly had been brought under the Family Law Act and Brown applied”

“On remand, the trial court will once again have the power to fashion any appropriate equitable remedy, including the remedy that would result if the Family Law Act did apply.”

Opinion

McCLOSKY, J.

Defendant Anthony Zarrahy, Jr., was employed by McDonnell Douglas on December 13, 1954.

On May 1, 1955, defendant married plaintiff Nora Zarrahy.

On July 1, 1955, McDonnell Douglas instituted a retirement plan for hourly employees. On January 1, 1961, McDonnell Douglas instituted a savings plan for hourly employees, and on May 1, 1967, McDonnell Douglas instituted a retirement income plan for salaried employees. Defendant was eligible for and took part in each of these three plans.

On July 4, 1976, defendant was laid off from his job at McDonnell Douglas, and his participation in the three plans mentioned above was terminated. McDonnell Douglas set up an annuity for each of the two retirement plans in which defendant had been enrolled. One was valued at $3,438; the other was valued at $2,953.

On May 25, 1978, an interlocutory judgment dissolving the marriage and purporting to divide the community property of the parties was filed. That interlocutory judgment was entered the following day. Defendant’s savings and retirement plans were left unmentioned in and unadjudicated by the dissolution decree.

On June 18, 1978, defendant renewed his employment at McDonnell Douglas. Defendant had never received any annuity payments from McDonnell Douglas. At the time of trial in this case, there were no annuities in effect.

In May 1986, nine years after the dissolution of plaintiff’s and defendant’s marriage, plaintiff filed this equitable action for partition of defendant’s savings and retirement plans to the extent earned during their marriage.

[4]

Despite plaintiff’s urging the trial court to value the pension as of the date of the trial, thereby taking into account the nine-year appreciation in her community interest following the dissolution of her marriage to defendant, that court decided to value the pension plan as of May 25, 1978, the date of the dissolution hearing. The trial court found that the savings and retirement plans were simply missed assets and that there had been no concealment or fraud on the part of defendant.

The trial court found the community interest in the savings and retirement plans as of May 25, 1978, to be $6,645.26. The following amounts were attributed to the specific plans: $253 for the savings plan, $2,953.41 for the retirement plan for hourly employees; and $3,438.84 for the retirement plan for salaried employees. No interest was awarded.

Zarrahy v. Zarrahy

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