Marriage of Andrews CA3

Filed 8/27/14 Marriage of Andrews CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.