Marriage of Torres CA4/1

Filed 2/25/22 Marriage of Torres CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS Calif ornia Rules of Court, rule 8.1115(a), prohibits courts and parties f rom citing or relying on opinions not certif ied f or publication or ordered published, except as specif ied by rule 8.1115(b). This opinion has not been certif ied f or publication or ordered published f or purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of ADALBERTO and GEMMA TORRES. D078469 ADALBERTO TORRES,

Respondent, (Super. Ct. No. DS37815)

v.

GEMMA TORRES,

Appellant.

APPEAL from an order of the Superior Court of San Diego County, Maryann D’Addezio, Judge. Affirmed. Melissa J. Schmitt for Appellant. Shelly K. Pawchuk for Respondent.

Gemma Torres appeals a postjudgment order distributing the community property interest in her retirement plan and awarding her ex- husband, Adalberto Torres, attorney fees and costs as sanctions for breach of fiduciary duty. Gemma contends the family court erred by imposing

sanctions because Adalberto did not ask for them in his request for order. We reject this contention and affirm the order. BACKGROUND Adalberto and Gemma divorced in 2010. The judgment of dissolution required equal division of the parties’ retirement plans by a qualified domestic relations order. When Adalberto submitted such an order to Gemma’s employer, the employer informed him it had distributed all the funds to Gemma and she no longer had a retirement account. Adalberto filed a request for order (RFO) and supporting declaration asking the family court to enforce the agreed distribution of retirement funds by awarding him half the amount Gemma had listed on a schedule of assets and debts. Gemma filed a responsive declaration in which she opposed Adalberto’s request and stated she had withdrawn the funds from her retirement account when she was laid off and had put them in an individual retirement account (IRA). At a hearing on Adalberto’s RFO, the family court continued the hearing to allow Gemma to retain counsel and ordered her not to transfer any of the funds from her IRA until further order of the court. In the meantime, Adalberto obtained records from Gemma’s employer that showed she had withdrawn substantially more from the retirement account than she had listed on her schedule of assets and debts. Adalberto therefore filed a supplemental declaration in support of the RFO in which he asked for a larger amount of Gemma’s retirement funds and for attorney fees as a sanction under Family Code section 271 for her intentional withdrawal of the funds belonging to him. Adalberto also filed a memorandum of points and authorities in support of the RFO in which he argued Gemma had maliciously and fraudulently breached her fiduciary duty to him by withdrawing his share of the retirement funds, concealing the withdrawal,