Filed 3/11/22 Marriage of Critzer CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

This is the third appeal arising out of the dissolution of appellant David E. Critzer’s marriage to respondent Margaret L. Critzer. David, who is proceeding in pro per, appeals from an amended status-only judgment, which he maintains erroneously omits indemnification conditions ordered by the trial court. He also seeks to challenge several qualified domestic relations orders (QDRO), which were entered close in time to the amended status-only judgment. As to the amended status-only judgment, we find no prejudicial error and affirm. As to the QDROs, from which David failed to appeal, we conclude we lack appellate jurisdiction to entertain David’s challenge thereto.

I. Background[1]

David and Margaret got married in 1986. During their marriage, Margaret was a partner at KPMG. Margaret petitioned for dissolution of marriage in November 2013. Five ERISA[2]-qualified KPMG retirement plans in which she is a participant were joined in the dissolution action. In September 2014, Margaret requested that the court bifurcate the issue of the dissolution of the status of marriage. To facilitate resolution of various issues—including property division, support, and reimbursement claims—the parties stipulated to a separation date of October 11, 2014.

In response to Margaret’s bifurcation request, David requested that (1) the court impose the standard indemnification and hold harmless conditions as to health and medical insurance coverage and retirement benefits; (2) the court impose various other conditions, including one allowing him to opt into coverage under KPMG’s health insurance plan for 2015 or requiring Margaret to indemnify him “for the costs of comparable insurance coverage”; and (3) the KPMG Partner Long Term Compensation Plan (KPMG LTCP) be joined to the proceedings.

Margaret disputed that KPMG LTCP—an unfunded, nonqualified plan—had to be joined. However, she requested and obtained an order of joinder for that plan.

A status-only judgment of dissolution was entered on February 3, 2015. The judgment incorporated a provisional award of retirement benefits under the five ERISA-qualified KPMG retirement plans and the KPMG LTCP plan.[3] The court entered the judgment nunc pro tunc as of December 31, 2014.

David appealed from the status-only judgment in case No. H042214. He argued that the trial court erred by failing to conclusively obtain jurisdiction over the KPMG LTCP plan, failing to impose an indemnification condition as to the benefits under all of Margaret’s KPMG retirement plans, failing to ensure that its provisional award of a separate one-half interest in Margaret’s five ERISA-qualified plans constituted QDROs, failing to impose an indemnification condition that protected the community right to elect coverage under Margaret’s KPMG health plan, and by entering the judgment nunc pro tunc.

While that appeal was pending, on January 12, 2018, the trial court entered a judgment on reserved issues, including division of property, reimbursement claims, and spousal support. With respect to retirement rights, the judgment on reserved issues stated: “The parties shall retain Elizabeth Strassen [sic] to prepare six (6) Qualified Domestic Relations Orders to divide equally and in-kind the community property interests in [the five ERISA-qualified KPMG] retirement accounts” and the “community property portion of Critzer Insurance Services Fidelity Self-Employed 401(k).” David appealed from the judgment on reserved issues in case No. H045527.

On December 21, 2018, while that second appeal was pending, a panel of this court issued its opinion in case No. H042214, David’s appeal from the status-only judgment. We concluded that the trial court had no authority to enter the status-only judgment nunc pro tunc, but we otherwise found no reversible error. Accordingly, we modified the judgment’s date of entry and, as modified, affirmed.

Back in the trial court, David moved to set aside the status-only judgment pursuant to Code of Civil Procedure sections 473, subdivision (b) and 1008, subdivision (c); Family Code section 2122, subdivision (e); and the court’s inherent authority. Margaret filed an ex parte request for an order seeking an extension of time to respond to David’s set-aside motion, leave to file a memorandum longer than 15 pages, and a special setting on the court’s long cause calendar. The court granted the first two requests and denied the third pending a hearing.

That hearing took place on September 19, 2019. At the hearing, the trial judge ordered the parties to comply with this court’s disposition in case No. H042214. However, in doing so, the judge misread our opinion. He stated: “I’ve gone back and re-read the remittitur and the opinion of the Sixth District, and really the only issue was that the Judge Towery failed to impose an indemnification condition as to the benefits under all of the petitioner’s KPMG retirement plans, and then that Judge Towery failed to ensure that its provisional award of a separate one-half interest in the petitioner’s five and that’s ERISA-qualified plans, and that should have constituted a QDRO and then to impose an indemnification condition to protect any community rights will elect coverage under the KPMG Health Plan. Other than that, it was affirmed, right?”

It appears the judge was reading from the portion of our opinion where we laid out David’s claims of error, which we then rejected before modifying the date of the status-only judgment and affirming. Margaret’s attorney attempted without success to correct the trial court. The court then ordered the parties to “comply with the three issues that the Sixth District found to be bifurcation -- to be untimely by Judge Towery, it’s on page 2 of the order^[[4]], and the first course being indemnification condition to the benefits of the KM -- KPMG retirement plans and then the QDRO for the ERISA-qualified plans, and then the indemnification for the medical health plan . . . .” The court set the case for a status conference on October 24, 2019.

On October 10, 2019, the case came for hearing on David’s set-aside motion. At that time, the trial court correctly characterized our opinion, noting that this court “affirmed the status-only judgment with the exception of the date of entry of judgment, which it found the Court erred by entering the judgment nunc pro tunc to December 31st, 2014.” The trial court nevertheless reiterated that QDROs be prepared and executed. The court denied David’s set-aside motion, reasoning that it was untimely and failed on the merits.

In advance of the October 24, 2019 status hearing, Margaret filed a status conference questionnaire. In it, she represented that the parties’ neutral expert, Elizabeth Strasen, had prepared QDROs for the five ERISA-qualified KPMG plans, obtained approval of the QDROs from KPMG, and provided the QDROs to the parties for their review and approval. Those QDROs were attached to Margaret’s status conference questionnaire, as was a QDRO for the Critzer Insurance Services Fidelity Self-Employed 401(k) Plan, also drafted by Strasen. Margaret also submitted a proposed amended status-only judgment with her status conference questionnaire.

The October 24, 2019 status hearing was not transcribed. The minute order entered following the hearing indicates that the trial court found that David had “failed to comply with its order for him to execute the QDRO[s].” “The Court indicated that it would sign the QDRO’s. [David] made objections . . . and would not allow the Court to address him and . . . left the courtroom. The matter [was] passed.” When the matter was recalled, “[t]he Deputy called for [David] and there was not a reply. [Margaret’s attorney] state[d] that she was told that [David] left the building. [¶] The Court signed five QDRO’s for KPMG and one QDRO for Critzer Insurance Services 401(k) Plan. The Court signed the amended [status-only] judgment.”

The QDROs were filed on October 24, 2019. The amended status-only judgment was filed on October 25, 2019. Also on October 25, 2019, Margaret served David with a Notice of Entry of judgment and with filed-endorsed copies of the QDROs.

David filed a notice of appeal on December 24, 2019. In it, he indicated that he was appealing from “a judgment or order in this case, which was entered on . . . October 25, 2019.” He also checked boxes indicating he was appealing from a “[j]udgment after court trial” and “[a]n order or judgment under Code of Civil Procedure, § 904.1(a)(3)-(13).”

Shortly thereafter, this court issued its opinion in case No. H045527, David’s appeal from the judgment on reserved issues; we affirmed.

II. Discussion

David raises two challenges on appeal. First, he contends the amended status-only judgment erroneously omits the indemnification conditions the trial court ordered on September 19, 2019. Second, he contends that the QDROs are void because the preparation of identical QDROs was ordered in the judgment on reserved issues, which was pending appeal at the time the court signed the QDROs.

A. The Trial Court Lacked Jurisdiction to Amend the Status-Only Judgment to Include Indemnification Conditions and David was not Prejudiced by its Failure to Issue a Void Judgment

As discussed above, at a September 19, 2019 hearing, the trial judge ordered the parties to comply with this court’s disposition in case No. H042214. In doing so, the court below incorrectly summarized the disposition as requiring the addition of two indemnification conditions to the status-only judgment. In fact, this court had rejected David’s argument that the trial court had erred in failing to include such indemnification conditions in the original status-only judgment. Consistent with this court’s opinion in case No. H042214 but inconsistent with the trial court’s comments of September 19, no indemnification conditions were added to the amended status-only judgment from which David now appeals. David maintains that the trial court erred by omitting the indemnification conditions from the amended status-only judgment. He contends that if the court determined that its September 19, 2019 order was incorrect, it was not free to simply omit the indemnification conditions from the judgment; rather, it was required to vacate that order after providing notice to the parties. For the reasons discussed below, we find no prejudicial error.

“The appellate court clerk’s issuance of the remittitur effects the transfer of jurisdiction to the lower court. [Citation.] . . . [T]he terms of the remittitur define the trial court’s jurisdiction to act. ‘The order of the appellate court as stated in the remittitur, “is decisive of the character of the judgment to which the appellant is entitled.” ’ [Citations.]” (Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 774, fn. 5.) Put differently, “[w]hen there has been a decision on appeal, the trial court is reinvested with jurisdiction of the cause, but only such jurisdiction as is defined by the terms of the remittitur. The trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void. The judgment directed by the reviewing court is the law of the case and is controlling on the jurisdiction of the trial court. [Citation.]” (Stafford v. Municipal Court, Los Angeles Judicial Dist. (1960) 180 Cal.App.2d 368, 371.) “Whether the trial court correctly interpreted our opinion is an issue of law subject to de novo review.” (Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859 (Ayyad).)

In case No. H042214, this court modified the status-only judgment of dissolution to reflect entry of the judgment on February 3, 2015, and affirmed the judgment as modified. We also explicitly rejected David’s contention that the trial court had erred by failing to include in the status-only judgment indemnification conditions as to the benefits under Margaret’s KPMG retirement plans and as to the right to elect coverage under Margaret’s KPMG health plan. Therefore, following the issuance of the remittitur, the trial court lacked jurisdiction to amend the status-only judgment to add indemnification conditions because such an addition was not in accordance with our opinion. To the extent the court ordered such an amendment to the status-only judgment at the September 19 hearing, that order is void. (Ayyad, supra, 210 Cal.App.4th at p. 859 [trial court actions that do not conform with the direction of the reviewing court are void].) Had the trial court entered an amended status-only judgment that included indemnification conditions, that judgment would have been void. David was not prejudiced by the trial court’s failure to enter a void judgment.

B. We Lack Jurisdiction to Consider David’s Challenges to the QDROs

David maintains that the QDROs are void. He takes the position that the trial court lacked fundamental jurisdiction to enter the QRDOs in October 2019 because, at that time, his appeal of the judgment on reserved issues—which ordered preparation of identical QDROs—was pending. Margaret responds that David did not appeal the QDROs, such that we lack jurisdiction to review those orders. In reply, David argues that the QDROs were intended to amend the status-only judgment, such that he may challenge the QDROs in his appeal from the judgment. Alternatively, he contends that the QDROs—being void—are subject to collateral attack at any time, including in this appeal regardless of whether he properly appealed them.

1. David Failed to Appeal the QDROs

a. Legal Principles—Notices of Appeal and Appellate Jurisdiction

“ ‘Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from.’ ” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 170.) “ ‘t is, and has been, the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.’ ([i]Luz v. Lopes (1960) 55 Cal.2d 54, 59; see also rule 8.100(a)(2) [‘notice of appeal must be liberally construed’].) A notice of appeal ‘is sufficient if it identifies the particular judgment or order being appealed.’ (Rule 8.100(a)(2).)” (In re Joshua S. (2007) 41 Cal.4th 261, 272.)

“If an order is appealable, an aggrieved party must file a timely notice of appeal from the order to obtain appellate review. [Citation.] A notice of appeal from a judgment alone does not encompass other judgments and separately appealable orders . . . .” (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239 [concluding that notice of appeal mentioning only the underlying judgment did not make it reasonably clear that the appellant also intended to appeal from a separate and directly appealable order granting a new trial].) “ ‘ “[W]here several judgments and/or orders occurring close in time are separately appealable . . . each appealable judgment and order must be expressly specified—in either a single notice of appeal or multiple notices of appeal—in order to be reviewable on appeal.” ’ [Citations.] The policy of liberally construing a notice of appeal in favor of its sufficiency (Cal. Rules of Court, rule 8.100(a)(2)) does not apply if the notice is so specific it cannot be read as reaching a judgment or order not mentioned at all. [Citations.]” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173.) Similarly, “[t]he rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders.” (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47.)

b. The Notice of Appeal Cannot be Construed to Encompass the QDROs

Here, the notice of appeal indicated that the appeal was from a judgment or order entered on October 25, 2019. The amended status-only judgment was entered on that date; the QDROs were entered on October 24, 2019. The notice of appeal further indicated that the appeal was from a “[j]udgment after court trial” and “[a]n order or judgment under Code of Civil Procedure, § 904.1(a)(3)-(13).” The box next to “An order after judgment under Code of Civil Procedure, § 904.1(a)(2)” was left unchecked. A domestic relations order generally is appealable as a postjudgment order under Code of Civil Procedure section 904.1, subdivision (a)(2). (In re Marriage of Cooper (2008) 160 Cal.App.4th 574, 576, fn. 2.) David attached only a copy of the amended status-only judgment to his civil case information statement; he did not attach copies of the QDROs. In light of the foregoing, we cannot construe the notice of appeal as applying to the QDROs.

c. The Appeal of the Judgment Does Not Encompass the QDROs

David contends the appeal from the status-only judgment encompasses the QDROs because the QDROs amend the status-only judgment, replacing “the FL-348 orders in the original status-only judgment . . . .” In fact, the amended status-only judgment includes a form FL-348 provisional order on pension benefits “provisionally award[ing] to each party a one-half interest in all retirement benefits attributable to employment during the marriage or domestic partnership.” Plainly then, in amending the status-only judgment, the court retained the FL-348 orders, rather than replacing them with the QRDOs as David asserts.

2. Characterizing the Challenge to the QDROs as a Collateral Attack Does Not Expand our Appellate Jurisdiction

David argues that even if he failed to properly appeal the QDROs, we nevertheless may reach his challenge to them because they are void and, thus, susceptible to collateral attack at any time.

a. Legal Principles

i. Stays Pending Appeal and Trial Court Jurisdiction

Under the automatic stay provision of Code of Civil Procedure section 916, subdivision (a), “ ‘the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.’ (§ 916, subd. (a).)” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189, fn. omitted, italics added (Varian); (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629 [“[t]he trial court’s power to enforce, vacate or modify an appealed judgment or order is suspended while the appeal is pending.”)

“[S]ection 916, as a matter of logic and policy, divests the trial court of jurisdiction over the subject matter on appeal—i.e., jurisdiction in its fundamental sense.” (Varian, supra, 35 Cal.4th at p. 198.) Accordingly, “any subsequent trial court proceedings on matters ‘embraced’ in or ‘affected’ by the appeal [are] void—and not merely voidable.” (Id. at p. 198; id. at p. 196 [“any judgment or order rendered by a court lacking subject matter jurisdiction is ‘void on its face . . . .’ ”].)

ii. Collateral Attacks on Void Judgments

A void order or judgment is subject to collateral attack at any time. (Schrage v. Schrage (2021) 69 Cal.App.5th 126, 137-138.) Such a collateral attack can take many forms, such as a motion to set aside under Code of Civil Procedure section 473, subdivision (d); a subsequent action to prevent enforcement; or a defense to a subsequent action. (Subsequent Action, 8 Witkin, Cal. Proc. 6th Attack § 7 (2021).)

b. Analysis

David argues that the appeal of the judgment on reserved issues (case No. H045527) stayed trial court proceedings regarding the division of the parties’ retirement accounts, such that the trial court lacked fundamental jurisdiction to enter the QDROs at issue. The judgment on reserved issues ordered the preparation of QDROs identical to those ordered and entered below while that judgment was on appeal. Even assuming that the QDROs at issue are void, David cannot collaterally challenge them in this appeal.

As discussed above, our jurisdiction on appeal is limited to the notice of appeal and the judgment appealed from. (Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 1073.) Accordingly, we lack jurisdiction to consider matters that fall outside the scope of the appeal. The validity of the QDROs has no impact on the matter properly before us—that is, whether the trial court erred in entering the amended status-only judgment. It follows that David’s challenge to the QDROs is outside the scope of the appeal, such that we lack jurisdiction to consider it.

The assertion that the QDROs are void does not somehow bestow jurisdiction upon us. Just as the claimed voidness of a judgment does not excuse an untimely notice of appeal (Conservatorship of Romo (1987) 190 Cal.App.3d 279, 283), the claimed voidness of the QDROs does not excuse David’s failure to appeal.

David is not without recourse. He can file a motion in the trial court to set aside the QDROs as void under Code of Civil Procedure section 473, subdivision (d).

III. Disposition

The amended status-only judgment is affirmed. Margaret shall recover her costs on appeal.

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ELIA, ACTING P.J.

WE CONCUR:

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BAMATTRE-MANOUKIAN, J.

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DANNER, J.

Critzer v. Critzer

H047809

[1] We take the portions of the facts and procedural history from our opinions in David’s prior appeals, Critzer v. Critzer (Dec. 21, 2018, H042214) [nonpub. opn.] (case No. H042214) and Critzer v. Critzer (Dec. 26, 2019, H045527) [nonpub. opn.] (case No. H045527), where they are set forth more fully. On our own motion, we take judicial notice of our prior opinions. (Evid. Code, §§ 452, subd. (d), 459.)

[2] ERISA refers to the federal Employee Retirement Income Security Act of 1974, 29 United States Code section 1001 et seq.

[3] The provisional award (form FL-348) was made “without prejudice, and subject to adjustment by a later domestic relations order,” and it granted “a separate interest equal to one-half of all benefits accrued or to be accrued under any retirement plan in which one party has accrued a benefit, including but not limited to the plans listed below, as a result of employment of the other party during marriage . . . and before the date of separation. In addition, pending further notice, the plan must, as allowed by law, or as allowed by the terms of the plan in the case of a governmental plan, continue to treat the parties as married persons . . . for purposes of any survivor rights and benefits available under the plan to the extent necessary to provide for payment to the surviving spouse . . . of an amount equal to that separate interest or of all survivor benefits if at the time of death of the participant there is no other eligible recipient of the survivor benefit.”

[4] At page two of our opinion in case No. H042214 we laid out certain of David’s appellate claims as follows: “David further maintains that the trial court erred in granting bifurcation by failing to (1) impose an indemnification condition as to the benefits under all of Margaret’s KPMG retirement plans, (2) ensure that its provisional award of a separate one-half interest in Margaret’s five ERISA-qualified plans constituted a qualified domestic relations order (QDRO), and (3) impose an indemnification condition that protected the community right to elect coverage under Margaret’s KPMG health plan.” We then concluded that those claims of error lacked merit.