Marriage of Norton
Filed 2/1/06 Marriage of Norton CA2/1





NOT TO BE PUBLISHED


California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA





SECOND APPELLATE DISTRICT





DIVISION ONE







In re the Marriage of

SUSAN J. and PHILIP L. NORTON.

____________________________________

PHILIP L. NORTON,

Appellant,

v.

SUSAN J. NORTON,

Respondent.
B178635

(Super. Ct. No. EAD 58798)


APPEAL from an order of the Superior Court of Los Angeles County. Richard D. Hughes, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

________

Philip L. Norton, in pro. per., for Appellant.

Law Offices of Thomas E. Kendall and Thomas E. Kendall for Respondent.

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In a postjudgment order to show cause proceeding, respondent Susan Norton requested an equal division under Family Code section 2556[1] of a community property asset, her former husband Philip Norton's pension,[2] that was omitted from their 1980 stipulated judgment of dissolution. Philip[3] appeals from the order requiring an equal division of the community's interest in the pension under the Brown time rule. (In re Marriage of Brown (1976) 15 Cal.3d 838, 848 (Brown).) We affirm.

BACKGROUND

Under California law, pension benefits earned during marriage and before separation (here, between Dec. 18, 1965 and June 25, 1979) constitute community property and are usually divided equally upon divorce under the Brown time rule.[4] In this case, although each party knew about the pension, neither party listed it during the divorce proceedings in his or her income and expense declaration or requested its division in the 1980 stipulated judgment of dissolution. After Philip retired in June 2003 with 38 years of total service as a teacher and department chairman in the West Covina Unified School District, Susan initiated the present order to show cause proceeding under section 2556 to modify the judgment by equally dividing the community's interest in Philip's pension as an omitted asset under the Brown time rule.

Philip requested that the trial court exercise its equitable power to divide the community's interest in the pension unequally due to equitable factors including Susan's 24-year delay in pursuing an asset she allegedly had waived in 1980 in exchange for other assets.[5] Philip claimed that Susan's delay in requesting an apportionment of the pension was prejudicial because he had planned on receiving the entire pension benefits to support his present wife and their three minor children. He also pointed out that his reliance upon the pension was greater than Susan's, who had not planned on receiving any set amount from his pension. Philip stated that applying the Brown rule to divide equally the community's interest in the pension would force him or his present wife, who home schools their children, to return to work. Philip testified that he cannot return to his former position, which has been filled, and that the other available teaching positions pay much less. Philip also stated that he had relied upon his attorney's assurance that his â€